Bennett v. MDOC et al

Filing 35

ORDER GRANTING PLAINTIFF'S 28 Motion to Amend/Correct Complaint - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARL BENNETT,
Plaintiff,

No. 15-14465

v.

District Judge Matthew F. Leitman
Magistrate Judge R. Steven Whalen

MICHIGAN DEPT. OF CORRECTIONS,
ET AL.,
Defendants.
/
ORDER
Plaintiff Carl Bennett, who originally filed his complaint pro se, has now obtained
counsel, who has moved to file an amended complaint [Doc. #28]. In his motion,
Plaintiff has alluded to new claims of action, including an action for medical malpractice,
in addition the claims under the Americans with Disabilities Act, the Rehabilitation
Act, the Michigan Persons with Disabilities Civil Rights Act, and a state law claim for
Intentional Infliction of Emotional Distress. As this Court ordered on November 2, 2016,
Plaintiff has filed a proposed amended complaint for this Court’s review [Doc. #34].
Plaintiff’s original pro se complaint was, with attachments, over 100 pages. The
proposed amended complaint, filed through counsel, is considerably streamlined at 19
pages. Of course, length or brevity is not the determining factor in deciding whether to
permit an amended complaint to be filed. Nevertheless F.R.Civ.P. 15(a) instructs that
requests to amend are to be liberally granted.
The Defendant Jackson Allegiance Hospital (actually Henry Ford Allegiance
Health) contends that the motion should be denied a futile, arguing among other factors
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that the state law medical malpractice claim is time-barred, and that the Plaintiff did not
file a timely Notice of Intent as required by M.C.L. § 2912b.
My review of the proposed amended complaint [Doc. #34] shows that for pleading
purposes, it both factually and legally meets the plausibility standard of Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Moreover, questions regarding fact-based affirmative
defenses such as of statute of limitations are better addressed following full briefing, and
possibly following some discovery. For example, there may be a factual or legal question
as to when the statute began to run.1 I also note that in the proposed amended complaint,
Plaintiff states that he did serve a Notice of Intent, although it is unclear when he did so.
Therefore, Plaintiff’s motion to amend his complaint [Doc. #28] is GRANTED.
The proposed amended complaint filed on December 2, 2016 [Doc. #34] shall suffice as
the first amended complaint, and the time for Defendants to respond will run from the
date of this Order.
IT IS SO ORDERED.
s/R. Steven Whalen
R. STEVEN WHALEN
United States Magistrate Judge
Dated: December 5, 2016

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
December 5, 2016, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager
1

I do not suggest that Defendants are precluded from filing a motion to dismiss the
amended complaint.
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