Maben v. Corizon Health Care et al
ORDER DENYING 35 Motion to Strike; DENYING 20 Motion to Appoint Counsel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JAMES MABEN (#300475),
CASE NO. 1:17-cv-11713
DISTRICT JUDGE THOMAS L. LUDINGTON
MAGISTRATE JUDGE ANTHONY P. PATTI
CORIZON HEALTH, INC.,
HILDA MBIDZO and
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO
APPOINT COUNSEL (DE 20) and DENYING PLAINTIFF’S MOTION TO
STRIKE DEFENDANTS’ MOTION TO DISMISS (DE 35)
James Maben (#300475) is currently incarcerated at the Michigan
Department of Corrections (MDOC) Thumb Correctional Facility (TCF) in Lapeer,
On May 25, 2017, while incarcerated at TCF, Plaintiff filed the instant
lawsuit against Corizon Health, Inc.; Badawi Abdellatif, M.D.; Hilda Mbidzo, N.P.,
and Raul Tumada, P.A. (DE 1; see also DEs 11, 12, 16, 23, 24, 26.)
Corizon Health, Abdellatif and Mbidzo have appeared. (DEs 14, 15, 25.)
Defendant Tumada has yet to appear.
This case has been referred to me for pretrial matters.
Currently before the
Court are several motions:
Plaintiff’s July 24, 2017 motion to appoint counsel (DE 20)
Plaintiff’s July 24, 2017 emergency motion for injunctive action (DE
21), regarding which a response has been filed (DE 27)
Defendants Corizon Health, Abdellatif and Mbidzo’s August 12, 2017
motion to dismiss (DE 28), regarding which a response was due on
September 13, 2017 (DE 29)
Plaintiff’s September 5, 2017 motion for partial summary judgment
(DE 34), regarding which a response has been filed (DE 36)
Plaintiff’s September 7, 2017 motion to strike Defendants’ motion to
dismiss (DE 35)
Defendants Corizon Health, Abdellatif and Mbidzo’s September 26,
2017 motion to compel (DE 38)
Upon consideration, Plaintiff’s motion to appoint counsel (DE 20) is
DENIED WITHOUT PREJUDICE.
Here, the Court reaches a conclusion
similar to its ruling on Plaintiff’s initial motions. (See DEs 3, 4, 10.)1 It is true
that “[t]he court may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C.A. § 1915(e)(1). However, such requests are justified only in
Moreover, while the Court recognizes Plaintiff’s
On July 24, 2017, Plaintiff filed a notice of appeal regarding the Court’s order.
(DEs 10, 17, 22.) He filed a motion to proceed in forma pauperis on appeal (DE 18).
However, on August 23, 2017, the Sixth Circuit dismissed the appeal. (DE 33.)
assertions that he is a qualified individual under the Americans With Disabilities
Act (ADA) on the basis of his mental health and that “[m]edical or [h]ealthcare
issues are beyond the scope of expertise [he] is capable of litigating,” the Court has
been able to understand the relief sought in the instant two motions (DE 20, 35),
and further notes that the relief sought by the application to proceed in forma
pauperis was granted by the Court (DE 2, DE 6).
Also, at this time, the Court has
no reason to believe it will be unable to understand Plaintiff’s other filings in this
matter, such as his complaint, emergency motion for injunctive relief, or motion for
partial summary judgment.
Plaintiff may renew his request if this case survives
dispositive motion practice or if other circumstances warranting the appointment of
In addition, Plaintiff’s motion to strike (DE 35) is DENIED.
to strike Defendants’ August 12, 2017 motion to dismiss (DE 28) for its failure to
comply with Fed. R. Civ. P. 8 (“General Rules of Pleading”) and Fed. R. Civ. P. 10
(“Form of pleadings”).
However, a Fed. R. Civ. P. 12 motion to dismiss is not
among the items included in the definition of “pleadings.”
Fed. R. Civ. P. 7(a).
Additionally, Plaintiff’s reliance upon Fed. R. Civ. P. 12(b) is misplaced.
Defendants’ motion – filed pursuant to Fed. R. Civ. P. 12(b)(6) – basically alleges
that Plaintiff’s complaint fails to state a medical malpractice or Eighth Amendment
claim upon which relief can be granted.
(DE 28 at 2 ¶¶ 3, 4.) Such a motion is
expressly permitted by Fed. R. Civ. P. 12(b)(6) (permitting assertion of the “failure
to state a claim upon which relief can be granted” defense by motion).
“if the court denies the [Rule 12] motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after notice of the court's
Fed. R. Civ. P. 12(a)(4)(A).
In other words, if this Court denies
Defendants’ Rule 12(b)(6) motion to dismiss, then they will have the time period
set forth in Rule 12(a)(4)(A) within which to file a responsive pleading.
motion to dismiss, “an answer to a complaint” is a pleading that must comply with
Fed. Rules Civ. P. 8 and 10.
See Fed. R. Civ. P. 7(a)(2).
Finally, the remaining motions (DEs 21, 28, 34, 38) will be addressed under
IT IS SO ORDERED.
Dated: October 3, 2017
s/ANTHONY P. PATTI
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on October 3, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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