United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
RECOMMENDATION AS CLARIFIED AND AFFIRMING MAGISTRATE
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Report and Recommendation
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 77), Defendant
Johnson's Objections (ECF No. 82), and Plaintiff's
Objections (ECF No. 87). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions
of a Report and Recommendation, “[t]he district judge .
. . has a duty to reject the magistrate judge's
recommendation unless, on de novo reconsideration, he or she
finds it justified.” 12 Wright, Miller, & Marcus,
Federal Practice and Procedure, § 3070.2, at 451 (3d ed.
2014). Specifically, the Rules provide that:
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; Defendant's
Objections; and Plaintiff's Objections. The Court finds
the Magistrate Judge's Report and Recommendation, which
recommends denying Plaintiff's motions for a temporary
restraining order or preliminary injunction and for summary
judgment (ECF Nos. 67, 69), and denying Defendant
Johnson's motion for summary judgment (ECF No. 49),
factually sound and legally correct.
Magistrate Judge carefully and thoroughly considered the
evidentiary record, the parties' arguments, and the
governing law. Neither Plaintiff's nor Defendant
Johnson's objections have merit. Neither parties'
objections address the Report and Recommendation in a
persuasive way. Nothing in the objections changes the
fundamental analysis. The Magistrate Judge properly concluded
that the injunctive relief Plaintiff seeks directing a change
in his maximum discharge date cannot be part of a § 1983
case at all. Moreover, the Magistrate Judge properly
concluded that neither party is entitled to summary judgment.
Plaintiff completely failed to support his request, and fact
issues remain on Defendant's exhaustion defense.
receiving the Report and Recommendation, Defendant Johnson
attempted to support his position by filing an affidavit. The
Court has discretion whether to consider the belatedly
submitted information. 28 U.S.C. § 636(b)(1)(C) (the
District Judge “may . . . receive further
evidence.”). This discretion prevents sandbagging of
the Magistrate Judge, while at the same time leaving the door
open to plenary consideration of new information in
appropriate cases. Here, the information Defendant Johnson
provides in his belated affidavit has been available to him
all along, and the record discloses no good reason for the
belated submission. Under these circumstances, the Court in
its discretion declines to consider the affidavit. Moreover,
even if the Court were to consider the belated submission, it
would not change the outcome. At most there is a factual
issue regarding the meaning of “reviewed and
considered, ” as against the coding change. Plaintiff
should have the opportunity to explore this in
Appeal of Magistrate Judge's Decision
appeals the Magistrate Judge's Order denying
Plaintiff's motions for settlement. (ECF Nos. 77, 78.) In
considering an appeal of a magistrate judge's ruling on a
non-dispositive pre-trial motion, the Court applies a
“clearly erroneous or contrary to law” standard
of review. United States v. Curtis, 237 F.3d 598,
503 (6th Cir. 2001) (citing United States v.
Raddatz, 447 U.S. 667, 674 (1980)); accord Brown v.
Wesley's Quaker Maid, Inc., 771 F.2d 952, 954 (6th
Cir. 1985) (citing 28 U.S.C. § 636(b)(1)(a); see
also Fed. R. Civ. P. 72(a) (providing that district
judge must consider timely objections to non-dispositive
pretrial orders of magistrate judge and modify or set aside
any part of order that is clearly erroneous or is contrary to
law). A finding is “clearly erroneous” when the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City,
North Carolina, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).
Court finds no error in the Magistrate Judge's decision
denying Plaintiff's Motions for Settlement. To the
contrary, the Magistrate Judge correctly points out that the
Court “cannot order that plaintiff be awarded damages
against defendant or receive ‘good time credits'
towards his prison sentence under the guise of a
‘settlement.'” (ECF No. 76, PageID.932). The
Order is entirely proper.
IT IS ORDERED:
Report and Recommendation of the Magistrate Judge as
Clarified (ECF No. 77) is APPROVED AND
Plaintiff's Motions for Temporary Restraining Order or
Preliminary Injunction (ECF No. 67) and for ...