Moss #178549 v. Corizon Health Incorporated et al

Filing 55

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 46 ; Plaintiff's federal claim is DISMISSED with prejudice; Plaintiff's Motion for Clarification 35 is GRANTED to the extent consistent with this Order and is DISMISSED AS MOOT in a ll other respects; Defendants' Motion for Judgment on the Pleadings 30 is GRANTED as to Plaintiff's federal claim and is DISMISSED without prejudice in all other respects; Plaintiff's Motion for Judgment on the Pleadings 34 is DISM ISSED without prejudice; all remaining claims are REMANDED to the Circuit Court for Ingham County, Michigan; the Court discerns no good-faith basis for an appeal; 48 termed; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIM MOSS,
Plaintiff,
CASE NO. 1:16-CV-870
v.
HON. ROBERT J. JONKER
JEFFREY BOMBER, et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation in this
matter (ECF No. 46), Plaintiff’s Objection and Reply (ECF Nos. 50, 53), and Defendants’
Response to Objection (ECF No. 52). Under the Federal Rules of Civil Procedure, where, as here,
a party has objected to portions of a Report and Recommendation, “[t]he district judge . . . has a
duty to reject the magistrate judge’s recommendation unless, on de novo reconsideration, he or she
finds it justified.”

12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE

AND

PROCEDURE,

§ 3070.2, at 451 (3d ed. 2014). Specifically, the Rules provide that:
The 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.
FED. R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the

Report and Recommendation itself; Plaintiff’s objections and reply; and Defendants’ response.
The Court finds the Magistrate Judge’s Report and Recommendation factually sound and legally
correct to the extent the Report and Recommendation addresses Plaintiff’s federal claim. The
Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims.
Plaintiff’s original state court complaint alleges, among other things, that Defendant
Corizon, Health, Inc. violated his rights under the Eighth Amendment by failing to follow
recommendations that ear, nose, and throat specialists made. (ECF No. 1-2, PageID.14-15.) All
of his other potential claims arise under state law contract, malpractice, or tort theories. In his
briefing, Plaintiff makes it clear that he is not pursuing a constitutional claim (ECF No. 53,
PageID.467), even though his original state court complaint raises the Eighth Amendment.
Moreover, if Plaintiff were pursuing a constitutional claim, it would fail on the merits, because
Plaintiff acknowledges that his claim concerns a medical disagreement only, which does not
amount to a constitutional violation. See, e.g., Owens v. Hutchison, 70 F. App’x 159, 161 (6th Cir.
2003) (“[a] patient’s disagreement with his physicians over the proper medical treatment alleges
no more than a medical malpractice claim, which is a tort actionable in state court, but is not
cognizable as a federal constitutional claim.”). For these reasons, and for the reasons discussed in
the Report and Recommendation (ECF No. 46), dismissal of Plaintiff’s sole federal claim is
appropriate here. The Court declines to exercise supplemental jurisdiction over the remaining
claims, all of which arise under state law.1 28 U.S.C. § 1367(c)(3).
ACCORDINGLY, IT IS ORDERED:

1
A potential federal defense of failure to exhaust, standing alone, is not a basis for removal under the wellpleaded complaint rule.

2

1.

The Report and Recommendation (ECF No. 46) is approved and adopted as the

opinion of the Court to the extent consistent with this Order.
2.

Plaintiff’s federal claim is DISMISSED with prejudice.

3.

Plaintiff’s Motion for Clarification (ECF No. 35) is GRANTED to the extent

consistent with this Order and is DISMISSED AS MOOT in all other respects.
4.

Defendants’ Motion for Judgment on the Pleadings (ECF No. 30) is GRANTED

as to Plaintiff’s federal claim and is DISMISSED without prejudice in all other respects.
5.

Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 34) is DISMISSED

without prejudice.
6.

All remaining claims are REMANDED to the Circuit Court for Ingham County,

Michigan.
7.

For the same reasons that the Court dismisses the federal claim, the Court discerns

no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v.
Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997) (overruled on other grounds by Jones v. Bock,
549 U.S. 199 (2007)).

Dated:

March 13, 2018

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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