UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

BRANDON MAURICE HEMPHILL, 

 Plaintiff, CIVIL ACTION NO. 14-cv-14958 

 v. DISTRICT JUDGE DENISE PAGE HOOD 

 

CITY OF TAYLOR, et al., MAGISTRATE JUDGE MONA K. MAJZOUB 

Defendants. 

__________________________________/ 

 

OPINION AND ORDER DENYING PLAINTIFF’S 

MOTION FOR LEAVE TO AMEND COMPLAINT [14] 

 This matter comes before the Court on Plaintiff Brandon Maurice Hemphill’s Motion for 

Leave to Amend Complaint. (Docket no. 14.) Defendants City of Taylor, Taylor Police 

Department, Brian Wojtowicz, Jason Hall, and Nick Hill responded to Plaintiff’s Motion (docket 

no. 16), and Plaintiff replied to Defendants’ Response (docket no. 17). This matter has been 

referred to the undersigned for all pretrial proceedings. (Docket no. 8.) The undersigned has 

reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of 

Michigan Local Rule 7.1(f)(2). The undersigned is now ready to rule pursuant to 28 U.S.C. § 

636(b)(1)(A).

I. Background

 This matter arises from Plaintiff’s August 4, 2012 “personal encounter” with Defendants 

Wojtowicz, Hall, and Hill, who, at all times relevant hereto, were police officers employed by 

the City of Taylor’s Police Department. (Docket no. 1 ¶¶ 7-9, 14.) The encounter allegedly 

resulted in the filing of “falsif[ied] trumped up” charges of armed robbery, unarmed robbery, 

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resisting/obstruction, and assault on an officer against Plaintiff, which were eventually dismissed 

with prejudice.1

 (Id. ¶ 14.) Plaintiff filed this pro se civil rights action against Defendants on 

December 22, 2014, pursuant to 42 U.S.C. §§ 1983 and 1985(3) and 18 U.S.C. §§ 241-42, 

alleging that Defendants violated and deprived him of his civil rights on the basis of race. (Id. ¶¶ 

1, 3, 10, 14-20.) Plaintiff also sets forth claims of gross negligence and “intentional infliction of 

mental and emotional pain.” (Id. ¶¶ 29-34.) In the instant Motion, Plaintiff seeks leave from the 

Court to amend his Complaint pursuant to Federal Rule of Civil Procedure 15(a) to add claims of 

cruel and unusual punishment in violation of the Eighth Amendment and malicious prosecution. 

(Docket no. 14.) Defendants respond that Plaintiff’s Motion should be denied because the 

proposed amendments fail to state a claim upon which relief can be granted. (Docket no. 16.) 

II. Governing Law 

 Federal Rule of Civil Procedure 15(a) provides that a “party may amend its pleading once 

as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a 

responsive pleading is required, 21 days after service of a responsive pleading or 21 days after 

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

15(a)(1)(A)-(B). Otherwise, “a party may amend its pleading only with the opposing party’s 

written consent or the court’s leave. The court should freely give leave when justice so 

requires.” Fed. R. Civ. P. 15(a)(2). 

 Factors relevant to the determination of whether to permit an amendment include “the 

delay in filing, the lack of notice to the opposing party, bad faith by the moving party, repeated 

failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and 

 

1

 Plaintiff is currently incarcerated at the Macomb Correctional Facility as the result of a conviction on charges 

unrelated to those in the instant Complaint. See Mich. Dep’t of Corr. Offender Tracking Info. Sys. (OTIS). (The 

Court is permitted to take judicial notice of the information contained on OTIS. Ward v. Wolfenbarger, 323 

F.Supp.2d 818, 821 n.3 (E.D. Mich. 2004).) 

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futility of amendment.” Perkins v. Am. Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th 

Cir. 2001). To determine whether an amendment would be futile, the court determines whether 

the amendment could survive a motion to dismiss pursuant to Rule 12(b)(6). Keely v. Dep’t of 

Veterans Affairs, No. 10-CV-11059, 2011 WL 824493, at *1 (E.D. Mich. Mar. 3, 2011) 

(Majzoub, M.J.) (citation omitted). When deciding a motion under Rule 12(b)(6), the court must 

“construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, 

and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 

471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The 

plaintiff must provide “‘a short and plain statement of the claim’ that will give the defendant fair 

notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 

355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)). A court is not required to guess at the 

nature of the claim asserted. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). 

III. Analysis 

 As an initial matter, the Court notes that Plaintiff’s Motion for Leave to Amend 

Complaint does not comply with Federal Rule of Civil Procedure 11(a) or Eastern District of 

Michigan Local Rule 15.1. Rule 11 of the Federal Rules of Civil Procedure requires that 

“[e]very . . . written motion . . . must be signed . . . by a party personally if the party is 

unrepresented.” Fed. R. Civ. P. 11(a). Local Rule 15.1 provides that a party who moves to 

amend a pleading must attach the entire proposed pleading as amended to the motion and may 

not incorporate a prior pleading by reference. E.D. Mich. L.R. 15.1. Failure to comply with 

Local Rule 15.1, however, is not grounds for denial of the motion. Id. Here, Plaintiff did not 

sign his Motion for Leave to Amend Complaint. (See docket no. 14 at 6.) Also, Plaintiff 

submitted the proposed amendments to his existing Complaint in the text of his Motion and 

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attached his original Complaint to the Motion, but he did not reproduce the entire pleading as 

amended. Despite these procedural deficiencies, in light of Plaintiff’s pro se status, the Court 

will determine Plaintiff’s Motion on the merits. 

