United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) ADOPTING THE MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION, (2) GRANTING
PLAINTIFF'S MOTION TO DISMISS, (3) TERMINATING DEFENDANTS
PAITKOWSKI, NIXON, KINDER, AND HARBAUGH, AND (4) TERMINATING
AS MOOT DEFENDANTS' OBJECTION
H. CLELAND UNITED STATES DISTRICT JUDGE
John Smith, incarcerated at Chippewa Correctional Facility
and appearing pro se, alleges that he suffered violations of
his First, Fifth, and Fourteenth Amendment rights for medical
care he received for a shoulder injury while incarcerated.
(Dkt. #22.) He moves to voluntarily dismiss Defendant Brenda
Buchanan. (Dkt. #51.) Before the court is Magistrate Judge
David R. Grand's Report and Recommendation
(“R&R”), which recommends granting
Plaintiff's motion and dismissing Defendant Buchanan
without prejudice. Judge Grand further recommends terminating
individual Defendants B. Paitkowski, J. Nixon, Laura Kinder,
and R. Harbaugh-Defendants who were named in the initial
complaint, but not included in Plaintiff's amended
complaint. Defendants have filed an objection (Dkt. #56);
Plaintiff has offered no response to either that objection or
the R&R. The court has determined that a hearing is
unnecessary. E.D. Mich. L.R. 7.1(f)(2). For the reasons
stated below and in the R&R, the court will adopt the
timely filing of objections to an R&R requires the court
to “make a de novo determination of those
portions of the report or specified findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz,
447 U.S. 667 (1980); Gant v. Genco I, Inc., 274
Fed.Appx. 429, 431-32 (6th Cir. 2008). Where a party objects
to some portion of the R&R, the court must re-examine all
evidence relevant to that portion of the R&R and
determine whether the recommendation should be accepted,
rejected, or modified in whole or in part. 28 U.S.C. §
filing of objections provides the district court with the
opportunity to consider the specific contentions of the
parties and to correct any errors immediately, ”
United States v. Walters, 638 F.2d 947, 950 (6th
Cir. 1981), enabling the court “to focus attention on
those issues-factual and legal-that are at the heart of the
parties' dispute, ” Thomas v. Arn, 474
U.S. 140, 147 (1985). As a result, “‘[o]nly 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.'”
Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir.
2011) (quoting Willis v. Sullivan, 931 F.2d 390, 401
(6th Cir. 1991)).
Motion to Dismiss Defendant Buchanan
has moved to voluntarily dismiss Defendant Buchanan under
Federal Rule of Civil Procedure 41(a). Judge Grand, after
considering any potential prejudice to Defendant Buchanan and
Plaintiff's prosecution of the matter, recommends
granting Plaintiff's motion to dismiss without prejudice.
The parties have offered no objection to this conclusion, and
the court will adopt it.
Termination of Defendants Unnamed in the Amended
initial complaint named as Defendants Corizon Health
Corporation, Dr. Ramesh Kilaru, B. Paitkowski, J. Nixon,
Laura Kinder, R. Harbaugh, Dr. Badawi Adellatif, and Subrina
Aiken. (Dkt. #1.) Plaintiff moved to amend the complaint, a
motion Judge Grand granted. (Dkt. #16.) The amended complaint
added two new Defendants-Dr. Keith Papendick and Dr. Brenda
L. Buchanan-but omitted five of the original Defendants:
Paitkowski, Nixon, Kinder, Harbaugh, and Aiken. (Dkt. #22.)
the fact that they were no longer named defendants,
Defendants Paitkowski, Nixon, Harbaugh, and Aiken moved to
dismiss the amended complaint. (Dkt. #46.) They argued that
they were entitled to dismissal under Federal Rule 12(b)(6)
because the amended complaint did not include any factual
allegations against them.
Grand did not consider the merits of that motion to dismiss.
Instead, Judge Grand recommended termination of Defendants
Paitkowski, Nixon, Kinder (not Aiken, who had moved
with the others to dismiss), and Harbaugh because they were
not named in the amended complaint; he noted that
“[t]he law is clear that an amended complaint, when
filed, supplants the original complaint and becomes the only
live complaint in the case.” (See Dkt. #54 Pg.
ID 401 (citing Parks v. Fed. Express Corp., 1
Fed.Appx. 273, 277 (6th Cir. 2001).) Defendants have offered
only one objection to that recommendation: that Judge
Grand's conclusion is equally applicable to Defendant
Aiken, who is also not named in the amended complaint.
(See Dkt. #56.)
when faced with an amended complaint that no longer named
certain defendants, the court would order the plaintiff to
show cause why the now-unnamed defendants should not be
terminated from the action. But the court will dispense with
that process here, as Plaintiff is in apparent agreement that
Defendants Paitkowski, Nixon, Kinder, and Harbaugh should be
dismissed from this action: in response to the motion to
dismiss by Defendants Paitkowski, Nixon, Harbaugh, and Aiken
(Dkt. #46), Plaintiff specifically noted his
“clarif[ication] that Defendants B. Piatkowski, J.
Nixon, Laura Kinder, and R. Harbaugh and Dr. Brenda L.
Buchanan are no longer a part of this action . . . .”
(Dkt. #52 Pg. ID 390.) He similarly filed no objection to
Judge Grand's recommendation that they be terminated from
this matter. The court therefore agrees with Judge
Grand's conclusion that Defendants Paitkowski, Nixon,
Kinder, and Harbaugh should be terminated.
court is uncertain that Plaintiff has had adequate
opportunity to respond to Defendant Aiken's termination
as suggested by Defendants in their objection to the R&R.
Judge Grand's report did not address Defendant Aiken. And
Plaintiff generally opposed Defendant Aiken's motion to
dismiss (Dkt. #52), though he provided no argument as to why
Defendant Aiken specifically should not be dismissed from
this matter. The court will, therefore, issue a separate
order for Plaintiff to show cause why Defendant Aiken should
not also be terminated from this matter because she is not
named in the amended complaint, and it will terminate