UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORY HONEYMAN,

Plaintiff,

v.

BRIAN EVERS, et al.,

Defendants.

 /

Case No. 2:14-cv-13497

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS' MOTION TO STRIKE THE AMENDED COMPLAINT [65]

Plaintiff Corey Honeyman filed a pro se complaint alleging that various Michigan

Department of Corrections administrators and corrections officers violated his constitutional

rights under 42 U.S.C. § 1983. Two years later, after Honeyman obtained legal

representation, he amended his complaint. Defendants now move to strike the amended

complaint. The Court will grant Defendants' motion as to Counts I and II of the amended

complaint and deny the motion as to Counts III and IV.

BACKGROUND

Honeyman filed his initial complaint pro se. Compl., ECF No. 1. He asserted five

claims, which the Court interpreted as three claimed violations of his constitutional rights.

Order 4, ECF No. 39. The Defendants moved to dismiss two of Honeyman's

claims—deliberate indifference to the danger of assault by other prisoners and deliberate

indifference to Honeyman's need for mental health treatment—because Honeyman had

failed to allege an injury. Mot., ECF No. 32. The Court granted the motion. The dismissal

order did not state whether the Court dismissed the claims with prejudice. See Order, ECF

No. 39. Following the order, only one of Honeyman's claims remained: that Defendants

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attempted to force him out of protective custody by issuing misconduct reports and denied

him necessities including blankets and access to a toilet. Id.; see also Compl. ¶ 44, ECF

No. 1.

Ten months later, in a Joint Status Report, counsel for Honeyman stated his intention

to file a motion to amend the pleadings. Report ¶ 5, ECF No. 62. During a scheduling

conference, the Court encouraged Honeyman's attorney to amend the complaint on the

assumption that he would follow the rules and formally seek the Court's leave to amend

through motion practice; and that the Court would permit the Defendant to respond in turn.

Honeyman did not file a motion to amend; instead he simply filed an amended complaint.

Am. Compl., ECF No. 64. Defendants' motion to strike Honeyman's amended complaint

followed. Mot., ECF No. 65.

LEGAL STANDARD

The Defendants move the Court to strike Honeyman's amended complaint in its

entirety under Federal Rule of Civil Procedure 12(f). Mot., ECF No. 65. But "such a motion

is neither an authorized nor a proper way to procure the dismissal of all or a part of a

complaint." See Dragovic v. Enprotech Steel Servs., No. 1:10-CV-1250, 2010 WL 4739931,

at *2 (N.D. Ohio Nov. 15, 2010). "Because Rule 12(f) does not permit this Court to strike

the Plaintiff's first amended complaint in its entirety," the Court will treat Defendants' motion

"as an objection to the Plaintiff's filing of the amended complaint under Rule 15(a) and a

motion to strike any allegedly improper paragraphs of the amended complaint." Id.

Under Rule 15(a), a party may amend its complaint once as a matter of course within

21 days after service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). After that time

period has elapsed, "a party may amend its pleading only with the opposing party's written

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consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The Court should "freely give leave

when justice so requires." Id. But in the case of "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,

[or] futility of the amendment," the Court should deny leave to amend. Morse v. McWhorter,

290 F.3d 795, 800 (6th Cir. 2002) (quoting 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." Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.

2010).

DISCUSSION

As an initial matter, the Court will treat its prior dismissal of Honeyman's claims

without prejudice to him seeking leave to amend to "correct the defect in the pleading or

state a claim for relief." See Brown v. Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011)

(quoting 6 Wright, Miller & Kane, Federal Practice and Procedure § 1483 (3d ed. 2010))

(finding dismissal without prejudice is preferable when "deficiencies in a complaint are

attributable to oversights likely the result of an untutored pro se litigant’s ignorance of

special pleading requirements").

I. Motion to Strike Count I

In Count I of the amended complaint, Honeyman re-alleges his claim that Defendants

were deliberately indifferent toward the danger of assault by other prisoners. Am.

