McNees v. Coleman et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
David 	Franklin 	McNees, 	Jr., 	who 	is 	currently 	incarcerated 	at 	Saginaw
Correctional 	Facility, alleges 	that 	four healthcare 	providers 	there 	(Dr. 	Rickey
Coleman, health unit manager Susan McCauley, and nurse practitioners Laura
Brown and Alicia Sullivan) have ignored and mistreated his left and right knee pain
since 2022 in violation of his Eighth Amendment rights. He brought this pro se civil
rights lawsuit under 42 U.S.C. § 1983 in January of 2024 seeking monetary and
injunctive relief. (ECF No. 1.) All pretrial matters were referred to Magistrate Judge
Kimberly G. Altman. (ECF No. 8.) On October 8, 2025, Judge Altman issued a report
and recommendation (ECF No. 33) to grant McNees’ motion to supplement his
complaint and deny McNees’ motion for a temporary restraining order (ECF No. 29).1
1 Judge Altman has also issued a report and recommendation (ECF No. 19) to
grant in part the motion for summary judgment brought by Coleman, Brown, and
Sullivan (the “Wellpath Defendants”) (ECF No. 12). The Court will address that
report and recommendation in a separate opinion.
DAVID FRANKLIN MCNEES, JR.,
Plaintiff,
v.
RICKEY COLEMAN et al.,
Defendants.
Case No. 24-10209
Honorable Laurie J. Michelson
Magistrate Judge Kimberly G. Altman
ORDER ADOPTING REPORT AND RECOMMENDATION [33] AND
GRANTING PLAINTIFF’S MOTION TO SUPPLEMENT AND DENYING
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER [29]
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As to the former, Judge Altman reasoned that it would not be futile for McNees to
supplement his complaint with allegations about his recent medical treatment by
Defendants—that McNees’ supplemental allegations concerning recent mistreatment
of his knee could state a claim of deliberate indifference in violation of the Eighth
Amendment and that his supplemental allegations about the cancellation of his
scheduled knee surgery could state a claim of retaliation in violation of the First
Amendment. (ECF No. 33, PageID.360–361.) Judge Altman also recommended
denying McNees’ request for two forms of injunctive relief, reasoning that (1) the
Court 	lacks 	jurisdiction 	to 	order 	non-parties 	to 	provide 	certain 	care 	(id. 	at
PageID.361) and (2) “[a]s for McNees’ request that Dr. Coleman no longer be involved
in his care, McNees has not supported his allegations about Dr. Coleman’s care with
any evidence and has not addressed any of the four factors for granting a TRO” (id.
at PageID.361–362).
At the conclusion of her report and recommendation, Judge Altman notified
the parties that they were required to file any objections within 14 days of service,
pursuant to Federal Rule of Civil Procedure 72(b)(2) and Eastern District of Michigan
Local Rule 72.1(d), and that “[f]ailure to file specific objections constitutes a waiver
of any further right of appeal.” (Id. at PageID.364–365.) Since McNees was served via
mail, three days are added to the objection period under Federal Rule of Civil
Procedure 6(d). The prison mailbox rule also applies, so McNees’ objections would be
considered filed when he delivered them to prison authorities for mailing. In all,
waiting the 17-day objection period, and allowing some time for the Court to receive
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objections that McNees may have mailed, it has now been over a month since the
report and recommendation was served. No objections have been filed.
The Court finds that the parties’ failure to object is a procedural default,
waiving review of the magistrate judge’s findings by this Court. It is well established
in the Sixth Circuit that, “so long as a magistrate judge puts the parties on notice
that failure to object to an issue addressed in a report and recommendation waives
the issue, ‘a party shall file objections with the district court or else waive [the] right
to appeal.’” United States v. Scales, No. 24-5905, 2025 WL 2042202, at *4 n.3 (6th Cir.
July 21, 2025) (alteration in original) (quoting United States v. Walters, 638 F.2d 947,
949–50 (6th Cir. 1981)); see Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[T]he failure
to object may constitute a procedural default waiving review even at the district court
level.”); see also Garrison v. Equifax Info. Servs., LLC, No. 10-13990, 2012 WL
1278044, at *8 (E.D. Mich. Apr. 16, 2012) (“The Court is not obligated to review the
portions of the report to which no objection was made.”). The Supreme Court has held
that this procedural default rule does not violate either the Federal Magistrates Act
or the federal Constitution. Thomas, 474 U.S. at 155.
The Court therefore finds that the parties have waived further review of Judge
Altman’s report and recommendation and accepts the recommended disposition.
(ECF No. 33.) It follows that McNees’ motion to supplement (ECF No. 29) is
GRANTED and his motion for a temporary restraining order (ECF No. 29) is
DENIED.
SO ORDERED.
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Dated: November 10, 2025
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
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