Report and Recommendation

Motion to Dismiss/Motion for Summary Judgment

1 Robinson v. Caruso; 08-14069

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HEATHER ROBINSON, Case No. 08-14069

Plaintiff, Lawrence P. Zatkoff

vs. United States District Judge

PATRICIA CARUSO, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

PLAINTIFF’S MOTION TO DISMISS (Dkt. 118) AND

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. 113)

Plaintiff, an inmate currently in the custody of the Michigan Department of

Corrections, brings this action under 42 U.S.C. § 1983, claiming a violation of his

rights under the United States Constitution. (Dkt. 1). District Judge Lawrence P.

Zatkoff referred this case to the undersigned for all pretrial purposes. (Dkt. 60).

Defendant Bonita Davis-Neigbors filed a motion for summary judgment on

April 30, 2010. (Dkt. 113). The Court issued a scheduling order requiring plaintiff

to respond by June 17, 2010. (Dkt. 114). The scheduling order specifically

provided that “[f]ailure to file a response may result in sanctions, including

granting all or part of the relief requested by the moving party.” (Dkt. 114)

(emphasis in original). Plaintiff failed to file a timely response to defendant’s

motion for summary judgment. The Court issued an order for plaintiff to show
Report and Recommendation

Motion to Dismiss/Motion for Summary Judgment

2 Robinson v. Caruso; 08-14069

cause, by July 20, 2010, why this matter should not be dismissed with prejudice

based on his failure to prosecute. (Dkt. 116). Plaintiff filed a response indicating

that “in order to simplify proceedings,” she has decided to move the Court to

“dismiss defendants not vital to her complaint.” (Dkt. 117). Plaintiff filed a

separate motion to voluntarily dismiss defendants St. Joseph Mercy Hospital,

Feison, Ethridge, Osbourne, Hutchinson, Bielak, “other unknown nurses,”

Kulkarni, and Neigbors. (Dkt. 118). 

Defendants Ethridge, Osbourne, St. Joseph Mercy Hospital, and Feison were

already dismissed from this matter by virtue of the Court’s March 29, 2010

memorandum opinion and order. (Dkt. 110). Thus, no further relief as to these

defendants is warranted by plaintiff’s motion to voluntarily dismiss them. Based

on plaintiff’s motion, the undersigned recommends that the Court grant her motion

to dismiss defendants Bielak, Kulkarni, Neigbors, and the “John Doe” defendant

nurses. Rule 41(a)(2) provides that a dismissal at plaintiff’s request will be

without prejudice, unless the order provides otherwise. In light of the terms of the

show cause (which warns of a dismissal with prejudice), and the fact that the

recommended dismissal follows a dispositive motion, the undersigned

recommends that the dismissal be with prejudice. Under the circumstances, the

undersigned recommends that defendant Neigbors’ motion for summary judgment

be denied as moot. 
Report and Recommendation

Motion to Dismiss/Motion for Summary Judgment

3 Robinson v. Caruso; 08-14069

Based on the foregoing, the undersigned RECOMMENDS that plaintiff’s

claims against defendants Bielak, Kulkarni, Neigbors, and the “John Doe”

defendant nurses be DISMISSED with prejudice and that defendant Neigbors’

motion for summary judgment be DENIED as moot.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

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

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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. Sec’y of Health

and Human Servs., 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 
Report and Recommendation

Motion to Dismiss/Motion for Summary Judgment

4 Robinson v. Caruso; 08-14069

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: August 2, 2010 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 2, 2010 I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Michael R. Dean, Brian J. Richtarcik, Randall A.

Juip, and Ronald E. Wagner, and I certify that I have mailed by United States

Postal Service the paper to the following non-ECF participant(s): Heather

Robinson, # 309247, HURON VALLEY COMPLEX - WOMEN’S, 3511 Bemis

Road, Ypsilanti, MI 48197.

s/Tammy Hallwood 

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov