United States District Court, W.D. Michigan, Southern Division
ORDER ADOTPING IN PART AND REJECTING IN PART REPORT
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 50), Plaintiff's
Objection (ECF No. 51), and Defendant's Response (ECF No.
53). Under the Federal Rules of Civil Procedure where, as
here, a party has objected to portions of a Report and
Recommendation, “[t]he district judge . . . has a duty
to reject the magistrate judge's recommendation unless,
on de novo reconsideration, he or she finds it
justified.” 12 Wright, Miller, & Marcus, Federal
Practice and Procedure § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981).
Magistrate Judge recommends denying Plaintiff's Motion
for Default-Summary Judgment (ECF No. 37); granting Defendant
Kent County's Rule 12(b)(6) motion to dismiss (ECF No.
41); denying Plaintiff's motion “to continue to
include” certain defendants and claims (ECF No. 42);
and dismissing the remaining claims in the Second Amended
Complaint under 28 U.S.C. §§ 1915(e)(2), 1915A.
Accordingly, the Magistrate recommends the Court enter a
Judgment dismissing all of Plaintiff's claims. (ECF No.
50). After performing a de novo review, the Court agrees with
the Magistrate Judge that Plaintiff's motions for
“default-summary judgment” and “to continue
to include” certain defendants are meritless. Certain
other claims also do not pass muster under Section 1915
screening. But the Court respectfully disagrees with the
Magistrate Judge that the deliberate indifference claim
against Defendant Kent County should be dismissed. At a
fundamental level, this case is about Plaintiff's
allegations that injuries to his hand and shoulder went
untreated for months, despite repeated his requests for
medical assistance, while he was in the custody of Kent
County. These claims survived initial screening, and the
Court determines they should continue here as well.
Plaintiff's Motion for Default-Summary Judgment
Magistrate Judge first recommends denying Plaintiff's
motion for default summary judgment. Plaintiff's motion
suggests that default, or summary judgment, in his favor is
warranted based on Plaintiff's belief that the Defendants
failed to comply with the Magistrate Judge's September
12, 2018 Order granting Defendant Kent County additional time
to file dispositive motions. (ECF No. 31). The Magistrate
Judge correctly determined Defendant Kent County did not
violate the September 12th Order. Moreover, the Magistrate
Judge properly pointed out that a failure to timely file a
dispositive motion is not a basis for entering Judgment in
Plaintiff's favor. Nothing within Plaintiff's
objections persuades the Court that a different result must
issue. Accordingly, the Court accepts the Magistrate
Judge's recommendation, on de novo review, that this
motion should be denied.
Plaintiff's Motion to Continue to Include Kent County
Board of Supervisors as Defendants and Include Kent County
Sheriff's Department & Grand Rapids Police
Magistrate Judge next recommends denying Plaintiff's
second motion, which relates to the Kent County Board of
Commissioners [sic]; the Kent County Sheriff's
Department; and the Grand Rapids Police Department. In his
motion, Plaintiff seeks to “continue” his claims
against these entities.
Court agrees with the Magistrate Judge that Plaintiff's
motion is meritless with respect to the “Kent County
Board of Supervisors.” The Second Amended Complaint is
the operative pleading and that Complaint does not name the
board as a defendant, nor does it contain any factual
allegations against that body. In fact, the First Amended
Complaint also failed to allege factual conduct against the
Kent County Board of Supervisors, or the Board of
Commissioners, and so the Magistrate Judge properly granted
the defense motion for a more definite statement. (ECF No.
38). Plaintiff did not cure those deficiencies in his Second
Amended Complaint, and his objections merely assert, in a
conclusory fashion, that he has alleged sufficient factual
conduct against the Kent County Board of Commissioners. That
does not persuade the Court, on de novo review, that the
Magistrate Judge's recommendation was incorrect.
Court also agrees with the Magistrate Judge that
Plaintiff's claim in the Second Amended Complaint against
the Kent County Sheriff's Department fails to state a
claim and that it should be dismissed as a party. The
Magistrate Judge was entirely correct that the Sheriff's
Department is not subject to suit under Section 1983. See
Vine v. Cty. of Ingham, 884 F.Supp.1153, 1158 (W.D.
Mich. 1995) (dismissing the Sheriff's Department as a
party because it could not be sued). Plaintiff's request
to “continue” his claim against the Sheriff's
Department, therefore, is without merit.
there is nothing to “continue” against the Grand
Rapids Police Department because the department is not now
nor has it ever been a named defendant in this case.
Accordingly, the Magistrate Judge properly recommended
dismissing Plaintiff's motion to continue a claim against
the department. Moreover, any amendment to name the Grand
Rapids Police Department would be futile. It is well settled
that municipal police departments are not entities subject to
suit, because they are merely departments of city government.
See, e.g., Frodge v. City of Newport, No. 11-5458,
2012 WL 4773558, at * 5 n. 3 (6th Cir. Oct.5, 2012);
Boykin v. Van Buren Twp., 479 F.3d 444, 450 (6th
these reasons the Court agrees with the Magistrate Judge, on
de novo review, that Plaintiff's motion to continue is
without merit. (ECF No. 42).
The Magistrate Judge's Screening Recommendation and Kent