Harvey v. Minnesota Department of Correction

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Nigeria Lee Harvey, Case No. 21-cv-0346 (WMW/JFD)

Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION

Minnesota Department of Corrections et al.,

Defendants.

Before the Court is the July 15, 2021 Report and Recommendation (R&R) of United States Magistrate Judge David T. Schultz. (Dkt. 48.) The R&R recommends denying Plaintiff Nigeria Lee Harvey’s motion for summary judgment as premature. A district court reviews de novo those portions of an R&R to which timely objections are filed. 28 U.S.C § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); LR 72.2(b)(3). The district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). An objection to a R&R must specify the nature of the objection and the grounds for doing so. Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012, 1017 (D. Minn. 2015). Any objection that merely repeats arguments that were presented to and considered by a magistrate judge is not reviewed de novo; rather, such an objection is reviewed for clear error. Id. Because Harvey is proceeding pro se, the Court construes his objections liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In his objections,1 Harvey argues that: (1) pro se prisoner litigants are exempt from the initial disclosure requirement and from discovery and, for this reason, his motion for summary judgment was not filed prematurely; and (2) the letters filed by

defense counsel in response to Harvey’s motion for summary judgment were improperly formatted as letters rather than motions. “[P]ro se litigants are not excused from failing to comply with substantive and procedural law.” Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (emphasis added). Although pro se prisoner litigants are exempt from the initial-disclosure requirement, no rule exempts such litigants from discovery as a whole.

See Fed. R. Civ. P. 26(a)(1)(B)(iv). “Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b). The undersigned United States District Judge’s Practice Pointers provide that “[p]arties may not file a motion for summary judgment before the discovery deadline unless they have received permission

from the Court.” Such permission must be requested in a letter filed with the Court. And Local Rule 7.1(c)(1) requires a party to file the following documents in conjunction with a dispositive motion: a notice of hearing, a memorandum of law, any affidavits and exhibits, and a proposed order. Harvey filed an incomplete motion for summary judgment without permission

from the Court and well in advance of the end of discovery. Because Harvey’s motion

1 Harvey improperly filed a “motion for clarification” and supplemental objections to Defendants’ responses to Harvey’s objections to the R&R. Even if Harvey’s motion and supplemental objections were proper, these filings would not change the Court’s ruling. fails to comply with the applicable court rules, the Court overrules Harvey’s objections and adopts the R&R in its entirety. Based on the R&R, the foregoing analysis and all the files, records and

proceedings herein, IT IS HEREBY ORDERED: 1. Plaintiff Nigeria Lee Harvey’s objections to the July 15, 2021 R&R, (Dkt. 51), are OVERRULED. 2. The July 15, 2021 R&R, (Dkt. 48), is ADOPTED. 3. Plaintiff Nigeria Lee Harvey’s motion for summary judgment, (Dkt. 40), is

DENIED WITHOUT PREJUDICE as premature.

Dated: October 27, 2021 s/Wilhelmina M. Wright Wilhelmina M. Wright United States District Judge