Compl.7–8, ECF No. 64. In an effort to cure the pleading defects of his original complaint,

he adds that "Defendants' refusal to provide protective services to Plaintiff caused Plaintiff

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to fear for his life, drove him to suicidal thoughts, caused psychological harm, and later

caused him to suffer from post-traumatic stress disorder." Id. ¶ 35. 

Although he now alleges injuries from psychological harm, Honeyman still does not

allege that an actual assault took place. Simply put, Honeyman "alleges, not a failure to

prevent harm, but a failure to prevent exposure to risk of harm." Wilson v. Yaklich, 148 F.3d

596, 601 (6th Cir. 1998) (quotions omitted). As a result, Honeyman's claim is more aptly

characterized as a "conditions-of confinement claim" rather than a "failure-to-protect" claim.

See id. But "[a] claim of psychological injury does not reflect the deprivation of the minimal

civilized measures of life's necessities that is the touchstone of a conditions-of-confinement

case." Id. (quotations and citations omitted). However legitimate Honeyman's fears may

have been given his prior assaults, "it is the reasonably preventable assault itself, rather

than any fear of assault, that gives rise to a compensable claim under the Eighth

Amendment." Id. Since Honeyman's allegations of mental and emotional harm do not

remedy the pleading defects of the original complaint, the amendment is futile. Accordingly,

the Court will grant Defendants' motion to strike Count I of the amended complaint.

II. Motion to Strike Count II

Next, the amended complaint alleges that Defendants acted with deliberate

indifference toward Honeyman's need for mental health treatment. Am. Compl. 9, ECF No.

64. Honeyman claims that he "repeatedly informed Defendants that he was having suicidal

thoughts and that he intended to kill himself by way of starvation" and he "did not eat or

drink anything for over five days" while in a segregated cell. Id. ¶¶ 37–38. He further alleges

that he "requested mental health services during this time, but Defendants denied his

requests." Id. ¶ 39. As in Count I, Honeyman adds an allegation of an injury in his amended

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complaint: "As a result of Defendants' conduct, Plaintiff has suffered mental and

psychological harm and has been diagnosed with post-traumatic stress disorder." Id. ¶ 40.

But "the Eighth Amendment does not apply to every deprivation, or even every

unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations

involving serious injury inflicted by prison officials acting with a culpable state of mind."

Farmer v. Brennan, 511 U.S. 825, 860 (1994). To state an Eighth Amendment claim,

Honeyman must allege an "extreme deprivation" of medical care. Cosgrove v. Burke, No.

2:16-CV-110, 2016 WL 5859058, at *10 (W.D. Mich. Oct. 7, 2016) (quoting Hudson v.

McMillian, 503 U.S. 1, 9 (1992)); see also Vaughn v. Daviess Cty. Det. Ctr., No.

4:16-CV-P61-JHM, 2016 WL 5843935, at *6 (W.D. Ky. Oct. 4, 2016) (finding that a

prisoner's allegation that "she did not receive any medication for her mental health

condition for 10 days" failed to state an Eighth Amendment claim). 

Honeyman does not plead facts alleging an extreme deprivation of mental health

care. And he does not allege a complete denial of care over a substantial period of time.

Instead, he claims that—during a five-day hunger strike—Defendants denied him access

to mental health care. His allegation falls short of alleging a constitutional violation.

Honeyman's amendments fail to cure the pleading defects of the original complaint and are

therefore futile. The Court will grant Defendants' motion to strike Count II.

III. Motion to Strike Counts III and IV

Honeyman's Count III amendment clarifies his claim for deprivation of necessities

and, in Count IV, he adds a claim for gross negligence. Am. Compl. 9–11, ECF No. 64. The

Defendants have not shown—and the Court does not find—that the amendments would

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cause prejudice since the parties are early in the discovery process. See Mot., ECF No. 65.

Accordingly, the Court will deny Defendants' motion to strike Counts III and IV.

ORDER

WHEREFORE, it is hereby ORDERED that Defendants' Motion to Strike [65] is

GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED THAT Count I and II of Plaintiff's Amended Complaint

are DISMISSED WITH PREJUDICE.

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: January 31, 2017

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on January 31, 2017, by electronic and/or ordinary mail.

s/David P. Parker 

Case Manager

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