The opinion of the court was delivered by: Lawrence P. Zatkoff United States District Judge
AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on March 29, 2010
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE
This matter is before the Court on Magistrate Judge Hluchaniuk's Report and Recommendation [dkt 90] in which the Magistrate Judge recommends that the Court deny Defendant Correctional Medical Services ("CMS") and Dr. Craig Hutchinson's ("Hutchinson")*fn1 motion to dismiss [dkt 27]. No objections were filed to the Report and Recommendation. For the following reasons, the Court REJECTS the Report and Recommendation and GRANTS the motion to dismiss.
The Court finds that the facts are adequately set forth in the Report and Recommendation such that they need not be recited in full here. To summarize, Plaintiff, an inmate at the Huron Valley Correctional Facility, has filed this pro se lawsuit claiming that Defendants were deliberately indifferent to her medical needs in regard to her dental care. The current motion involves the alleged actions of CMS, a corporation that contracts with the State of Michigan to provide medical and dental services to inmates, and Defendant Hutchinson, the director of CMS.
A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted tests the legal sufficiency of Plaintiff's claims. The Court must accept as true all factual allegations in the pleadings, and any ambiguities must be resolved in Plaintiff's favor. See Jackson v. Richards Med. Co., 961 F.2d 575, 577--78 (6th Cir. 1992). While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. See Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 319 (6th Cir. 1999). Thus, a plaintiff must make "a showing, rather than a blanket assertion of entitlement to relief" and "[f]actual allegations must be enough to raise a right to relief above the speculative level" so that the claim is "plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). See also Ashcroft v. Iqbal, __ U.S. ___, 129 S.Ct. 1937, 1953 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions . . . . '").
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only consider "the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings, and matters of which the [Court] may take judicial notice." 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.34 (3d ed. 2000). If, in deciding the motion, the Court considers matters outside the pleadings, the motion will be treated as one for summary judgment pursuant to Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(b).
The Court recognizes that when a plaintiff proceeds pro se, as is the case here, the Court must construe that plaintiff's pleadings liberally and that such pleadings are held to a lesser standard than those drafted by a licensed attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). The Court, however, will not re-write a deficient complaint or otherwise serve as counsel for that plaintiff. See GJR Invs, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998).
A prisoner is required to exhaust her administrative remedies, including the applicable grievance procedures, prior to filing a federal civil-rights lawsuit. See Woodford v. Ngo, 548 U.S. 81, 86 (2006); 42 U.S.C. § 1997e. Exhaustion is an affirmative defense, and inmates are not required to plead ...