White v. Jindal et al

Filing 55

ORDER denying 43 Second Motion to Amend Complaint - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK WHITE,
Plaintiff,
vs.

CIVIL ACTION NO. 13-CV-15073
DISTRICT JUDGE AVERN COHN
MAGISTRATE JUDGE MONA K. MAJZOUB

ROSILYN JINDAL, et al.,
Defendants.
___________________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S SECOND MOTION TO AMEND
COMPLAINT [43]
Plaintiff Mark white, currently a prisoner at the Gus Harrison Correctional Facility in Adrian,
Michigan, filed this action, in relevant part, under 42 U.S.C. § 1983 against Defendants Paul Klee
(the Warden of the Gus Harrison Facility), Lee McRoberts (the Deputy Warden at the Gus Harrison
facility), and C. Condon (a Resident Unit Manager at the Gus Harrison facility). (See docket nos.
1 and 14 at 1.) Plaintiff alleges that Defendants violated his rights under the First, Fifth, Eighth, and
Fourteenth Amendments when they “placed plaintiff in grave personal danger of death or physical
injury in violation of MDOC policy.” (See id.) And he alleges that

Through his Complaint,

Plaintiff seeks “punitive, compensatory & declaratory damages in excess of [$25,000] on the
deliberate indifferent (sic) claims” and “immediate injunctive treatment & transfer to prevent death
or physical injury.” (Id.)
Before the Court is Plaintiff’s Second Motion to File an Amended Complaint. (Docket no.
43). Defendant filed a Response. (Docket no. 52.) All pretrial matters have been referred to the

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undersigned for consideration. (Docket no. 12.) The Court dispenses with oral argument pursuant
to E.D. Mich. LR 7.1(e). The Motion is now ready for ruling.
I.

Governing Law
A court is to allow parties to amend their pleadings freely “when justice so requires.”

Fed.R.Civ.P. 15(a)(2). “A party seeking to amend an answer must act with due diligence if it
intends to take advantage of [Rule 15’s] liberality.” Saginaw Chippewa Indian Tribe of Michigan
v. Granholm, 05-10296, 2008 WL 4808823, at *8 (E.D. Mich. Oct. 22, 2008) (Ludington, J.)
(internal quotation omitted). “A court may deny leave to amend when a party unnecessarily delayed
in seeking amendment, thereby []causing prejudice to the other party or unduly delaying the
litigation.” Id. (citation omitted). And a court may also deny leave to amend when the proposed
amendment would be futile. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003).
To determine whether an amendment would be futile, the Court determines whether the amendment
could survive a motion to dismiss pursuant to Rule 12(b)(6). Keely v. Department of Veterans
Affairs, 10-11059, 2011 WL 824493, at *1 (E.D. Mich. Mar. 3, 2011) (Majzoub, M.J.) (citation
omitted).
When deciding a Motion under Rule 12(b)(6), the court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences
in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock
Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The plaintiff must provide “‘a short and plain
statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P.
8(a)(2)). But this statement “must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The plaintiff cannot rely on “legal
conclusions” or “[threadbare] recitals of the elements of a cause of action;” instead, the plaintiff
must plead “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).
II.

Analysis
In Plaintiff’s Motion to Amend, he alleges that Defendants Klee and McRoberts “have failed

to address a serious issue of retaliation in the form of denying copies of exhibits” and that “[t]his act
was done by and through subordinate Librarian T. Bowers.” (Docket no. 43 at 1.) Plaintiff “seeks
to amend the relief to include all named defendants in seeking punitive and actual damages.” (Id.
at 2 (emphasis removed).) Specifically, Plaintiff states that he is looking to make an example out
of Defendants for their actions. (Id.) It is unclear exactly how Plaintiff intends to amend his
Complaint, but construing his allegations liberally, the Court will construe Plaintiff’s Motion to seek
the addition of claims against Defendants Klee and McRobers for retaliation and to seek the addition
of T. Bowers as an additional defendant.
Defendants assert that “[t]he allegations in Plaintiff’s proposed amendment are against a nonparty MDOC employee and only involve Defendants Klee and McRoberts in a supervisory role.”
(Docket no. 52 at 3.) Therefore, Defendants argue, “these claims should be a separate cause of
action and independently subject to the requirements of the PLRA,” including administrative
exhaustion. (Id. at 3-4.) The Court agrees. While Plaintiff’s retaliation claims is tangentially
connected to his instant claim to the extent that he alleges he was attempting to procure copies of
exhibits in the instant matter, Plaintiff must file a grievance under P.D. 01.03.130 and exhaust his
administrative remedies before bringing his new claims against Defendants Klee, McRobers, and

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Bower. Therefore, because he has failed to exhaust his administrative remedies, Plaintiff’s proposed
amendments would fail to survive a motion under Fed. R. Civ. P. 12(b)(6).
IT IS THEREFORE ORDERED that Plaintiff’s Motions to Amend [43] is DENIED.
NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).

Dated: May 7, 2014

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Plaintiff Mark White and Counsel
of Record on this date.
Dated: May 7, 2014

s/ Lisa C. Bartlett
Case Manager

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