Baldwin v. Michaels et al
OPINION AND ORDER Denying without Prejudice Plaintiff's 12 Motion to Amend/Correct; and DENYING without Prejudice Plaintiff's 13 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-13143
District Judge Laurie J. Michelson
Magistrate Judge Anthony P. Patti
PAUL KLEE and
OPINION AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S
MOTION TO AMEND (DE 12) and DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO COMPEL (DE 13)
Gary Baldwin (#165196) is currently incarcerated at the MDOC’s Gus
Harrison Correctional Facility (ARF) in Adrian, Michigan. On August 30, 2016,
while incarcerated at ARF, Baldwin filed the instant lawsuit against six defendants.
Plaintiff seeks both punitive and compensatory damages. (DE 1 at 1-10.)
Since the filing of Plaintiff’s complaint, his claims against Defendant
Chapman were dismissed for failure to allege his “particular, alleged involvement”
in the case. (DE 5 at 3-4.) At the same time, his claims against Defendants Siles,
Leslie and Russell – all of which were “based upon their responses to grievances
he filed concerning being forced to walk without the use of his wheelchair” – have
been dismissed, because “a prisoner does not have a constitutionally-protected
interest in an inmate grievance procedure or the right to an effective procedure.”
(DE 5 at 4.) Thus, at this time, the only remaining defendants are Paul Klee (ARF
Warden) and David Michael (an ARF Correctional Officer).1
This case has been referred to me for pretrial matters. Currently before the
Court are three motions: (1) Plaintiff’s January 12, 2017 motion to amend
complaint, regarding which Defendants have filed a response; (2) Plaintiff’s
January 24, 2017 motion to compel discovery; and (3) Defendants Klee and
Michael’s February 8, 2017 motion for summary judgment, regarding which
Plaintiff has filed a response.
Plaintiff has a history of treatment for his left hip, left
femur and left knee
During July 2001, Plaintiff received a metallic implant in his pelvis and left
femur. (DE 1 at 12.) He is currently serving a sentence imposed on August 9,
2004. (See www.michigan.gov/corrections, “Offender Search.”) During 2012 and
The December 13, 2016 appearance of counsel lists this defendant as “David
Michael” rather than “Sgt. Michaels.” (Compare DE 1 at 1-2, DE 10.)
2013, Plaintiff underwent radiology exams of the left hip, left femur, pelvis and
chest. (See DE 1 at 17-19.)
On January 17, 2014, Plaintiff received a permanent accommodation for a
wheelchair. (DE 1 at 12.) Thereafter, on July 29, 2014, plaintiff underwent a
study of the left hip, left femur and left knee, which revealed, among other things,
continued disarticulation of the prostheses; osteoporosis/osteopenia; deformity of
the left acetabulum; and exostoses of the distal left femur. (DE 1 at 20.)
Grievance Identifier ARF-2016-02-0378-17z
On February 8, 2016, Plaintiff completed a Step I grievance form,
contending that he “[t]alk[ed] to [Sgt.] Michaels about a Medical Emergency[,]”
and providing the following detail:
I came in the chow hall while having problems with a bearing in my
wheelchair. I couldn’t move my chair because [a] bearing went out &
I needed to go to medical to get a replacement so I could get around in
the institution. The Sarge told me to get out & push it back to the
unit[.] I have a permanent wheelchair accommodation[,] because . .
. my left hip does have an implant & has been out of place. Now [I
am] in a lot of pain because of walking from the chow hall & back to
the Unit. [Sgt. Michaels] claimed that us inmates took the wheel off
& took a bushing out[.] How[?] [W]e [cannot] even use a screw
driver to tighten up screws on a pair of glasses. To me Sargent
Michaels [is not] a mechani[c] when he tells me in front of other
inmates that he can tighten up a self tighting nut with his hand &
without wrenches. . . . Plus the bearing was hanging in plain sight.
The grievance was received at Step I on February 10, 2016. (DE 1 at 11-12
(emphasis in original).)
On or about April 5, 2016, Plaintiff completed a Step II grievance appeal
form. It was received at Step II on April 8, 2016. (DE 1 at 13.) Plaintiff claims he
did so because “Defendants failed to answer Step I grievance in a timely manner in
violation of Administrative Rules.” (DE 1 at 8 ¶ 5.) ARF Deputy Warden Willis
Chapman responded approximately one week later. (DE 1 at 13-14.)
