Honeyman v. Evers et al
OPINION and ORDER Granting in Part and Denying in Part Defendants' 65 Motion to Strike the Amended Complaint. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:14-cv-13497
HONORABLE STEPHEN J. MURPHY, III
BRIAN EVERS, et al.,
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO STRIKE THE AMENDED COMPLAINT 
Plaintiff Corey Honeyman filed a pro se complaint alleging that various Michigan
Department of Corrections administrators and corrections officers violated his constitutional
rights under 42 U.S.C. § 1983. Two years later, after Honeyman obtained legal
representation, he amended his complaint. Defendants now move to strike the amended
complaint. The Court will grant Defendants' motion as to Counts I and II of the amended
complaint and deny the motion as to Counts III and IV.
Honeyman filed his initial complaint pro se. Compl., ECF No. 1. He asserted five
claims, which the Court interpreted as three claimed violations of his constitutional rights.
Order 4, ECF No. 39. The Defendants moved to dismiss two of Honeyman's
claims—deliberate indifference to the danger of assault by other prisoners and deliberate
indifference to Honeyman's need for mental health treatment—because Honeyman had
failed to allege an injury. Mot., ECF No. 32. The Court granted the motion. The dismissal
order did not state whether the Court dismissed the claims with prejudice. See Order, ECF
No. 39. Following the order, only one of Honeyman's claims remained: that Defendants
attempted to force him out of protective custody by issuing misconduct reports and denied
him necessities including blankets and access to a toilet. Id.; see also Compl. ¶ 44, ECF
Ten months later, in a Joint Status Report, counsel for Honeyman stated his intention
to file a motion to amend the pleadings. Report ¶ 5, ECF No. 62. During a scheduling
conference, the Court encouraged Honeyman's attorney to amend the complaint on the
assumption that he would follow the rules and formally seek the Court's leave to amend
through motion practice; and that the Court would permit the Defendant to respond in turn.
Honeyman did not file a motion to amend; instead he simply filed an amended complaint.
Am. Compl., ECF No. 64. Defendants' motion to strike Honeyman's amended complaint
followed. Mot., ECF No. 65.
The Defendants move the Court to strike Honeyman's amended complaint in its
entirety under Federal Rule of Civil Procedure 12(f). Mot., ECF No. 65. But "such a motion
is neither an authorized nor a proper way to procure the dismissal of all or a part of a
complaint." See Dragovic v. Enprotech Steel Servs., No. 1:10-CV-1250, 2010 WL 4739931,
at *2 (N.D. Ohio Nov. 15, 2010). "Because Rule 12(f) does not permit this Court to strike
the Plaintiff's first amended complaint in its entirety," the Court will treat Defendants' motion
"as an objection to the Plaintiff's filing of the amended complaint under Rule 15(a) and a
motion to strike any allegedly improper paragraphs of the amended complaint." Id.
Under Rule 15(a), a party may amend its complaint once as a matter of course within
21 days after service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). After that time
period has elapsed, "a party may amend its pleading only with the opposing party's written
consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The Court should "freely give leave
when justice so requires." Id. But in the case of "undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
[or] futility of the amendment," the Court should deny leave to amend. Morse v. McWhorter,
290 F.3d 795, 800 (6th Cir. 2002) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "A
proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion
to dismiss." Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.
As an initial matter, the Court will treat its prior dismissal of Honeyman's claims
without prejudice to him seeking leave to amend to "correct the defect in the pleading or
state a claim for relief." See Brown v. Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011)
(quoting 6 Wright, Miller & Kane, Federal Practice and Procedure § 1483 (3d ed. 2010))
(finding dismissal without prejudice is preferable when "deficiencies in a complaint are
attributable to oversights likely the result of an untutored pro se litigant’s ignorance of
special pleading requirements").
Motion to Strike Count I
In Count I of the amended complaint, Honeyman re-alleges his claim that Defendants
were deliberately indifferent toward the danger of assault by other prisoners. Am.
