Roberts v. Page et al
Filing
43
ORDER Adopting 40 Report and Recommendation GRANTING 29 Motion to Dismiss filed by Glenn D Wilson, William Epling, Bernard Paige. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HAROLD ROBERTS (#96167),
Plaintiff,
Case No. 10-cv-13743
v.
Paul D. Borman
United States District Judge
BERNARD PAIGE, D. D. MORRIS,
MS. CHAPMAN, MR. JUSTICE
D. WILSON and WILLIAM EPLING
Paul J. Komives
United States Magistrate Judge
Defendants.
_____________________________/
OPINION AND ORDER (1) DENYING PLAINTIFF’S OBJECTION (Dkt. No. 41) AND
(2) ADOPTING THE REPORT AND RECOMMENDATION GRANTING
DEFENDANTS’ MOTION TO DISMISS (Dkt. No. 40)
Before the Court is Magistrate Judge Paul J. Komives’ Report and Recommendation granting
Defendants Bernard Paige, William Epling and Glenn Wilson’s Motion for Dismissal (Dkt. No. 40).
For the reasons that follow, the Court the DENIES Plaintiff’s Objections and ADOPTS the
Magistrate Judge’s Report and Recommendation (Dkt. No. 40).
I. BACKGROUND
On September 20, 2010, Plaintiff Harold Dean Roberts (“Plaintiff”) filed this pro se action
pursuant to 42 U.S.C. § 1983 against various employees of Community Programs, Inc (“CPI”).
Plaintiff then filed an Amended Complaint on October 4, 2010 (Dkt. No. 7).
Plaintiff alleges that he was a client of CPI from August 30, 2010 until September 28, 2010.
Plaintiff states he was a devout and practicing Muslim who attempted to “hide his faith due to public
prejudice.” (Am. Comp. ¶¶ 11-13). Plaintiff claims he was terminated from CPI’s program because
of his religious beliefs and he was also restricted from entering the medical complaint line. (Am.
Compl. ¶¶ 13 n.1, 14-15, 17, 19, 26). Plaintiff claims that these actions violated his First
Amendment rights to free exercise of religion, free speech, and association; his Fourteenth
Amendment rights to equal protection and due process; his Eight Amendment right to be free from
cruel and unusual punishment, and the equal protection and free exercise of religion provisions of
the Michigan Constitution.
II. STANDARD OF REVIEW
When a party objects to a portion of a Magistrate Judge’s report and recommendation, the
Court must review that portion de novo. Fed. R. Civ. P. 72(b).
Federal Rule of Civil Procedure 12(b)(6) allows for dismissal where a complaint fails “to
state a claim upon which relief can be granted.” This requires “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do . . . . Factual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on
its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must “permit the court to infer
more than a mere possibility of misconduct[.]” Id. at 1950.
III. ANALYSIS
Plaintiff argues that the Magistrate Judge erred in dismissing his federal claims against
Defendants because he was not given the opportunity to amend his deficient complaint. Plaintiff
argues that pro se litigants should be provided an opportunity to amend a deficient complaint before
2
it is dismissed by the Court.1
First, the Court notes Plaintiff amended his complaint once by right before any responsive
pleading was filed in this case. (Dkt. No. 4, Motion to Amend; Dkt. No. 7, Amended Complaint;
Dkt. 13 at 1-2, Order granting the Motion to Amend pursuant to Fed. R. Civ. P. 15(a)). Therefore,
Plaintiff can now only amend with the other party’s consent or with leave of the court. FED. R. CIV.
P. 15(a)(2). Leave to amend must be freely given when justice so requires. Id. However, leave to
amend “should be denied if the amendment is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.” Crawford v. Roane, 53 F.3d
750, 753 (6th Cir. 1995).
In the present case, Plaintiff failed to properly seek to amend his complaint after Defendants
filed their motion to dismiss. Plaintiff has also not filed a proper motion to amend in the intervening
months since the Report and Recommendation held Defendant’s motion to dismiss should be
granted. Indeed, Plaintiff has only improperly requested that he be allowed to amend his complaint
in his response to Defendant’s motion to dismiss.
Plaintiff argues his status as a pro se litigant guarantees another chance to amend his
complaint. In his response to Defendant’s Motion to Dismiss, Plaintiff relied up Neitzek v. Williams,
490 U.S. 319 (1989) to claim he was entitled to amend his complaint. In Neizek, the Supreme Court
held that a complaint “filed in forma pauperis is not automatically frivolous within the meaning of
[28 U.S.C.] § 1915(d) because it fails to state a claim.” Id. at 331. Unlike the present case, in
Neizek, the Supreme Court was examining whether the lower court had erred by sua sponte
1
The Court notes that Plaintiff has not made any objection to the legal reasoning in the
Report and Recommendation or the conclusion that his previous Amended Complaint fails to set
forth any claims pursuant to 42 U.S.C. § 1983.
