White v. Michigan Department of Corrections ( 2023 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MARK WHITE, Plaintiff, Case No. 23-10592 v. HON. DENISE PAGE HOOD MICHIGAN DEPARTMENT OF CORRECTIONS, et al., Defendants. ___________________________________/ ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION (ECF NO. 24), MOOTING MOTIONS TO AMEND and TO TERMINATE COUNSEL, PROCEED PRO SE, AND VOLUNTARY DISMISSAL OF MOTIONS AND APPEALS (ECF Nos. 13, 25), DENYING MOTION FOR RELIEF FROM JUDGMENT (ECF No. 20) AND DISMISSING ACTION WITHOUT PREJUDICE This matter is before the Court on Magistrate Judge Elizabeth A. Stafford=s October 4, 2023 Report and Recommendation to Dismiss Defendants and to Deny Motions as Moot. (ECF No. 24) No timely Objections were filed to the Report and Recommendation. However, on November 3, 2023, Plaintiff filed a Motion to Terminate Counsel and Proceed Pro Se; and Plaintiff Voluntary Dismissal of all Motions and Appeals Pending on November 3, 2023. (ECF No. 25) The standard of review by the district court when examining a Report and Recommendation is set forth in 28 U.S.C.' 636. This Court Ashall make a de novo determination of those portions of the report or the specified proposed findings or recommendations to which an objection is made.@ 28 U.S.C. ' 636(B)(1)(c). The Court Amay accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate.@ Id. In order to preserve the right to appeal the Magistrate Judge=s recommendation, a party must file objections to the Report and Recommendation within fourteen (14) days of service of the Report and Recommendation. Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Servs., 932 F2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). After review of the October 4, 2023 Report and Recommendation, the Court finds that the Magistrate Judge=s conclusions are correct. The Court further finds that Plaintiff failed to serve any Defendant as required under Rule 4(m) of the Rules of Civil Procedure. The Magistrate Judge previously noted that Plaintiff failed to timely serve Defendants and ordered Plaintiff to show cause why the Defendants should not be dismissed 2 because they were not served as required by Rule 4(m). No response was filed to the Magistrate Judge=s show cause order, and the Magistrate Judge thereafter issued the October 4, 2023 Report and Recommendation noted above. Although the Motion for Relief from Judgment may be moot because of the dismissal of the action, the Court addresses the motion. Motions for reconsideration under E.D. Mich. LR 7.1(h) and Rule 60(b)(1) of the Rules of Civil Procedure state that such motions may be brought if the court made a mistake in an order. Plaintiff asserts that the Court made a mistake in dismissing the Michigan Department of Corrections because he was only seeking injunctive relief for ongoing violations. However, the Supreme Court has specified that the exception of Ex Parte Young, 209 US. 123 (1908) to Eleventh Amendment immunity does not apply to a state agency. Taylor v. University of Michigan, Case No. 17-11473, 2018 WL 1322395 at *4-*5 (E.D. Mich. Feb. 23, 2018). Because the MDOC is an instrumentality of the state, the MDOC is protected by the Eleventh Amendment from all claims, regardless of the nature of the relief sought. Id. The Court did not make a mistake in dismissing the MDOC from this action based on Eleventh Amendment immunity. 3 Plaintiff=s subsequent Motion to Terminate Counsel and Proceed Pro Se and for Voluntary Dismissal of all Motions and Appeals, filed after the Report and Recommendation was issued and beyond the time to timely file Objections to the Report and Recommendation, does preclude the Court from accepting the Magistrate Judge=s recommendation to dismiss Defendants. It still remains that Defendants were not timely served with the Complaint and Summons as required by Rule 4(m). In any event, the motion is moot in light of the Court=s acceptance of the Report and Recommendation. The Court accepts the Magistrate Judge=s findings that Defendants were not served with the Complaint and Summons as required by Rule 4(m). Accordingly, IT IS ORDERED that Magistrate Judge Elizabeth A. Stafford=s Report and Recommendation (ECF No. 24) is ACCEPTED AND ADOPTED as this Court=s findings of fact and conclusions of law. IT IS FURTHER ORDERED that Plaintiff=s Motion to Amend-Supplement the Complaint (ECF No. 13) and the Motion to Terminate Counsel and Proceed Pro Se, and Voluntary Dismissal of all Motions and Appeals Pending (ECF No. 25) are now rendered MOOT. 4 IT IS FURTHER ORDERED that the Motion for Relief from Judgment (ECF No. 20) is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice for failure to serve under Rule 4(m) of the Rules of Civil Procedure and designated as CLOSED on the Court=s docket. s/Denise Page Hood Denise Page Hood United States District Judge Dated: November 28, 2023 5