Bonga v. Abdellatif et al

Filing 70

OPINION AND ORDER DENYING without prejudice Plaintiff's 36 Motion to Amend/Correct and STRIKING PROPOSED AMENDED COMPLAINT 37 --Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY LEE BONGA,
Case No. 2:16-cv-13685
District Judge Sean F. Cox
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
BADAWI ABDELLATIF,
M.D., et al.,
Defendants.
___________________________________/

OPINION AND ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S
MOTION TO AMEND COMPLAINT (DE 36) and STRIKING PROPOSED
AMENDED COMPLAINT (DE 37)
I.

OPINION
A.

The alleged events of 2009 through September 2016 concerning
six defendants.

Plaintiff Jeffrey Lee Bonga (#271635) is currently incarcerated at the
Michigan Department of Corrections (MDOC) St. Louis Correctional Facility
(SLF). (DE 26 at 4.) On October 13, 2016, while incarcerated at the MDOC’s
Alger Correctional Facility (LMF) in Michigan’s upper peninsula, Plaintiff filed
the instant lawsuit, pro se, against six defendants: (1-4) Kenneth Jordan, Victor
Dominguez-Bem, M.D., Kyle Ploehn, P.A., and Margaret Ouellette, P.A., each of
Lakeland Correctional Facility (LCF); (5) Badawi Abdellatif, M.D., of Macomb
Correctional Facility (MRF) and (6) William C. Borgerding, whose location is not
1

provided. (DE 1 ¶¶ 8-13; see also DE 11, DE 17.) The alleged events begin in
2009 – continue through his March 2015 transfer from LCF to MRF, through his
May 2016 transfer to Muskegon Correctional Facility (MCF), and through his July
2016 transfer to LMF – and conclude in September 2016. (DE 1 ¶¶ 20-38.)
According to Plaintiff, Harish Rawal, M.D. performed a “cervical 5 through
7 anterior fusion” on April 24, 2012. (DE 1 ¶ 24.) Plaintiff’s claims against
Defendants Jordan, Ploehn, Ouellette and Dominguez-Bem appear to relate to
treatment for Plaintiff’s back pain at LCF between February 2013 and February
2015. (DE 1 ¶ 26.) Plaintiff’s claims against Defendant Abdellatif appear to relate
to the events between March and August 2015 at MRF. (DE 1 ¶¶ 28-29.) Finally,
Plaintiff’s claims against Defendant Borgerding appear to relate to the events of
September 2016, while Plaintiff was incarcerated at LMF. (DE 1 ¶ 38). Plaintiff
sues Defendants in their individual and official capacities, alleging “denial of
medical care.” (DE 1 ¶¶ 14-19, 39-46.) He seeks declaratory, injunctive,
compensatory and punitive relief. (DE 1 at 13.)
B.

There are multiple pending motions, one of which seeks to amend
the original complaint.

Judge Cox has referred this case to me for all pretrial proceedings. (DE 9.)
Currently before the Court are several motions:


the remainder of Plaintiff’s October 13, 2016 motion for
preliminary injunction (DE 3) following the Court’s order
2

adopting and accepting my report & recommendation in part
and returning the matter to me in part (DE 33, DE 59)


Plaintiff’s motion to amend complaint (DE 36), along with the
simultaneously-filed proposed first amended complaint (DE 37)



Defendants Dominguez-Bem, Ouellette, and Ploehn’s motion
for summary judgment based solely on the failure to exhaust
administrative remedies (DE 43), regarding which a response
and a reply have been filed (DEs 50, 54, 62)



Defendant Borgerding’s motion for summary judgment (DE
52), which has been fully briefed (DEs 53, 60, 61)



Defendant Jordan’s motion to dismiss and/or for summary
judgment (DE 56), which has been fully briefed (DEs 57, 58,
63, 64)

This report addresses Plaintiff’s motion to amend.
C.

