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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KENNETH WILLIAMS, 

Plaintiff, CIVIL ACTION NO. 14-12755 

vs. DISTRICT JUDGE MARIANNE O. BATTANI 

MAGISTRATE JUDGE MONA K. MAJZOUB 

THOMAS BIRKETT, et al., 

Defendants. 

___________________________________________/ 

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO 

AMEND/SUPPLEMENT COMPLAINT AS A MATTER OF COURSE [26], DENYING 

PLAINTIFF’S MOTION TO RECUSE ATTORNEY KEVIN R. HIMBAUGH AND THE 

ATTORNEY GENERAL’S OFFICE FOR CONFLICT OF INTEREST [28], AND 

GRANTING PLAINTIFF’S MOTION TO AMEND PLAINTIFF’S RESPONSE TO 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [31] 

Before the Court are Plaintiff’s Motion to Amend/Supplement the Complaint as a Matter of 

Couse (docket no. 26), Plaintiff’s Motion to Recuse Attorney Kevin R. Himebaugh and the 

Attorney General’s Office for Conflict of Interest (docket no. 28), and Plaintiff’s Motion to 

Amend Plaintiff’s Response to Defendants’ Motion for Summary Judgment and Qualified 

Immunity (docket no. 31).1

 All pretrial matters have been referred to the undersigned for 

consideration. (Docket no. 11.) The Court dispenses with oral argument pursuant to E.D. Mich. 

LR 7.1(e). The Motions are now ready for ruling. 

I. Background

 

1 Also pending before the Court are Plaintiff’s Motion for Immediate Consideration of 

Plaintiff’s Requested Injunctive Relief (docket no. 8) and Defendants Balcarcel and Pung’s 

Motion for Summary Judgment (docket no. 24). These matters have been addressed in a Report 

and Recommendation entered concurrently with this Opinion and Order.

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Plaintiff Kenneth Williams, currently a prisoner at the Carson City Correctional Facility 

(CCF) in Carson City, Michigan, filed this action under 42 U.S.C. §§ 1983 against Defendants 

Thomas Birkett (Warden of the Central Michigan Correctional Facility (STF)), Patricia Caruso 

(former director of the MDOC), E. Balcarcel (Deputy Warden at STF), Valsicol Chemical 

Corporation (owner of a chemical plant located in St. Louis, MI), Jennifer Granholm (former 

Governor of the State of Michigan), R. Pung (a Resident Unit Manager at STF), the Michigan 

Department of Corrections, Dr. Scott Holmes (a physician at CCF), Victoria Merren (a PA at 

CCF), and Corizon Health.2

 (Docket no. 1.) Plaintiff alleges through his Count I that while he 

was incarcerated at STF, Defendants Birkett, Balcarcel, and Pung violated his Eighth Amendment 

rights when he was forced to drink water exposed to contamination caused by former Defendant 

Valsicol.3 Plaintiff alleges through his Count II that Defendants Holmes, Merren, and Corizon 

delayed in providing him adequate medical care related to a tumor on his leg, also in violation of 

the Eighth Amendment. 

In his Complaint, Plaintiff alleges that while he was confined at STF from November of 

2004 through June of 2009, he began to notice that his “health was deteriorating due to the foul 

drinking water.” (Docket no. 1 at 7.) He claims that he was informed by other prisoners that the 

water was contaminated, so he started researching the issue in 2010. Plaintiff asserts that he 

discovered through his research that the land on which the prison now sits used to be farm land, but 

the livestock on the land all became sick due to contaminated soil caused by Velsicol’s use of the 

 

2 On October 15, 2014, the Court dismissed Defendants MDOC, Valsicol Chemical 

Corporation, Patricia Caruso, and Jennifer Granholm under 28 U.S.C. § 1915(e)(2). 

3 In the Report and Recommendation filed concurrently with this Opinion and Order, the 

Court has recommended that Plaintiff’s claims against Defendants Balcarcel and Pung be 

dismissed. Defendant Birkett has not yet been served.

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land from 1936 through 1978. Plaintiff refers to a series of chemicals and other contaminants that 

are allegedly “known” to be in the local water supply, including the local Pine River. (Id. at 7-8.) 

