UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENN MAYBIN #178072 Case No. 09-13755

Plaintiff, District Judge Avern Cohn

v. Magistrate Judge R. Steven Whalen

RAYMOND BOOKER, et al.,

Defendants.

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ORDER DENYING MOTION TO AMEND COMPLAINT

WITHOUT PREJUDICE

Before the Court is Plaintiff’s Motion for Leave to File an Amended Complaint [Doc. #16].

He asks that the Complaint be amended to substitute Wright Wade in place of the “John Doe”

Defendant named in his original complaint.

First, Plaintiff has not complied with E.D. Mich. Local Rule 15.1, which requires that a

motion to amend “must, except by leave of the court, reproduce the entire pleading as amended, and

may not incorporate any prior pleading by reference.” Plaintiff has not submitted a copy of his

proposed amended complaint, but instead refers back to his original complaint, substituting “Wright

Wade” for “John Doe.”

Of course, L.R. 15.1 also states that “[f]ailure to comply with this Rule is not grounds for

denial of the motion.” However, the motion suffers another deficiency. Neither in his motion nor

in his initial complaint does Plaintiff allege, in specific factual terms, what Wright Wade or John

Doe did that resulted in a violation of his constitutional rights. Thus, he runs afoul of two recent

cases in which the United States Supreme Court altered the standard for determining whether a

complaint is subject to dismissal under Fed.R.Civ.P. 12(b)(6). In In Bell Atlantic Corp. V.

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1 Rule 8(a)(2) provides that a pleading must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.”

2 Twombley was an antitrust case. Iqbal was a prisoner civil rights case. In any event, it

is clear that the Iqbal standard is applicable to all 12(b)(6) motions.

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Twombley, 550 U.S 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Court, construing the

requirements of Fed.R.Civ.P. 8(a)(2),1

 held that although a complaint need not contain detailed

factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the

speculative level...on the assumption that all the allegations in the complaint are true.” Id., 127 S.Ct.

at 1964-65 (internal citations and quotation marks omitted). Further, “a plaintiff’s obligation to

provide the grounds of his entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Id. (Internal citations and

quotation marks omitted). See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio

502 F.3d 545, 548 (6th Cir. 2007). Stated differently, a complaint must “state a claim to relief that

is plausible on its face.” Twombley, at 1974.

In Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, L.Ed.2d (2009), the Court explained and

expanded on what it termed the “two-pronged approach” of Twombley.

2

 First, it must be determined

whether a complaint contains factual allegations, as opposed to legal conclusions. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id., 129 S.Ct. At 1949, citing Twombley, 550 U.S. at 555. Second, the facts that are pled

must show a “plausible” claim for relief, which the Court described as follows:

“Determining whether a complaint states a plausible claim for relief will, as the

Court of Appeals observed, be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense. But where the wellpleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged–but it has not ‘shown–that the pleader is

entitled to relief.’” 129 S.Ct. at 1950(Internal citations omitted).

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3

 This remedy is the functional equivalent of an order for Plaintiff to make a more

definite statement. Pursuant to its supervisory power, a court may sua sponte order a more

definite statement under Fed.R.Civ.P. 12(e). See Wagner v. First Horizon Pharmaceutical

Corp., 464 F.3d 1273, 1275 (11th Cir.2006); Foster v. Argent Mortg. Co., L.L.C., 2008 WL

5244383, *5 (E.D.Mich. 2008). The Court may even order a more definite statement

subsequent to the filing of a dismissal motion. Finley v. SageNet L.L.C., 2009 WL 1850958, *4 

(W.D.N.C. 2009)(citing Thomas v. Independence Tp., 463 F.3d 285, 289 (3rd Cir.2006)).

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Therefore, because the complaint as amended would be subject to dismissal under Iqbal and

Twombley, the motion to amend, as presently framed, must be denied. However, given the

Plaintiff’s status as a pro se prison inmate without legal training, I will deny the motion without

prejudice, and afford him 21 days to file a motion to amend which (1) includes a copy of the

proposed amended complaint, and (2) complies with Rule 8(a) and Iqbal in terms of setting forth

a plain, factual statement of the claim.3

Therefore, Plaintiff’s Motion for Leave to File an Amended Complaint is DENIED

WITHOUT PREJUDICE.

Within 21 days of the date of this Order, Plaintiff may re-file a motion to amend his

complaint consistent with the above discussion. Plaintiff’s failure to do so may result in a Report

and Recommendation to dismiss his complaint with prejudice.

SO ORDERED.

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: January 19, 2011

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CERTIFICATE OF SERVICE

I hereby certify on January 19, 2011 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants on January 19, 2011: Glenn Maybin.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge R. Steven Whalen

(313) 234-5217

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