UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STANLEY LUCKETT,

Plaintiff,

Case No. 08-CV-13775 

vs. HON. GEORGE CARAM STEEH

UNITED STATES OF AMERICA,

Defendants.

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ORDER ACCEPTING MAY 20, 2009 REPORT AND RECOMMENDATION

AND GRANTING DEFENDANT'S MOTION TO DISMISS AND

FOR SUMMARY JUDGMENT (# 7)

Plaintiff Stanley Luckett, a federal prisoner appearing pro se, filed a complaint on

September 3, 2008 alleging his ear was bitten off by another federal inmate during a March

13, 2008 assault. Luckett alleges the Federal Bureau of Prisons ("FBP") is liable for failing

to meet its duties under 18 U.S.C. § 4042(a) of safekeeping, care, and protection for all

federal inmates, and that defendant United States of America is subject to liability under

the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). All pretrial matters were

referred to Magistrate Judge Charles Binder on November 11, 2008. Defendant United

States filed a combined motion to dismiss and for summary judgment on January 20, 2009.

On May 20, 2009, Magistrate Judge Binder issued a Report and Recommendation

recommending that the defendant's motion be granted on two grounds: (1) lack of subject

matter jurisdiction pursuant to the discretionary function exception to the waiver of

sovereign immunity under the FTCA; and (2) failure to file an affidavit of merit under

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 Lockett's April 20, 2009 response was titled "Plaintiff's Objections To Defendant's

Motion to Dismiss or for Summary Judgment," as is the document refiled by Lockett on

June 1, 2009. The documents are identical. 

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Michigan law with respect to Luckett's claims to the extent they allege medical malpractice

against FBP employees who treated Luckett's ear. Magistrate Binder recommends that the

defendant's motion be denied as to Luckett's failure to exhaust administrative remedies.

Pursuant to the first two recommendations, Magistrate Judge Binder recommends that

Luckett's claims be dismissed in their entirety. 

"A judge of the court shall make a de novo determination of those portions of [a]

report or specified proposed findings or recommendations to which objection is made." 28

U.S.C. § 636 (b)(1). Objections must be filed within 10 days after service of a Report and

Recommendation. 28 U.S.C. § 636 (b)(1)(C). "A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate

judge." Id. A party's failure to object waives further judicial review. Thomas v. Arn, 474

U.S. 140, 149-155 (1985); Thomas v. Halter, 131 F.Supp.2d 942, 944 (E.D. Mich. 2001);

28 U.S.C. § 636(b)(1). Issues raised on objection in a perfunctory manner are deemed

waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).

Instead of filing specific objections to Judge Binder's Report and Recommendation,

Luckett simply refiled his April 20, 2009 response to the motion to dismiss on June 1, 2009.

Compare Docket No. 12 with Docket No. 141

. Luckett has thus waived further judicial

review by the perfunctory refiling of his response, and failing to file timely objections to the

Report and Recommendation. Arn, 474 U.S. at 149-155; Halter, 131 F.Supp.2d at 944;

McPherson, 125 F.3d at 995-96.

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In the absence of timely objections, and upon review of the May 20, 2009 Report

and Recommendation, the court hereby ACCEPTS the Report and Recommendation as

its own. Accordingly,

Defendant's motion to dismiss and for summary judgment is hereby GRANTED.

Plaintiff Luckett's claims are hereby DISMISSED with prejudice. 

SO ORDERED.

Dated: June 29, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

June 29, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

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