UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

MICHAEL A. KELLY, 

 Plaintiff, Case No. 14-cv-13452 

v Honorable Thomas L. Ludington 

TIFFANY WRIGHT, 

 Defendant. 

__________________________________________/ 

ORDER OVERRULING PLAINTIFF’S OBJECTION, ADOPTING MAGISTRATE 

JUDGE’S REPORT AND RECOMMENDATION IN PART, AND DISMISSING 

PLAINTIFF’S COMPLAINT WITH PREJUDICE 

 On August 11, 2014, Plaintiff Michael Kelly filed this pro se action making the following 

allegations: 

I applied to Bradley House 2 yrs ago. My application was denied. At the time I 

put up only a minor disagreement w/ Bradley House’s decision as I knew I could 

obtain inexpensive temp. V.A. housing[.] I no longer wish the reside in V.A. 

housing. Please note the attached copies of e-mails between T. Wright and 

myself over the past 5 days. T. Wright, Br. House’s resident agent, employed by 

Wingate Mgmt Company, LLC, is violating my federal due process rights. I’m 

entitled to a ‘fair hearing’ re B.H.’s denial of my apartmental app.. I’ve asked 

Tiffany for a ‘fair hearing’ under Goldberg v. Kelly, 1970. She’s refused to give 

me that hearing. [sic throughout] 

Compl. 1-2, ECF No. 1. 

 In her September 12, 2014 Report & Recommendation, Judge Morris recommended 

dismissing Kelly’s complaint for lack of subject matter jurisdiction, Rule 12(h)(3), and for 

failure to state a claim, Rule 12(b)(6). 

 On September 15, 2014, Kelly filed a “request” that this Court “Amend that order to read 

Dismissed without Prejudice.” Request 1, ECF No. 9. This request will be construed as an 

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objection to the Magistrate Judge’s recommendation. Because Kelly requests that any dismissal 

be “without prejudice,” presumably he wants the dismissal to be for lack of subject matter 

jurisdiction (Rule 12(h)(3)) rather than for failure to state a claim (Rule 12(b)(6)).1

 

I 

A court “shall make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The 

Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made 

by the magistrate judge.” Id. Any objections to the Report and Recommendation must be timely 

and specific. See Fed. R. Civ. P. 72(b)(2); E.D. Mich. L.R. 72.1(d). 

II 

This Court has jurisdiction over Kelly’s complaint by virtue of the allegation that 

Defendant “is violating my federal due process rights. I’m entitled to a ‘fair hearing.’” Compl. 

at 2 (emphasis added). Although Kelly did not explicitly invoke his Fourteenth Amendment 

rights, this Court must construe a pro se plaintiff’s complaint liberally. See Haines v. Kerner, 

404 U.S. 519, 520 (1972). A liberal construction of Kelly’s complaint reveals that he has 

brought suit against Defendant for violation of his Fourteenth Amendment rights, and thus this 

Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall 

have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of 

the United States.”). Accordingly, to the extent that the Magistrate Judge recommends 

dismissing Kelly’s complaint for lack of subject matter jurisdiction, the report will be rejected. 

Although this Court has subject matter jurisdiction over Kelly’s complaint, his complaint 

nonetheless fails to state a claim. As explained by the Magistrate Judge: 

 

1

 If this Court dismisses his complaint for lack of subject matter jurisdiction, that dismissal would be without 

prejudice. In contrast, a dismissal for failure to state a claim would be with prejudice. 

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Plaintiff contends that he did not receive a fair hearing regarding the denial of his 

application for an apartment. Even if this claim is construed as a due process 

claim under 42 U.S.C. § 1983, any such claim must fail. To state a claim under 

42 U.S.C. § 1983, a Plaintiff must show: (1) deprivation of a right that is 

protected by the Constitution or law of the United States; that was (2) caused by a 

person acting under the color of state law. Sigley v. City of Parma Heights, 437 

F.3d 527, 533 (6th Cir. 2006). Here, there is no evidence that Defendant is a state 

actor acting under color of state law, nor is there any indication that she is a 

federal actor. Thus, neither § 1983 nor Bivens v. Six Unknown Agents, 403 U.S. 

388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), applies. See Dallas v. Holmes, 137 

F. App’x 746, 752 (6th Cir. 2005). 

Report & Recommendation 4-5, ECF No. 8.2

 Magistrate Judge Morris’s reasoning is persuasive, 

and therefore the recommendation that Kelly’s complaint be dismissed for failure to state a claim 

will be adopted. 

III 

 Accordingly, it is ORDERED that Plaintiff Michael Kelly’s Request (ECF No. 9) is 

OVERRULED. 

 It is further ORDERED that the Magistrate Judge’s Report & Recommendation (ECF 

No. 8) is ADOPTED IN PART AND REJECTED IN PART. 

 It is further ORDERED that Plaintiff Michael Kelly’s Complaint (ECF No. 1) is 

DISMISSED WITH PREJUDICE. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: October 9, 2014 

 

2

 Kelly did not make specific objections to the Magistrate Judge’s conclusion, and therefore he has waived any 

objections. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987) (“[O]nly those 

specific objections to the magistrate’s report made to the district court will be preserved for appellate review; 

making some objections but failing to raise others will not preserve all the objections a party may have.”). 

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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 and on Michael Kelly, General Delivery, Bay City, MI 

48707 by first class U.S. mail on October 9, 2014. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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