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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 DENYING PLAINTIFF’S MOTION TO AMEND AND FOR 

THE COURT TO SERVE COMPLAINT [38] AND STRIKING PLAINTIFF’S 

AMENDED COMPLAINT [39] 

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.1

 (Docket no. 1.) 

On May 12, 2015, the Court granted Plaintiff’s Motion to Amend (docket no. 26), wherein 

Plaintiff requested permission to file an Amended Complaint adding claims against Dr. Daniel 

 

1 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). The 

undersigned has also recommended the dismissal of Plaintiff’s claims against Defendants 

Balcarcel and Pung. (Docket no. 34.) Defendant Birkett has not yet been served.

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Carrel as a matter of course under Fed. R. Civ. P. 15(a)(1). (Docket no. 33.) Because Plaintiff 

had not filed a proposed amended complaint with his Motion, the Court ordered Plaintiff to file his 

Amended Complaint no later than June 1, 2015. (Id. at 4-5.) The Court also noted that Plaintiff 

would be required to serve Dr. Carrel with his Amended Complaint or request that the Court 

effectuate service. (Id. at 5.) 

On June 3, 2015, Plaintiff filed two documents with the Court: (1) a Motion to Amend and 

for the Court to Serve Complaint (docket no. 38); and (2) his Amended Complaint (docket no. 39). 

In his Amended Complaint, Plaintiff adds the claims against Dr. Carrel in Count II, but he also 

adds 11 paragraphs of factual allegations related to Defendants Birkett, Balcarcel, and Pung in 

Count I. (Docket no. 39 at 6-7.) These additional allegations are outside the scope of the motion 

initially granted by the Court. Plaintiff acknowledges these additional changes in his Motion to 

Amend and for the Court to Serve Complaint. Plaintiff notes that any changes related to 

Defendant Birkett are made pursuant to Fed. R. Civ. P. 12(a)(1)(A) because Defendant Birkett has 

not yet been served, but he also notes that “the amended language in the amended complaint and 

added State Law/Tort Claims would also affect the remaining Defendants, Dr. Holmes, Merren, 

Pung, and Balcarcel.” (Docket no. 38 at 1-2.) 

As the Court discussed in granting Plaintiff’s initial motion, “to take advantage of Rule 

15(a)(1), Plaintiff was required to serve his Amended Complaint no later than February 19, 2015.” 

(Docket no. 33 at 4.) Because these additional changes were not requested until Plaintiff filed his 

Amended Complaint on June 3, 2015, Plaintiff’s amendments are untimely. Moreover, to the 

extent that Plaintiff would request leave to amend under Fed. R. Civ. P. 15(a)(2), “[a] party 

seeking to amend . . . must act with due diligence if it intends to take advantage of [Rule 15’s] 

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liberality.” Saginaw Chippewa Indian Tribe of Michigan v. Granholm, 05-10296, 2008 WL 

4808823, at *8 (E.D. Mich. Oct. 22, 2008) (Ludington, J.) (internal quotation omitted). “A court 

may deny leave to amend when a party unnecessarily delayed in seeking amendment, thereby 

[]causing prejudice to the other party or unduly delaying the litigation.” Id. (citation omitted). 

Defendants Pung and Balcarcel have already filed a Motion to Dismiss, which the undersigned has 

recommended be granted. Thus, Plaintiff’s amendments related to Count II are unduly 

prejudicial, and his Motion to Amend will be denied. The Court will also strike Plaintiff’s 

Amended Complaint and deny his requests to serve the same. Plaintiff must file an Amended 

Complaint that conforms with his initial Motion to Amend no later than June 26, 2015. 

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Amend and for the Court to 

Serve Complaint [38] is DENIED. 

IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint [39] is stricken from 

the docket in this matter. 

IT IS FURTHER ORDERED that pursuant to the Court’s May 12, 2014 Opinion and 

Order, Plaintiff’s Amended Complaint must be filed by June 26, 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. 

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). 

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Dated: June 4, 2015 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE

I hereby certify that a copy of this Opinion and Order was served upon Counsel of Record 

on this date. 

Dated: June 4, 2015 s/ Lisa C. Bartlett 

 Case Manager 

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