UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOEY OLIVER,

Plaintiff,

v. Case No. 08-13951

DOUG VASBINDER, J. BARRETT, HONORABLE AVERN COHN

L. FORD, G. SMOYER, S. WESTERN,

and HAYNES-LOVE,

Defendants.

___________________________________/

ORDER

ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE

AND

GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Dkt. #26, 30)

AND

DENYING PLAINTIFF’S MOTION FOR TRO AS MOOT(Dkt. # 32)

AND 

DISMISSING PLAINTIFF’S FEDERAL CLAIMS WITH PREJUDICE AND DISMISSING

PLAINTIFF’S STATE LAW CLAIMS WITHOUT PREJUDICE

AND

CLOSING CASE

I.

This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff generally claims

that defendants, the warden, deputy warden, and housing and resident unit managers,

harassed and retaliated against him in violation of his equal protection and due process

rights under the Fourteenth and Eighth Amendments. He also claims violations of the

Americans with Disabilities Act, the Rehabilitation Act, and the Rights of Institutionalized

Persons Act, and various state laws. The matter was referred to a magistrate judge for all

2:08-cv-13951-AC-MJH Doc # 44 Filed 12/02/09 Pg 1 of 5 Pg ID 423
1

Defendant Vasbinder, who was served after the other defendants, filed a separate

motion for summary judgment. 

2

pre-trial proceedings. Defendants1 filed motions for summary judgment, to which plaintiff

filed responses. Plaintiff also filed a motion for a temporary restraining order.

The magistrate judge issued a report and recommendation (MJRR), recommending

that defendants’ motions for summary judgment be granted (Dkt. # 39) and an MJRR

recommending that plaintiff’s motion for a TRO be denied as moot (Dkt. # 42).

For the reasons that follow, the MJRRs will be adopted, defendants’ motions for

summary judgment will be granted, plaintiff’s motion for a TRO will be denied as moot, and

plaintiff’s federal claims will be dismissed with prejudice and his state law claims dismissed

without prejudice.

II.

Neither party has objected to the MJRRs. As to the MJRR on defendants’ motions

for summary judgment, plaintiff requested and was given an extension of time in which to

file objections. Objections were due on or before November 23, 2009. Plaintiff did not file

objections.

The MJRR on plaintiff’s motion for a TRO was filed on November 17, 2009. The

time for filing objections has passed and plaintiff did not request an extension. 

On November 17, 2009, however, plaintiff filed a paper styled “Preliminary Matter,”

in which he says he has had problems with the legal writing program which have

prevented him from filing papers. He also outlines several actions which he alleges have

been taken against him since the filing of this case. In the end, plaintiff asks the Court to

dismiss his federal and state law claims without prejudice because he “no longer has the

assistance from the legal writers program. . . [and] there is no way possible that plaintiff

2:08-cv-13951-AC-MJH Doc # 44 Filed 12/02/09 Pg 2 of 5 Pg ID 424
3

can follow through filing this civil action.” The Court construes this filing as a request for

voluntary dismissal. 

Under Rule 41, “an action may be dismissed at the plaintiff's request only by court

order, on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Unless the

order states otherwise, a dismissal under Rule 41(a)(2) is without prejudice. Id. The

matter is well-defined by the Sixth Circuit:

Whether dismissal should be granted under the authority of Rule 41(a)(2) is within

the sound discretion of the district court. The primary purpose of the rule in

interposing the requirement of court approval is to protect the nonmovant from

unfair treatment. Generally, an abuse of discretion is found only where the

defendant would suffer “plain legal prejudice” as a result of a dismissal without

prejudice, as opposed to facing the mere prospect of a second lawsuit.

In determining whether a defendant will suffer plain legal prejudice, a court should

consider such factors as the defendant's effort and expense of preparation for trial,

excessive delay and lack of diligence on the part of the plaintiff in prosecuting the

action, insufficient explanation for the need to take a dismissal, and whether a

motion for summary judgment has been filed by the defendant.

Grover ex rel. Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994) (citations omitted). 

The Sixth Circuit considers Grover to be a guide to determining if unfairness exists, but the

list is “not an exclusive or mandatory list.” Rosenthal v. Bridgestone/Firestone, Inc., 217

Fed. Appx. 498, 502 (6th Cir. 2007).

Here, defendants moved for summary judgment on all of plaintiff’s claims. The

magistrate judge recommends that plaintiff’s federal claims be dismissed with prejudice

because they fail on the merits. The Court agrees with the magistrate judge’s analysis. 

Although plaintiff asks that all of his claims be dismissed without prejudice, defendants

would suffer “plain legal prejudice” after having defended the case since its filing in

September 2008 and prepared a summary judgment motion addressing the substance of

plaintiff’s federal claims. Moreover, plaintiff responded to the motion and is not an

2:08-cv-13951-AC-MJH Doc # 44 Filed 12/02/09 Pg 3 of 5 Pg ID 425
08-13951 Oliver v. Vasbinder, et al

Order Adopting R&R, etc.

2

As the magistrate judge noted, this is the third of three case plaintiff filed in this

district against various prison officials regarding the conditions of his confinement. Like

this case, the other two cases were referred to magistrate judges before whom defendants

filed motions for summary judgment. In the first case, 07-12672, a magistrate judge

issued an MJRR on October 29, 2009 recommending that defendants’ motion for

summary judgment be granted. In the second case, 08-11768, plaintiff has yet to file a

response to defendants’ summary judgment motion.

4

inexperienced litigator.2 Accordingly, plaintiff’s federal claims will be dismissed with

prejudice for the reasons stated in the MJRR.

As to plaintiff’s state law claims, because the magistrate judge recommends that

they be dismissed without prejudice and defendants have not objected, they will be

dismissed without prejudice.

Given these determinations, the Court agrees with the magistrate judge that

plaintiff’s motion for a TRO is moot.

III.

For the reasons stated above, the MJRRs are ADOPTED as the findings and

conclusions of the Court. Defendants’ motions for summary judgment are GRANTED. 

Plaintiff’s motion for a TRO is DENIED AS MOOT. Plaintiff’s federal claims are

DISMISSED WITH PREJUDICE. Plaintiff’s state law claims are DISMISSED WITHOUT

PREJUDICE. This case is CLOSED.

SO ORDERED.

Dated: December 2, 2009 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

2:08-cv-13951-AC-MJH Doc # 44 Filed 12/02/09 Pg 4 of 5 Pg ID 426
08-13951 Oliver v. Vasbinder, et al

Order Adopting R&R, etc.

5

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was mailed Joey Oliver, 

210352, G. Robert Cotton Correctional Facility, 3500 N. Elm Road, Jackson, MI 49201 

to the attorneys of record on this date, December 2, 2009, by electronic and/or ordinary

mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160

2:08-cv-13951-AC-MJH Doc # 44 Filed 12/02/09 Pg 5 of 5 Pg ID 427