3
dismissing a pro se complaint filed under the in forma pauperis statute. Here, Plaintiff’s Amended
Complaint was not dismissed sua sponte and Plaintiff had already amended his complaint prior to
Defendants’ Motion to Dismiss was filed. Similarly, Plaintiff’s reliance on a line of factually
distinguishable cases from other districts in his objection to the Report and Recommendation are
misplaced.
In Gomez v. USAA Fed. Savings Bank, 171 F.3d 794 (2d Cir. 1999), the Second Circuit
evaluated a pro se action and held that “unless the court can rule out any possibility, however
unlikely it might be, that an amended complaint would succeed in stating a claim” the litigant should
be allowed to amend his complaint prior to its dismissal for failure to state a claim. Id. at 796.
However, this decision was abrogated by the recent Supreme Court case Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). See Solomon v. Hum. Serv. Coalition of Tompkins County, 2011
WL 2160883, at *3 n. 9 (N.D.NY May, 27 2011) (recognizing abrogation). Indeed, all of Plaintiffs
case law pre-dates the Supreme Court’s decisions in Twombly and Ashcroft v. Iqbal, 556 U.S. 662
(2009) which set forth that a complaint must contain “more than labels and conclusions, and a
formulaic recitation of the elements. . . Factual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555.
Further, the majority of the cases Plaintiff relies upon involve (1) specific situations arising
under and applying standards of the Prison Litigation Reform Act, 42 U.S.C. § 1997 et seq., which
are inapplicable in the present circumstances; or (2) the sua sponte dismissal of a pro se litigant’s
complaint. See Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004) (holding a district court abused
its discretion when it denied a prisoner’s motion to amend that was filed before any responsive
pleading and when the PLRA did not preclude amendment); Lopez v. Smith, 203 F.3d 1122, 1130
4
(9th Cir. 2000) (en banc) (examining the issue of whether § 1915(e)(2) allowed a court to dismiss
a prisoner’s in forma pauperis complaint with leave to amend in light of the statute’s “shall dismiss”
language.); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000) (examining the dismissal of
prisoner’s case without leave to amend pursuant to § 1997e(c)(1) and specifically limiting its
holding to “the dismissal on motion of a complaint in a non-in-forma-pauperis case.”); Bazrowx v.
Scott, 136 F.3d 1053 (5th Cir. 1998) (case dismissed sua sponte by district court before any
responsive pleadings were filed). In the present case, Plaintiff’s amended complaint was dismissed
after Defendants’ motion to dismiss was granted.
Further, Plaintiff fails to set forth any facts or arguments in his Objection that could cure his
Amended Complaint of its deficiencies. Plaintiff appears to argue in his Response to Defendants’
Motion to Dismiss that CPI and the Michigan Department of Corrections have a “symbiotic
relationship” based on the fact that the “main body” of CPI’s clientele are prisoners. (Dkt. No. 37
at 2). However, this argument cannot cure Plaintiff’s deficient claims under 42 U.S.C. § 1983. The
Supreme Court has explained that the fact that “virtually all” of a private company’s income is
derived from government funding or contracts does not transform a private company’s acts into
those of the State. Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982); Wolotsky v. Huhn, 960 F.2d
1331, 1336 (6th Cir. 1992) (finding that a private non-profit corporation that provided mental health
services to the community was not a state actor under the symbiotic relationship test when it
received a “significant” portion of its funding from the government.). Therefore, to the extent
Plaintiff could argue his Response to Defendants’ Motion to Dismiss contained a motion to amend,
the Court finds the amendment would be futile as Plaintiff has still failed to pled sufficient facts such
that the named defendants could be found to be state actors pursuant to 42 U.S.C. § 1983.
5
Under these circumstances, the Court finds that Plaintiff’s objection to the Report and
Recommendation is without merit and Plaintiff is not entitled to amend his Amended Complaint.
IV. CONCLUSION
For the reasons stated above, the Court will DENY Plaintiff’s Response to the Magistrate’s
Report and Recommendation. The Court will also ADOPT the Report and Recommendation
granting Defendants’ Motion to Dismiss.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 27, 2013
CERTIFICATE 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 September 27, 2013.
s/Deborah Tofil
Case Manager
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?