Pasley v. Caruso, et al

Filing 124

ORDER Adopting in Part 107 Report and Recommendation, Terminating as Moot 96 Motion to Compel filed by Lynn Pasley, Granting in Part and Denying in Part 79 Motion to Amend/Correct filed by Lynn Pasley, Granting 91 Motion to Dismiss, filed by Melissa White, Patrick LNU, Noronha LNU, and Terminating as Moot 82 Motion for Preliminary Injunction filed by Lynn Pasley. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Civil Case No. 10-11805

LYNN PASLEY,

SENIOR UNITED STATES
DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
v.
PATRICIA CARUSO, ET AL.,

MAGISTRATE JUDGE
MONA K. MAJZOUB

Defendants.
/

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [107],
GRANTING DEFENDANTS’ MOTION TO DISMISS [91], GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION FOR LEAVE TO FILE SUPPLEMENTAL
COMPLAINT [79],TERMINATING AS MOOT PLAINTIFF’S MOTION TO COMPEL
DISCOVERY [96]; TERMINATING AS MOOT PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION [82]
Before the Court are Defendants Geml, Noronha, and White’s Motion to Dismiss [91], filed
on October 20, 2011; Plaintiff’s Motion to Compel Discovery [96], filed on November 16, 2011;
Plaintiff’s Motion for Leave to File Supplemental Complaint [79], filed on September 9, 2011; and
Plaintiff’s Motion for Preliminary Injunction [82], filed on September 12, 2011.
Magistrate Judge Majzoub addressed all above listed motions in a Report and
Recommendation [107], filed on February 10, 2012. Magistrate Judge Majzoub recommended
granting Defendant’s Motion to Dismiss [91], finding as moot Plaintiff’s Motion to Compel
Discovery [96], denying in part and granting in part Plaintiff’s Motion for Leave to File
Supplemental Complaint [79], and denying Plaintiff’s Motion for Preliminary Injunction.
Defendants Geml, Noronha, and White filed an Objection [112] pertaining to the Motion to Dismiss
[91], on February 23, 2012.

For the reasons stated below, the Court adopts the Report and Recommendation [107] as to
Defendant’s Motion to Dismiss [91], Plaintiff’s Motion for Leave to File Supplemental Complaint
[79], and Plaintiff’s Motion to Compel Discovery [96]; and terminates as moot Plaintiff’s Motion
for Preliminary Injunction [82].
Factual Background
The Magistrate Judge’s Report and Recommendation provides a detailed factual background
of this case. The Court adopts the Magistrate Judge’s statement of facts as the factual findings of the
court.
Standard of Review
This Court reviews objections to a Magistrate Judge’s Report and Recommendation on a
dispositive motion de novo. See 28 U.S.C. §636(b)(1)(C). Making some objections to a Magistrate
Judge’s Report and Recommendation, but failing to raise others, will not preserve all objections a
party may have to the report and recommendation. McClanahan v. Commissioner of Soc. Sec., 474
F.3d 830, 837 (6th Cir. 2006).
To survive a Rule 12(b)(6) motion to dismiss, the complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level on the assumption that all of the
allegations in the complaint are true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012),
quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286 (1986); Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239 (6th Cir. 2012.).
Further, in determining whether a complaint sets forth a plausible claim, a court may consider not
only the allegations, but “may also consider other materials that are integral to the complaint, are
public records, or are otherwise appropriate for the taking of judicial notice.” Wyser-Pratee
2

Management Co., Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005), citing Bovee v. Coopers
& Lybrand C.P.A., 272 F.3d 356, 360-61 (6th Cir.2001).
Analysis
Defendants’ Motion to Dismiss [91]
Defendants move to dismiss Plaintiff’s deliberate indifference claim on two grounds. First,
Defendants argue that Plaintiff failed to exhaust his administrative remedies. Second, Defendants
argue that Plaintiff failed to state a claim for which relief may be granted. The Magistrate Judge
denied Defendants’ Motion as to the first argument, and granted the Motion as to the second.
Therefore, Defendants solely object to the Magistrate Judge’s finding that Plaintiff successfully
exhausted administrative remedies.
Defendants argue that Plaintiff’s grievance #773 mentioned Defendants’ names but did not
make any specific allegations as to their actions or omissions. Defendants then argue that the
grievance addressed an incident occurring on August 26, 2009, a date on which none of the
Defendants treated Plaintiff. Defendants also note that this date is more than six to eleven months
after any of the Defendants treated Plaintiff. Finally, Defendants argue that Plaintiff filed said
grievance at Florence Crane Facility, where none of the Defendants treated Plaintiff.
Having reviewed the record in this case, the Court adopts the Magistrate Judge’s finding as
to Plaintiff’s failure to state a claim, and finds no reason to address Defendants argument as to
Plaintiff’s failure to exhaust administrative remedies. Therefore, Defendants’ Motion to Dismiss [91]
is granted.
Plaintiff’s Motion for Leave to File Supplemental Complaint [79]
No objections to the Report and Recommendation regarding this Motion were filed. Having
reviewed the record in this case, the Court adopts the Report and Recommendation of the Magistrate
3

Judge as the findings and conclusions of the Court. Therefore, Plaintiff’s Motion for Leave to File
Supplemental Complaint is granted in part and denied in part.
Plaintiff’s Motion to Compel Discovery [96]
Here again, no objection was filed as to the Report and Recommendation regarding this
Motion. The Court has reviewed the record in this case and having dismissed Plaintiff’s claims as
to Defendants Geml, Noronha, and White, the Court terminates Plaintiff’s Motion to Compel
Discovery as moot.
Plaintiff’s Motion for Preliminary Injunction [82]
Plaintiff requests that Defendants provide him with proper medical care. Because Plaintiff
is no longer incarcerated, this motion is now moot. See Pl.’s Mot. [111] (stating that Plaintiff has
been released from prison). The Court terminates Plaintiff’s Motion for Preliminary Injunction as
moot.
Conclusion
The Court having reviewed the record in this case, the Report and Recommendation [107]
of the Magistrate Judge is hereby ADOPTED in part.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss [91] is GRANTED and Plaintiff’s
action is TERMINATED as to Defendants Geml, Noronha, and White.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Supplemental
Complaint [79] in GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery [96] is
TERMINATED AS MOOT.

4

IT IS FURTHER ORDERED that Plaintiff’s Motion for Preliminary Injunction [82] is
TERMINATED AS MOOT.
SO ORDERED.

Dated: October 2, 2012

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

CERTIFICATE OF SERVICE
I hereby certify on October 3, 2012 that I electronically filed the foregoing paper with the
Clerk of the Court sending notification of such filing to all counsel registered electronically. I hereby
certify that a copy of this paper was mailed to the following non-registered ECF participants on
October 3, 2012: Lynn Pasley.
s/Michael E. Lang
Deputy Clerk to
District Judge Arthur J. Tarnow
[phone]

5