Yarber v. Fenske-Gunn et al

Filing 3

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT& PROVIDE ADDRESSES WITHIN 21 DAYS re 1 Complaint filed by Kevin S Yarber. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN S. YARBER,
Plaintiff,
v.

Civil Case No. 12-13140
Honorable Patrick J. Duggan

MELISSA FENSKE-GUNN, ET. AL,
Defendants.
_______________________________/
ORDER TO FILE AMENDED COMPLAINT AND PROVIDE
ADDRESSES FOR SERVICE
Kevin Yarber (“Plaintiff”) filed this pro se action against numerous defendants on
July 17, 2012. Plaintiff seeks leave to proceed in forma pauperis and for the U.S.
Marshal to effectuate service.
Federal Rule of Civil Procedure 8(a) requires that a complaint set forth a short and
plain statement of the grounds upon which the court’s jurisdiction depends, a short and
plain statement of the claim showing that the pleader is entitled to relief, and a demand
for judgment for the relief sought. A complaint must contain sufficient factual matter,
that when accepted as true, “‘state[s] a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, – , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 555, 570, 127 S. Ct. 1955, 1974 (2007)). A claim is facially
plausible when a plaintiff pleads factual content that permits a court to reasonably infer
that the defendant is liable for the alleged misconduct. Id. (citing Twombly, 550 U.S. at

556, 127 S. Ct. at 1965). Generally, a less stringent standard is applied when construing
the allegations pleaded in a pro se complaint. Haines v. Kerner, 404 U.S. 519, 520-21, 92
S. Ct. 594, 596 (1972). Even when held to a less stringent standard, however, Plaintiff’s
Complaint fails to satisfy Rule 8.
As an initial matter, it is not clear from the heading and allegations in his
Complaint what individuals and/or entities Plaintiff is suing. For example, his caption
reads in part: “Melissa Fenske-Gunn Individual and at her official capacity As Foster
Care Case Manager, State of Michigan, County of St. Clair, Department of Human
Services of St. Clair County.” The Court is uncertain whether this identifies Melissa
Fenske-Gunn’s position or if Plaintiff is suing Ms. Fenske-Gunn and the State of
Michigan, St. Clair County, and/or its Department of Human Services. In addition,
Plaintiff’s Complaint is not concise and he fails to state clearly what claims he is asserting
against the named defendants.
Further, while it appears that Plaintiff’s action arises from the removal of his
child(ren) from his custody, he fails to set forth how each defendant named in the
Complaint is liable to him and/or involved in the alleged misconduct. In other words,
Plaintiff fails to state what action each named defendant took relative to his alleged harm.
Basic pleading requirements dictate that a plaintiff must attribute factual allegations to
particular defendants. See Twombly, 550 U.S. at 555 (holding that, in order to state a
claim, the plaintiff must make sufficient allegations to give a defendant fair notice of the
claim); Fed. R. Civ. P. 8(a). A complaint must allege each defendant’s personal
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involvement with the alleged violation of the plaintiff’s rights. See Frazier v. Michigan,
41 F. App’x 762, 764 (6th Cir. 2002) (dismissing the plaintiff’s claims where the
complaint did not allege which of the named defendants were personally involved in or
responsible for each alleged violation of the plaintiff’s rights); Griffin v. Montgomery,
No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations of
personal involvement against each defendant). As well, Plaintiff fails to provide any
time-frame as to when the alleged misconduct occurred.
Moreover, Plaintiff appears to be asserting fraud in his Complaint. Federal Rule of
Civil Procedure 9(b) provides that fraud must be pleaded with particularity. To satisfy this
requirement, the Sixth Circuit “requir[es] a plaintiff, at a minimum, ‘to allege the time,
place, and content of the alleged misrepresentation on which he or she relied; the
fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from
the fraud.’” Coffey v. Foamex L.P., 2 F.3d 157, 161–62 (6th Cir. 1993) (quoting Ballan v.
Upjohn Co., 814 F. Supp. 1375, 1385 (W.D. Mich.1992)). Plaintiff’s Complaint does not
satisfy these requirements.
Therefore, within twenty one (21) days of this Order, Plaintiff shall file an
amended complaint in compliance with Federal Rules of Civil Procedure 8 and 9 or this
action will be dismissed without prejudice. In the caption of his amended complaint,
Plaintiff shall number each defendant or find some other way to make clear to the Court
who he intends to sue. Furthermore, Plaintiff has asked the U.S. Marshal to effectuate
serve upon Defendants; however, he has not provided the Court with their addresses. He
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must provide this information if and when he files his amended complaint.
SO ORDERED.
Date: July 23, 2012

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copy to:
Kevin S. Yarber
411 Mercer Street
Durand, MI 48429

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