Hoffman v. Kik

Filing 31

ORDER accepting 28 Magistrate Judge's Report and Recommendation, Granting Plaintiff's Motions for Leave to Amend 13 , 20 and Denying Defendant's Motions to Dismiss 10 , 17 . Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT HOFFMAN,
#181813,
Plaintiff,
vs.

Civil Action No. 18-CV-11908
HON. BERNARD A. FRIEDMAN

TERESA KIK,
Defendant.
__________________/
ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
GRANTING PLAINTIFF’S MOTIONS FOR LEAVE TO AMEND, AND
DENYING DEFENDANT’S MOTIONS TO DISMISS
This matter is presently before the Court on Magistrate Judge Mona Majzoub’s
Report and Recommendation (“R&R”), in which she recommends that the Court grant plaintiff’s
motions for leave to amend the complaint and deny defendant’s motions to dismiss. Defendant has
filed objections to the R&R. Pursuant to Fed. R. Civ. P. 72(b)(3), the Court “must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to.”
Defendant does not object to the magistrate judge’s recommendation that plaintiff’s
first motion for leave to amend (docket entry 13) should be granted and that defendant’s first motion
to dismiss (docket entry 10) should be denied as moot. The Court agrees with the magistrate judge’s
analysis and conclusion as to these motions.
Defendant objects to the magistrate judge’s recommendation that plaintiff’s second
motion for leave to amend (docket entry 20) should be granted and that defendant’s second motion
to dismiss (docket entry 17) should be denied. Defendant argues that she is entitled to qualified
immunity and therefore another amendment to the complaint would be futile and defendant is

entitled to dismissal. The Court agrees with the magistrate judge. Leave to amend is granted
liberally, and for the reasons explained at pages 7-15 of the R&R, plaintiff’s allegations suffice to
state a retaliation claim. Whether defendant is entitled to qualified immunity remains to be seen.
As the magistrate notes, defendant’s second motion to dismiss (which was filed before plaintiff
sought leave to file a second amended complaint) does not address all of plaintiff’s additional
allegations and is directed at a now superseded complaint. The procedurally correct course of action
for defendant to take is to file a motion to dismiss or for summary judgment raising the qualified
immunity defense and tailoring her argument to the facts alleged in plaintiff’s second amended
complaint. Accordingly,

IT IS ORDERED that Magistrate Majzoub’s R&R is hereby accepted and adopted
as the findings and conclusions of the Court.

IT IS FURTHER ORDERED that defendant’s objections to the R&R are overruled.

IT IS FURTHER ORDERED that plaintiff’s first motion for leave to amend (docket
entry 13) is granted.

IT IS FURTHER ORDERED that defendant’s first motion to dismiss (docket entry
10) is denied as moot.

IT IS FURTHER ORDERED that plaintiff’s second motion for leave to amend

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(docket entry 20) is granted and the second amended complaint (docket entry 21) is the operative
complaint.

IT IS FURTHER ORDERED that defendant’s second motion to dismiss (docket entry
17) is denied as moot, as it is not directed specifically to the second amended complaint.

Dated: August 29, 2019
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of
record herein by electronic means or first class U.S. mail on August 29, 2019.
Robert Hoffman,181813
Parnall Correctional Facility - SMT
1780 E Parnall Rd
Jackson, MI 49201-7136

s/Johnetta M. Curry-Williams
Case Manager

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