Heard v. Strange et al
OPINION and ORDER Accepting and Adopting 101 REPORT AND RECOMMENDATION Granting in Part and Denying in Part 96 MOTION for Leave to File Amended Complaint - Signed by District Judge Nancy G. Edmunds. (LBar)
Case 2:17-cv-13904-NGE-PTM ECF No. 104, PageID.1315 Filed 01/07/21 Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Honorable Nancy G. Edmunds
YARNICE STRANGE, et al.,
OPINION AND ORDER ACCEPTING AND ADOPTING THE MAGISTRATE
JUDGE’S DECEMBER 3, 2020 REPORT AND RECOMMENDATION 
The matter is before the Court on the Magistrate Judge’s December 3, 2020
report and recommendation. (ECF No. 101.) Plaintiff has filed three objections to the
Magistrate Judge’s report and recommendation. (ECF No. 102.) Defendants have filed
a response to Plaintiff’s objections. (ECF No. 103.) Having conducted a de novo
review of the portions of the Magistrate Judge’s report to which specific objections have
been filed, the Court OVERRULES Plaintiff’s objections and ACCEPTS AND ADOPTS
the report and recommendation (ECF No. 101). As a result, the Court GRANTS IN
PART and DENIES IN PART Plaintiff’s motion for leave to file a second amended
complaint (ECF No. 96).
In this prisoner civil rights lawsuit filed on December 4, 2017, Plaintiff Lamont
Heard, an inmate in the Michigan Department of Corrections (“MDOC”), alleges that
Defendants retaliated against him in violation of his First Amendment rights by
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transferring him to a different housing unit in January 2017 and transferring him to a
different prison in June 2017.1 (ECF No. 15.) Plaintiff’s claims stemming from his
housing unit transfer (January 2017 grievance) were dismissed due to his failure to
exhaust his administrative remedies with regard to that claim. (ECF No. 72, PgID 799801.) This left the claims stemming from the prison unit transfer (July 2017
grievance). However, two defendants, Douglas and Oosterhof, were also dismissed
from this action because their names were not mentioned in that grievance. (Id. at
While Plaintiff initially brought this suit pro se, he was appointed counsel by the
Court after the claims stemming from his prison unit transfer survived summary
judgment. Thru counsel, Plaintiff now moves for leave to file a second amended
complaint. (ECF No. 96.) Plaintiff seeks to add a religious discrimination/retaliation
claim against the four remaining defendants as well as non-parties, Douglas and
Oosterhof. He argues that information obtained through depositions reveals that the
prison transfer was also motivated by animus towards his religious beliefs as a
member of the Nation of Islam. Plaintiff also seeks to remove the claims stemming
from the housing unit transfer which were previously dismissed and to clarify the claim
stemming from the prison unit transfer as set forth in Plaintiff’s first amended
complaint, which was submitted when Plaintiff was proceeding pro se.
The protected activity that forms the basis for these claims is Plaintiff’s legal
activities, including a lawsuit filed against Michigan state officials in this Court.
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Standard of Review
Under Federal Rule of Civil Procedure 72(b)(3), “[t]he district judge must
determine de novo any part of the magistrate judge’s disposition that has been
properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” See also 28 U.S.C. § 636(b)(1).
The Magistrate Judge recommends that Plaintiff’s motion for leave to amend his
complaint be granted to the extent the amended complaint removes claims which have
been dismissed and clarifies prior claims and denied to the extent it adds a new claim.
No party has objected to the Magistrate Judge’s recommendation that Plaintiff’s
motion be granted in part. “[T]he failure to object to the magistrate judge’s report
releases the Court from its duty to independently review the matter.” Hall v. Rawal, No.
09-10933, 2012 U.S. Dist. LEXIS 120541, at *2 (E.D. Mich. Aug. 24, 2012) (citing
Thomas v. Arn, 474 U.S. 140, 149 (1985)). The Court nevertheless agrees with the
Magistrate Judge’s analysis on this issue and accepts and adopts it. Accordingly,
Plaintiff’s motion is granted to the extent the amended complaint removes the claims
stemming from the housing unit transfer which have been dismissed and clarifies
Plaintiff’s prior access-to-the-courts retaliation claim.
Plaintiff objects to the Magistrate Judge’s recommendation that his motion be
denied to the extent he seeks to add a religious retaliation claim. More specifically,
Plaintiff objects to the Magistrate Judge’s findings that he did not exhaust his
administrative remedies with regard to this claim, Defendants were not on sufficient
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notice of this claim, and Plaintiff did not meet his burden of justifying why he did not
move to amend sooner.
As the Magistrate Judge noted, Plaintiff’s claims against Douglas and Oosterhoff
were previously denied by this Court because he did not include their names in the July
2017 grievance. That analysis remains applicable to the new claim in the amended
complaint. With regard to the defendants who remain in this case, the Magistrate Judge
noted that the grievance did not contain any allegations regarding religious
discrimination or retaliation. Plaintiff argues that exhaustion does not require full
development of a legal theory and that this claim stems from the same retaliatory prison
transfer that was fully grieved. However, as the Magistrate Judge notes, courts look at
the prison’s policy itself when determining whether a prisoner has properly exhausted
his administrative remedies, see Jones v. Bock, 549 U.S. 199, 218 (2007), and the
MDOC policy relevant here instructs the grievant to include the “who, what, when,
where, why, [and] how” for any issue being grieved, see MDOC Policy Directive
03.02.130(R). Thus, Plaintiff’s first objection is overruled.
And even if the proposed amendment is not futile, the Magistrate Judge’s
remaining recommendations provide a sufficient basis for denying leave. More
specifically, the Magistrate Judge found that Defendants were not on sufficient notice of
a new religious retaliation claim and they would be unduly prejudiced if leave is granted
because dispositive motions are imminent.
Plaintiff argues that Defendants were on notice of his intent to pursue a religious
retaliation claim, in part, because discovery requests addressed a possible religious
motive since as early as January 2020. However, as Defendants note, at the time,
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Plaintiff was seeking leave to move for reconsideration of the dismissal of the claims
stemming from his housing unit transfer, which he believed was motivated by his
religious affiliation. Plaintiff himself argues that the testimony that forms the basis for
the new claim was not elicited until September 18, 2020 and October 8, 2020, a few
weeks prior to the filing of his motion for leave. Thus, Plaintiff’s second objection is
Finally, Plaintiff argues that he could not have moved for leave to amend sooner
because he was waiting for the transcripts from the depositions. Even if this were true,
however, as the Magistrate Judge noted, the filing of dispositive motions is imminent.
Thus, the Court agrees that the addition of a new claim at this late juncture of the case
would be unduly prejudicial to Defendants. Accordingly, Plaintiff’s third objection is
overruled, and the Court will deny Plaintiff leave to add a religious retaliation claim.
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections and
ACCEPTS AND ADOPTS the Magistrate Judge’s report and recommendation. The
Court therefore GRANTS IN PART and DENIES IN PART Plaintiff’s motion for leave to
file a second amended complaint.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 7, 2021
Case 2:17-cv-13904-NGE-PTM ECF No. 104, PageID.1320 Filed 01/07/21 Page 6 of 6
I hereby certify that a copy of the foregoing document was served upon counsel of
record on January 7, 2021, by electronic and/or ordinary mail.
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