Gathing v. Kalamazoo Charter Township et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EARNEST GATHING, Jr.,
Plaintiff,
v.
KALAMAZOO CHARTER TOWNSHIP,
et al.,
Defendants.
___________________________________/
Case No. 1:25-cv-994
Hon. Hala Y. Jarbou
ORDER REGARDING REPORT AND RECOMMENDATION
Before the Court is the report and recommendation of the magistrate judge that Defendants’
motion to dismiss Earnest Gathing’s civil-rights action against them be granted and that Gathing’s
motion for summary judgment be denied. (R&R, ECF No. 18.) Gathing timely objected to the
R&R (Objs., ECF No. 19) and simultaneously moved for leave to file an amended complaint (id.
at PageID.541). The proposed amendment was attached to the objections. (See ECF No. 20-1.)
Yet the magistrate judge rejected the pleading because it was not appended to a motion. 	(ECF
No. 20.) Under Federal Rule of Civil Procedure 72,
the district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3). The Court will adopt the R&R in full, but it will vacate the order rejecting
Gathing’s proposed amended complaint and direct the magistrate judge to assess whether granting
Gathing leave to amend would be futile.
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I. 	ANALYSIS
A. 	Motion to Dismiss
Federal Rule of Civil Procedure 15(a)(2) calls for leave to amend a pleading to be freely
granted when the court’s leave is required. Although the Sixth Circuit has characterized circuit
practice as manifesting “liberality in allowing amendments to a complaint,” Parchman v. SLM
Corp., 896 F.3d 728, 736 (6th Cir. 2018) (quoting Newberry v. Silverman, 789 F.3d 636, 645 (6th
Cir. 2015)), the court of appeals has blessed denial of leave to amend when not accompanied by a
formal motion or proposed amendment. See Islamic Ctr. of Nashville v. Tennessee, 872 F.3d 377,
387 (6th Cir. 2017).
Here, however, Gathing did move to amend his complaint, albeit in a motion embedded in
his objections to the R&R. 	That motion, in conjunction with the proposed amended complaint,
sets out a valid request for the Court’s leave. Accordingly, Gathing’s suit should not be dismissed
unless it is clear that the amended complaint would not survive a renewed Rule 12(b)(6) motion.
Greer v. Strange Honey Farm, LLC, 114 F.4th 605, 617 (6th Cir. 2024). The primary reason given
by the magistrate judge for dismissing Gathing’s case is his failure to tie the unconstitutional
conduct alleged in the complaint to particular Defendants. The proposed amendment appears to
remedy this deficiency, with most “incidents” Gathing mentions also mentioning the Defendant or
Defendants whom Gathing accuses of being involved. (See Proposed Am. Compl., ECF No. 20-
1, PageID.546–547.) And while the Court is skeptical that most—if any—of Gathing’s alleged
violations state a valid claim for relief, the Court is hesitant to dismiss Gathing’s lawsuit in its
entirety without an assessment of his proposed amended complaint. Accordingly, the Court will
adopt the recommendation that Defendants’ motion to dismiss be granted, but the Court will refer
the motion for leave to amend to the magistrate judge to assess in the first instance whether
granting Gathing leave would be futile.
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B. 	Other Recommendations
The Court agrees with the R&R in all other respects. 	Gathing’s objections do not
meaningfully respond to the magistrate judge’s findings that Gathing is not entitled to summary
judgment because Defendants timely moved to dismiss under Rule 12, and that Gathing cannot act
as next friend for his son I.G. as a pro se plaintiff. 	(Objs., PageID.539–541.) 	And Gathing
concedes that Defendant Christian Smith is no longer a proper party to this suit following his death.
(Proposed Am. Compl., PageID.547.) 	The Court will therefore adopt the magistrate judge’s
recommendations on those issues.
IT IS ORDERED that the R&R (ECF No. 18) is APPROVED and ADOPTED as the
opinion of this Court.
IT IS FURTHER ORDERED that Gathing’s motion for summary judgment (ECF
No. 11) is DENIED.
IT IS FURTHER ORDERED that Gathing’s proposed amendment adding I.G. as a
plaintiff (see ECF No. 16 at 1) is DENIED.
IT IS FURTHER ORDERED that deceased Defendant Christian Smith (see ECF No. 6)
is DROPPED from this action.
IT IS FURTHER ORDERED that Defendants’ motion to dismiss (ECF No. 5) is
GRANTED. The dismissal of Gathing’s complaint DOES NOT terminate this action.
IT IS FURTHER ORDERED that the magistrate judge’s order rejecting Gathing’s
proposed amended complaint (ECF No. 20) is VACATED. His motion for leave to amend (Objs.,
PageID.541) is REFERRED to the magistrate judge for further proceedings.
Dated: January 6, 2026 	/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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