UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JACK MANN,

Plaintiff, No. 14-13439

v. District Judge Arthur J. Tarnow

Magistrate Judge R. Steven Whalen

UNITED STATES OF AMERICA,

Defendant.

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REPORT AND RECOMMENDATION

Before the Court is Plaintiff Jack Mann’s motion for default judgment [Doc. #59].

Because this is a dispositive motion, I must proceed by Report and Recommendation

under 28 U.S.C. § 636(b)(1)(B). The Court has already ruled on this issue, adversely to

the Plaintiff, so I recommend that the motion be DENIED.

On September 4, 2014, Plaintiff, a prison inmate in the custody of the Federal

Bureau of Prisons (“BOP”), filed a pro se civil complaint, naming individual Defendants

employed by the BOP. On April 8, 2015, the United States of America was substituted for

the individual Defendants, under 28 U.S.C. § 2679(d)(1) [Doc. #30]. 

Plaintiff previously filed a motion for default judgment on February 23, 2015

[Doc. #22]. In my Report and Recommendation of May 21, 2015 [Doc. #50], I found as

follows:

“It appears that Plaintiff is asking for a default judgment. In any event, on

February 19, 2015, the Court entered a text-only order granting the

Defendants’ motion for extension. Plaintiff has cited no other basis for

entering judgment in his favor. In addition, on April 8, 2015, the Court

entered an order dismissing Defendants Straub, Hillary Calvird and Michael

Calvird with prejudice, and substituting the United States of America as the

sole Defendant [Doc. #30]. Thus, Plaintiff’s motion is moot.”

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On July 23, 2015, Judge Tarnow adopted my Report and Recommendation, and

dismissed Plaintiff’s motion for default judgment as moot [Doc. #60]. 

In his present motion, Plaintiff “opposes the view” that there should be no

individuals named in the lawsuit, and that the individual Defendants “should continue to

be the named Defendants for the remainder of this case.” Motion, ¶ 2. He also complains

that the individual Defendants have not responded to his requests to mediate or arbitrate

his claims.

First, Plaintiff is wrong if he thinks it was improper to substitute the United States

for the individual Defendants. 28 U.S.C. § 2679(d)(1) provides:

“(d)(1) Upon certification by the Attorney General that the defendant

employee was acting within the scope of his office or employment at the

time of the incident out of which the claim arose, any civil action or

proceeding commenced upon such claim in a United States district court

shall be deemed an action against the United States under the provisions of

this title and all references thereto, and the United States shall be

substituted as the party defendant.” (Emphasis added).

Assistant United States Attorney Elizabeth J. Larin, Chief of the Civil Division,

made the required certification. See Doc. #27, Exhibit 1.

Secondly, defendants (or in this case, non-defendants) have no obligation to

respond or accede to a plaintiff’s request to mediate a case, and a defendant’s (or nondefendant’s) refusal to do so is certainly not a basis for a default judgment.

Plaintiff has not cited any other basis for a default judgment. Defendant United

States requested and received an extension of time to file a response to Plaintiff’s

complaint, and filed a timely motion to dismiss on April 7, 2015 [Doc. #28]. The present

motion should be denied.

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CONCLUSION

I recommend that Plaintiff’s motion for default judgment [Doc. #59] be DENIED

AS MOOT.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985);

Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise

others with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained within

the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: January 28, 2016

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

January 28, 2016, electronically and/or by U.S. mail.

s/C. Ciesla 

Case Manager 

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