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Anderson v. Furst

United States District Court, E.D. Michigan, Southern Division

April 20, 2018

JERRY ANDERSON, Plaintiff,
v.
COLTER FURST, et al., Defendants.

          ORDER DISMISSING PLAINTIFF'S OBJECTION TO MAGISTRATE'S ORDERS, [Doc. # 26]

          Victoria A. Roberts United States District Judge.

         Jerry 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.

         Anderson 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.

         For the reasons that follow, Anderson's objections are DISMISSED.

         I. Background

         In his 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.

         Before 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].

         Anderson 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.

         Anderson 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.

         Magistrate 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].

         Anderson 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 waivers.

         II. Legal Standard

         When 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 ...


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