Fed. R. Civ. P. 15 (“Amended and Supplemental Pleadings”)

Plaintiff brings his motion to amend pursuant to Fed. R. Civ. P. 15(a). This
rule permits amending a 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). Otherwise, “a party may amend its pleading only with the opposing
party's written consent or the court's leave.” Fed. R. Civ. P. 15(b).
“The court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(b). As the Supreme Court has explained:
3

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.’ Of course, the
grant or denial of an opportunity to amend is within the discretion of
the District Court, but outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and inconsistent with
the spirit of the Federal Rules.
Foman v. Davis, 371 U.S. 178, 182 (1962).
“A proposed amendment is futile if the amendment could not withstand a
Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203
F.3d 417, 420 (6th Cir. 2000) (citing Thiokol Corp. v. Department of Treasury,
State of Michigan, Revenue Div., 987 F.2d 376, 382–83 (6th Cir.1993)). “The test
for futility . . . does not depend on whether the proposed amendment could
potentially be dismissed on a motion for summary judgment; instead, a proposed
amendment is futile only if it could not withstand a Rule 12(b)(6) motion to
dismiss.” Rose, 203 F.3d at 421.
D.

Plaintiff’s motion to amend his original complaint is denied
without prejudice.

To be sure, Plaintiff’s motion is unopposed, as no existing Defendant has
responded to Plaintiff’s May 26, 2017 motion to amend. E.D. Mich. LR 7.1(c)(1)
(“A respondent opposing a motion must file a response, including a brief and
4

supporting documents then available.”). In fact, Borgerding’s motion for summary
judgment and Jordan’s motion to dismiss each acknowledge the amended
complaint. (See DE 52 at 7, 8, 19 and DE 56 at 2 ¶ 2.) Nonetheless, for the
reasons stated below, Plaintiff’s motion to amend his original complaint will be
denied without prejudice.
1.

Plaintiff’s proposed claims against the two new, proposed
Defendants are, in Plaintiff’s own words, unexhausted and,
therefore, are futile.

Plaintiff’s motion to amend his complaint seeks to add SLF grievance
coordinator K. Parsons and SLF Hearings Investigator L. Scott as defendants sued
in their individual and official capacities. (DE 36 at 3-9, DE 37 ¶¶ 18-19, 26-27.)
Relatedly, he seeks to add several factual allegations – many of which post-date
the factual allegations in the original complaint - regarding his legal and/or
personal property.1 (See DE 36 ¶¶ 41, 48-50, 58-67.)2 He also includes
corresponding “claims for relief,” alleging that Scott failed to provide him with an

1

Plaintiff’s legal materials were a subject of his May 1, 2017 motion for
preliminary injunction, regarding which I entered a report and recommendation.
(DE 30, DE 33 at 10-12). The Court denied the motion without prejudice on June
6, 2017. (DE 40.)
2

For example, in one instance he provides backdrop on June 28 or 29, 2016, which
falls within the factual allegations in the original complaint. (DE 37 ¶ 41.)
However, these same allegations primarily post-date the factual allegations in the
original complaint, as they span the period from October 11, 2016 (when he was
placed in segregation at LMF), continue through his November 29, 2016 transfer to
SLF, and conclude with a May 17, 2017 visit to an SLF Nurse for “extreme pain
ever since he was forced to pick up his legal footlocker.” (DE 37 ¶¶ 48-50, 58-67.)
5

administrative hearing - which seems to have been the subject of Grievance
Identifier SLF-17-03-0283-07e - and withheld his legal property for 168 days, and
further alleging that Parsons failed to give Plaintiff his legal property. (DE 37 ¶¶
91-93, 64.)
a.

Exhaustion of available administrative remedies

“No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). As the Supreme Court has
instructed, “[p]roper exhaustion demands compliance with an agency's deadlines
and other critical procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course of its
proceedings.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006).
The MDOC’s Policy Directive regarding Prisoner/Parolee Grievances
describes a grievance process that includes an attempt at resolution, followed by
three written steps. MDOC PD 03.02.130 ¶¶ P-GG (effective July 9, 2007).
Among other things, when filing a written grievance, “[i]nformation provided is to
be limited to the facts involving the issue being grieved (i.e., who, what, when,
where, why, how)[,]” and “[d]ates, times, places, and names of all those involved
in the issue being grieved are to be included.” Id. ¶ R. This policy directed is
6

intended to provide prisoners and parolees with “with an effective method of
seeking redress for alleged violations of policy and procedure or unsatisfactory
conditions of confinement.” Id. (Policy Statement).
b.

Plaintiff admits he has failed to exhaust his proposed
claims against Parsons and Scott.

