The opinion of the court was delivered by: Gordon J. Quist United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO AMEND
The Court has before it Plaintiff's objections to the report and recommendation issued January 19, 2010, in which Magistrate Judge Brenneman recommended that the Court grant in part and deny in part the motion to dismiss filed by Defendants Jason Kim, M.D., Daniel Spitters, P.A. and Correctional Medical Services, Inc. ("CMS"). The magistrate judge recommended that the motion be granted with regard to the claims against Dr. Kim and CMS but denied with regard to the claims against P.A. Spitters. The magistrate judge also recommended that the Court grant the motion for summary judgment filed by Defendants Amy Meyer, Michael Whalen, Julie Van Setters, and Mary Hubbell. In addition to filing objections to the report and recommendation, Plaintiff has filed a motion to amend his complaint to clarify the allegations of his original complaint and to add a retaliation claim against Defendants Whalen and Hubbell. Defendants CMS, Dr. Kim, and P.A. Spitters have filed a response opposing Plaintiff's motion to amend After conducting a de novo review of the report and recommendation, Plaintiff's objections, and the pertinent portions of the record, the Court concludes that the report and recommendation should be adopted. In addition, the Court concludes that Plaintiff's motion to amend should be denied.
The magistrate judge first addressed Defendants CMS, Dr. Kim, and P.A. Spitters' motion to dismiss. He concluded that the claim against Dr. Kim should be dismissed because Plaintiff's only allegation against Dr. Kim is that on or about July 27, 2007, Dr. Kim failed to review Plaintiff's medical records regarding his past treatment for Crohn's disease and he prescribed Plaintiff Gaviscon and a "small white tablet" that did not alleviate Plaintiff's stomach pain. The magistrate judge concluded that Plaintiff's complaint was in the nature of a disagreement with the treatment Dr. Kim provided rather than a complaint about a complete denial of medical care. With regard to CMS, the magistrate judge concluded that Plaintiff's claim must be dismissed because he failed to allege that CMS had an unconstitutional policy, practice, or custom that affected Plaintiff's medical care.
Regarding Dr. Kim, Plaintiff states in his objection that his visit with Dr. Kim on July 30, 2007, occurred three months after Plaintiff's initial complaint of abdomen pain, rather than one month thereafter, and Plaintiff had made multiple requests for medical care during that time. Plaintiff argues that he had a reasonable expectation that Dr. Kim would honor his request to review his medical history, which Dr. Kim failed to do. Even so, the Court agrees with the magistrate judge's conclusion that Plaintiff's complaint is essentially a disagreement with the medical treatment or care that he received. In other words, Plaintiff's complaint is that Dr. Kim should have rendered more effective or better treatment, but such a claim is insufficient to state an Eighth Amendment claim. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976); Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Plaintiff alleges that Dr. Kim prescribed him Gaviscon for gas and a "small white tablet" that did not alleviate Plaintiff's pain, which shows a mere disagreement as to proper medical care.*fn1 While this treatment perhaps did not relieve Plaintiff's pain symptoms, there is no indication that Dr. Kim failed to render any treatment.
With regard to CMS, Plaintiff argues that he has alleged a policy or custom by CMS, citing various incidents in other states, as well as in Michigan, where CMS has allegedly been found to have provided inadequate medical care to prisoners. Even accepting these allegations as true, Plaintiff must still allege that CMS had a custom or policy that caused the constitutional violation of which he complains. Broyles v. Corr. Med. Servs., Inc., No. 08-1638, 2009 WL 3154241, at *2 (6th Cir. Jan. 23, 2009). Plaintiff's conclusory allegations are insufficient to show that such a policy caused his injury and, thus, fail to state a claim for relief against CMS. See id.
With regard to the motion for summary judgment, the magistrate judge concluded that Defendants Hubbell, Whalen, and Van Setters are entitled to summary judgment because Plaintiff's allegations show that those defendants were not involved in providing medical care to Plaintiff, but simply reviewed and responded to grievances that Plaintiff filed. A defendant whose only involvement in an alleged constitutional violation was denial of an administrative grievance cannot be held liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Although lengthy, Plaintiff's objection fails to address the magistrate judge's analysis with regard to these Defendants, and Plaintiff does not quarrel with the conclusion that these Defendants were not personally involved in providing Plaintiff medical care.
The magistrate judge did observe that Defendant Meyer was involved in responding to Plaintiff's health care requests, but he concluded that her conduct did not amount to an Eighth Amendment violation because Plaintiff's medical records show that Plaintiff received treatment whenever he made a request for medical care. As the magistrate judge correctly noted, Plaintiff was examined or treated on numerous occasions between May 27, 2007, and February 4, 2008. The magistrate judge thus concluded that Plaintiff failed to support his allegation that Defendant Meyer denied him medical care on a number of occasions. As is the case with Defendants Hubbell, Whalen, and Van Setters, Plaintiff fails in his objection to address the magistrate judge's reasons or analysis for concluding that Defendant Meyer is entitled to summary judgment.
Subsequent to filing objections to the report and recommendation, Plaintiff filed a motion to amend his complaint.*fn2 Plaintiff's proposed amended complaint, spanning 56 pages and 324 paragraphs, is a significant expansion of the allegations in Plaintiff's 15-page original complaint that included only 45 paragraphs.
In his motion to amend his complaint, Plaintiff argues that he is entitled to amendment as a matter of course because no Defendant has filed a responsive pleading. Plaintiff's reliance on Fed. R. Civ. P. 15(a)(1) is incorrect because neither subparagraph (A) nor (B) applies in these circumstances. Subparagraph (A) applies only if the amendment is sought within "21 days after serving" the pleading, which is not the case here because far more than 21 days have passed. Subparagraph (B) provides that a plaintiff may amend as a matter of course "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (c), or (f), whichever is earlier." While Plaintiff is correct that no Defendant has filed a responsive pleading (an answer), the CMS Defendants filed a Rule 12(b)(6) motion. Therefore, Plaintiff's proposed amendment, filed more than 21 days after the CMS Defendants filed their motion to dismiss, is too late to constitute an amendment as a matter of course.
Plaintiff's motion to amend is governed by Fed. R. Civ. P. 15(a)(2), which provides: "In all other cases, 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." In this instance, leave of court is required because Plaintiff has not obtained Defendants' written consent. Although the rule instructs that leave should be given when "justice so requires," it is well-established that leave to amend "should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile." Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995).
The CMS Defendants argue that the Court should deny Plaintiff's motion because: (1) it is untimely; (2) the proposed amended complaint violates Rule 8(a)(2)'s requirement that a pleading contain "a short and plain statement of the claim"; and (3) the proposed amendment is futile. Although Plaintiff did not seek leave to amend until almost 13 months after he filed his initial complaint and approximately 10 months after the CMS Defendants filed their motion to dismiss, the delay, by itself, is not a sufficient reason to deny the motion to amend. See Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6th Cir. 2001) (noting that "delay alone [is] not sufficient reason to deny the amendment"). The Court does agree that Plaintiff's lengthy proposed amended complaint fails ...