ANTHONY P. PATTI, Magistrate Judge.
Plaintiff Jeffrey Lee Bonga (#271635) is currently incarcerated at the Michigan Department of Corrections (MDOC) St. Louis Correctional Facility (SLF). (DE 26 at 4.) On October 13, 2016, while incarcerated at the MDOC's Alger Correctional Facility (LMF) in Michigan's upper peninsula, Plaintiff filed the instant lawsuit, pro se, against six defendants:
According to Plaintiff, Harish Rawal, M.D. performed a "cervical 5 through 7 anterior fusion" on April 24, 2012. (DE 1 ¶ 24.) Plaintiff's claims against Defendants Jordan, Ploehn, Ouellette and Dominguez-Bem appear to relate to treatment for Plaintiff's back pain at LCF between February 2013 and February 2015. (DE 1 ¶ 26.) Plaintiff's claims against Defendant Abdellatif appear to relate to the events between March and August 2015 at MRF. (DE 1 ¶¶ 28-29.) Finally, Plaintiff's claims against Defendant Borgerding appear to relate to the events of September 2016, while Plaintiff was incarcerated at LMF. (DE 1 ¶ 38). Plaintiff sues Defendants in their individual and official capacities, alleging "denial of medical care." (DE 1 ¶¶ 14-19, 39-46.) He seeks declaratory, injunctive, compensatory and punitive relief. (DE 1 at 13.)
Judge Cox has referred this case to me for all pretrial proceedings. (DE 9.) Currently before the Court are several motions:
This report addresses Plaintiff's motion to amend.
Plaintiff brings his motion to amend pursuant to Fed. R. Civ. P. 15(a). This rule permits amending a pleading once as a matter of course within "
"The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(b). As the Supreme Court has explained:
Foman v. Davis, 371 U.S. 178, 182 (1962).
"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) (citing Thiokol Corp. v. Department of Treasury, State of Michigan, Revenue Div., 987 F.2d 376, 382-83 (6th Cir.1993)). "The test for futility . . . does not depend on whether the proposed amendment could potentially be dismissed on a motion for summary judgment; instead, a proposed amendment is futile only if it could not withstand a Rule 12(b)(6) motion to dismiss." Rose, 203 F.3d at 421.
To be sure, Plaintiff's motion is unopposed, as no existing Defendant has responded to Plaintiff's May 26, 2017 motion to amend. E.D. Mich. LR 7.1(c)(1) ("A respondent opposing a motion must file a response, including a brief and supporting documents then available."). In fact, Borgerding's motion for summary judgment and Jordan's motion to dismiss each acknowledge the amended complaint. (See DE 52 at 7, 8, 19 and DE 56 at 2 ¶ 2.) Nonetheless, for the reasons stated below, Plaintiff's motion to amend his original complaint will be denied without prejudice.
Plaintiff's motion to amend his complaint seeks to add SLF grievance coordinator K. Parsons and SLF Hearings Investigator L. Scott as defendants sued in their individual and official capacities. (DE 36 at 3-9, DE 37 ¶¶ 18-19, 26-27.) Relatedly, he seeks to add several factual allegations — many of which post-date the factual allegations in the original complaint — regarding his legal and/or personal property.
"No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). As the Supreme Court has instructed, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
The MDOC's Policy Directive regarding Prisoner/Parolee Grievances describes a grievance process that includes an attempt at resolution, followed by three written steps. MDOC PD 03.02.130 ¶¶ P-GG (effective July 9, 2007). Among other things, when filing a written grievance, "[i]nformation provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how)[,]" and "[d]ates, times, places, and names of all those involved in the issue being grieved are to be included." Id. ¶ R. This policy directed is intended to provide prisoners and parolees with "with an effective method of seeking redress for alleged violations of policy and procedure or unsatisfactory conditions of confinement." Id. (Policy Statement).
To be sure, "failure to exhaust is an affirmative defense under the PLRA," and "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Still, "[t]here is . . . no reason to suppose that the normal pleading rules have to be altered to facilitate judicial screening of complaints specifically for failure to exhaust." Jones, 549 U.S. at 214. In other words, even though failure to exhaust is an affirmative defense, the Court is not prevented from screening a complaint under 28 U.S.C. § 1915A, which permits dismissal of a complaint, or any portion thereof, if it "is frivolous, malicious, or fails to state a claim upon which relief may be granted[.]" 28 U.S.C. § 1915A(b)(1). Spaulding v. Oakland Cty. Jail Med. Staff, No. CIV. 4:07-CV-12727, 2007 WL 2336216, at *1 (E.D. Mich. Aug. 15, 2007) ("Although a plaintiff's complaint cannot be dismissed sua sponte merely for failing to plead and prove exhaustion within the text of the complaint because the issue of exhaustion is an affirmative defense under the PLRA, a plaintiff's complaint can be dismissed sua sponte if the complaint on its face fails to state a claim upon which relief can be granted.") (citing Jones.)
