Sams #169006 v. Quinn et al
ORDER ADOPTING REPORT AND RECOMMENDATION 28 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CEDRICK SAMS, #169006,
UNKNOWN QUINN & UNKNOWN
HONORABLE PAUL L. MALONEY
ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING MOTION FOR LEAVE TO AMEND
On August 12, 2016, Defendants Quinn and Kludy filed a motion for summary
judgment. (ECF No. 17 at PageID.78.)
Plaintiff filed objections to the Report and Recommendation, and the Court will
address each in turn on de novo review. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
As an initial matter, though, the Court must observe that Plaintiff’s objections—two of
them in less than three pages—barely suffice to warrant review. See Mira v. Marshall, 806
F.2d 636, 637 (6th Cir. 1986) (“[T]he district court need not provide de novo review where
the objections are ‘[f]rivolous, conclusive or general.’”).
Plaintiff’s First Objection
Plaintiff first argues that the Magistrate Judge, rather than Defendants, raised the
argument that “Plaintiff failed to show any personal involvement by Defendant Sgt. Kludy.”
(ECF No. 29 at PageID.169.) Even if true, it matters not.
The Magistrate’s Report and Recommendation essentially relies on the fact that
Plaintiff has failed to state a claim upon which relief can be granted. That argument is
ordinarily properly raised under Fed. R. Civ. P. 12(b)(6) before an answer is filed, rather
than a motion under Fed. R. Civ. P. 56 like Defendants filed here. However, where matters
outside the pleadings are considered and not excluded, the Court must construe the motion
under Fed. R. Civ. P. 56, see Fed. R. Civ. P. 12(d)—and nothing in the Rules prevents the
court from dismissing a complaint for failing to state a claim even if the underlying motion
was brought under Fed. R. Civ. P. 56.1 Either way, though, the Magistrate Judge rested his
final recommendation on the insufficiency of the pleadings.
The thrust of Plaintiff’s argument—the Magistrate Judge himself errantly determined
the complaint failed to state a claim against Sergeant Kludy—must be rejected.
A court may, indeed must, sua sponte dismiss an action for failure to state a claim
against any named defendants under the PLRA. See 28 U.S.C. § 1915(e)(2)
(“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court
shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails
to state a claim on which relief may be granted.” (emphasis added)); see also In re Prison
Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (“District courts are required to
screen all civil cases brought by prisoners, regardless of whether the inmate paid the full filing
fee, is a pauper, is pro se, or is represented by counsel, as the statute does not differentiate
between civil actions brought by prisoners.”).
Defendants are entitled to raise alternative arguments in their pre-answer motion (e.g., the complaint fails to
state a claim but even if it does, Defendants are entitled to qualified immunity), and many of the alternative
arguments rested on matters outside of the pleadings.
In addition, to the extent this was properly a Rule 56 motion, a court may sua sponte
grant a motion for summary judgment “on grounds not raised by a party,” so long as the
nonmoving party was given “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f).
A report and recommendation clearly gives a party both notice and an opportunity to
respond by filing an objection. See, e.g., Santiago v. Anderson, 496 F. App’x 630, 637 (7th
Plaintiff cites no authority for the proposition that the Magistrate Judge cannot sua
sponte raise Plaintiff’s own failure to state a claim as to Sergeant Kludy. Indeed, Plaintiff
admits that his own statement of facts “failed to allege any wrongdoing acts committed by
Defendants Lt. Quinn or Sgt. Kludy that created a claim for constitutional violations . . . .”
(ECF No. 29 at PageID.169.)
Accordingly, Defendants’ first objection is OVERRULED.
Plaintiff’s Second Objection
Plaintiff next argues that the Magistrate Judge failed to consider several exhibits he
submitted in a response to the motion. (ECF No. 29 at PageID.169–70.) But even if that’s
true—exhibits attached to a complaint or response do not save the complaint if the complaint
itself does not contain sufficient information to put Defendants on notice of the claims. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting the pleading standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation”). That is particularly
true in the qualified immunity context: “It is axiomatic that the liability of persons sued in
their individual capacities under section 1983 must be gauged in terms of their own actions.”
Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999).
As the Magistrate Judge noted, it’s not the Court’s duty “to conjure up unpled
allegations.” Dietz v. Sanders, 100 F. App’x 334, 338 (6th Cir. 2004).
