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Rosario v. Kent County

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

July 23, 2019

RICARDO ROSARIO, Plaintiff,
v.
KENT COUNTY, et al., Defendants.

          ORDER ADOTPING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         The 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).

         The 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.

         1. Plaintiff's Motion for Default-Summary Judgment

         The 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.

         2. Plaintiff's Motion to Continue to Include Kent County Board of Supervisors as Defendants and Include Kent County Sheriff's Department & Grand Rapids Police Department.

         The 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.

         The Court agrees with the Magistrate Judge that Plaintiff's motion is meritless with respect to the “Kent County Board of Supervisors.”[1] 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.

         The 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.

         Finally, 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 Cir. 2007).

         For all 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).

         3. The Magistrate Judge's Screening Recommendation and Kent ...


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