To be sure, “failure to exhaust is an affirmative defense under the PLRA,”
and “inmates are not required to specially plead or demonstrate exhaustion in their
complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). Still, “[t]here is . . . no
reason to suppose that the normal pleading rules have to be altered to facilitate
judicial screening of complaints specifically for failure to exhaust.” Jones, 549
U.S. at 214. In other words, even though failure to exhaust is an affirmative
defense, the Court is not prevented from screening a complaint under 28 U.S.C. §
1915A, which permits dismissal of a complaint, or any portion thereof, if it “is
frivolous, malicious, or fails to state a claim upon which relief may be granted[.]”
28 U.S.C. § 1915A(b)(1). Spaulding v. Oakland Cty. Jail Med. Staff, No. CIV.
4:07-CV-12727, 2007 WL 2336216, at *1 (E.D. Mich. Aug. 15, 2007) (“Although
a plaintiff's complaint cannot be dismissed sua sponte merely for failing to plead
and prove exhaustion within the text of the complaint because the issue of
exhaustion is an affirmative defense under the PLRA, a plaintiff's complaint can be
dismissed sua sponte if the complaint on its face fails to state a claim upon which
relief can be granted.”) (citing Jones.)
7

Here, it is not necessary to consider whether any of Plaintiff’s proposed
claims against these proposed Defendants are futile on their merits.3 This is so,
because the proposed amendments involving Defendants Parsons and Scott and the
claims against them present a clear procedural problem, as Plaintiff’s first amended
complaint admits that he has yet to exhaust his administrative remedies as to either
Parsons or Scott:


Mr. Bonga has exhausted his administrative remedies with
respect to all claims and all Defendants, except HI Scott, and
GC K. Parsons.



At the time of this filing, Mr. Bonga is in the process of
exhausting his administrative remedies with respect to
Defendants Scott and Parson, Plaintiff is currently awaiting his
Step II Grievance Response from the SLF Warden. It is
impor[t]ant to note that Mr. Bonga has filed a preliminary
junction in regards to Defendants Scott and Parson for
retaliation and illegal confiscation of his legal property and the
return of said property.



Mr. Bonga had Assistant Resident Unit Manager Hogan give
him access to his excessive legal property so that he could gain
possession of said property and place the three footlockers in
his cell. Mr. Bonga is still actively going through the grievance

3

For example, Plaintiff alleges that L. Scott failed to respond Plaintiff’s March 2,
2017 kite, which was an attempt to obtain his legal property prior to the March 20,
2017 deadline set by this Court’s February 21, 2017 order. (DE 37 ¶ 58.) Plaintiff
also alleges that K. Parsons denied his Step I grievance on or about May 11, 2017,
and, as such, he was “without all his legal material for 168 days for no other reason
than to retaliate against him for filing the instant civil rights complaint.” (DE 37 at
¶¶ 65, 66.) However, “[t]he ‘denial of administrative grievances or the failure to
act’ by prison officials does not subject supervisors to liability under § 1983.”
Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (quoting Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir.1999)). 
8

process in order to fully exhaust his remedies in regards to his
claims of illegal confiscation of his legal property and
retaliation by Defendants Parsons and Scott.


It is also important to note that Mr. Bonga did not have to
exhaust his administrative remedies in regards to this legal
property and retaliation in order for him to file preliminary
injunction for defendants to ceas[e] their unconstitutional
actions.(Dkt# 30)

(DE 37 ¶¶ 81-84) (emphases added).
“The plain language of the statute makes exhaustion a precondition to filing
an action in federal court . . . .” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.
1999) (external citations omitted) (emphasis added). Here, it is clear from the face
of Plaintiff’s proposed first amended complaint that permitting the wished-for
claims against Parsons and Scott would be futile, as he admits he has not yet
satisfied the requisite precondition. See Proctor v. Applegate, 661 F. Supp. 2d 743,
774 (E.D. Mich. 2009) (Borman, J., adopting amended report and recommendation
of Hluchianiuk, M.J.) (“The undersigned suggests that these paragraphs fail to state
a claim because it is obvious on their face that they are unexhausted.”); Spaulding,
2007 WL 2336216, at *3 (“By Plaintiff's own admission on the face of the
complaint, Plaintiff failed to properly exhaust his administrative remedies in
accordance with the Oakland County Jail grievance policy.”).4 Therefore,

4

See also Buffman v. Moody, No. 14-CV-12577, 2016 WL 3382196, at *3 (E.D.
Mich. June 20, 2016) (Levy, J.) (“The Court agrees with Judge Patti that if the
initial filing is construed as a complaint, any amendment would be futile because
9

