Opinion
4:22-cv-12106
04-05-2023
SHADNEY HAMER, Plaintiff, v. CAROL GRIFFS, EVONNE McGINTY, DR. HERRO, ANZHELIKA KOOTNER, CORIZON, J. RUBLEY, C UNIT STAFF, JOHN DOE, and JANE DOE, Defendants.
F. Kay Behm District Judge
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO DISMISS CORIZON AS A DEFENDANT AND ADD WELLPATH HEALTH SERVICES AS A DEFENDANT (ECF NO. 39) AND TO DENY AS MOOT CORIZON'S MOTION TO DISMISS (ECF NO. 30) AND TO DENY IN PART AS MOOT DEFENDANTS' MOTION FOR WITHDRAWAL OF ATTORNEY AND FOR 120-DAY STAY (ECF NO. 62)
Kimberly G. Altman United States Magistrate Judge
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff Shadney Hamer (Hamer), proceeding pro se, is suing defendants Carol Griffs (Griffs), Evonne McGinty (McGinty), Dr. Herro (Herro), Anzhelika Kootner (Kootner), J. Rubley (Rubley), Corizon,C Unit Staff, John Doe, and Jane Doe alleging violations of his First and Eighth Amendment rights, specifically saying that he was denied access to medical attention and that he was retaliated against for filing grievances. See ECF No. 1. Under 28 U.S.C. § 636(b)(1), all pretrial matters were referred to the undersigned. (ECF No. 43).
Proceedings against Corizon have been stayed due to its ongoing bankruptcy proceedings. See ECF Nos. 51, 56.
There are currently six pending motions in this case: (1) a motion for summary judgment on the grounds of exhaustion by Michigan Department of Corrections employees Griffs, Kootner, McGinty, and Rubley, (ECF No. 23); (2) Hamer's motion for leave to file an amended complaint, (ECF No. 25); (3) Corizon's motion to dismiss, (ECF No. 30); (4) Herro's motion to dismiss, (ECF No. 35); (5) Hamer's motion to amend the complaint, (ECF No. 39); and (6) Corizon and Herro's motion for withdrawal of attorney and for a 120-day stay, (ECF No. 62). The third, fifth, and part of the sixth motion will be addressed below. The first, second, fourth, and balance of the sixth motion will be addressed at a later date.
For the reasons stated below, the undersigned RECOMMENDS that Hamer's motion to amend the complaint by dismissing Corizon as a defendant and adding Wellpath Health Services (Wellpath) as a defendant, (ECF No. 39), be GRANTED. If this recommendation is adopted, it is further RECOMMENDED that Corizon's motion to dismiss, (ECF No. 30), be DENIED AS MOOT and that the motion for withdrawal of attorney and for a 120-day stay, (ECF No. 62), be DENIED AS MOOT as to Corizon.
II. Hamer's Motion to Amend the Complaint (ECF No. 39)
Hamer requests that the Court dismiss Corizon as a defendant and add Wellpath as a defendant. (ECF No. 39). Hamer explains that since filing his lawsuit, he has learned that it was Wellpath and not Corizon that was contracted to provide healthcare services to Michigan prisoners during the relevant period.
A. Corizon
Hamer requests that Corizon be removed as a defendant from this case. “A party's decision to withdraw a claim renders it moot.” Indep. Union of Flight Attendants v. Pan Am. World Airways, Inc., 966 F.2d 457, 459 (9th Cir. 1992) (citing Webster v. Reproductive Health Serv., 492 U.S. 490, 512 (1989)). Thus, Hamer has rendered his claims against Corizon moot.