Here, it is not necessary to consider whether any of Plaintiff's proposed claims against these proposed Defendants are futile on their merits.
(DE 37 ¶¶ 81-84) (emphases added).
"The plain language of the statute makes exhaustion a precondition to filing an action in federal court. . . ." Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (external citations omitted) (emphasis added). Here, it is clear from the face of Plaintiff's proposed first amended complaint that permitting the wished-for claims against Parsons and Scott would be futile, as he admits he has not yet satisfied the requisite precondition. See Proctor v. Applegate, 661 F.Supp.2d 743, 774 (E.D. Mich. 2009) (Borman, J., adopting amended report and recommendation of Hluchianiuk, M.J.) ("The undersigned suggests that these paragraphs fail to state a claim because it is obvious on their face that they are unexhausted."); Spaulding, 2007 WL 2336216, at *3 ("By Plaintiff's own admission on the face of the complaint, Plaintiff failed to properly exhaust his administrative remedies in accordance with the Oakland County Jail grievance policy.").
It being obvious from the face of Plaintiff's proposed first amended complaint that his claims against the newly proposed Defendants Scott and Parson have yet to be exhausted as required by 42 U.S.C. § 1997e(a), and such exhaustion being required before a complaint is filed, Plaintiff has failed "to state a claim upon which relief may be granted[.]" 28 U.S.C. § 1915A(b)(1); see also 28 U.S.C. § 1915(e)(2)(B)(ii), 42 U.S.C. § 1997e(c).
Preliminarily, I note that Plaintiff's proposed first amended complaint seeks to add information about previous lawsuits. (DE 36 at 3-4, DE 37 ¶¶ 1-5.) These are permissible amendments, as these paragraphs simply inform the Court about Plaintiff's litigation history; however, they may not actually be necessary, since federal courts only require "notice pleading," i.e., a "a short and plain statement of the claim" which provides enough information to give the defendants notice of what is being claimed against them, so that they can fairly respond. Fed. plaintiff failed to properly exhaust his administrative remedies, which he was required to do before filing suit in federal court.") (citing 42 U.S.C. § 1997e(a)). R. Civ. P. 8(a)(2). Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-514 (2002). In addition, Plaintiff's proposed first amended complaint seeks to add allegations regarding examinations with existing LCF Defendants Jordan, Dominquez-Bem, Ouellette and Ploehn which allegedly occurred on dates within the factual allegations underlying the original complaint. (DE 36 at 7-8; DE 37 ¶¶ 74-80.) These, too, are permissible amendments, as these paragraphs do not expand the scope of the case; instead, they elaborate on matters discussed in the original complaint. (Compare, e.g., DE 1 ¶¶ 26, 44; DE 37 ¶¶ 73-78.)
As such, after considering whether it is actually necessary to do so, Plaintiff may amend his complaint with respect to the allegations analyzed in this particular section of my opinion, whether as a matter of course under Fed. R. Civ. P. 15(a)(1) or with the Court's leave under Rule 15(a)(2).
Among the allegations Plaintiff seeks to add are several which occurred on dates following the factual allegations underlying the original complaint. In sum, Plaintiff alleges that Dr. Harish Rawal of Allegiance Hospital performed a laminectomy during January 2017, in the wake of which Plaintiff "went thirty days without his vital medication[,]" while incarcerated at SLF. (DE 36 at 4-5; DE 37 ¶¶ 51-57.) It is not clear against whom these allegations are brought. This is complicated by the fact that there does not seem to be an existing SLF defendant in this case. (DE 1 ¶¶ 8-13.) Also, even if Plaintiff had exhausted his claims against proposed Defendants Scott and Parsons of SLF, it is not clear how the allegations that they were involved in a 168-day deprivation of Plaintiff's legal property relate to the alleged 30-day deprivation of medication. (DE 37 ¶¶ 18-19, 65, 91, 92.) Perhaps proposed ¶¶ 51-57 were inserted simply to "connect the dots" between the April 2012 and January 2017 surgeries performed by Dr. Rawal and to elaborate upon his claims against the existing defendants. (See DE 1 ¶¶ 24, 45-46; DE 37 ¶¶ 32, 79-80). Whatever the case may be, given the current lack of clarity in these allegations, they do not "state a claim upon which relief can be granted[.]" Fed. R. Civ. P. 12(b)(6) and will not be permitted as currently proposed.
Accordingly, Plaintiff's motion to amend his complaint (DE 36) is