United States District Court, E.D. Michigan, Southern Division
MARK C. JENNINGS, II, Plaintiff,
DEPUTY NOBLE, et al., Defendants.
AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS ,
DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT , DENYING
PLAINTIFF'S MOTION TO STRIKE , AND FINDING MOOT THE
MOTIONS FOR EXTENSION OF TIME [15, 16]
STEPHEN J. MURPHY, III United States District Judge.
Mark Jennings is confined at the Oaks Correctional Facility
in Manistee, Michigan after being convicted of first, second,
and third degree criminal sexual conduct with a minor between
the age of 13 and 15 years old. He sued Deputy Noble, Deputy
Ford, Corrections Officer Babcock (collectively,
"Defendants"), and two unknown officers for alleged
violations of 42 U.S.C. § 1983 that arose from his
temporary imprisonment at the Ogemaw County Sheriff's
Department in West Branch, Michigan. Before the Court are
Defendants' motion to dismiss, Jennings's response to
that motion, which doubles as a motion for judgment on the
pleadings or, in the alternative, for summary judgment, and
Jennings's motion to strike Defendants' reply brief.
For the following reasons, the Court will grant the
Defendants' motion, and dismiss the case.
mailed his Complaint on May 24, 2016 and it was filed on the
docket two days later. The Court reproduces Jennings's
statement of facts verbatim as follows:
At the ogemaw county sheriffs department in West Branch
Michigan at about 10:00pm on 9-2-07 officers Ford, Noble,
Babcock and other unknown persons did use excessive force
against the plaintiff by repeatedly tazering him and placing
there [sic] bodies upon his body causing his right
acromioclavicular to permanently become dislocated. At no
time did these officers have the authority to assault and
batter the plaintiff in any manner. The plaintiff was told to
get into a holding cell. The plaintiff was experiencing a
panic attack caused by his post traumatic stress disorder. He
advised the defendants what was happening to him and that he
needed his medication and a second to catch his breath.
Instead of giving him medical care they all jumped on him
while he was already handcuffed and began tazering,
assaulting and battering him. They also withdrew blood out of
him without his consent, court order or warrant. This
occurred at the direction of the defendants at tolfree
hospital in West Branch Michigan.
4, ECF No. 1. Jennings claims that the defendants'
actions constituted excessive force and deliberate
indifference to his medical needs such that his
constitutional rights were violated. As relief, he requests
appointed counsel, tolling of the statute of limitations due
to his mental disability, a jury trial, a declaration that
Defendants' actions were unconstitutional, $2, 000, 000
in punitive and compensatory damages from each defendant, and
the opportunity to amend his complaint after discovery is
provided. Id. at 4-5.
October 25, 2016, Defendants filed a motion to dismiss the
complaint. ECF No. 13. It appears that they also seek, in the
alternative, summary judgment: the motion is titled
"Motion to Dismiss in Lieu of an Answer, Pursuant to
Fed.R.Civ.P. 7(a) and 12(b)(6), " but states in the body
that the Court should grant summary judgment for the
Defendants. Id. at 1. And in their reply, Defendants
argue that Jennings has failed to create a genuine issue of
material fact, and ask the Court to grant "summary
judgment, thereby dismissing Plaintiff's case in its
entirety, pursuant to Fed.R.Civ.P. 12(b)(6)." Reply
i-ii, ECF No. 17. Notwithstanding the confusion over the
proper standard of review, the Court will construe their
motion as one to dismiss and, in the alternative, for summary
November 14, 2016, Jennings filed a response to the motion,
titled "Plaintiff's Opposition to Defendant's
Motion to Dismiss . . . and Plaintiff's Motion for
Judgment on the Pleadings Fed.R.Civ.P. 12(c) and Motion for
this Court to Treat This Motion as a Motion for Summary
Judgment Pursuant to Fed.R.Civ.P. 56." Resp., ECF No.
14. Despite the procedural error of combining a motion with
the response to a separate motion, the Court will construe
Jennings's filing as a motion for judgment on the
pleadings or, in the alternative, for summary judgment. On
December 14, 2016, Jennings filed a motion to strike
Defendants' Reply. The Court will now address each of the
Dismissal under Rule 12(b)(6)
Rule 12(b)(6) provides for dismissal of a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). The Court may only grant a Civil Rule
12(b)(6) motion to dismiss if the allegations are not
"sufficient 'to raise a right to relief above the
speculative level, ' and to 'state a claim to relief
that is plausible on its face.'" Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)). In evaluating the motion, the Court
presumes the truth of all well-pled factual assertions.
Bishop v. Lucent Techs., 520 F.3d 516, 519 (6th Cir.
2008). Moreover, the Court must draw every reasonable
inference in favor of the non-moving party. Dubay v.
Wells, 506 F.3d 422, 427 (6th Cir. 2007). But a
"pleading that offers 'labels and conclusions'
or 'a formulaic recitation of the elements of a cause of
action will not do.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
Judgment on the Pleadings
12(c) provides that "[a]fter the pleadings are closed -
but early enough not to delay trial - a party may move for
judgment on the pleadings." Fed.R.Civ.P. 12(c). That
type of motion is evaluated under the same standard as a
motion to dismiss. JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007). And in ruling
on the motion, the Court may consider documents attached to,
incorporated by or referred to in the pleadings. Weiner
v. Klais and Co., Inc., 108 F.3d 86, 88-89 (6th Cir.
1997). The well-pleaded material allegations of the
non-moving party must be taken as true, but the Court need
not accept as true legal conclusions or unwarranted factual
inferences. JPMorgan, 510 F.3d at 581-82.