Compl.7–8, ECF No. 64. In an effort to cure the pleading defects of his original complaint,
he adds that "Defendants' refusal to provide protective services to Plaintiff caused Plaintiff
to fear for his life, drove him to suicidal thoughts, caused psychological harm, and later
caused him to suffer from post-traumatic stress disorder." Id. ¶ 35.
Although he now alleges injuries from psychological harm, Honeyman still does not
allege that an actual assault took place. Simply put, Honeyman "alleges, not a failure to
prevent harm, but a failure to prevent exposure to risk of harm." Wilson v. Yaklich, 148 F.3d
596, 601 (6th Cir. 1998) (quotions omitted). As a result, Honeyman's claim is more aptly
characterized as a "conditions-of confinement claim" rather than a "failure-to-protect" claim.
See id. But "[a] claim of psychological injury does not reflect the deprivation of the minimal
civilized measures of life's necessities that is the touchstone of a conditions-of-confinement
case." Id. (quotations and citations omitted). However legitimate Honeyman's fears may
have been given his prior assaults, "it is the reasonably preventable assault itself, rather
than any fear of assault, that gives rise to a compensable claim under the Eighth
Amendment." Id. Since Honeyman's allegations of mental and emotional harm do not
remedy the pleading defects of the original complaint, the amendment is futile. Accordingly,
the Court will grant Defendants' motion to strike Count I of the amended complaint.
Motion to Strike Count II
Next, the amended complaint alleges that Defendants acted with deliberate
indifference toward Honeyman's need for mental health treatment. Am. Compl. 9, ECF No.
64. Honeyman claims that he "repeatedly informed Defendants that he was having suicidal
thoughts and that he intended to kill himself by way of starvation" and he "did not eat or
drink anything for over five days" while in a segregated cell. Id. ¶¶ 37–38. He further alleges
that he "requested mental health services during this time, but Defendants denied his
requests." Id. ¶ 39. As in Count I, Honeyman adds an allegation of an injury in his amended
complaint: "As a result of Defendants' conduct, Plaintiff has suffered mental and
psychological harm and has been diagnosed with post-traumatic stress disorder." Id. ¶ 40.
But "the Eighth Amendment does not apply to every deprivation, or even every
unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations
involving serious injury inflicted by prison officials acting with a culpable state of mind."
Farmer v. Brennan, 511 U.S. 825, 860 (1994). To state an Eighth Amendment claim,
Honeyman must allege an "extreme deprivation" of medical care. Cosgrove v. Burke, No.
2:16-CV-110, 2016 WL 5859058, at *10 (W.D. Mich. Oct. 7, 2016) (quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992)); see also Vaughn v. Daviess Cty. Det. Ctr., No.
4:16-CV-P61-JHM, 2016 WL 5843935, at *6 (W.D. Ky. Oct. 4, 2016) (finding that a
prisoner's allegation that "she did not receive any medication for her mental health
condition for 10 days" failed to state an Eighth Amendment claim).
Honeyman does not plead facts alleging an extreme deprivation of mental health
care. And he does not allege a complete denial of care over a substantial period of time.
Instead, he claims that—during a five-day hunger strike—Defendants denied him access
to mental health care. His allegation falls short of alleging a constitutional violation.
Honeyman's amendments fail to cure the pleading defects of the original complaint and are
therefore futile. The Court will grant Defendants' motion to strike Count II.
Motion to Strike Counts III and IV
Honeyman's Count III amendment clarifies his claim for deprivation of necessities
and, in Count IV, he adds a claim for gross negligence. Am. Compl. 9–11, ECF No. 64. The
Defendants have not shown—and the Court does not find—that the amendments would
cause prejudice since the parties are early in the discovery process. See Mot., ECF No. 65.
Accordingly, the Court will deny Defendants' motion to strike Counts III and IV.
WHEREFORE, it is hereby ORDERED that Defendants' Motion to Strike  is
GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED THAT Count I and II of Plaintiff's Amended Complaint
are DISMISSED WITH PREJUDICE.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: January 31, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 31, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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