United States District Court, W.D. Michigan, Southern Division
ORDER AFFIRMING MAGISTRATE JUDGE'S DECISION AND
APPROVING AND ADOPTING REPORT AND RECOMMENDATION
J. JONKER, JUDGE
Appeal of Magistrate Judge's Decision
appeals Magistrate Judge Carmody's Order denying
Plaintiff's Motion for Recusal (ECF No. 52). 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)).
Magistrate Judge's denial of the motion to recuse is not
clearly erroneous. To the contrary, it is entirely proper.
Plaintiff identifies nothing in the record or any legal
authority that would support recusal. The Magistrate Judge's
Order (ECF No. 52) is AFFIRMED.
Report and Recommendation
Court has reviewed Magistrate Judge Carmody's Report and
Recommendation in this matter (ECF No. 53) and
Plaintiff's Objection to the Report and Recommendation
(ECF No. 57). 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.
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; and Plaintiff's
Objections. The Court finds the Magistrate Judge's Report
and Recommendation, which recommends granting Defendant's
motion to dismiss and denying Plaintiff's motion for
summary judgment factually sound and legally correct.
Magistrate Judge carefully and thoroughly considered the
record, the parties' arguments, and the governing law.
Plaintiff's objections do not address the Report and
Recommendation in any persuasive way. To the extent Plaintiff
objects that dismissal of the case will set a precedent
“that federal probation officers, while acting under
the color of federal and state law, can break federal and
state law[, ]” Plaintiff is simply mistaken. Nothing in
Plaintiff's objections changes the fundamental analysis
in the case. Plaintiff is not entitled to summary judgment in
his favor, and res judicata bars Plaintiff's claims, for
precisely the reasons the Report and Recommendation details.
IT IS ORDERED:
Magistrate's Judge's Order denying motion for recusal
(ECF No. 52) is AFFIRMED.
Report and Recommendation of the Magistrate Judge (ECF No.
53) is APPROVED AND ADOPTED as the opinion
of the Court.
Plaintiff's Motion for Summary Judgment (ECF ...