Odom #161794 v. Corizon, Inc. et al

Filing 102

ORDER ADOPTING REPORT AND RECOMMENDATION 67 re 12 : Defendant Stieve's Motion 12 to Dismiss is GRANTED and Defendant Stieve is DISMISSED; Plaintiff may amend complaint within 30 days; Defendant Stieve may respond 14 days thereafter; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_______________________

STEVE ODOM,
Plaintiff,
Case No. 1:14-CV-606
v.
HON. GORDON J. QUIST
CORIZON, INC., et al,
Defendants.
_________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff, Steve Odom, has filed an objection to Magistrate Judge Ellen Carmody’s January
5, 2015 Report and Recommendation (R & R) (dkt. # 67). In that R & R, the magistrate judge
recommends granting Defendant Jeffrey Stieve’s motion to dismiss the claims against him.
Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to an R & R, the district judge “shall
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” After conducting a de novo review of the R & R,
Odom’s objections, Stieve’s objections, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted as the Opinion of the Court.
Odom argues that the magistrate judge erred in concluding that he failed to state a claim
against Stieve. Odom’s amended complaint asserts that Stieve is liable based on his conduct as a
supervisor, but does not assert that Stieve took an active role in the conduct alleged. “Supervisory
liability under § 1983 cannot attach where the allegation of liability is based on a mere failure to
act.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). To assert a claim against Stieve,
Odom must allege that Stieve “did more than play a passive role in the alleged violation or showed

mere tacit approval of the goings on.” Id. Because Odom has failed to do so, his claim against
Stieve must be dismissed.
Odom further argues that the magistrate judge should have allowed him the opportunity to
amend his complaint before ruling on Stieve’s motion to dismiss. Odom did not file a motion to
amend his complaint, but merely included a request to amend in his response to Stieve’s motion to
dismiss. A party who wishes to amend his complaint must file a motion and a proposed amended
complaint, rather than simply make a request for amendment. See Fed. R. Civ. P. 7(b)(1) (“A
request for court order must be made by motion.”); W.D. Mich. LCivR 5.7(f) (requiring that a
proposed amendment be attached to the motion). Courts in this circuit have repeatedly held that a
request for leave to amend raised only in response to a motion is procedurally improper, and
therefore must be denied. See e.g., Johnson v. Jondreau, No. 2:13-CV-260, 2014 WL 4100939, at
*1 (Aug. 18, 2014). Because Odom did not file a motion to amend, the magistrate did not err in
refusing to consider Odom’s request.
“[W]hen a motion to dismiss a complaint is granted, courts typically permit the losing party
leave to amend.” PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004). However, “the
right to amend is not absolute or automatic.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545,
551 (6th Cir. 2008). For instance, a court need not grant leave to amend if amendment would be
futile. Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005). “Amendment of a complaint is
futile when the proposed amendment would not permit the complaint to survive a motion to
dismiss.” Id. With such principles in mind, the Court will allow Odom the opportunity to file a
motion for leave to amend his complaint. That motion must include a copy of the proposed
amended complaint.

2

Finally, Stieve has objected to the R & R, arguing that the claims are subject to dismissal
based on Eleventh Amendment immunity and qualified immunity. Because the Court determines
that the claims must be dismissed on the merits, it will not consider the other asserted bases for
dismissal.
Therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and Recommendation
issued January 5, 2015 (dkt. # 67 ) is ADOPTED as the Opinion of the Court. Plaintiff’s Objection
(dkt. # 76) and Defendant’s Objection (dkt. #71) are OVERRULED.
IT IS FURTHER ORDERED that Defendant Stieve’s Motion to Dismiss (dkt. # 12) is
GRANTED. Plaintiff’s claims against Defendant Stieve are DISMISSED without prejudice.
IT IS FURTHER ORDERED that Plaintiff may file a motion to amend his complaint with
regard to the allegations against Defendant Stieve within 30 days of the date of this Order. That
motion must attach a copy of Plaintiff’s proposed amendment. Defendant Stieve may respond to
such motion within 14 days of its filing.

Dated: April 2, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

3