United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pro se by a former
Kalamazoo County inmate under 42 U.S.C. §1983. (Amend.
Compl., ECF No. 24). Plaintiff alleges that Kalamazoo County
Officers Bryan Jolliffe and Brent Reynhout used excessive
force against him on August 13, 2013, after he had been
assaulted by a fellow inmate. Plaintiff seeks to hold
Kalamazoo County liable for the actions of the officers. He
claims that he suffered serious back and neck injuries.
matter is now before the Court on defendant Kalamazoo
County's motion to dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), for failure to state a claim. (ECF
No. 26). Also before the Court is defendants Bryan Jolliffe
and Brent Reynhout's Rule 12(b)(6) motion dismiss. (ECF
No. 33). For the reasons set forth herein, I recommend that
the Court grant Kalamazoo County's motion, and that the
Court deny defendants Jolliffe and Reynhout's motion.
12, 2016, plaintiff filed a complaint naming only the
Kalamazoo County Sheriff's Department. (ECF No. 1).
Plaintiff claimed that his civil rights had been violated by
the Sheriff's Department due to the actions of two
sheriff deputies who used excessive force in breaking up an
altercation between plaintiff and another inmate at the
Kalamazoo County Jail. (ECF No. 1, PageID.2). The Court
granted his motion to proceed in forma pauperis.
(ECF No. 3).
August 16, 2016, the Sheriff's Department filed a motion
to dismiss for failure to state a claim upon which relief can
be granted. (ECF No. 6). Plaintiff responded on September 15,
2016, attaching copies of the police reports regarding the
incident. (ECF No. 8, 8-1). He filed an
“Addendum/Supplement to Complaint” on September
28, 2016. (ECF No. 12). He alleged, again, that his civil
rights under the Eighth Amendment were violated when he was
not protected from a fellow inmate and when Officer Jolliffe
used excessive force in breaking up an altercation between
plaintiff and the other inmate. (ECF No. 12, PageID.43-44).
September 29, 2016, plaintiff filed a motion to amend his
complaint. (ECF No. 14). The proposed amended complaint
attempted to replace the Kalamazoo Sheriff's Department
with Kalamazoo County and the county administrator as the
defendants in this case. (ECF No. 14-1, PageID.49). On
October 11, 2016, the undersigned judicial officer conducted
a hearing on the Sheriff Department's motion to dismiss
and plaintiff's motion to amend the complaint. (Minutes,
ECF No. 17). In a report and recommendation filed the next
day, the undersigned recommended that the Court grant the
Sheriffs Department's motion to dismiss, and that the
Court deny plaintiff's motion to amend the complaint as
futile. (ECF No. 18).
November 4, 2016, the Court adopted the recommendation to
dismiss the claim against the Sheriff's Department, but
allowed plaintiff to further amend his complaint to give him
an opportunity to provide more specificity to his claim
against the county. (Order, ECF No. 23, PageID.95). The Court
Plaintiff can and should recite his claims in a more
coherent, amended complaint. . . . To facilitate this, the
Court GRANTS Plaintiff leave to amend his complaint to state
a policy and practice claim against Kalamazoo County, an
excessive force and race discrimination claim against Officer
Jolliffe, and any other claim Plaintiff believes he has
against any defendants.
(Id. at 4, PageID.96).
filed his amended complaint on November 28, 2016. (ECF No.
24). The amended complaint includes three counts: in Count I,
plaintiff claims that Officer Bryan Jolliffe violated his
Eighth Amendment rights by using excessive force, including a
“choke hold, ” and that the officer was
deliberately indifferent to plaintiff's medical needs; in
Count II, plaintiff raises excessive force and deliberate
indifference claims against defendant Brent Reynhout for his
participation in the same incident; and in Count III,
plaintiff contends that Kalamazoo County is vicariously
liable for the acts of its employees (Officers Jolliffe and
Reynhout), and he asserts that the County is directly liable
due to “its policies, practices, and customs, which
[led] to this complaint of violation.” (ECF No. 24,
December 12, 2016, defendant Kalamazoo County moved to
dismiss Count III of the amended complaint, pursuant to Rule
12(b)(6). (ECF No. 26). Plaintiff filed a timely response on
January 4, 2017 (ECF No. 28), and Kalamazoo County filed a
reply on January 9, 2017. (ECF No. 31). On January 17, 2017,
defendants Jolliffe and Reynhout filed a motion to dismiss
Counts I and II of the amended complaint, pursuant to Rule
12(b)(6). (ECF No. 33). Plaintiff timely responded on January
31, 2017 (ECF No. 34), and defendants Jolliffe and Reynhout
replied on February 3, 2017. (ECF No. 35). On April 21, 2017,
I conducted a hearing on both motions to dismiss. (Minutes,
ECF No. 56).
12(b)(6) authorizes the dismissal of a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Under Rule 8(a)(2) of
the Federal Rules of Civil Procedure, a complaint must
provide “ ‘a short and plain statement of the
claim showing that the pleader is entitled to relief' in
order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'
” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957), and Fed.R.Civ.P. 8(a)(2)). While this notice
pleading standard does not require “detailed”
factual allegations, it does require more than labels and the
bare assertion of legal conclusions. See Twombly,
550 U.S. at 555.
when considering a Rule 12(b)(6) motion to dismiss, the Court
must construe the complaint in the light most favorable to
plaintiff, accept the plaintiff's factual allegations as
true, and draw all reasonable factual inferences in
plaintiff's favor. See Total Benefits Planning
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552
F.3d 430, 434 (6th Cir. 2008). “[C]ourts ‘are not
bound to accept as true a legal conclusion couched as a
factual allegation.' ” Twombly, 550 U.S.
at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555;
see Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009);
Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir.
2010). Courts are not required to conjure up unpleaded
allegations, nor accept unwarranted factual inferences.
See Total Benefits Planning, 552 F.3d at 434.
“To survive a motion to dismiss, [plaintiff] must
allege ‘enough facts to state a claim to relief that is
plausible on its face.' ” Traverse Bay Area
Intermediate Sch. Dist. v. Michigan Dep't of Educ.,
615 F.3d 622, 627 (6th Cir. 2010) (quoting Twombly,
550 U.S. at 570).
se pleadings are held to a less stringent standard than
formal pleadings drafted by licensed attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines
v. Kerner, 404 U.S. 519, 520 (1972). Even the lenient
treatment generally given pro se pleadings has its
limits, however. See Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991). “A plaintiff must ‘plead [ ]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.' ” Albrecht, 617 F.3d at 893
(quoting Iqbal, 556 U.S. at 678). “A plaintiff
falls short if  he pleads facts ‘merely consistent
with the defendant's liability' or if ...