United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
S. CARMODY, UNITED STATES MAGISTRATE JUDGE
initiated this action on May 6, 2019, against Dr. Jason
Roberts and “all listed hospitals and individual humans
associated with [the] hospitals” where Plaintiff
received medical care. (ECF No. 1). As Plaintiff has been
permitted to proceed as a pauper, the Court has reviewed
Plaintiff's complaint pursuant to 28 U.S.C. §
1915(e)(2) to determine whether it is frivolous, malicious,
or fails to state a claim upon which relief can be granted.
For the reasons articulated herein, the undersigned
recommends that Plaintiff's complaint be
must be dismissed for failure to state a claim on which
relief may be granted unless the “[f]actual allegations
[are] enough to raise a right for relief above the
speculative level on the assumption that all of the
complaint's allegations are true." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 545 (2007). The Court
need not accept as true, however, factual allegations which
are “clearly irrational or wholly incredible."
Denton v. Hernandez, 504 U.S. 25, 33 (1992).
Supreme Court has held, to avoid dismissal, a complaint must
contain “sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009). This plausibility standard “is not akin
to a 'probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully." If the complaint simply pleads facts that
are “merely consistent with" a defendant's
liability, it “stops short of the line between
possibility and plausibility of 'entitlement to
relief.'" Id. As the Court further
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. . .Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading
regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. . .Determining
whether a complaint states a plausible claim for relief will,
as the Court of Appeals observed, be a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense. But where the well pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it
has not “show[n]" - “that the pleader is
entitled to relief."
Id. at 678-79 (internal citations omitted).
alleges that Defendants committed medical malpractice under
Michigan law and also violated her rights under the Eighth,
Fourteenth, and Twenty-Ninth amendments to the United States
law articulates certain requirements that must be satisfied
before an individual can assert a claim for medical
malpractice. One such requirement is that a plaintiff
alleging medical malpractice must file with her complaint an
affidavit of merit executed by a health professional.
See Mich. Comp. Laws § 600.2912d. Plaintiff has
failed to include the required affidavit of merit which is
fatal to her claims of medical malpractice. See, e.g.,
Scarsella v. Pollak, 591 N.W.2d 257, 258 (Mich. Ct. App.
respect to Plaintiff's claims of constitutional injury,
the Court first notes that there does not exist a
twenty-ninth amendment to the United States Constitution. As
for Plaintiff's Eighth and Fourteenth Amendment claims,
Plaintiff must establish that her rights were violated by a
state actor or someone acting under color of state law.
See 42 U.S.C. § 1983; Lindsey v. Detroit
Entertainment, LLC, 484 F.3d 824, 827 (6th Cir. 2007).
Plaintiff has failed to allege facts from which a reasonable
person could conclude that any Defendant is properly
characterized as a state actor with respect to the
circumstances giving rise to this action. Moreover, Plaintiff
has failed to allege facts demonstrating that her rights
under the Eighth or Fourteenth Amendment were violated.
reasons discussed herein, the undersigned recommends that
Plaintiff's claims be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2). The undersigned further recommends that
appeal of this matter would not be taken in good faith.
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th
Cir. 1997); 28 U.S.C. § 1915(a)(3).
to this Report and Recommendation must be filed with the
Clerk of Court within fourteen (14) days of the date of
service of this notice. 28 U.S.C. § 636(b)(1)(C).
Failure to file objections within the specified time waives
the right to appeal the District Court's order. See