United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
AND RECOMMENDATION AND GRANTING MOTION TO AMEND /
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Kent's Report and
Recommendation in this matter (ECF No. 22), Plaintiffs'
Objections to the Report and Recommendation (ECF No. 23),
Defendants' Response (ECF No. 26) and Plaintiffs'
Reply. (ECF No. 29). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions
of a Report and Recommendation, “[t]he district judge .
. . has a duty to reject the magistrate judge's
recommendation unless, on de novo reconsideration, he or she
finds it justified.” 12 Wright, Miller, & Marcus,
Federal Practice and Procedure § 3070.2, at 381 (2d ed.
1997). Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Magistrate Judge recommends granting Defendants' motion
for summary judgment as to Defendant Washington and denying
it in all other respects. The Magistrate Judge also
recommends sua sponte dismissing Defendant Finco for
failure to state a claim on which relief can be granted under
28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C. §
1997e(c). (ECF No. 22, PageID.161.) In their Objections,
Plaintiffs concede Defendant Washington should be dismissed
from this action. Plaintiffs object, however, to the sua
sponte dismissal of Defendant Finco. Plaintiffs argue
they should be allowed to cure the deficiency by amending
their complaint to add the following claims:
6. Plaintiff then submitted his request on the subject matter
to Defendant Finco and pointed out MDOC policy, PD-05.03.150
as the Prison policy supporting Plaintiffs right to live out
and practice his Divine God Centered Cultural Tenets free
from persecution while in Defendants' custody inside
7. Defendant, Thomas Finco, the Deputy Director of the MDOC,
in charge of all Correctional Facility Administrations,
received Plaintiff's request on November 12, 2014,
requesting time and space to practice his Divine God Centered
Cultural Tenets, denied the request on the notion that the
NOGE was not approved for separate group services or
activities, and although he had the authority to approve this
request he failed to do so, and forwarded his determination
of denial to Defendant Leach, who informed Plaintiff of the
denial on November 26, 2014. Thereafter, a second
correspondence was sent to Defendant Finco on 01-22-15, which
was responded to by Defendant Leach, stating no further
action would be taken. See (Exhibits A and B).
(ECF No. 23, PageID.165; ECF No. 24, PageID.176).
Rule 15(a)(2) of the Federal Rules of Civil Procedure,
“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 rule also provides that a
“court should freely give leave when justice so
requires.” Id. The latter mandate embodies
“the principle that cases ‘should be tried on
their merits rather than the technicalities of the
pleadings.'” Moore v. City of Paducah, 790
F.2d 557, 559 (6th Cir. 1986) (per curiam) (quoting Tefft
v. Seward, 689 F.2d 637, 639 (6th Cir. 1982)).
urge the Court to deny Plaintiffs' motion to amend. They
aver Plaintiffs' motion does not point to any personal
involvement by Defendant Finco. (ECF Nos. 26-27.) It is true
that as a general matter, government officials may not be
held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior or
vicarious liability. Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009); Monell v. New York City Dep't of
Soc. Servs., 436 U.S. 658, 691 (1978); Everson v.
Leis, 556 F.3d 484, 495 (6th Cir. 2009). Rather a
plaintiff must establish that the official was personally
involved, or that he otherwise encouraged or condoned the
action of the offending employees. Copeland v.
Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing
Rizzo v. Goode, 423 U.S. 362, 375-76 (1976), and
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984)). The Court concludes that Plaintiffs' motion
raises sufficient claims of Defendant Finco's personal
involvement to survive scrutiny at this stage of review.
While Defendants may ultimately be correct with regard to
this claim, such is not immediately apparent on this record.
IT IS ORDERED that the Report and Recommendation of
the Magistrate Judge (ECF No. 22) is ADOPTED in
part and REJECTED in part.
IS FURTHER ORDERED that:
Defendants' motion for summary judgment (ECF No. 13) is
GRANTED as to Defendant Washington and
DENIED in all other respects.
Defendant Washington is DISMISSED ...