Plaintiff completed a Step III grievance appeal form, which appears to have
been received on April 21, 2016. (DE 1 at 13.) In a decision dated May 18, 2016,
Richard D. Russell of the MDOC Office of Legal Affairs denied the Step III
appeal. (DE 1 at 15; see also DE 1 ¶ 9.)
Oddly, the Step I grievance response by Sgt. Leslie, which was reviewed by
Lt. D. Siles, is dated June 12, 2016 – a date after the Step III grievance response.
Among other things, the investigation revealed that “Prisoner Baldwin was not
having a medical emergency, he was having an issue with his wheelchair.” (DE 1
at 16; see also DE 1 ¶ 10.)
Plaintiff’s “Staff Misconduct Report & Complaint”
Meanwhile, on or about May 13, 2016 - while Plaintiff was awaiting his
Step III grievance response and before he had received the Step I grievance
response - Plaintiff completed a “Staff Misconduct Report & Complaint” against
“Sgt. Michael” alleging “Conduct Unbecoming a State Employee.” (DE 1 at 2122.) On or about July 13, 2016, Plaintiff sent a follow up letter regarding his
“Civil Service Complaint,” wherein he claimed that ARF Warden Klee is
retaliating against him. (DE 1 at 23.)
Plaintiff’s allegations against the dismissed Defendants
(Chapman, Leslie, Siles and Russell) and Plaintiff’s motion
to amend (DE 12)
Plaintiff’s original complaint failed to state a claim
against these four defendants.
The grievance materials attached to Plaintiff’s original complaint show that:
(a) Defendant Chapman provided the April 2016 response to Plaintiff’s Step II
grievance (DE 1 at 13-14); (b) Defendants Leslie and Siles provided the June 2016
response to Plaintiff’s Step I grievance (DE 1 at 16); and (c) Defendant Russell
provided the May 2016 Step III grievance decision (DE 1 at 15). The complaint
itself specifically mentions Siles, Leslie and Russell, as well as the grievance
process. (See DE 1 at 8-9 ¶¶ 4, 5, 9-11.)
Even so, this Court’s October 14, 2016 order dismissed Plaintiff’s claims
against Defendants Chapman, Siles, Leslie and Russell for failure to state a claim
upon which relief may be granted. (DE 5 at 1.) The Court determined that
Plaintiff had not made any specific allegations against Chapman and had failed “to
allege Chapman’s particular, alleged involvement . . . .” (DE 5 at 3-4.) In
addition, characterizing Plaintiff’s claims against Defendants Siles, Leslie and
Russell as “based upon their responses to grievances he filed concerning being
forced to walk without the use of his wheelchair[,]” the Court concluded that
Plaintiff’s claim that these defendants “failed to properly or adequately respond to
his grievances” did not state a claim upon which relief may be granted. (DE 5 at 45.)
Plaintiff’s motion to amend, as presented, is denied.
Plaintiff’s January 12, 2017 motion to amend seeks leave to file an amended
complaint to reinstate Chapman, Siles, Leslie and Russell as defendants in this
case. (DE 12.) Defendants oppose this motion. (DE 14.)
Plaintiff seeks leave to amend under Fed. R. Civ. P. 15(a), which governs
amendments before trial:
(1) Amending as a Matter of Course. 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.
(2) Other Amendments. In all other cases, 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.
(3) Time to Respond. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time
remaining to respond to the original pleading or within 14 days after
service of the amended pleading, whichever is later.
Fed. R. Civ. P. 15(a).2
Plaintiff’s motion to amend is denied. First, Plaintiff’s request does not
qualify for an amendment “as a matter of course.” Fed. R. Civ. P. 15(a)(1).
Defendants Chapman, Siles, Leslie and Russell were dismissed on October 14,
2016. (DE 5.) Although service was never attempted upon them, by the time
Plaintiff sought leave to amend his complaint, it had been more than 21 days since
the complaint was served upon Defendants Klee and Michael and more than 21
days since the Court entered its order dismissing Defendants Chapman, Siles,
Leslie and Russell. Fed. R. Civ. P. 15(a)(1)(A). Also, at the time Plaintiff sought
amendment, Defendants Klee and Michael had yet to file their February 8, 2017
motion for summary judgment.
