Penn v. Evans et al

Filing 14

ORDER of clarification. Order of Dismissal with prejudice changed to a Dismissal without prejudice. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONY PENN,
Plaintiff,
vs.

Case No. 11-10800
HON. GEORGE CARAM STEEH

DEPUTY EVANS, et al.,
Defendants.
/
ORDER OF CLARIFICATION
This matter came before the court on plaintiff Tony Penn’s pro se prisoner civil
rights complaint pursuant to 42 U.S.C. § 1983. After screening the complaint pursuant
to 28 U.S.C. §§ 1915A(b), 1915e(2)(B), and 42 U.S.C. § 1997e(c)(1), Magistrate Judge
Binder recommended that the case be sua sponte dismissed with prejudice for failure to
state a claim. The court accepted the report and recommendation and dismissed
plaintiff’s case with prejudice. Plaintiff then filed a motion for reconsideration, explaining
that he had filed a timely objection to the report and recommendation which was
apparently not received by the court and was not made part of the record. The court
gave plaintiff until May 19, 2011 to re-file his objections. Objections had not been
received as of the morning of May 24, 2011, at which time the court denied plaintiff’s
motion for reconsideration. Later on May 24, plaintiff’s objections were received by the
court and docketed.
In his objections, plaintiff seeks liberal review of his pleadings, given his lack of
legal knowledge. The court has given consideration to plaintiff’s complaint and
objections, and notes that plaintiff has not identified the specific conduct of any of the

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defendants named in the complaint. Plaintiff has likewise failed to identify the
conditions of his confinement, the length of his confinement, and any details about the
conditions that would amount to cruel and unusual punishment in light of the fairly
obvious reasons for not allowing crutches or wheelchairs in a jail cell. There is a striking
absence of pleading in this case. While plaintiff has failed to provide any basis for
reconsidering the dismissal of his complaint for failure to state a claim, the court will
change the dismissal with prejudice to a dismissal without prejudice given the possibility
that a more sufficient pleading could be fashioned.
IT IS HEREBY ORDERED that the dismissal of plaintiff’s complaint with prejudice
be changed to a DISMISSAL WITHOUT PREJUDICE.
Dated: May 25, 2011
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 25, 2011, by electronic and/or ordinary mail and also to
Tony Penn at Bellamy Creek Correctional Facility, 1727 West
Bluewater Highway, Ionia, MI 48846.
S/Josephine Chaffee
Deputy Clerk

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