Plaintiff was transferred from STF to CCF in May of 2011. He alleges that in November 

of 2012, he discovered a large mass on the back of his thigh. After an X-ray, ultrasound, and 

MRI, doctors determined that he had a tumor “the size of a small football,” which Plaintiff 

contends “had obviously been growing for a while” due to the size. (Id. at 8.) He further alleges 

that the tumor, his surgery to remove it, and the resulting recovery were all very painful. (Id.) 

Additionally, Plaintiff claims, some of the St. Louis citizens (and some rodents on which the water 

was tested) also had tumors, and because of the contamination, the city provides bottled water for 

schools. (Id. at 8-9.) And he asserts that his family saw a sign posted in the visiting area of STF 

notifying the public “to consume the St. Louis water at their own risk.” (Id. at 9.) 

Plaintiff alleges that he “suffered mentally” because he was forced to consume the 

contaminated water, which he knew could lead to cancer. He adds that he will also have to take 

pain medication for the rest of his life due to the pain in his leg. And he asserts that Defendants 

Birkett, Balcarcel, and Pung, along with several of the previously dismissed defendants, were 

aware of the problems with the water. (Id.) 

 With regard to his second claim, Plaintiff alleges that his leg began to swell up in 

November of 2012 and that he notified the CCF health-care department in February of 2013. He 

claims that he first met with two nurses who referred him to see Defendant Merren. Plaintiff 

alleges that he told Defendant Merren that his family had a history of cancer, but she told him that 

the swelling on his leg was due to a pulled muscle. Plaintiff maintains that he continued to 

complain about the swelling for six months until a grievance resulted in an X-ray ordered by 

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Defendant Holmes on July 30, 2013. (Docket no. 1 at 11.) 

 Plaintiff alleges that a month later, he was called out by Defendant Holmes who told him 

that he was unable to provide a diagnosis, so he was sending Plaintiff out for an ultrasound. 

Plaintiff had the ultrasound on or about October 3, 2013, which revealed a tumor in his leg. 

Plaintiff had a consultation with a surgeon on December 4, 2013, at which time he was informed 

that some of his pain was likely caused by the tumor pressing on nerves in his leg. Plaintiff 

alleges that between the times of his consultation and when he ultimately had the tumor removed 

on January 23, 2014, Defendants Merren and Holmes would only give him 400mg Ibuprofen and 

325mg Asprin for his pain. He contends that the failure to properly diagnose his tumor and the 

resulting pain amounts to deliberate indifference in violation of the Eighth Amendment. (Id. at 

12.) 

II. Analysis 

A. Plaintiff’s Motion to Amend

 Plaintiff seeks to amend his Complaint with regard to his Claim II as a matter of course 

under Fed. R. Civ. P. 15(a)(1)(B) and add Dr. Daniel Carrel as a defendant in this matter. (Docket 

no. 26.) Under Rule 15, a party may amend a pleading as a matter of course (a) within 21 days of 

serving it; or (b) within 21 days after service of a responsive pleading, or within 21 days of service 

of a motion under Fed. R. Civ. P. 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). 

Plaintiff filed his Complaint on July 15, 2014. (Docket no. 1.) Defendants Merren, Holmes, and 

Corizon (the Defendants in Claim II) filed an Answer on January 29, 2015. (Docket no. 22.) 

Thus, to take advantage of Rule 15(a)(1), Plaintiff was required to serve his Amended Complaint 

no later than February 19, 2015. Although filed by the Court on March 2, 2015, Plaintiff certified 

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that he served Defendants with a copy of his Motion on February 17, 2015. (Docket no. 26 at 3.) 

Therefore, the Court will grant his Motion. Dr. Daniel Carrel will be added as a Defendant in this 

matter. Although Plaintiff included factual allegations related to Claim II in his Motion, the 

Court will order Plaintiff to file his Amended Complaint by June 1, 2015. Plaintiff must also 

serve Dr. Carrel with a copy of the Amended Complaint pursuant to the Federal Rules of Civil 

Procedure or file an appropriate motion requesting service by the Court. 