As such, Plaintiff’s motion to amend cannot
functionally qualify as a “reply” to Defendants’ motion, even if the filing of a
motion for summary judgment were construed as opening the door for an
amendment as a matter of course. Fed. R. Civ. P. 15(a)(1)(B).
Second, Plaintiff’s current submission has not convinced the Court that leave
to amend is warranted. To be sure, when seeking leave of court to amend a
pleading, “[t]he court should freely give leave when justice so requires.” Fed. R.
Although Plaintiff also seeks leave to amend under Fed. R. Civ. P. 19(a), this rule
governs “persons required to be joined if feasible.” In light of Plaintiff’s pro se
status, the Court assumes he cited this rule on the basis that his motion to amend
seeks to re-institute or add parties to this case under Rule 15(a), rather than joining
them as required under Rule 19(a).
Civ. P. 15(a)(2). However, this right is not absolute. As the Supreme Court has
If the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits. In the absence of any apparent or declared
reason—such as 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, futility of amendment, etc.—the leave
sought should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962) (emphasis added). Moreover, “the
grant or denial of an opportunity to amend is within the discretion of the District
Court….” Id. To the extent Plaintiff’s claims against any of these four defendants
are related to that individual’s response to a grievance, and, consistent with this
Court’s previous order of dismissal, a defendant cannot be liable under 42 U.S.C. §
1983 where his or her only role involves “the denial of administrative grievances
or the failure to act[.]” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Therefore, the reiteration of any such claim would be futile.3
Relatedly, to the extent Plaintiff’s claims against any of these four
defendants go beyond their denial of Plaintiff’s administrative grievances or go
If Plaintiff intended this motion to be one for reconsideration of the October 14,
2016 order of partial dismissal, the motion would be tardy. E.D. Mich. 7.1(h)(1)
(“A motion for rehearing or reconsideration must be filed within 14 days after
entry of the judgment or order.”).
beyond their failure to act,4 it would facilitate this Court’s analysis if such claims
were presented in a properly drafted proposed amended complaint.
Plaintiff’s 10-paragraph motion to amend does not comply with this Court’s related
local rule governing the form of a motion to amend and documentation in support
A party who moves to amend a pleading shall attach the proposed
amended pleading to the motion. Any amendment to a pleading,
whether filed as a matter of course or upon a motion to amend, must,
except by leave of court, reproduce the entire pleading as amended,
and may not incorporate any prior pleading by reference. Failure to
comply with this Rule is not grounds for denial of the motion.
E.D. Mich. LR 15.1. Plaintiff’s four-page motion to amend his complaint consists
of a title page and a three-page motion. (DE 12 at 1-4.) There is no attachment
containing a reproduction of “the entire pleading as amended . . . .” E.D. Mich. LR
15.1. As this rule expressly provides, the failure to comply with E.D. Mich. LR
15.1 cannot be the sole basis for denial of Plaintiff’s motion to amend. Yet, the
attachment of a proposed first amended complaint is important here, because, as
noted in the previous paragraph, Plaintiff is asking the Court to re-instate
Plaintiff’s motion to amend makes several additional allegations against
Defendants (such as acting in concert with each other; agreeing, condoning and
ratifying the actions of another; conducting a “sham proceeding;” investigating and
considering his grievance in a procedurally incorrect matter which rendered the
determination invalid). In addition, he attempts to allege violations of: (a) the
Eighth Amendment; (b) the Fourteenth Amendment’s due process clause; (c)
MDOC PD 03.02.130 (“Prisoner/Parolee Grievances”); (d) the Americans with
Disabilities Act (ADA); and, (e) the Michigan’s Persons with Disabilities Civil
Rights Act (Mich. Comp. Laws §§ 37.1101-37.1607).
defendants who have already been dismissed. The attachment of a proposed first
amended complaint would allow the Court to assess whether Plaintiff’s proposed
amended claims are futile –as would be the case if his theory of the case rests upon
the same bases that previously resulted in dismissal – or whether they state a claim
upon which relief may be granted under an altered theory. Furthermore, “an
amended complaint supercedes all prior complaints.” Drake v. City of Detroit,
Michigan, 266 F. App'x 444, 448 (6th Cir. 2008).