“because the affirmative defense appears on the face of the pleadings and suffices
to establish the existence of the defense, . . . Plaintiff's complaint is subject to sua
sponte dismissal for failure to state a claim.” Spaulding, 2007 WL 2336216, at *3.
It being obvious from the face of Plaintiff’s proposed first amended
complaint that his claims against the newly proposed Defendants Scott and Parson
have yet to be exhausted as required by 42 U.S.C. § 1997e(a), and such exhaustion
being required before a complaint is filed, Plaintiff has failed “to state a claim upon
which relief may be granted[.]” 28 U.S.C. § 1915A(b)(1); see also 28 U.S.C. §
1915(e)(2)(B)(ii), 42 U.S.C. § 1997e(c).
2.

Plaintiff’s proposed first amended complaint also seeks to
elaborate upon the factual allegations underlying his
original complaint.

Preliminarily, I note that Plaintiff’s proposed first amended complaint
seeks to add information about previous lawsuits. (DE 36 at 3-4, DE 37 ¶¶ 1-5.)
These are permissible amendments, as these paragraphs simply inform the Court
about Plaintiff’s litigation history; however, they may not actually be necessary,
since federal courts only require “notice pleading,” i.e., a “a short and plain
statement of the claim” which provides enough information to give the defendants
notice of what is being claimed against them, so that they can fairly respond. Fed.

plaintiff failed to properly exhaust his administrative remedies, which he was
required to do before filing suit in federal court.”) (citing 42 U.S.C. § 1997e(a)).

10

R. Civ. P. 8(a)(2). Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-514 (2002).
In addition, Plaintiff’s proposed first amended complaint seeks to add allegations
regarding examinations with existing LCF Defendants Jordan, Dominquez-Bem,
Ouellette and Ploehn which allegedly occurred on dates within the factual
allegations underlying the original complaint. (DE 36 at 7-8; DE 37 ¶¶ 74-80.)
These, too, are permissible amendments, as these paragraphs do not expand the
scope of the case; instead, they elaborate on matters discussed in the original
complaint. (Compare, e.g., DE 1 ¶¶ 26, 44; DE 37 ¶¶ 73-78.)
As such, after considering whether it is actually necessary to do so, Plaintiff
may amend his complaint with respect to the allegations analyzed in this particular
section of my opinion, whether as a matter of course under Fed. R. Civ. P. 15(a)(1)
or with the Court’s leave under Rule 15(a)(2).
3.

It is unclear against whom Plaintiff brings his proposed
claims about denial of medication at SLF during March
2017.

Among the allegations Plaintiff seeks to add are several which occurred on
dates following the factual allegations underlying the original complaint. In sum,
Plaintiff alleges that Dr. Harish Rawal of Allegiance Hospital performed a
laminectomy during January 2017, in the wake of which Plaintiff “went thirty days
without his vital medication[,]” while incarcerated at SLF. (DE 36 at 4-5; DE 37
¶¶ 51-57.) It is not clear against whom these allegations are brought. This is
11

complicated by the fact that there does not seem to be an existing SLF defendant in
this case. (DE 1 ¶¶ 8-13.) Also, even if Plaintiff had exhausted his claims against
proposed Defendants Scott and Parsons of SLF, it is not clear how the allegations
that they were involved in a 168-day deprivation of Plaintiff’s legal property relate
to the alleged 30-day deprivation of medication. (DE 37 ¶¶ 18-19, 65, 91, 92.)
Perhaps proposed ¶¶ 51-57 were inserted simply to “connect the dots” between the
April 2012 and January 2017 surgeries performed by Dr. Rawal and to elaborate
upon his claims against the existing defendants. (See DE 1 ¶¶ 24, 45-46; DE 37 ¶¶
32, 79-80). Whatever the case may be, given the current lack of clarity in these
allegations, they do not “state a claim upon which relief can be granted[.]” Fed. R.
Civ. P. 12(b)(6) and will not be permitted as currently proposed.
II.

ORDER
Accordingly, Plaintiff’s motion to amend his complaint (DE 36) is DENIED

WITHOUT PREJUDICE, and the Clerk of the Court is DIRECTED to strike the
proposed amended complaint (DE 37). Should Plaintiff elect to renew his motion
to amend, subject to the foregoing discussion, he is hereby advised to comply with
E.D. Mich. LR 15.1 (“Form of a Motion to Amend and Its Supporting
Documentation”).
Dated: December 11, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
12

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on December 11, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

13