Accordingly, Defendants’ second objection is OVERRULED.
Plaintiff’s Motion for Leave to Amend
Plaintiff concurrently argues—while admitting his current complaint “failed to allege
any wrongdoing acts committed by Defendants Lt. Quinn or Sgt. Kludy that created a claim
“Amended/Supplement Complaint to correct a defect in the ‘Statement of Facts’ section of
the Complaint . . . .” (ECF No. 30 at PageID.173.) Plaintiff argues that the defect first came
to light after his review of the Report and Recommendation. (Id.)
Under Fed. R. Civ. P. 15(a) “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice
so requires.” However, “a motion to amend a complaint should be denied if the amendment
. . . would be futile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995).
“A proposed amendment to a complaint is futile if it would not survive a motion to
dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be
granted.” Moher v. United States, 875 F. Supp. 2d 739, 747 (W.D. Mich. 2012) (citing Miller
v. Calhoun Cty., 408 F.3d 803, 817 (6th Cir. 2005)).
Plaintiff is not entitled to amend at this time because the proposed amendment is
futile for two reasons.
First, Plaintiff’s proposed “amended/supplement complaint” fails to contain even a
single constitutional claim for relief against the remaining defendants. The Court recognizes
that Plaintiff has proceeded pro se, but again, it’s not the Court’s duty “to conjure up unpled
allegations,” Dietz, 100 F. App’x at 338, to piece together one statement of facts with another,
or to figure out what claims Plaintiff has attempted to plead against each defendant and the
factual basis for each claim. The proposed supplement asserts no claims. The proposed
amended complaint, quite literally, fails to state a single claim.
However, even if the Court accepts the amendment in its entirety (ECF No. 30-1) as
true and matches up those facts with an Eighth Amendment claim, no dispute in material
fact remains, and the complaint would require dismissal because the actions taken were
reasonable under the circumstances and the officers would be entitled to qualified immunity.
The Eight Amendment’s proscription against cruel and unusual punishment for
excessive force prohibits “the unnecessary and wanton infliction of pain.” Hudson v.
McMillan, 503 U.S. 1, 5 (1992). Whenever prison officials use force to keep order, the core
judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Id. at 6–7.
Here, taking Plaintiff’s additional statement of facts as true, Plaintiff failed to obey
several commands and was warned that his failure to obey would result in use of a taser.
Indeed, it appears the officers were attempting to convince Plaintiff to accompany them to
receive medical care—i.e., help Plaintiff. (ECF No. 30-1 at PageID.177–78.) The official
report reflects that same assessment. (ECF No. 7 at PageID.50–51.) While Plaintiff was
apparently not entirely lucid, that does not change the analysis, and the officers still have wide
leeway to maintain discipline or use a proportional amount of force to ensure a prisoner
receives emergency medical care. The officers tased Plaintiff, but that was reasonable given
an objective assessment that Plaintiff needed care for possible diabetic shock and care in the
unit was not feasible. (See, e.g., ECF No. 7 at PageID.51 (“I would have been concerned
for your safety as well, because the longer you kept refusing to comply with treatment, the
more threatening your condition would have become.”).)
These additional facts do not suffice to establish an Eighth Amendment violation, and
thus Plaintiff’s proposed amendment is doubly futile. (Id.)
Accordingly, the Court hereby orders the following: Plaintiff’s objections are
OVERRULED (ECF No. 29), and the Magistrate Judge’s Report and Recommendation is
ADOPTED in its entirety, with the additional modifications contained in this order. (ECF
No. 28.) Defendants’ motion for summary judgment is GRANTED. (ECF No. 17.)
Plaintiff’s motion for leave to amend is DENIED as futile. (ECF No. 30.) And Plaintiff’s
motion for discovery is DENIED AS MOOT. (ECF No. 25.)
Plaintiff paid the full filing fee in this action. However, to the extent that Plaintiff would
seek to proceed in forma pauperis on appeal, the Court must decide whether an appeal of
this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore
v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). For the same reasons that the Court
dismisses the action, the Court discerns no good-faith basis for an appeal. Should Plaintiff
appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to §
1915(b)(1) even if he seeks to proceed in forma pauperis. Judgment will enter separately.
IT IS SO ORDERED.
Date: March 31, 2017
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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