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Plaintiff originally named Louisiana Homes, Lillia Dodson, and Elisa Dodson as

defendants. The Court dismissed them on the parties’ stipulation. See Order filed July

28, 2009. 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HAROLD DEAN ROBERTS, JR,

Plaintiff,

v. Case No. 09-11066

ACCIDENT FUND INSURANCE HONORABLE AVERN COHN

COMPANY OF AMERICA, ABBY

BARR, DONNA BASHORE, LAURA

DeLUCA, and JOHN DOE,

Defendants.1

___________________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION

AND

GRANTING DEFENDANT ACCIDENT FUND INSURANCE COMPANY OF

AMERICA’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT (Dkt. #25)

AND

GRANTING DEFENDANTS ABBY BARR, DONNA BASHORE, LAURA DeLUCA’S

MOTION TO DISMISS (Dkt. # 68)

AND

DISMISSING CASE

I.

This is a case claiming violations of the Family Medical Leave Act, 42 U.S.C. §

12112 (FMLA) and access to courts. Plaintiff is pro se. The matter was referred to a

magistrate judge for pretrial proceedings and before whom defendants filed motions to

dismiss. The magistrate judge issued a report and recommendation (MJRR) that

defendants’ motions be granted. 

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Count I of the Second Amended Complaint merely identifies the parties.

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Before the Court are plaintiff’s objections to the MJRR to which defendants have

responded. For the reasons that follow, the MJRR will be adopted, defendants’ motions

will be granted, and the case will be dismissed.

II.

The MJRR accurately sets forth the facts derived from plaintiff’s Second

Amended Complaint (Dkt. # 20). Plaintiff was an employee of Louisiana Homes. On

December 15, 2005, plaintiff sustained a gun shot wound while employed. Plaintiff

claims defendants violated his rights under the FMLA (Count II) and denied him access

to the Courts (Count III) in his attempt to secure leave due to his injury and in

connection with a workers compensation proceeding.2

 

Defendants filed motions to dismiss on the grounds that (1) plaintiff’s FMLA claim

fails because they are not his employer, and (2) plaintiff’s access to courts claim fails

because defendants are not state actors. The magistrate judge, in a thorough-going

analysis of plaintiff’s complaint and defendants’ arguments, recommends finding that (1)

defendants are not plaintiff’s employer and therefore plaintiff has not stated an FMLA

claim against them and (2) defendants are not state actors and therefore not liable for

violation of his right to access courts under § 1983. The magistrate judge also

recommends that to the extent plaintiff raises, or seeks to raise, state law claims against

defendants, the Court should decline to exercise supplemental jurisdiction over any

them. 

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III.

The portions of the MJRR which plaintiff finds objectionable are reviewed de

novo. See 28 U.S.C. § 636 (b). Unfortunately, plaintiff’s objections are presented in a

form which is not easily discernable, a point noted by defendants in responding to the

objections. As best as can be gleaned, plaintiff objects to the recommendation of the

magistrate judge that the Court decline to exercise supplemental jurisdiction over any

state law claims. This objection lacks merit. Not only does the Second Amended

Complaint fail to assert any state law claims, to the extent plaintiff seeks to assert state

law claims against defendants, it would be inappropriate to exercise supplemental

jurisdiction over them because plaintiff’s federal claims (FMLA and access to courts)

must be dismissed for the reasons stated in the MJRR. 

In like fashion, plaintiff’s objection that the magistrate judge failed to consider his

original complaint along with his amended complaint fails. It is well-established that an

amended complaint supercedes prior complaints and renders the prior complaint a

nullity. 

Further, plaintiff’s assertion that the FMLA needs to be extended to cover

individuals who work for small companies, which he presents in the form of an equal

protection claim, is not an objection. In any event, this is a legislative, not judicial, issue. 

Finally, plaintiff’s objection that the magistrate judge erred in concluding that

defendants are not an arm of the state is not well-taken. Although plaintiff makes

sweeping statements that the state “regulates” defendants and “have a state or federal

influence which drives” its conduct, there is no basis to conclude that defendants are

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Although plaintiff named John Doe as a defendant. Although plaintiff has not yet

identified or served this defendant, it is appropriate to dismiss the claims against him

sua sponte for the same reasons discussed above and in the MJRR. 

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state actors. 

Overall, none of plaintiff’s objections have merit. The Court agrees with the

magistrate judge’s analysis and recommendations.

IV.

For the reasons stated above, the MJRR is ADOPTED as the findings and

conclusions of the Court, as supplemented above. Defendant Accident Fund Insurance

Company of America’s Motion to Dismiss or for Summary Judgment is GRANTED. 

Defendants Abby Barr, Donna Bashore, Laura Deluca’s Motion to Dismiss is

GRANTED. This case is DISMISSED.3

SO ORDERED.

 s/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: November 10, 2009

I hereby certify that a copy of the foregoing document was mailed to Harold Dean

Roberts, Jr, 25225 Greenfield, Apartment 422, Southfield, MI 48237 and the attorneys

of record on this date, November 10, 2009, by electronic and/or ordinary mail.

 s/Julie Owens 

Case Manager, (313) 234-5160

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