Hokenson v. Lansing, City of et al

Filing 24

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 22 ; granting motion to dismiss 16 ; denying motion to amend 19 ; signed by District Judge Jane M. Beckering (lep)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID WAYNE HOKENSON,
Plaintiff,
Case No. 1:24-cv-601
v.
HON. JANE M. BECKERING
CITY OF LANSING, et al.,
Defendants.

____________________________/
MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding pro se, initiated this action against four Defendants: the City of
Lansing, Ordinance Officer Bryce Dawsey (Dawsey), and City Attorney Jim Smiertka (Smiertka)
(collectively the “City Defendants”); and Defendant Eric’s Refuse, Inc. The City Defendants filed
a motion to dismiss the federal claims against them in Plaintiff’s Amended Complaint. Plaintiff,
who did not serve Defendant Eric’s Refuse, Inc., did not file a response to the City Defendants’
motion, although he filed a motion to again amend his pleading. The matter was referred to the
Magistrate Judge, who issued a Report and Recommendation (R&R), recommending that this
Court (1) grant the City Defendants’ motion, (2) dismiss Eric’s Refuse, Inc. because the Amended
Complaint does not state a cause of action against this Defendant, (3) deny Plaintiff’s motion for
leave to file a second amended complaint, (4) decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims against the City Defendants, and (5) terminate this action. The matter
is presently before the Court on Plaintiff’s objections to the Report and Recommendation. In
accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de

novo consideration of those portions of the Report and Recommendation to which objections have
been made. The Court denies the objections and issues this Memorandum Opinion and Order.
In his scant one-page objections, Plaintiff argues that his “claims could be corrected by
amendment” and points out that leave to amend should be “freely given” (Pl. Objs., ECF No. 23
at PageID.158, quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Rule 15 directs that leave to amend shall be freely given “when justice so requires.” FED.
R. CIV. P. 15(a). There are circumstances where justice counsels against amendment, including
“futility of amendment.” Stanley v. W. Michigan Univ., 105 F.4th 856, 867 (6th Cir. 2024)
(quoting Foman, supra). “An amendment is futile ‘when, after including the proposed changes,
the complaint still could not withstand a Rule 12(b)(6) motion to dismiss.’” Id. (citation omitted).
Here, upon examination of Plaintiff’s proposed second amended complaint (ECF No. 19-2), the
Magistrate Judge properly determined that the new factual allegations and other minor changes
made to the claims therein does not alter the conclusion that Plaintiff failed to state plausible causes
of action against Defendants (R&R, ECF No. 22 at PageID.155). Plaintiff’s mere disagreement
does not serve to demonstrate error in the Magistrate Judge’s analysis. Accordingly, this Court
adopts the Magistrate Judge’s Report and Recommendation as the Opinion of this Court.
Additionally, a Judgment will be entered consistent with this Memorandum Opinion and
Order. See FED. R. CIV. P. 58. Because this action was filed in forma pauperis, this Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this decision would not be taken in good
faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199, 206, 211–12 (2007).

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Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 23) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 22) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the City Defendants’ Motion to Dismiss (ECF No. 16)
is GRANTED, and the federal claims against the City Defendants in Plaintiff’s Amended
Complaint (ECF No. 13) are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED, pursuant to 28 U.S.C. § 1367(c), that this Court
DECLINES to exercise supplemental jurisdiction over Plaintiff’s state-law claims against the City
Defendants, which are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), that the claims
against Eric’s Refuse, Inc. in the Amended Complaint (ECF No. 13) are DISMISSED for failure
to state any plausible claim.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file a second amended
complaint (ECF No. 19) is DENIED.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision would not be taken in good faith.
/s/ Jane M. Beckering
JANE M. BECKERING
United States District Judge

Dated: March 6, 2025

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