Jezowski et al v. Arenac, County of et al

Filing 28

ORDER Adopting the 26 Report and Recommendation and Summarily Dismissing Claims Pursuant to 28 U.S.C. § 1915(e)(2)(B). (Arenac, County of, Kim Bejcek (Area Manager, in both her official capacity and individually), Deb Bonnau (in both her off icial capacity and individually), Doe (1-50, Inclusive), Matt Engster (in both his official capacity and individually), Josett Gracey (in both her official capacity and individually), Orlene Hawks (Supervisor, in both her official capacity and in dividually), Tobin Miller (Office of Children's Ombudsman Investigator, in both his official capacity and individually), Brian Millikin (Supervisor, in both his official capacity and individually), Ryan Schmidt (Foster Parent and Gladwin Coun ty Sheriff Deputy, in both his official capacity and individually), Steve Yager (Children's Services Agency Executive Director, in both his official capacity and individually), Arenac County Department of Health and Human Services and Arenac County Sheriff Department terminated.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
THOEODORE JEZOWSKI, SR, et al.,
Plaintiffs,
v

Case No. 16-cv-13242
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

COUNTY OF ARENAC, et al.,
Defendants.
__________________________________________/
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND SUMMARILY
DISMISSING CLAIMS PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
On September 8, 2016 Plaintiffs Theodore Jezowski Sr. and Stephanie Jezowski initiated
the above-captioned action against the County of Arenac, Arenac County Department of Health
and Human Services, Arenac County Sheriff Department, 11 named defendants, and 50 unnamed
defendants. See ECF No. 1. Asserting claims under 42 U.S.C. § 1983, Plaintiffs allege that
Defendants violated their rights under the Fourth and Fourteenth Amendments by searching their
home, detaining them, and conspiring to remove their children from their custody. Plaintiffs
further allege that the customs and practices of the County were the driving force behind their
injuries under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).
The matter was referred to Magistrate Judge Patricia T. Morris for pretrial management.
See ECF No. 4. The magistrate judge then granted Plaintiffs’ application to proceed in forma
pauperis (“IFP”). See ECF No. 5.
Pursuant to the IFP screening procedure set forth in 28 U.S.C. § 1915(e)(2)(B), a
complaint must be dismissed sua sponte “if the court determined that… the action or appeal (i) is
frivolous or malicious, (ii) fails to state a claim upon which relief can be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” Id. Applying that rule, on
May 15, 2017 the magistrate judge issued a report, recommending that the majority of Plaintiffs’
claims be dismissed for failure to state a claim. See ECF No. 26. The magistrate judge reasoned
that the County departments were incapable of being sued under § 1983, that Plaintiffs had failed
to identify any Arenac County custom or policy that was the driving force behind their injuries,
as required by Monell. The magistrate judge also recommended that the 50 Doe Defendants be
dismissed without prejudice, as Plaintiffs had not asserted any specific claims against them and
had not served any of them within the allotted period.

Finally, the magistrate judge

recommended that the named Defendants be dismissed where Plaintiffs did not assert any
specific involvement, and named the Defendants only because of their supervisory roles. The
magistrate judge ultimately recommended that Plaintiffs only be allowed to proceed against
Defendants Tina Thompson and Randy Schabel in their individual capacities.
Although the magistrate judge’s report explicitly stated that the parties to this action
could object to and seek review of the recommendation within fourteen days of service of the
report, neither Plaintiffs nor Defendants filed any objections. The election not to file objections
to the magistrate judge’s report releases the Court from its duty to independently review the
record. Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and
recommendation waives any further right to appeal.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation,
ECF No. 26, is ADOPTED.
It is further ORDERED that Plaintiffs’ claims against Defendants County of Arenac,
Arenac County Department of Health and Human Services, Arenac County Sheriff Department,
Josett Gracey, Matt Engster, Kim Bejcek, Deb Bonnau, Brian Millikin, Steve Yager, Orlene

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Hawks, Tobin Miller, Ryan Schmidt, and Does 1-50, are DISMISSED for failure to state a claim
upon which relief can be granted. Plaintiffs’ only remaining claims are individual capacity
claims against Tina Thompson and Randy Schabel.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: June 13, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 13, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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