United States District Court, E.D. Michigan, Southern Division
K. Majzoub, Mag. Judge.
ORDER ADOPTING REPORT AND RECOMMENDATION
E. Levy, United States District Judge.
the Court is Magistrate Judge Mona K. Majzoub's Report
and Recommendation (“R&R”) recommending that
the Court grant defendants William Moritz, Wade Hamilton,
Steve Milford, Scott Whitcomb, Rick McDonald, Greg Drogowski,
Eric Botorff, Lori Burford, and Dennis Knapp's motion to
dismiss (ECF No. 19) and deny plaintiff Dustin MacLeod's
motion for summary judgment (ECF No. 26). The R&R
recommends granting defendants' motion to dismiss because
the complaint does not state a claim for which relief can be
granted. Plaintiff submitted eight objections to the R&R,
one of which has two sub-parts (ECF No. 46, 49), and
defendants responded. (ECF No. 48.) For the reasons set forth
below, plaintiff's objections are overruled, and the
R&R is adopted in full.
Court has carefully reviewed the R&R and is satisfied
that it is a thorough account of the relevant portions of the
record. The Court incorporates the factual background from
the R&R as if set forth herein.
may object to a magistrate judge's report and
recommendation on dispositive motions, and a district judge
must resolve proper objections under a de novo standard of
review. 28 U.S.C. § 636(b)(1)(B)-(C); Fed.R.Civ.P.
72(b)(1)-(3). “For an objection to be proper, Eastern
District of Michigan Local Rule 72.1(d)(1) requires parties
to ‘specify the part of the order, proposed findings,
recommendations, or report to which [the party] objects'
and to ‘state the basis for the objection.'”
Pearce v. Chrysler Group LLC Pension Plan, 893 F.3d
339, 346 (6th Cir. 2018). Objections that restate arguments
already presented to the magistrate judge are improper,
Coleman-Bey v. Bouchard, 287 Fed.Appx. 420, 422 (6th
Cir. 2008) (citing Brumley v. Wingard, 269 F.3d 629,
647 (6th Cir. 2001)), as are those that dispute the general
correctness of the report and recommendation. Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
objections must be clear so that the district court can
“discern those issues that are dispositive and
contentious.” Id. (citing Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 509
(6th Cir. 1991)); see also Thomas v. Arn, 474 U.S.
140, 147 (1985) (explaining that objections must go to
“factual and legal” issues “at the heart of
the parties' dispute”). In sum, plaintiff's
objections must be clear and specific enough that the Court
can squarely address them on the merits. See Pearce,
893 F.3d at 346.
most of plaintiff's objections are difficult to
comprehend, the Court will construe them liberally and in
favor of the self-represented plaintiff.
first objection, plaintiff disputes the R&R's finding
that he has not stated a claim under 42 U.S.C. § 1983.
(ECF No. 49 PageID.760- 61.) Plaintiff argues that an 1836
Treaty confers a right to bring an individual case of this
nature under § 1983.
treaty to create an individual right that is enforceable by a
private litigant under § 1983, it must
“unambiguously confer” the right to do so with
“unmistakable” language. See Gonzaga Univ. v.
Doe, 536 U.S. 273, 283-84 (2002). The private rights of
action created by a treaty cannot be “broad” or
“nonspecific.” Westside Mothers v.
Olszewski, 454 F.3d 456, 461 (6th Cir. 2006). Here,
there is no specific language in the Treaty conferring the
right for an individual to bring an action to enforce its
terms. In United States v. Michigan, 471 F.Supp.
192, 271-72 (W.D. Mich. 1979), which analyzed the same 1836
Treaty, the court also held that the Treaty did not confer
individually enforceable rights on the members of the tribe:
“[t]he fishing right reserved by the Indians in 1836
and at issue in this case is the communal property of the
tribes which signed the treaty and their modern political
successors; it does not belong to the individual tribal
members.” Id. (emphasis added); see
also Bellfy v. Creagh, No. 15-282, 2015 U.S. Dist. LEXIS
114342, at *3 (W.D. Mich. Aug. 28, 2015) (“[W]hile it
is true that individual members of the tribes that are
parties to the Consent Decree enjoy usufructuary rights-
those rights are ‘communal property of the tribes which
signed the treaty and their modern political successors,'
and do ‘not belong to individual tribal
members.'”) (quoting Michigan, 471 F.Supp.
at 261). The Treaty does not confer a private right of
disagrees with the law. In support, he cites to the 1905
case, United States v. Winans, 198 U.S. 371, 381
(1905), which states: “Reservations were not of
particular parcels of land, and could not be expressed in
deeds, as dealings between private individuals. The
reservations were in large areas of territory, and the
negotiations were with the tribe. They reserved rights,
however, to every individual Indian, as though named
therein.” (ECF No. 49, PageID.761.) Winans
analyzes an 1859 fishing treaty between the Yakima Nation of
Indians in the state of Washington, which is not the same
treaty at issue in this case. Plaintiff's argument that
Winans confers a private right of action in this
case is incorrect. Plaintiff's first objection is
second objection relates to his allegation that he has
“standing as a right of user [sic] in tribal property
derived from the legal or equitable property right of the
Tribe of which he is a member.” (ECF No. 49,
PageID.761.) Specifically, it appears plaintiff alleges that
he has standing to enforce the terms of a 2007 judicial
consent decree between, among others, the United States, the
Sault Ste. Marie Tribe of Chippewa Indians, ...