Carter v. Carter et al

Filing 35

ORDER denying 23 Motion to Amend/Correct and denying 25 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARC CARTER,
Plaintiff,
v.
ANDREW CARTER, JOSEPH
MONTGOMERY, NICHOLAS
KRINGS, and DEPUTY
GALIMBERT,

CIVIL ACTION NO. 14-cv-13502
DISTRICT JUDGE DAVID M. LAWSON
MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants.
______________________________/

OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO AMEND COMPLAINT [23] AND MOTION TO COMPEL [25]
This matter comes before the Court on Plaintiff Marc Carter’s Motion to Amend
Complaint and Motion for an Order Compelling Discovery.

(Docket nos. 23 and 25.)

Defendants, Deputies Andrew Carter, Joseph Montgomery, Nicholas Krings, and Galimbert
responded to Plaintiff’s discovery motion. (Docket no. 26.) All pretrial matters have been
referred to the undersigned for consideration. (Docket no. 7.) The Court has reviewed the
pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule
7.1(f). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
Plaintiff filed this pro se prisoner civil rights action on September 9, 2014, pursuant to 42
U.S.C. § 1983, alleging that he was assaulted by Defendants while they were effectuating his
arrest following a police chase in Ypsilanti, Michigan on August 9, 2012. (Docket no. 1.) In his
Complaint, Plaintiff sets forth claims of excessive force under the Fourth Amendment to the
United States Constitution, gross negligence, and intentional infliction of emotional distress. (Id.

at 4, 6.) Plaintiff seeks declaratory relief as well as compensatory, punitive, and exemplary
damages in the amount of $800,000.00. (Id. at 4, 7.)
A.

Plaintiff’s Motion to Amend Complaint [23]
On October 29, 2015, Plaintiff filed a Motion to Amend Complaint “based on certain

error’s [sic] that were made in the initial complaint, such as the 14th amendment being quoted
instead of the 8th amendment, which is the proper violation Petitioner intended to state.”
(Docket no. 23 at 1.) Defendants have not responded to Plaintiff’s Motion.
Federal Rule of Civil Procedure 15(a) provides that a “party may amend its pleading once
as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”

Fed. R. Civ. P.

15(a)(1)(A)-(B). Otherwise, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.

The court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). Factors relevant to the determination of whether to permit an
amendment include “the delay in filing, the lack of notice to the opposing party, bad faith by the
moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to
the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc.,
246 F.3d 593, 605 (6th Cir. 2001).
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. Dep’t of
Veterans Affairs, No. 10-CV-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,

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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)). A court is not required to guess at the
nature of the claim asserted. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Through this Motion, Plaintiff essentially seeks to amend his Complaint to assert his
excessive force claims under the Eighth Amendment instead of the Fourth Amendment.1
(Compare docket no. 1 at 4 and docket no. 24 at 3.) As discussed, Plaintiff’s claims arise out of
an alleged assault by Defendants while effectuating Plaintiff’s arrest following a police chase.
(See docket no. 1.) “[A]ll claims that law enforcement officers have used excessive force–deadly
or not–in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment.”

Graham v. Connor, 490 U.S. 386, 395, (1989)

(emphasis in original). Similarly, the Sixth Circuit has held that “[a]n excessive use of force
claim arising out of an arrest must be analyzed under the Fourth Amendment . . . . [and] the
Eighth Amendment is not implicated by alleged misconduct that occurs prior to conviction.”
Conley v. City of Lorain, 198 F.3d 244 (Table), 1999 WL 1021650, at *1 (6th Cir. 1999)
(citations omitted). Accordingly, Plaintiff’s Proposed Amended Complaint fails to state an
excessive force claim upon which relief may be granted, and Plaintiff’s state-law claims would
thereby be subject to dismissal pursuant to 28 U.S.C. § 1367(c). Plaintiff’s Proposed Amended
Complaint would not survive a motion to dismiss under Rule 12(b)(6); it would, therefore, be
1

In his Motion, Plaintiff asserts that he seeks to correct an error of the “14th” Amendment being quoted instead of
the 8th Amendment.” (Docket no. 23 at 1.) Plaintiff, however, does not make any claims under the Fourteenth
Amendment in his original Complaint. In light of Plaintiff’s pro se status, the Court presumes that Plaintiff’s
reference to the “14th” Amendment is a typographical error and that Plaintiff meant to refer to the claims in his
original Complaint brought under the “4th” Amendment.
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futile. Thus, the Court will deny Plaintiff’s Motion to Amend Complaint (docket no. 23) and
strike Plaintiff’s Proposed Amended Complaint (docket no. 24) from the Court’s docket.
B.

Plaintiff’s Motion for an Order Compelling Discovery [25]
Plaintiff filed the instant Motion for an Order Compelling Discovery on October 22,

2015, seeking a court order compelling Defendants to produce “a certified copy of all documents
and audio/video deposition of statements from any and all witnesses that the Respondents have
in this case.” (Docket no. 25 at 1.) Defendants assert that Plaintiff’s Motion should be denied
for two reasons. First, Defendants assert that they were never served with interrogatories or
requests to produce pursuant to the Federal Rules.

(Docket no. 26 at 2.)

Defendants

acknowledge that a document titled “Proof of Service” was filed by Plaintiff with the Court on
September 21, 2015, in which Plaintiff certifies that he “served a copy of Discovery and
Interrogatories” and asks for “any [m]edical records and any audio or video also [sic] any
statements from any witnesses that the Defendant has in this case [p]ursuant to Rule 34 of the
Federal Rules of Civil Procedure.” (Id. (citing docket no. 21).). Defendants then reiterate that
they never received any such discovery requests. (Id.) Second, Defendants assert that Plaintiff’s
Motion should be denied as moot because they voluntarily produced the records that Plaintiff
requested in the “Proof of Service,” to the extent that they exist, on October 23, 2015. (Id. at 23; docket no. 26-2.)
The Court finds that the reasons Defendants set forth are valid bases for denying
Plaintiff’s Motion. Additionally, Plaintiff’s Motion does not comply with Eastern District of
Michigan Local Rule 37.2, which requires that any discovery motion include a verbatim
recitation of each discovery request or a copy of the actual discovery document that is the subject

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of the motion. Accordingly, the Court will deny Plaintiff’s Motion for an Order Compelling
Discovery (docket no. 25).
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Amend Complaint [23] is
DENIED. Plaintiff’s Proposed Amended Complaint [24] is hereby stricken from the docket in
this matter.
IT IS FURTHER ORDERED that Plaintiff’s Motion for an Order Compelling
Discovery [25] 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: June 9, 2016

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 and counsel of record
on this date.
Dated: June 9, 2016

s/ Lisa C. Bartlett
Case Manager

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