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Rosario v. Kent County

United States District Court, W.D. Michigan, Southern Division

June 14, 2019

Ricardo Rosario, # 247823, Plaintiff,
v.
Kent County, et al., Defendants.

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE

         This is 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).

         The 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.

         Procedural History

         A brief 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).

         On 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 amended complaint.

(Order, 2, PageID.68).

         On 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)).

         The 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)).

         The 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.

         Factual Allegations

          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.

         Plaintiff was transferred into the MDOC's custody. He has not received treatment for the injuries that he sustained during his arrest.[1]

         Discussion

         I. Plaintiff's Motion for ...


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