Horton v. Greene

Filing 39

ORDER (1) Granting Defendant's 19 MOTION to Dismiss, (2) Denying Plaintiff's 21 and 27 MOTIONS for Leave to File an Amended Complaint, and (3) Granting Plaintiff Leave to File a Different Amended Complaint. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RASON HORTON,
Plaintiff,

Case No. 16-cv-12715
Hon. Matthew F. Leitman

v.
PAMELA GREENE,
Defendant.
_________________________________/
ORDER (1) GRANTING DEFENDANT’S MOTION TO
DISMISS (ECF #19), (2) DENYING PLAINTIFF’S MOTIONS FOR
LEAVE TO FILE AN AMENDED COMPLAINT (ECF ## 21, 27),
AND (3) GRANTING PLAINTIFF LEAVE TO FILE A DIFFERENT
AMENDED COMPLAINT

Plaintiff Rason Horton (“Horton”) is an inmate in the custody of the Michigan
Department of Corrections (the “MDOC”). In this action, Horton alleges that
Defendant Pamela Greene (“Greene”), an employee of a private company that
provides food services at MDOC correctional facilities, retaliated against him in
violation of the First Amendment. (See Compl., ECF #1.) Horton asserts his claims
against Greene in both her individual capacity and her official capacity. (See id.)
On September 28, 2017, Greene filed a motion to dismiss. (See ECF #19.) In
that motion, Greene argued that she is entitled to dismissal because (1) Horton failed
to properly exhaust his administrative remedies before filing suit, (2) she did not act

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under color of state law, and (3) Horton has not alleged any custom or policy to
support his official capacity claim. (See id.)
Horton thereafter filed two motions for leave to file an Amended Complaint
adding a substantive due process claim. (See ECF ## 21, 27.) Horton also sought to
dismiss his claim against Greene in her official capacity. (See id.) Horton attached
to one of his motions a proposed Amended Complaint. (See ECF #27 at Pg. ID 16873.)
The assigned Magistrate Judge has issued a Report and Recommendation (the
“R&R”) on all three pending motions – Greene’s motion to dismiss and Horton’s
two motions for leave to file an Amended Complaint. (See ECF #31.)

The

Magistrate Judge recommends that the Court (1) grant Greene’s motion to dismiss
and (2) deny Horton’s motions for leave to file an Amended Complaint. (See id.)
The Magistrate Judge rests that recommendation solely on his conclusion that
Horton failed to properly exhaust his remedies as required by 42 U.S.C. § 1997e(a).
(See id. at Pg. ID 226.) The Magistrate Judge does not reach the questions of whether
Horton sufficiently alleged (1) that Greene acted under color of state law or (2) the
existence of a custom or policy sufficient to support his official capacity claim
against Greene.
Horton has filed objections to the R&R (ECF #37), and Greene has responded
to the objections. (See ECF #38.)

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The Court has carefully reviewed Horton’s Complaint (including its attached
exhibits), Greene’s motion to dismiss, Horton’s proposed Amended Complaint, the
R&R, Horton’s objections, and Greene’s response to the objections. Based on that
review, the Court first concludes that Horton’s claims should not be dismissed for
failure to exhaust based on the pleadings currently before the Court. The Court
believes that under the circumstances of the case, Greene’s failure-to-exhaust
defense is best addressed, if necessary, on a motion for summary judgment after
discovery concerning the facts related to the defense.
However, Horton’s claims as currently pleaded in the Complaint should be
dismissed because Horton has not sufficiently alleged that Horton acted under color
of state law. The allegations in the Complaint do not satisfy any of the tests used to
determine whether a private actor or entity may be deemed to have acted under color
of state law. See Lansing v. City of Memphis, 202 F.3d 821, 828–31 (6th Cir. 2000)
(setting forth the tests used to determine whether a private actor may be considered
to have acted under color of state law). Horton’s proposed Amended Complaint
suffers from the same deficiency. Accordingly, the Court will dismiss the Complaint
and deny Horton leave to file his proposed Amended Complaint.

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However, the Court will allow Horton to file a different Amended Complaint
in which he may attempt to plead – through specific factual allegations tied to one
of the governing legal tests – that Greene acted under color of state law.1
Accordingly, IT IS HEREBY ORDERED that Greene’s motion to dismiss
is GRANTED and that Horton’s motions for leave to amend the Complaint are
DENIED.
IT IS FURTHER ORDERED that Horton may file a new Amended
Complaint by not later than June 25, 2018 and that Greene shall answer or move
to dismiss the Amended Complaint by not later than July 16, 2018.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: April 23, 2018

1

Greene’s motion to dismiss the claim against her in her official capacity is moot
because Horton stated in his motions for leave to amend that he pleaded his official
capacity claim “in error” and that he sought to drop or dismiss that claim. (See ECF
#21 at Pg. ID 131; ECF #27 at Pg. ID 167.)
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on April 23, 2018, by electronic means and/or ordinary
mail. I served a copy of the foregoing document upon Plaintiff Rason Horton on
April 23, 2018 by ordinary mail to the following address:
Alger Maximum Correctional Facility
N6141 Industrial Park Drive
Munising, MI 49862

s/Holly A. Monda
Case Manager
[phone]

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