UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

STACY MCINTYRE, et al. 

 Plaintiffs, Case No. 15-cv-12214 

v Honorable Thomas L. Ludington 

OGEMAW COUNTY BOARD OF COMMISSIONERS, 

et al., 

 Defendants. 

__________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO 

FILE AMENDED COMPLAINT 

On June 18, 2015 Plaintiffs filed this putative class action on behalf of all female inmates 

of the Ogemaw County Jail who participated in a certain Sheriff Work program, or elected not to 

participate in the program due to fears of constitutional violations related to the program, against 

Defendants Ogemaw County Board of Commissioners, Howie S. Haft, and James Raymond 

Gustafson. ECF No. 1. Plaintiffs filed an amended complaint on August 18, 2015, alleging that 

Gustafson, a former employee of the Ogemaw County Sheriff Department, assaulted, battered 

and sexually harassed female inmates who were incarcerated at the Ogemaw County Jail and 

involved in the Work Program. Id. Plaintiffs allege five counts arising from Defendants’ 

conduct: (1) Deprivation of civil rights in violation of 42 U.S.C. § 1983; (2) Gross negligence; 

(3) Assault and battery; (4) Invasion of privacy; and (5) Negligent and Intentional infliction of 

emotional distress. 

Plaintiffs contend that they learned of five additional putative class members during 

discovery. ECF No. 36. On February 5, 2016 Plaintiff moved for leave to file an amended 

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complaint, seeking to join Candice McCarthy, Alyssa Oliver, Anna Maldonado, Angela Scherer, 

and Janet Kamen as plaintiffs. Defendants do not oppose the addition of Candice McCarthy, but 

argue that Plaintiffs’ proposed amendment is futile as to the other four proposed plaintiffs. ECF 

No. 17. Because Defendants are correct, Plaintiff’s motion to amend will be granted in part and 

denied in part. 

I. 

Plaintiffs’ factual allegations are presumed true for purposes of evaluating whether to 

grant the motion to amend. Plaintiffs in this action are former inmates of the Ogemaw County 

Jail. Defendant Board of Commissioners of Ogemaw County is a governmental agency which 

Plaintiffs allege operates the Ogemaw County Sheriff Department. At all relevant times, 

Defendant Hanft was the Ogemaw County sheriff and Defendant Gustafson’s commanding 

officer. Defendant Gustafson, an employee of Ogemaw County, allegedly ran a Sheriff Work 

Program and supervised inmate-participants. 

 Plaintiffs claim that Gustafson made improper sexual advances and unprivileged 

touchings of female participants of the work program. Plaintiffs also claim that Gustafson’s 

conduct was a “de facto policy” of Ogemaw County and the Ogemaw County Sheriff’s 

department for a substantial period of time. Defendants allegedly tolerated Gustafson’s conduct, 

as evidenced by (1) Failing to obtain proper approvals from the 34th Circuit Court as required by 

MCL 51.251; (2) Failing to properly train, discipline, restrict, and control Gustafson; (3) Failing 

to take adequate precautions in hiring, promoting, and retaining department employees; (4) 

Failing to establish a proper system for dealing with sexual misconduct; (5) Failing to discipline 

employees who engaged in sexual misconduct; and (6) Discouraging female inmates and family 

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members from expressing their complaints. Plaintiffs claim that maintenance of this action as a 

class action is superior to adjudicating the individual claims. 

 On February 5, 2016, Plaintiffs moved for leave to file a second amended complaint, 

seeking to add five additional plaintiffs to the putative class. ECF No. 36. Plaintiffs allege that 

two of the proposed class members, Candice McCarthy and Alyssa Oliver, were inmates and 

participants in the work program. Plaintiffs allege that the other three proposed class members, 

Anna Maldonado, Angela Scherer, and Janet Kamen (the “Family Member Plaintiffs”), were not 

participants in the Work Program. Instead, Plaintiffs allege that they were assaulted, battered 

and sexually harassed by Gustafson when they visited family members who were assigned to the 

Work Program. Plaintiffs therefore seek to expand the putative class to include females 

incarcerated in the Ogemaw County Jail who participated in the Work Program, and female 

family members of inmates who were present at program work sites. Defendants filed a response 

in opposition to Plaintiff’s motion on February 22, 2016. ECF No. 40. Plaintiffs did not file a 

reply. 

II. 

Under Federal Rule of Civil Procedure 15, a court should “freely give leave” to amend 

“when justice so requires.” FED. R. CIV. P. 15(a)(2). “[T]he thrust of Rule 15 is to reinforce the 

principle that cases should be tried on their merits rather than the technicalities of pleadings.” 

Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (internal citations and quotations 

omitted). Factors that courts should consider when determining whether to grant leave to amend 

include “[u]ndue delay in filing, 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 futility of amendment....” Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 

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484 (6th Cir. 1973). “Decisions as to when justice requires amendment are left to the sound 

discretion of the trial judge[.]” Robinson v. Michigan Consol. Gas Co. Inc., 918 F.2d 579, 591 

(6th Cir. 1990). 

A.

 Defendants do not oppose the proposed addition of Candice McCarthy. Accordingly 

Plaintiffs’ motion for leave to amend will be granted as to her addition to the putative class. 

