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Hoffman v. Kik

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

August 9, 2019

ROBERT HOFFMAN, Plaintiff,
v.
TERESA KIK, Defendant.

          DISTRICT JUDGE BERNARD A. FRIEDMAN

          REPORT AND RECOMMENDATION

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Robert Hoffman, proceeding pro se, initiated this prisoner civil rights action pursuant to 42 U.S.C. § 1983 against Defendant Teresa Kik on June 6, 2018, alleging violations of his First and Fourteenth Amendment rights. (Docket no. 1.) This action is presently before the court on four motions: (1) Defendant's Motion to Dismiss (docket no. 10); (2) Plaintiff's Motion Seeking Leave to Amend His Complaint (docket no. 13); (3) Defendant's Motion to Dismiss Plaintiff's Amended Complaint (docket no. 17); and (4) Plaintiff's Motion Seeking Leave for a Second Amendment of Plaintiff's Complaint (docket nos. 20, 21). Plaintiff responded to Defendants' Motions to Dismiss (Docket nos. 16, 24). And Defendant filed an Objection to Plaintiff's Motion Seeking Leave for a Second Amendment, to which Plaintiff replied. (Docket nos. 23, 25). This action has been referred to the undersigned for all pretrial purposes. (Docket no. 15.) The undersigned has reviewed the pleadings, dispenses with oral argument on the Motions pursuant to Eastern District of Michigan Local Rule 7.1(f), and issues this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         I. RECOMMENDATION

         For the reasons that follow, it is recommended that Defendant's Motion to Dismiss (docket no. 10) be DENIED as moot, Plaintiff's Motion Seeking Leave to Amend His Complaint (docket no. 13) be GRANTED as a matter of course, Defendant's Motion to Dismiss Plaintiff's Amended Complaint (docket no. 17) be DENIED, Plaintiff's Motion Seeking Leave for a Second Amendment of Plaintiff's Complaint (docket no. 20) be GRANTED, and Plaintiff's Second Amended Complaint be accepted as filed (docket no. 21).

         II. REPORT

         A. Plaintiff's Complaint

         Plaintiff is currently incarcerated at the Parnall Correctional Facility in Jackson, Michigan; however, the events giving rise to the Complaint allegedly occurred between May and July 2017, while he was incarcerated at the G. Robert Cotton Correctional Facility also in Jackson, Michigan. (See docket no. 1 at 1-2.) Plaintiff alleges that he turned in ten prisoner-to-prisoner mail forms (CSJ-100s) on May 25, 2017. According to Plaintiff, Defendant called him in to her office on May 31, 2017, and asked him why he had turned in those forms. When Plaintiff told Defendant that they were witnesses in a civil lawsuit, Defendant replied that Plaintiff was engaged in a fishing expedition and indicated that she was going to deny them. Plaintiff told Defendant that she didn't have the authority to reject them because according to policy DOM 2017-4, she was required to turn them in to the Office of Legal Affairs. Defendant then allegedly asked Plaintiff if he knew the transfer policy, and when he said “no, ” she said, “You better get familiar with it you'll be transferring soon, prisoners who quote policy to me get squashed like the bugs they are.”

         On June 22, 2017, Plaintiff allegedly went to Defendant's office to have an affidavit notarized and to send out a subpoena using certified/return receipt mail and legal mail. Defendant allegedly told Plaintiff that he could not send a certified letter without a court order, and Plaintiff replied that MDOC mail policy said that he could send as much certified mail as he wanted. Plaintiff alleges that Defendant responded to him by stating, “I told you not to quote policy to me, you better pack your property, I'm riding you out.” Defendant then signed the two legal mail forms as Plaintiff requested. According to Plaintiff, Defendant sent an email to the facility's transfer coordinator regarding Plaintiff eight minutes later.

         On July 9, 2017, a corrections officer told Plaintiff to pack his things because he was being transferred the next day. Plaintiff asked Defendant about the reason for his transfer, and Defendant allegedly answered, “That's what happens when you quote policy to me.”

         Plaintiff claims that Defendant violated his First and Fourteenth Amendment rights to be free from retaliation while he was engaged in the protected conduct of accessing the courts, i.e., locating witness and sending out legal mail. He claims that as a result of Defendant's retaliatory actions, he lost his high-paying prison job, lost the help of his prisoner legal assistant, and was transferred away from his family in Jackson. As relief, Plaintiff seeks compensatory damages in excess of $75, 000, punitive damages, exemplary damages, and presumed damages, among other things.

         B. Governing Law

         1.Motion to Amend Standard

         Federal Rule of Civil Procedure 15(a) provides that a “party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). Otherwise, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Factors relevant to the determination of whether to permit an amendment include “the delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001). The decision whether to grant a motion to amend is within the sound discretion of the court. Id. “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citation omitted).

         2. Motion to Dismiss Standard

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. When deciding a motion under Rule 12(b)(6), the court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). To survive a Rule 12(b)(6) motion, the complaint must contain direct or inferential allegations concerning all material elements of each claim and must allege sufficient facts to state a ...


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