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 state
prisoner pursuant to 42 U.S.C. § 1983. This lawsuit
arises out of conditions of plaintiff's confinement at
the Kent County Correctional Facility. The defendants are
Kent County, Kent County Sheriff's Department, unknown
reception deputy sheriff, unknown nurse, and unknown health
care provider. (ECF No. 40, PageID.190). Plaintiff alleges
that defendants violated his First, Eighth, and Fourteenth
Amendment rights. (Id. at PageID.192).
matter is before the Court on plaintiff's “MOTION
FOR DEFAULT-SUMMARY JUDGMENT” (ECF No. 37), Kent
County's Rule 12(b)(6) motion to dismiss (ECF No. 41),
and plaintiff's motion to “continue” to
include the Kent County Board of Supervisors as a defendant
and to “include” the Kent County Sheriff's
Department and the Grand Rapids Police Department as
defendants. (ECF No. 42). For the reasons set forth herein, I
recommend that the Court deny plaintiff's motion for
default-summary judgment and his motion to
“continue” and “include” claims. I
further recommend that the Court grant defendant Kent
County's Rule 12(b)(6) motion to dismiss. I further
recommend that the Court dismiss plaintiff's claims
against all other named defendants pursuant to 28 U.S.C.
§§ 1915(e)(2), 1915A for failure to state a claim
upon which relief can be granted, and that the Court enter a
judgment dismissing all plaintiff's claims.
overview of the procedural history of this case is necessary
in order to place the claims being asserted by plaintiff and
the motions before the Court in context. On September 11,
2017, plaintiff filed this lawsuit naming the Kent County
Correctional Facility and others as defendants. (ECF No. 1).
March 14, 2018, Chief Judge Jonker entered an Amended Opinion
and Order Regarding Partial Service. (ECF No. 15, 16). He
noted that the Kent County Correctional Facility “is a
building, not an entity capable of being sued in its own
right.” (Op. at 5, ECF No. 15, PageID.62). Chief Judge
Jonker assumed that plaintiff intended to sue Kent County and
directed the Clerk to substitute Kent County as a defendant
in the place of the Kent County Correctional Facility.
(Id.; Order, 1, ECF No. 16, PageID.67). Chief Judge
Jonker's order ended with the following paragraph:
IT IS FURTHER ORDERED that Plaintiff may submit an amended
complaint by filing his complaint on the requisite form
within twenty-eight (28) days from the date of entry of this
order, for the purpose of addressing the deficiencies in
Plaintiff's initial complaint with respect to his
allegations against the individuals who were deliberately
indifferent to his serious medical needs. The amended
complaint will take the place of the original complaint, so
it must include Defendant Kent County as well as all of the
individual Defendants that Plaintiff intends to sue and all
of the claims that Plaintiff intends to raise. The case
number shown above must appear on the front page of the
(Order, 2, PageID.68).
April 16, 2018, plaintiff filed his amended complaint. (ECF
No. 19). But plaintiff did not comply with Chief Judge
Jonker's order directing him to name Kent County as a
defendant. Instead, he named the “Kent County Board of
Supervisors.” On January 9, 2019, the Court granted
defendant Kent County's Rule12(e) motion for a more
definite statement. (1/9/19 Mem. Op. & Order, ECF No.
38). Plaintiff's amended complaint failed to specifically
mention or refer to Kent County, and it was so vague or
ambiguous that neither Kent County nor the Kent County Board
of Commissioners could reasonably prepare a response.
(Id. at 3, PageID.181). In addition, “the
caption of the amended complaint provide[d] an ambiguous
reference to ‘KENT COUNTY BOARD OF SUPERVISORS,
MEMBERS, ET SEQ.' rather than naming all the
parties[.]” (Id. at 3, PageID.181) (citing
Fed.R.Civ.P. 10(a)). Plaintiff ignored Rule 10(b)'s
requirement that a party “must state its claims or
defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances.”
(Id.) (citing Fed.R.Civ.P. 10(b)).
Court expressly advised plaintiff that mere allusions to
county policies and customs were not sufficient to establish
liability against a municipal defendant. Plaintiff must
“allege facts identifying the policies or customs,
connect them to the municipal defendant, and describe how he
suffered injury caused by those policies or customs.”
(Id. at 4, PageID.182) (citing Vereecke v. Huron
Valley Sch. Dist., 609 F.3d 392, 403 (6th Cir. 2010)).
Court ordered plaintiff to file a second amended complaint.
(Id. at 5, PageID.183). On January 22, 2019,
plaintiff filed his second amended complaint (ECF No. 40),
and it is now his operative pleading.
Plaintiff is held in the custody of the Michigan Department
of Corrections (MDOC). He was arrested on an unspecified date
by an unidentified Grand Rapids Police Department officer.
Plaintiff sustained hand and shoulder injuries. When
plaintiff asked the arresting officer for medical assistance,
the response that he received was, “You have nothing
coming.” Plaintiff was transported to the Kent County
Correctional Facility or Jail where he asked a nurse for
treatment. The nurse stated: “You should be seen by a
doctor within 48 hours.” During the three months that
plaintiff was held in the jail, he asked jail staff for
medical treatment and did not receive it.
was transferred into the MDOC's custody. He has not
received treatment for the injuries that he sustained during
Plaintiff's Motion for ...