United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO STRIKE THE AMENDED COMPLAINT
STEPHEN J. MURPHY, III United States District Judge
Corey Honeyman filed a pro se complaint alleging that various
Michigan Department of Corrections administrators and
corrections officers violated his constitutional rights under
42 U.S.C. § 1983. Two years later, after Honeyman
obtained legal representation, he amended his complaint.
Defendants now move to strike the amended complaint. The
Court will grant Defendants' motion as to Counts I and II
of the amended complaint and deny the motion as to Counts III
filed his initial complaint pro se. Compl., ECF No. 1. He
asserted five claims, which the Court interpreted as three
claimed violations of his constitutional rights. Order 4, ECF
No. 39. The Defendants moved to dismiss two of Honeyman's
claims-deliberate indifference to the danger of assault by
other prisoners and deliberate indifference to Honeyman's
need for mental health treatment-because Honeyman had failed
to allege an injury. Mot., ECF No. 32. The Court granted the
motion. The dismissal order did not state whether the Court
dismissed the claims with prejudice. See Order, ECF
No. 39. Following the order, only one of Honeyman's
claims remained: that Defendants attempted to force him out
of protective custody by issuing misconduct reports and
denied him necessities including blankets and access to a
toilet. Id.; see also Compl. ¶ 44, ECF
months later, in a Joint Status Report, counsel for Honeyman
stated his intention to file a motion to amend the pleadings.
Report ¶ 5, ECF No. 62. During a scheduling conference,
the Court encouraged Honeyman's attorney to amend the
complaint on the assumption that he would follow the rules
and formally seek the Court's leave to amend through
motion practice; and that the Court would permit the
Defendant to respond in turn. Honeyman did not file a motion
to amend; instead he simply filed an amended complaint. Am.
Compl., ECF No. 64. Defendants' motion to strike
Honeyman's amended complaint followed. Mot., ECF No. 65.
Defendants move the Court to strike Honeyman's amended
complaint in its entirety under Federal Rule of Civil
Procedure 12(f). Mot., ECF No. 65. But "such a motion is
neither an authorized nor a proper way to procure the
dismissal of all or a part of a complaint." See
Dragovic v. Enprotech Steel Servs., No. 1:10-CV-1250,
2010 WL 4739931, at *2 (N.D. Ohio Nov. 15, 2010).
"Because Rule 12(f) does not permit this Court to strike
the Plaintiff's first amended complaint in its entirety,
" the Court will treat Defendants' motion "as
an objection to the Plaintiff's filing of the amended
complaint under Rule 15(a) and a motion to strike any
allegedly improper paragraphs of the amended complaint."
Rule 15(a), a party may amend its complaint once as a matter
of course within 21 days after service of a responsive
pleading. Fed.R.Civ.P. 15(a)(1). After that time period has
elapsed, "a party may amend its pleading only with the
opposing party's written consent or the court's
leave." Fed.R.Civ.P. 15(a)(2). The Court should
"freely give leave when justice so requires."
Id. But in the case of "undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of the amendment,
" the Court should deny leave to amend. Morse v.
McWhorter, 290 F.3d 795, 800 (6th Cir. 2002) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)). "A
proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss."
Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601
F.3d 505, 512 (6th Cir. 2010).
initial matter, the Court will treat its prior dismissal of
Honeyman's claims without prejudice to him seeking leave
to amend to "correct the defect in the pleading or state
a claim for relief." See Brown v. Matauszak,
415 F. App'x 608, 614 (6th Cir. 2011) (quoting 6 Wright,
Miller & Kane, Federal Practice and Procedure § 1483 (3d
ed. 2010)) (finding dismissal without prejudice is preferable
when "deficiencies in a complaint are attributable to
oversights likely the result of an untutored pro se
litigant's ignorance of special pleading
Motion to Strike Count I
Count I of the amended complaint, Honeyman re-alleges his
claim that Defendants were deliberately indifferent toward
the danger of assault by other prisoners. Am. Compl.7-8, ECF
No. 64. In an effort to cure the pleading defects of his
original complaint, he adds that "Defendants'
refusal to provide protective services to Plaintiff caused
Plaintiff to fear for his life, drove him to suicidal
thoughts, caused psychological harm, and later caused him to
suffer from post-traumatic stress disorder."
Id. ¶ 35.
he now alleges injuries from psychological harm, Honeyman
still does not allege that an actual assault took place.
Simply put, Honeyman "alleges, not a failure to prevent
harm, but a failure to prevent exposure to risk of
harm." Wilson v. Yaklich, 148 F.3d 596, 601
(6th Cir. 1998) (quotions omitted). As a result,
Honeyman's claim is more aptly characterized as a
"conditions-of confinement claim" rather than a
"failure-to-protect" claim. See Id. But
"[a] claim of psychological injury does not reflect the
deprivation of the minimal civilized measures of life's
necessities that is the touchstone of a
conditions-of-confinement case." Id.
(quotations and citations omitted). However legitimate
Honeyman's fears may have been given his prior assaults,
"it is the reasonably preventable assault itself, rather
than any fear of assault, that gives rise to a compensable
claim under the Eighth Amendment." Id. Since
Honeyman's allegations of mental and emotional harm do
not remedy the pleading defects of the original complaint,
the amendment is futile. Accordingly, the Court will grant
Defendants' motion to strike Count I of the amended
Motion to ...