Words v. United States of America et al

Filing 27

ORDER Adopting 26 Report and Recommendation,Striking without prejudice 13 Motion to Dismiss,, filed by William Malatinsky, Stephen Gidal, Restituto Pomaloy, J S Walton, Eleizer Sta Cruz, United States of America and Granting Plaintiff Leave to File an Amended Complaint. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN PATRICK WORDS,
Case No. 11-cv-14261
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
/

ORDER ADOPTING REPORT & RECOMMENDATION (docket no. 26),
STRIKING WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISMISS (docket
no. 13), AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT
In this matter, pro se plaintiff Kevin Words brings claims under the Federal Tort Claims
Act and the Eighth Amendment of the United States Constitution, against the United States
of America and several employees of the Federal Bureau of Prisons ("Defendants"). The
Court referred all pretrial matters to a magistrate judge, including Defendants' amended
motion to dismiss. See Order of Referral, ECF No. 22. On January 21, 2013, the magistrate
issued a Report and Recommendation ("Report"), recommending that the Court terminate
Defendants' motion to dismiss and allow Plaintiff to file an amended complaint. See Report,
ECF No. 26. The Report is now before the Court for review.
Civil Rule 72 provides that a party's specific written objections to a magistrate judge's
Report, filed within fourteen days of service, are entitled to de novo review. See Fed. R.
Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made."). In the absence of specific objections,
however, de novo review of a Report is not required. The Court will not undertake de novo

review here because the fourteen days provided under the Civil Rule have passed, and
neither party has filed any objections.
The Court has reviewed the record and the Report and agrees with the reasoning and
analysis of the magistrate judge. The Court will adopt the Report, terminate the motion to
dismiss, and grant Plaintiff leave to file an amended complaint. In light of Plaintiff's pro se
status and the opportunity provided by this Order for him to amend his complaint, the Court
will reproduce here two pertinent observations from the Report:
The undersigned . . . finds that it would be futile to incorporate claims in an
amended complaint that pertain to the amputation of Plaintiff’s left leg unless
Plaintiff exhausted that claim prior to filing this lawsuit. The documents submitted
to the Court do not establish exhaustion. Plaintiff should be instructed that his
amended complaint should only include claims that he believes have been fully
exhausted before the lawsuit was filed. With regard to his Bivens claim Plaintiff
should also be instructed that he should allege facts to show that each
Defendant was personally involved in, or otherwise authorized, approved of, or
knowingly acquiesced in the alleged unconstitutional conduct. Copeland v.
Machulis, 57 F.3d 476, 481 (6th Cir. 1995). Allegations against the Warden or
Assistant Warden must allege more than that they were simply involved in the
denial of a grievance. See, e.g., Lee v. Mich. Parole Bd., 104 Fed. App'x 490,
493 (6th Cir. 2004).
ORDER
WHEREFORE it is hereby ORDERED that the Report & Recommendation of January
22, 2013 (docket no. 26) is ADOPTED.
IT IS FURTHER ORDERED that Defendants' motion to dismiss (docket no. 13) is
TERMINATED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file an amended
complaint. The amended complaint must be filed within 21 days of service of this order.
Defendants may then file an answer or other response to the amended complaint, as
provided under the Federal Rules of Civil Procedure and this Court's local rules. If Plaintiff
fails to file an amended complaint by the date set, Defendants may re-file the instant motion
or file a different motion for dismissal of Plaintiff’s claims as they deem necessary.
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SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: February 14, 2013
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 14, 2013, by electronic and/or ordinary mail.
Carol Cohron
Case Manager

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