A. Plaintiff’s Proposed Eighth Amendment Claim 

 Plaintiff asserts that Defendants subjected him to cruel and unusual punishment in 

violation of the Eighth Amendment of the United States Constitution. (Docket no. 14 at 2-3.) 

Although not entirely clear, Plaintiff seemingly asserts that he was subjected to cruel and unusual 

punishment because the allegedly “falsified” charges against him were dismissed without 

prejudice. To support his position, Plaintiff cites to a footnote in Herrera v. Collins, in which 

Justice Blackmun, in his dissenting opinion, noted that it “may violate the Eighth Amendment to 

imprison someone who is actually innocent.” (Id. (citing 506 U.S. 390, 432 n.2 (1993).) 

Defendant argues that Plaintiff fails to provide a factual basis for this proposed new claim 

(see docket no. 16 at 1, 3), and the Court agrees. Specifically, Plaintiff repeatedly asserts in a 

conclusory fashion that he was subjected to cruel and unusual punishment, but he does not set 

forth any factual allegations from which Defendants or the Court could possibly discern the 

nature of the alleged punishment. Even if the Court were to infer from Plaintiff’s reference to 

Herrera that the alleged punishment was in the form of imprisonment, Plaintiff has not set forth 

any facts to indicate that he was imprisoned in relation to the charges that are the subject of 

Plaintiff’s Complaint. Accordingly, Plaintiff’s proposed Eighth Amendment claim fails to state a 

claim upon which relief can be granted; hence, it would be futile. 

 B. Plaintiff’s Proposed Malicious Prosecution Claim 

 Plaintiff alleges that he was “deprived of the equal protection of the laws where he was 

deprived of equitable justice by the Defendants, which in turn formed the malicious 

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prosecution.” (Docket no. 14 at 4.) To prevail on a Section 1983 malicious prosecution claim, a 

plaintiff must show that (1) “a criminal prosecution was initiated against the plaintiff and that the 

defendant made, influenced, or participated in the decision to prosecute;” (2) “there was a lack of 

probable cause for the criminal prosecution;” (3) the plaintiff suffered a deprivation of liberty as 

a result of the criminal prosecution; and (4) the criminal prosecution was resolved in the 

plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (citations and internal 

quotation marks omitted). 

 Plaintiff alleges that “all Defendants did have personal involvement in the malicious 

prosecution of the case against him.” (Docket no. 14 at 4.) He also alleges that “[a]ll defendants 

conspired from the onset to deprive plaintiff, or class of persons protected not to be maliciously 

prosecuted.” (Id.) Next, Plaintiff discusses the elements of a malicious prosecution claim under 

Sykes, but as Defendant points out, Plaintiff again fails to allege any facts to support this claim. 

(Id. at 4-5; see docket no. 16 at 4.) The Court acknowledges that in his original Complaint, 

which Plaintiff apparently, but improperly, incorporates by reference, Plaintiff alleges that 

Defendants Wojtowicz, Hall, and Hill falsified trumped up charges of armed robbery, unarmed 

robbery, resisting/obstruction, and assault on an officer against Plaintiff and that those charges 

were eventually dismissed with prejudice. (See docket no. 1 ¶ 14.) While these allegations may 

lend some support to the first and fourth elements of malicious prosecution, Plaintiff has failed to 

set forth any factual allegations to show that there was a lack of probable cause for the 

prosecution or that he suffered a deprivation of liberty as a result. The Court also acknowledges 

that Plaintiff offers additional factual support for this claim in his reply brief to Defendants’ 

Response to the instant Motion (see docket no. 17); however, this does not cure Plaintiff’s failure 

to plead anything more than threadbare recitals of the elements of malicious prosecution and 

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legal conclusions regarding the same in his proposed malicious prosecution claim. Accordingly, 

amendment of the Complaint to add Plaintiff’s malicious prosecution claim would be futile. 

 C. Plaintiff’s Additional Proposed Language 

 Another amendment that Plaintiff seeks to add to his Complaint is a two-paragraph 

argument regarding the applicable statute of limitations, in which Plaintiff argues that this action 

should be permitted to proceed because the statute of limitations has not expired. (Docket no. 14 

at 3-4.) Plaintiff indicates that he is making this argument in response to the affirmative defense 

Defendants raise in their Answer to Plaintiff’s Complaint. (Id.) An amended complaint, 

however, is an improper vehicle in which to convey such an argument. 

 Plaintiff also sets forth a proposed “counter-claim.” (Id. at 5.) Plaintiff alleges that 

Defendants confiscated $652.00 from Plaintiff when they arrested him, and he seeks to amend 

his Complaint “to include a counter-claim for damages and relief requested to include the 

$652.00 plus interest as allowed under the law.” (Id.) As written, it is unclear whether Plaintiff 

intends his “counter-claim” to be a separate claim for relief, or whether he intends to add the 

$652.00 to the monetary damages he is seeking, or both. Essentially, it does not provide 

Defendants with fair notice of what the claim is and the grounds upon which it rests, and it 

would not survive a Rule 12(b)(6) motion to dismiss. 

 For the reasons stated above, Plaintiff’s proposed amended complaint fails to state a 

claim upon which relief may be granted and would not survive a motion to dismiss under Federal 

Rule of Civil Procedure 12(b)(6); it would, therefore, be futile. Consequently, the Court will 

deny Plaintiff’s Motion for Leave to Amend Complaint (docket no. 14). 

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Amend 

Complaint [14] is DENIED. 

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NOTICE TO THE PARTIES

 Pursuant to Federal Rule of Civil Procedure 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: November 12, 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: November 12, 2015 s/ Lisa C. Bartlett 

 Case Manager 

 

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