Third, Plaintiff’s “relief sought” seeks more than just amendment of his
original complaint to reinstate the four previously dismissed defendants. He asks
that the Court compel Defendants to answer interrogatories “propounded to
determine liability.” (DE 12 at 4.) As discussed in further detail below with
respect to Plaintiff’s motion to compel, Fed. Rules Civ. P. 33 and 37 provide the
proper procedures by which to serve interrogatories and file related motions
compelling answers to such requests. A motion to amend is not among the proper
the proper vehicles by which to seek discovery, nor can a motion to compel be
filed regarding discovery which the Plaintiff himself has never served and to which
the Defendants have never had the opportunity to respond, as discussed below.
Finally, although the Court is denying Plaintiff’s motion to amend his
original complaint, it does so without prejudice to Plaintiff refiling his motion - in
accordance with Fed. R. Civ. P. 15(a) and in the form described by E.D. Mich. LR
Plaintiff’s motion to compel Defendant Michael to answer
interrogatories (DE 13)
Plaintiff’s January 24, 2017 motion to compel discovery sets forth 21
interrogatories for Defendant Michael regarding which Plaintiff seeks answers
signed and under oath within thirty (30) days. (DE 13.) Defendants have not filed
an opposition to this motion. Nonetheless, it is denied as presented.
First, it does not appear that Plaintiff has engaged in the proper procedure
for serving discovery requests. Where a plaintiff seeks answers to interrogatories
from a defendant, the plaintiff should serve the interrogatories upon the defendant
in accordance with Fed. R. Civ. P. 33(a). Thereafter, the defendant should answer
and/or object in accordance with Fed. R. Civ. P. 33(b). Should the defendant fail
to answer such interrogatories in accordance with the rules, the plaintiff may file a
motion to compel a discovery response as contemplated by Fed. R. Civ. P.
37(a)(3)(B)(iii). It does not appear that Plaintiff engaged in this process before
filing his discovery requests with the Court.
Second, there are only certain circumstances under which parties may file
discovery materials with this Court. Interrogatories “must not be filed until they
are used in the proceeding or the court orders filing[.]” Fed. R. Civ. P. 5(d)(1).
Additionally, in pertinent part, the Local Rules of the E.D. Mich. provide: “A
party or other person may not file discovery material specified in Fed.R.Civ.P.
5(d)(1) and certificates of service for such discovery material except: (1) when it
provides factual support for a motion, response or reply. The party or other person
relying on the material must file only the germane portion of it as an exhibit or
attachment to the motion, response, or reply.” E.D. Mich. LR 26.2(a). Thus,
Plaintiff’s instant motion to compel is premature.
The denial of this motion is without prejudice to Plaintiff’s ability to refile
once he can illustrate to the Court that:
(1) he has properly serve these
interrogatories upon Defendant Michael in accordance with Fed. R. Civ. P. 33(a);
and, (2) Defendant Michael has failed to answer and/or validly object in
accordance with Fed. R. Civ. P. 33(b). Should those circumstances arise, Plaintiff
is reminded that any related motion to compel should comply with E.D. Mich. LR
37.2 (“Form of Discovery Motions”), which provides: “Any discovery motion
filed pursuant to Fed. R. Civ. P. 26 through 37, shall include, in the motion itself or
in an attached memorandum, a verbatim recitation of each interrogatory, request,
answer, response, and objection which is the subject of the motion or a copy of the
actual discovery document which is the subject of the motion.”
Accordingly, Plaintiff’s January 12, 2017 motion to amend the complaint
(DE 12) is DENIED WITHOUT PREJUDICE. Plaintiff’s January 24, 2017
motion to compel discovery (DE 13) is likewise DENIED WITHOUT
PREJUDICE. My report and recommendation regarding Defendants Klee and
Michael’s motion (DE 15) will issue under separate cover.
IT IS SO ORDERED.
Dated: March 29, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 29, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
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