United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING PLAINTIFF'S OBJECTION TO
MAGISTRATE'S ORDERS, [Doc. # 26]
Victoria A. Roberts United States District Judge.
Anderson (“Anderson”) is a state prisoner
proceeding in forma pauperis. He filed a civil
rights lawsuit against Colter Furst, Michael Thomas, and
Nathan Ellis (collectively, “Defendants”). The
Court referred all pretrial matters to Magistrate Judge
Anthony P. Patti.
objects to two non-dispositive orders from Magistrate Judge
Patti: 1) an order construing Anderson's affidavit as a
motion for reconsideration of the clerk's denial of his
request for entry of default, and denying the motion; and 2)
an order striking Anderson's response to Defendants'
answer to Anderson's complaint.
reasons that follow, Anderson's objections are DISMISSED.
complaint, Anderson alleges that Defendants, all Michigan
State Police Troopers, violated his Fourth Amendment rights
by using excessive force during his September 4, 2015 arrest.
The Court granted Anderson's application to proceed
in forma pauperis, and the Court ordered
the United States Marshal to serve the Defendants. The
Marshal sent each Defendant a notice of the lawsuit pending
against them, and a request to waive service. The notice
stated that if the Defendant returned the signed waiver form,
he would have 60 days from the date of notice to file an
answer to Anderson's complaint, pursuant to Fed.R.Civ.P.
4(d)(3). All Defendants returned executed waivers of service
on September 19, 2017 and timely filed an answer on October
20, 2017. Anderson filed a response to Defendants' answer
on November 7, 2017.
the Defendants filed their answer, Anderson filed a request
for default against them pursuant to Fed.R.Civ.P. 55(a). He
alleged that Defendants had failed to timely file an answer
to his complaint as required by Fed.R.Civ.P. 12(a)(1)(A)(i).
On October 12, 2017, the Court entered a notice denying
Anderson's request for a clerk's entry of default,
saying that the Defendants' answer was not due until
October 20, 2017. [Doc. # 13].
filed an affidavit, arguing that the Court erred in
concluding that Defendants' answer was due on October 20,
2017. He claims that there was not a request for a waiver of
service of summons. Magistrate Judge Patti filed an order
construing Anderson's affidavit as a motion for
reconsideration, and denied the motion. [Doc. # 18].
Anderson, Magistrate Judge Patti concluded, pointed to no
palpable defect since Defendants returned executed waivers of
services, and their answer was due on October 20, 2017
pursuant to those waivers.
filed a motion for reconsideration of Magistrate Judge
Patti's order construing his affidavit as a motion for
reconsideration and denying it. Because Anderson raised the
same arguments, Magistrate Judge Patti denied this motion.
Judge Patti also filed an order striking Anderson's
response to Defendants' answer, noting that the Court did
not order a reply, so it was not required and was otherwise
impermissible under Fed. R. Civ. Pro. 7(a)(7). [Doc. # 22].
filed timely objections to Magistrate Judge Patti's
orders construing his affidavit as a motion for
reconsideration and denying it, and striking his reply to
Defendants' answer. Anderson argues: 1) the Court had no
authority to construe his affidavit as a motion to dismiss;
and 2) the Court erred when it stated that Defendants
returned executed waivers of service since he did not request
reviewing a magistrate judge's order on a preliminary,
non-dispositive matter, a district court must modify or set
aside any part of the order that is “clearly erroneous
or contrary to law.” 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a); United States v. Curtis, 237
F.3d 598, 602-03 (6th Cir. 2001). “The ‘clearly
erroneous' standard applies only to the magistrate
judge's factual findings; his legal conclusions are
reviewed under the plenary ‘contrary to law'
standard.” Visteon Global Techs. v. Garmin
Int'l, Inc., 903 F.Supp.2d 521, 524-25 (E.D. Mich.
2012) (citations omitted). “A finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). If two or more permissible views of
the evidence exists, a magistrate judge's decision cannot
be “clearly erroneous.” Anderson v. City of
Bessemer City, N., 470 U.S. 564, 574 (1985). “A
legal conclusion is contrary to law when it fails to apply or
misapplies relevant ...