B. 

Defendants claim that Plaintiffs’ proposed amendment is futile to the extent Plaintiffs 

seek to add Alyssa Oliver and the Family Member Plaintiffs. “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) (internal citation and quotation 

marks omitted). A pleading fails to state a claim under Rule 12(b)(6) if it does not contain 

allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 

662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the 

non-movant’s favor and accepts the allegations of facts therein as true. See Lambert, 517 F.3d at 

439. The pleader need not have provided “detailed factual allegations” to survive dismissal, but 

the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels 

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Iqbal, 556 U.S. at 678, (quoting Twombly, 550 U.S. at 570). 

i. 

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Defendants first argue that Plaintiffs’ proposed joinder of Alyssa Oliver would be futile. 

Defendants claim that Ms. Oliver was last an inmate at Ogemaw Jail on June 15, 2012, and that 

her claims are therefore barred by the relevant statutes of limitations. Plaintiffs have not 

disputed that Ms. Oliver was last an inmate at Ogemaw Jail on June 15, 2012. 

Under federal law, “the statute of limitations begins to run when the plaintiff knows or 

has reason to know of the injury which is the basis of his action[,] and... a plaintiff has reason to 

know of his injury when he should have discovered it through the exercise of reasonable 

diligence.” McCune v. City of Grand Rapids 842 F.2d 903, 905 (6th Cir.1988) (citing Wilson, 

471 U.S. at 268-71). Because Ms. Oliver was not incarcerated at the Ogemaw Jail at any time 

after June 15, 2012, all incidents giving rise to her claim must have occurred prior to that date. 

Plaintiffs do not allege that Ms. Oliver was unaware of her alleged injuries at the time the 

wrongful actions allegedly took place. Accordingly, the relevant date for statute of limitations 

purposes is June 15, 2012. 

 Defendants argue that Ms. Oliver would be barred from asserting her 42 U.S.C. § 1983 

claim under the relevant statute of limitations. For purposes of § 1983 actions, federal courts 

apply state personal injury statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 276, 

(1985). In Michigan, a three-year statute of limitations applies to federal claims brought under § 

1983. See M.C.L. § 600.5805(10); Cantu v. Michigan Dep't of Corr., 653 F. Supp. 2d 726, 742 

(E.D. Mich. 2009). Because Ms. Oliver cannot satisfy the three-year statute of limitations, her § 

1983 claim would be futile. 

 Defendants next argue that Ms. Oliver cannot satisfy the two-year statute of limitations 

that applies to assault and battery claims. See M.C.L. § 600.5805(2). Defendants are correct, and 

Ms. Oliver’s assault and battery claim would also be futile. 

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 Finally, Defendants argue that Ms. Oliver’s remaining claims are barred under the 

general three-year statute of limitations for personal injury actions. See M.C.L. § 600.5805(10). 

Defendants are correct, and Ms. Oliver’s remaining tort claims would again be futile. Because 

Ms. Oliver cannot satisfy the statute of limitations for any of her proposed claims, joining her to 

the action would be futile. 

ii. 

Defendants next argue that the proposed Family Member Plaintiffs’ claims are 

substantially dissimilar to the claims brought by the existing Plaintiffs. Under Federal Rule of 

Civil Procedure 20, persons may be joined as plaintiffs in an action if: “(A) they assert any right 

to relief jointly, severally, or in the alternative with respect to or arising out of the same 

transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or 

fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(2). “Joinder is 

encouraged because it avoids multiple lawsuits involving similar or identical issues.” Pasha v. 

Jones, 82 F.3d 418 (6th Cir. 1996) (citing Mosley v. General Motors Corp., 497 F.2d 1330, 

1332-33 (8th Cir. 1974)). Rule 20 is permissive, not mandatory, and so allowing a party to 

amend its complaint in order to add a party under Rule 20 is a matter for this Court’s discretion. 

Plaintiffs allege that joinder of the Family Member Plaintiffs is proper because all claims 

share the same transaction or occurrence – namely the operation of a “rogue” work program 

supervised by Gustafson. However, the relevant questions of law and fact would be materially 

different for the Family Member Plaintiffs, who were not under the custody of Defendant 

Ogemaw County or participants of the Work Program supervised by Gustafson. The Defendants’ 

duty to the Family Member Plaintiffs would be materially different from their duty to the 

incarcerated Plaintiffs. Furthermore, questions of consent material to the Family Member 

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Plaintiffs would be irrelevant to the incarcerated Plaintiffs.1

 Plaintiff’s proposed addition of the 

Family Member Plaintiffs will therefore be denied. 

III.

 Accordingly, it is ORDERED that Plaintiff’s motion for leave to file a second amended 

complaint, ECF No. 36, is GRANTED IN PART AND DENIED IN PART. Plaintiffs are 

GRANTED LEAVE to file a second amended complaint joining Candice McCarthy as a 

Plaintiff. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: March 17, 2016 

 

 

1

 While irrelevant to the Plaintiffs’ current request, it is noted that joinder of the Family Member Plaintiffs would 

also undercut Plaintiffs’ ability to meet the requirements for class certification under 23(a) and (b). 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on March 17, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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