Nalls v. Napolean

Filing 75

ORDER GRANTING Defendants' Motion to Strike Portions of Plaintiff's Amended Complaint 54 . Signed by Magistrate Judge Elizabeth A. Stafford. (MarW)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
KENYATTA NALLS,
Plaintiff,
v.

Civil Action No.: 11-12670
Honorable Arthur J. Tarnow
Magistrate Judge Elizabeth A. Stafford

BENNY N. NAPOLEAN, et al.,
Defendants.
__________________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S AMENDED COMPLAINT [R. 54]
On May 21, 2013, Magistrate Judge Komives entered an order
requiring plaintiff Kenyatta Nalls, a prisoner proceeding pro se, to properly
identify six unidentified defendants or risk their dismissal. [R. 10]. When
Nalls did not timely comply, Judge Komives recommended dismissal of the
six unidentified defendants. [R. 16]. Judge Tarnow subsequently granted
Nalls multiple extensions in which to file an amended complaint identifying
these defendants. [R. 22, 28, 39]. In the interim, discovery commenced
and Nalls was deposed. [R. 13; 54, PgID 258-59].
Nalls filed his verified amended complaint on January 6, 2015,
wherein he identified two of the six previously unidentified defendants. [R.
42]. In addition, however, he went beyond the confines of the Court’s

order and amended the substance of his complaint to allege additional
facts related to his claims of cruel and unusual punishment and deliberate
indifference. [Id.]. Defendants move to strike the amended complaint to
the extent that it goes beyond identifying previously unidentified parties
and is either inconsistent with his deposition testimony or makes
allegations not raised in his original complaint.1 [R. 54]. Nalls did not
respond to this motion.
A party may not attempt to create a genuine issue of material fact by
offering a subsequent affidavit that contradicts his or her prior deposition
testimony. Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir. 1984)
(citation omitted). A verified complaint has the force of an affidavit for
purposes of summary judgment. See Lavado v. Keohane, 992 F.2d 601,
605 (6th Cir. 1993). Therefore, any portion of Nalls’s verified amended
complaint that contradicts his prior deposition testimony should be stricken.
Furthermore, Judge Tarnow’s orders did not give Nalls leave to
amend the substantive allegations in his complaint, but only to identify
previously unidentified parties in order to prevent their dismissal on
technical grounds. [R. 22, 28, 39]. Nor did Nalls’s motions for extension of
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Defendants also move to strike the remaining unidentified defendants.
However, these defendants have already been terminated since they were
not included in Nalls’s amended complaint. [R. 47].
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time request leave to amend his complaint in this manner. [R. 20, 23, 30].
At this stage of the case, Nalls must seek and receive leave of the Court to
amend his complaint. Fed. R. Civ. P. 15(a)(2).
For these reasons, the Court GRANTS Defendants’ motion [R. 54]
and STRIKES Nalls’s amended complaint except to the extent it identifies
previously unidentified defendants. Thus, going forward, this Court will
consider only the allegations contained in Nalls’s original complaint as if
they were those of his amended complaint, as applicable to the parties
identified in the amended complaint.

IT IS SO ORDERED.
Dated: June 8, 2015
Detroit, Michigan

s/Elizabeth A. Stafford
ELIZABETH A. STAFFORD
United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties’ attention is drawn to Fed. R. Civ. P. 72(a), which
provides a period of fourteen (14) days from the date of receipt of a copy of
this order within which to file objections for consideration by the district
judge under 28 U.S. C. §636(b)(1).

CERTIFICATE OF SERVICE
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The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 8, 2015.
s/Marlena Williams
MARLENA WILLIAMS
Case Manager

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