Miller v. Stewart et al

Filing 27

ORDER Adopting 24 Report and Recommendation for Denying 13 Motion to Dismiss, filed by Robin Howard, Anthony Stewart, Renata Patton. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sharee Miller,
Plaintiff,
v.

Case No. 15-14164

Anthony Stewart, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
______________________________/
ORDER
ADOPTING 12/13/16 REPORT AND RECOMMENDATION
AND DENYING DEFENDANTS’ PARTIAL MOTION TO DISMISS
Plaintiff filed this action against three defendants employed by the Michigan Department
of Corrections (“MDOC”), claiming retaliation under the First Amendment and a claim under
Michigan’s Whistleblower’s Protection Act (“WBPA”). This Court referred this action to
Magistrate Judge Stephanie Dawkins Davis for pretrial proceedings.
Thereafter, Defendants filed a Partial Motion to Dismiss (D.E. No. 13), brought pursuant
to Fed. R. Civ. P. 12(b)(6). In that motion, Defendants stated that they “do not dispute the facts
as laid out in the Complaint, with one exception.” (Id. at 2) (emphasis added). Defendants then
directed the magistrate judge to matters outside the pleadings (ie., an MDOC policy) to support
Defendants’ argument that Plaintiff cannot be considered an “employee” for purposes of the
WBPA.
In a Report and Recommendation issued on December 13, 2016 (“the R&R”), Magistrate
Judge Dawkins Davis concluded that “ground for dismissal is premature and ill-suited to a

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judgment based on failure to state a claim.” (R&R at 5). She concluded that, as to this issue,1
“the Court need not decide whether plaintiff was an employee because defendants rely on
matters outside the pleadings for its argument that plaintiff was not an employee.” (Id. at 6).
She also noted that “Defendants have not even argued that the allegations in the complaint are
insufficient.” (Id. at 7). She recommends that the Court deny the motion.
Pursuant to Fed. R. Civ. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R.
On December 27, 2016, Defendants filed an objection to the R&R. On January 10, 2017,
Plaintiff filed a response to Defendants’ objection.
Defendants’ sole objection concerns the magistrate judge’s conclusion that this issue
should not be resolved in a motion to dismiss. Defendants then make arguments not presented to
the magistrate judge in connection with their motion.
Having reviewed the R&R and Defendants’ objection to it, this Court concurs with the
magistrate judge’s conclusion that the issue is not one that should be decided on a motion to
dismiss brought under Fed. R. Civ. P. 12(b)(6).
Accordingly, the Court ADOPTS the magistrate judge’s December 13, 2016 R&R. IT
IS FURTHER ORDERED that Defendants’ Motion to Dismiss is DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 8, 2017

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The motion and R&R also addressed other issues. But because the sole objection to the
R&R relates to this issue, the Court keeps its focus there.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sharee Miller,
Plaintiff,
v.

Case No. 15-14164

Anthony Stewart, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
______________________________/
PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 8, 2017, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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