United States District Court, E.D. Michigan, Southern Division
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [ECF No. 165] AND DENYING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT [ECF No. 148]
CARAM STEEH, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants Russell Klatt and
Harold Gilkey's motion for summary judgment [ECF No.
148]. The motion was referred to Magistrate Judge Patricia
Morris for a Report and Recommendation. The matter is
presently before the court on the Report which recommends
that defendants' motion for summary judgment be denied.
Objections to the Report were filed by defendants and
plaintiff filed a response brief. The court has reviewed the
file, record, magistrate judge's Report and
Recommendation, objections and response. For the reasons set
forth below, the court agrees with the thorough analysis
conducted by the magistrate judge and accepts her
recommendation that defendants' motion for summary
judgment be DENIED.
defendant Klatt, the Report and Recommendation concludes that
there is an issue of material fact whether plaintiff is
disabled and whether he was denied services due to such
disability. The issue as to defendant Gilkey is whether he
was named as a party in either the original complaint or the
amended complaint. The defendants' single objection goes
to the Report's conclusion that plaintiff's amended
complaint is not time barred as to defendant Gilkey.
uncontested that the accrual date of plaintiff's claims
against Gilkey is June 19, 2013, which means that plaintiff
had to file his complaint against Gilkey by June 19, 2016.
Plaintiff's original complaint was filed on February 25,
2016. Gilkey was not named in the caption of the complaint,
nor did he appear in the list of defendants provided near the
beginning of the complaint. Gilkey does appear in the
complaint under the section entitled “Personal
Involvement of Defendants, ” specifically under the
entry for Ionia Correctional Facility defendants. The
complaint then describes three occasions where plaintiff was
denied an accommodation by “Defendant RUM
Guilkie”. Gilkey was not served with the original
complaint, but he was served with the amended complaint on
July 16, 2018.
magistrate judge focuses first on the misspelling of RUM
Harold Gilkey's name, pointing out that MDOC employed an
Assistant Resident Unit Supervisor (ARUS) Gerald Gilkie at
the same facility. When plaintiff sought to serve process on
RUM Gilkey he had retired, but ARUS Gilkie remained and
accepted service. Neither RUM Harold Gilkey nor ARUS Gerald
Gilkie used the same spelling that plaintiff used in his
30, 2016, plaintiff offered a “Proposed Amended
Complaint” that again referred to “RUM
Guilkie” in the body but not the caption. The new
material added a few factual details relating to RUM Gilkey
and a new characterization of his actions as discriminatory.
Defendant Gilkey was finally served on July 16, 2018 after
the court granted plaintiff's motion to amend the
complaint on March 6, 2017 and the confusion about the
spelling of Gilkey's name was resolved.
magistrate judge adopted the more lenient approach to
construing Fed.R.Civ.P. 10(b), which permits parties to be
identified in the body of the complaint. The hardline
approach, preferred by defendants, would require a person to
appear in the caption to be considered a party. This court
agrees with the analysis conducted by the magistrate judge in
reaching her conclusion. See ECF No. 165, PageID 4344-4352.
The weight of authority supports looking at the complaint as
a whole, and not just to the caption, for evidence of
plaintiff's intention as to the identity of the parties.
Using this approach, the magistrate judge conceded it was a
close question whether plaintiff did enough to identify
Gilkey as a defendant in his original complaint. Ultimately
she was persuaded that he did, pointing to the fact that the
complaint refers to “RUM Guilkie” as a defendant
in a section listing defendants; includes Gilkey's
position as “RUM”, which distinguishes him from
any other person with a similar name; and describes
Gilkey's conduct that forms the basis for plaintiff's
proceeded in forma pauperis, which entitled him to
have the court and the United States Marshals effect service.
The magistrate judge recognized that plaintiff could have
done more to alert the court clerk to the fact that a summons
was not issued for Gilkey. However, because plaintiff filed
his amended complaint, which made his intention to sue Gilkey
even more explicit, shortly after the first batch of parties
were served, the magistrate judge ultimately concludes that
the failure does not undercut plaintiff's intention to
name Gilkey in the original complaint. The court again agrees
with the magistrate judge's analysis.
reasons set forth above, defendants' objection is
overruled. The court hereby accepts the magistrate
judge's Report and Recommendation denying defendants'
motion for summary judgment. Now, therefore, IT IS HEREBY
ORDERED that the magistrate judge's Report and