Dyer v. Hardwick et al

Filing 44

ORDER Adopting Magistrate Judge's 38 Report and Recommendation, Overruling Plaintiff's Objections, Granting in Part and Denying in Part 26 Motion to Dismiss, filed by Eva Lee, Janea Jones, Ester Ward, Shadehaeda Hardwick, Jodi Deangelo, Sherman Campbell; Dismissing All Claims Against Defendants Ward, Lee, Campbell, Deangelo and Jones and Denying as Moot 37 Motion for Leave to File Amended Complaint filed by Felicia Marie Dyer and Denying as Moot 42 Motion to Amend/Correct filed by Felicia Marie Dyer. (Third Amended Complaint due by 10/7/2011). Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FELICIA MARIE DYER,
Plaintiff,

Civil Action No.
10-CV-10130

vs.
HON. MARK A. GOLDSMITH
SHADEHAEDA HARDWICK, et al.,
Defendants.
___________________________/
ORDER (1) ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, (2) OVERRULING PLAINTIFF’S
OBJECTIONS, (3) GRANTING IN PART AND DENYING IN PART THE MOTION
TO DISMISS OF DEFENDANTS HARDWICK, WARD, LEE, CAMPBELL,
DEANGELO, AND JONES, (4) DISMISSING ALL CLAIMS AGAINST
DEFENDANTS WARD, LEE, CAMPBELL, DEANGELO, AND JONES, and (5)
DENYING AS MOOT PLAINTIFF’S MOTIONS TO AMEND THE COMPLAINT
This matter is presently before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Laurie J. Michelson, issued on August 1, 2011. The Magistrate
Judge recommends that the motion to dismiss of Defendants Hardwick, Ward, Lee,
Campbell, DeAngelo, and Jones be granted in part and denied in part.1 Specifically, the
Magistrate Judge recommends that (i) all claims for damages brought against the moving
Defendants in their official capacities be dismissed with prejudice; (ii) all claims brought
against Defendants Ward, Lee, Campbell, DeAngelo, and Jones in their individual capacities
be dismissed without prejudice to Plaintiff’s right to file an amended complaint; (iii) all
claims brought against Defendant Hardwick in her individual capacity be dismissed without
prejudice to Plaintiff’s right to file an amended complaint, except that Plaintiff’s claims
against Defendant Hardwick that she was (a) subjected to numerous retaliatory cell searches
and (b) arbitrarily denied a transfer to a non-smoking unit, will not be dismissed at this time.

1

These six defendants are collectively referred to as the “moving Defendants.”

Plaintiff has filed objections to the R&R. The Court reviews de novo those portions
of the R&R to which a specific objection has been made. Fed. R. Civ. P. 72(b). Having done
so, the Court concludes that Magistrate Judge Michelson correctly analyzed the issues
presented and reached the proper result for the proper reasons. Therefore, the Court accepts
and adopts the R&R, over Plaintiff’s objections, as the findings and conclusions of the Court.
Plaintiff may file a third amended complaint curing the pleading defects discussed by the
Magistrate Judge within 30 days of today’s date.2 If no amended complaint is filed within the
allotted time period, this dismissal will be deemed with prejudice. Moreover, any amended
complaint shall conform with Federal Rule of Civil Procedure 8(a).3 Plaintiff shall clearly set
forth the exact nature of the legal claim(s) alleged against each individual defendant, along
with a brief explanation of the factual basis for the claim. Going forward, the Court will be
disinclined to grant any further requests to amend the complaint.
SO ORDERED.
Dated: September 7, 2011
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

2

Because the Court is granting Plaintiff leave to file an amended complaint, her two pending
requests for such relief (Dkts. 37 and 42) are denied as moot.

3

Rule 8(a) states:
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.

(emphasis added).
2

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of
record and any unrepresented parties via the Court's ECF System to their respective email or
First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on September 7,
2011.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

3