Even though there is currently an automatic stay in place as to Corizon due to its ongoing bankruptcy proceedings, see n. 1, the Court can nonetheless dismiss Corizon as a defendant. The Eighth Circuit has explained that “[t]he bankruptcy court does not have the power to preclude another court from dismissing a case on its docket or to affect the handling of a case in a manner not inconsistent with the purpose of the automatic stay.” Dennis v. A.H. Robins Co., Inc., 860 F.2d 871, 872 (8th Cir. 1988). The Ninth Circuit, agreeing with the Eighth Circuit's approach, has explained that dismissal of an action against a debtor is permissible so long as the dismissal is “consistent with the purpose of the statute.” Indep. Union of Flight Attendants, 966 F.2d at 459; see also Zelaskowski v. Johns-Manville Corp., 578 F.Supp. 11, 17 (D.N.J. 1983) (determining that dismissal of debtor-defendant permitted where dismissal “will not contravene the purpose of the stay provision”).
The purpose of the statutorily mandated automatic stay is to protect both debtors and creditors while the bankruptcy court considers a debtor's bankruptcy petition. See Indep. Union of Flight Attendants, 966 F.2d at 459; see also Fidelity Mortg. Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2nd Cir. 1976) (explaining that the automatic stay “is designed to prevent a chaotic and uncontrolled scramble for the debtor's assets in a variety of uncoordinated proceedings in different courts”). Keeping Corizon as a defendant in this case when both it and Hamer seek its dismissal does not serve the purpose of the statute. See ECF No. 30, Corizon's motion to dismiss. As such, Corizon may be dismissed as a defendant without violating the automatic stay.
In light of the mootness of Hamer's claims against Corizon, it should be dismissed as a defendant. If Corizon is dismissed as Hamer requests, then Corizon's pending motion to dismiss, (ECF No. 30), which also seeks the dismissal of Corizon as a defendant, should be denied as moot. Similarly, the pending motion for withdrawal of attorney and for 120-day stay filed by counsel for Corizon, (ECF No. 62), should be denied as moot as to Corizon.
B. Wellpath
In addition to the dismissal of Corizon as a defendant, Hamer also seeks to add Wellpath as a defendant to this case. Herro opposes the addition of Wellpath as a defendant. (ECF No. 44).
Hamer's request to add Wellpath is construed as a motion to amend his complaint. Amendments to pleadings before trial are governed by Federal Rule of Civil Procedure 15(a). Hamer can no longer amend his complaint as a matter of course under Rule 15(a)(1), instead he must proceed under Rule 15(a)(2) which requires either “the opposing party's written consent or the court's leave.” The rule provides that “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Because Rule 15(a)(2) directs courts to ‘freely give leave when justice so requires,' the rule embodies a ‘liberal amendment policy.' ” Brown v. Chapman, 814 F.3d 436, 442-443 (6th Cir. 2016) (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)).
“Despite this policy, denial may be appropriate when there is ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.' ” Brown, 814 F.3d at 443 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “To deny a motion to amend, a court must find ‘at least some significant showing of prejudice to the opponent.' ” Ziegler v. Aukerman, 512 F.3d 777, 786 (6th Cir. 2008) (quoting Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986)).
Here, Herro argues that adding Wellpath as a defendant would be futile because Hamer has not properly pleaded a Monell claim and also failed to exhaust his administrative remedies. These types of arguments are better left for Wellpath to make. In light of the liberal amendment policy and the relatively early stage of litigation, Hamer should be permitted to amend his complaint to add Wellpath as a defendant. That said, the Court reminds Hamer that it is his responsibility to provide a valid address for service of Wellpath.
IV. Conclusion
For the reasons stated above, the undersigned RECOMMENDS that Hamer's motion to dismiss Corizon as a defendant and add Wellpath as a defendant, (ECF No. 39) be GRANTED. If this recommendation is adopted, it is further RECOMMENDED that Corizon's motion to dismiss, (ECF No. 30), be DENIED AS MOOT and that Corizon and Herro's motion for withdrawal of attorney and for a 120-day stay, (ECF No. 62), be DENIED AS MOOT as to Corizon.
The motion to withdraw and stay as to Herro will be addressed at a later date.
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation. Any objections must be filed within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 144 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Isaac v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Under Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.