The opinion of the court was delivered by: Judge John D. Holschuh
Magistrate Judge Norah McCann King
This is an action under 42 U.S.C. § 1983 by Anthony Harper ("plaintiff"), an inmate at the Ross Correctional Institution ("RCI") in Chillicothe, Ohio. This matter is currently before the Court on Plaintiff's Objection to the Report and Recommendation Filed on July 7, 2006 ("Plaintiff's Objection"), Doc. No. 40. For the reasons that follow, Plaintiff's Objection is DENIED and the Opinion and Order and Report and Recommendation issued on July 7, 2006, Doc. No. 28, is hereby ADOPTED AND AFFIRMED.
On July 7, 2006, United States Magistrate Judge King issued an Opinion and Order and Report and Recommendation, Doc. No. 28, denying Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss, Doc. No. 16, and Plaintiff's Motion to Strike Defendant Steckman's Answer, Doc. No. 23, and recommending that Plaintiff's Motion for Default Against Defendant Steckman, Doc. No. 15,and Plaintiff's Motion for Summary Judgment Against Defendant Steckman, Doc. No. 25, be denied.
On August 14, 2006, that Report and Recommendation was adopted and affirmed on the basis that no objection had been filed. Doc. No. 31. Plaintiff moved for reconsideration of that order, Doc. No. 33, asserting that he had not received a copy of the original Report and Recommendation. Thereafter, the Clerk was expressly directed to mail a copy of that Report and Recommendation to plaintiff, and plaintiff was granted an additional period of time in which to file objections to that Report and Recommendation. Doc. No. 34. This matter is now before the Court on plaintiff's September 22, 2006, objections to that Opinion and Order and Report and Recommendation. Doc. No. 40 ( "Plaintiff's Objections").
Plaintiff objects to the Opinion and Order and Report and Recommendation as it relates to two nondispositive motions and two dispositive motions. Consequently, this Court must enlist two different standards of review.
Thus, [28 U.S.C.] § 636(b) creates two different standards of review for district courts when a magistrate judge's finding is challenged in district court. A district court shall apply a "clearly erroneous or contrary to law" standard of review for the "nondispositive" preliminary measures of § 636(b)(1)(A). United States v. Raddatz, 447 U.S. 667, 673 (1980). Conversely, "dispositive motions" excepted from § 636(b)(1)(A), such as motions for summary judgment or for the suppression of evidence, are governed by the de novo standard. See id. at 674. United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001).
A. Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss
In Plaintiff's Motion to Strike ODRC Defendants' Motion to Dismiss, plaintiff moved under Fed. R. Civ. P. 12(f), requesting that the motion to dismiss filed on behalf of the ODRC defendants be stricken as untimely. Magistrate Judge King denied plaintiff's motion, reasoning that the drastic remedy of striking the motion to dismiss was unwarranted and that defendants' request for an extension of time in which to respond to the complaint was meritorious. See Opinion and Order and Report and Recommendation at 5-6 ("Federal Rule of Civil Procedure 6(b)(2) confers on this Court discretion to grant a motion for an enlargement of time 'where the failure to act was the result of excusable neglect.'"). Further, the magistrate judge stated:
Moreover, plaintiff points to no evidence that the ODRC defendants acted in bad faith nor does he articulate any prejudice suffered by him as a consequence of the timing of the filing -- which under even plaintiff's calculations was a mere one week late. See Alternative Travel, Inc. [v. Worldspan L.P., 52 Fed. Appx. 693, 698-99 (6th Cir. 2002) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 395 (1993))]. Under these circumstances, any ...