B. Plaintiff’s Motion to Recuse Defense Counsel

 Through his Motion to Recuse, Plaintiff argues that Defendants’ attorney, Kevin R. 

Himebaugh, and the Michigan Attorney General’s Office should be barred from representing 

Defendants in this matter because Plaintiff has filed a criminal complaint with the Attorney 

General’s Office against “several M.D.O.C. corrections officers, staff, and Assistant Attorney 

General Michael R. Dean for Assault & Battery, Retaliation, harassment, and Federal Witness 

Tampering.” (Docket no. 28 at 1.) Plaintiff contends that there is an inherent conflict of interest 

where the Attorney General’s Office should be investigating the same individuals that they are 

representing in this matter. Defendants have not filed a response. 

 This Court has previously addressed a similar argument: 

Whether defendants are entitled to representation by the Michigan Attorney 

General is a matter of both state law and the contract between the State and its 

employees. Cf. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 

S.Ct. 900, 79 L.Ed.2d 67 (1984) (“[I]t is difficult to think of a greater intrusion on 

state sovereignty than when a federal court instructs state officials on how to 

conform their conduct to state law.”). Absent an independent basis upon which to 

disqualify the Attorney General applicable to all attorneys, such as a conflict of 

interest, this Court has no power to prevent the Attorney General from representing 

defendants and plaintiff has no standing to challenge that representation. See 

O'Connor v. Jones, 946 F.2d 1395, 1399-1400 (8th Cir.1991); Manchester v. 

Rzewinicki, 777 F.Supp. 319, 325, 328 (D.Del.1991), aff'd, 958 F.2d 364 (3d 

Cir.1992) (unpub.); 7 Am.Jur.2d Attorney General § 24 (1997) (“It is generally 

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acknowledged that the attorney general is the proper party to determine the 

necessity and advisability ... of defending actions against the state or its officials 

[.]”). The mere allegation that defendants violated plaintiff’s constitutional and 

statutory rights does not establish a conflict of interest. 

Harrison v. Burt, No. 07-11412, 2008 WL 4104105 (E.D. Mich. Aug. 28, 2008) (Komives, M.J.). 

In the instant matter, Plaintiff claims that he “has a criminal complaint” pending with the AG’s 

office alleging that Defendants violated his constitutional rights and various criminal laws. 

Nevertheless, this “complaint” is nothing more than an allegation. And as Magistrate Judge 

Komives reasoned, such an allegation does not create a conflict of interest. Therefore, the Court 

will deny Plaintiff’s Motion. 

C. Plaintiff’s Motion to Amend Plaintiff’s Response to Defendants’ Motion for 

Summary Judgment and Qualified Immunity. 

In his Motion to Amend, Plaintiff seeks to add two exhibits to his Response to Defendants’ 

pending Motion for Summary Judgment. (Docket no. 31.) While the additional exhibits were 

not a factor in the Court’s recommendation regarding Defendants’ Motion, the Court did review 

the exhibits when making its determination. Therefore, the Court will grant Plaintiff’s Motion to 

Amend. 

 IT IS THEREFORE ORDERED that Plaintiff’s Motion to Amend [26] is GRANTED. 

The Amended Complaint must be filed by June 1, 2015. Dr. Daniel Carrel will be added as a 

Defendant in this matter. Plaintiff must serve Dr. Carrel with a copy of the Amended Complaint 

pursuant to the Federal Rules of Civil Procedure or file an appropriate motion requesting service 

by the Court. 

IT IS FURTHER ORDERED that Plaintiff’s Motion to Recuse Attorney Kevin 

Himebaugh and the Attorney General’s Office for Conflict of Interest [28] is DENIED. 

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Plaintiff’s Response to 

Defendants’ Motion for Summary Judgment or Qualified Immunity [31] is GRANTED. 

Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of 

this Order within which to file any written appeal to the District Judge as may be permissible under 

28 U.S.C. 636(b)(1). 

Dated: May 12, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served on counsel of 

record and on Plaintiff Kenneth Williams on this date. 

Dated: May 12, 2015 s/ Lisa C. Bartlett 

Case Manager 

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