United States District Court, E.D. Michigan, Southern Division
& ORDER (1) ACCEPTING THE MAGISTRATE JUDGE'S
RECOMMENDATION DATED DECEMBER 4, 2017 (DKT. 27), (2)
OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DKT. 28), (3)
GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. 13), AND (4)
DISMISSING PLAINTIFF'S CLAIM WITH PREJUDICE
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Anthony P. Patti
(Dkt. 27), which recommends granting Defendants' motion
to dismiss. Plaintiff Pamela Harnden filed objections to the
R&R (Dkt. 28), to which Defendants filed a response (Dkt.
29). Because oral argument will not aid the decisional
process, the objections to the R&R will be decided based
on the parties' briefing. See E.D. Mich. LR
7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons set forth
below, the R&R is accepted and Defendants' motion to
dismiss is granted.
factual and procedural background, along with the standard of
decision and legal principles governing motions to dismiss,
have been adequately set forth by the magistrate judge and
need not be repeated here in full. In brief summary, Harnden
alleges that Defendants - the County of St. Clair, the
Michigan Sheriff Department, the St. Clair County Prosecuting
Attorney's Office, and several government officials -
harassed her family in the form of a child welfare
investigation initiated following an October 2008 allegation
that her fifteen year old son hit her adopted daughter with a
metal rod. Her son was arrested and charged, and her foster
children were removed from the home. Harnden and her husband
were investigated for possible child abuse or neglect. Her
son was released in November 2008, and the abuse or neglect
investigation was closed on March 15, 2010. She now asserts
claims of kidnapping, gross negligence, civil rights
violations (construed as a violation of 42 U.S.C. §
1983), and civil conspiracy. She also alleges that Sheriff
Timothy Donnellon, one of the defendants, failed to comply
with the Freedom of Information Act (FOIA) following requests
in January and March 2011.
2010 and 2014, Harnden apparently contacted both state and
federal law enforcement agencies to attempt to initiate an
investigation. When these requests did not ripen into charges
or other formal proceedings, Harnden turned to the courts.
one of four lawsuits filed by Harnden since 2015 related to
this investigation. On May 16, 2016, this Court adopted the
report and recommendation to dismiss the first of these
lawsuits - brought against her local school district -
finding that there is no private right of action for
kidnapping and that all of her claims were barred by the
applicable statutes of limitations. See Harnden v.
Crosswell-Lexington Community Schools, No. 15-12738,
2016 WL 2731188 (E.D. Mich. May 11, 2016). The second of
these lawsuits - brought against the Michigan Department of
Human and Health Services - was dismissed because the
defendants could not be held liable under the doctrine of
sovereign immunity and because, despite Harnden's claims
that the limitations period was tolled due to the criminal
investigations, the claims were barred by the applicable
statutes of limitations. See Harnden v. State of Michigan
Department of Health and Human Services, No. 16-13906,
2017 WL 3224969 (E.D. Mich. July 31, 2017),
aff'd, No. 17-2022 (6th Cir. March 5, 2018). The
third and fourth lawsuits, which include the instant suit,
were filed on the same day, see Harnden v. St. Clair
County 31st Circuit Court, No. 16-13905; and the
magistrate judge recommended dismissing both. Harnden filed
fifteen objections. For the reasons that follow, the Court
overrules Harnden's objections and grants Defendants'
motion to dismiss.
STANDARD OF DECISION
Court reviews de novo any portion of the R&R to which a
specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b); Alspaugh v.
McConnell, 643 F.3d 162, 166 (6th Cir. 2011)
(“Only those specific objections to the
magistrate's report made to the district court will be
preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections
a party may have.”). Any arguments made for the first
time in objections to an R&R are deemed waived. Uduko
v. Cozzens, 975 F.Supp.2d 750, 757 (E.D. Mich. 2013).
explained by the magistrate judge, Defendants filed their
answer on November 28, 2016, but did not file the motion to
dismiss until March 23, 2017. Thus, the motion cannot be
considered a motion for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), because such a
motion “must be made before pleading.” But it can
be construed as a motion for judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure 12(c). “A
Rule 12(c) motion for judgment on the pleadings for failure
to state a claim upon which relief can be granted is nearly
identical to that employed under a Rule 12(b)(6) motion to
dismiss.” Kottmyer v. Maas, 436 F.3d 684, 689
(6th Cir. 2006). Accordingly, “[t]he defendant has the
burden of showing that the plaintiff has failed to state a
claim for relief.” Directv, Inc. v. Treesh,
487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v.
Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991)), cert.
denied, 552 U.S. 1311 (2008). To survive the motion, the
plaintiff must allege sufficient facts to state a claim to
relief above the speculative level, such that it is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The plausibility
standard requires courts to accept the alleged facts as true,
even when their truth is doubtful, and to make all reasonable
inferences in favor of the plaintiff. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550
U.S. at 555-556.
objections can be divided into two categories: procedural and
substantive. For the sake of clarity, the Court has grouped
them further by subject and will address them accordingly.
The Court will begin with the four that can be categorized as