UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JACK SMITH,

Plaintiff, No. 15-10090

v. District Judge Robert H. Cleland

Magistrate Judge R. Steven Whalen

MR. DOYLE, ET AL.,

Defendants.

 /

REPORT AND RECOMMENDATION

On January 5, 2015, Plaintiff Jack Smith formerly a prison inmate in the custody of

the Michigan Department of Corrections (“MDOC”), filed a pro se civil complaint under 42

U.S.C. § 1983. Before the Court is a motion for summary judgment filed by Defendants

Debra Scutt and Sean Lockhart [Doc. #40], which has been referred for a Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I

recommend that Defendants’ motion be GRANTED and that Defendants Scutt and Lockhart

be DISMISSED WITH PREJUDICE.

I further recommend that Defendant Cary Johnson be sua sponte DISMISSED WITH

PREJUDICE under Fed.R.Civ.P. 12(b)(1), Apple v. Glenn, 183 F.3d 477, 479 (6 Cir. 1999), th

and 28 U.S.C. § 1915(a).

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I. FACTS

Plaintiff’s current case arises out of a previous action, filed December 6, 2011, in

which he alleged civil rights violations related to the denial of parole. See E.D. Mich. Docket

No. 11-15342. On February 3, 2012, the Court dismissed that complaint without prejudice

because Plaintiff had failed to provide a sufficient number of copies to effectuate service

upon Defendants. Id., Docket #8. 

Plaintiff filed the present complaint on January 5, 2015. He alleges that his failure to

complywith the service requirements in the prior lawsuit was attributable to the mishandling

of his legal mail. Complaint [Doc. #1]. He alleges that he discovered on November 23,

2011 that Cotton Correctional Facility’s mail room’s failure to mail a copy/copies of the

complaint to the court resulted in the dismissal of the previous case. Id., Pg. ID 4. 

On March 12, 2015, Plaintiff filed a motion for leave to file a “supplemental

complaint” [Doc. #8], which the Court granted [Doc. #16]. In this supplemental pleading,

Plaintiff alleges that Defendant Scutt, who was the warden of the facility, was the Step II

respondent to his grievance regarding the handling of his mail, and that Defendant Lockhart

was the Step III respondent. Supplemental Complaint [Doc. #8], ¶¶ 8-9. He also alleges that

Defendant Johnson was the Step I respondent. Id. ¶ 6. Plaintiff has attached a copy of his

grievance to both his original and supplemental complaints.

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II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the

non-moving party must show sufficient evidence to create a genuine issue of material fact. 

Klepper v. First American Bank, 916 F.2d 337, 341-42 (6 Cir. 1990). Drawing all th

reasonable inferences in favor of the non-moving party, the Court must determine “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52 (1986). Entry of summary judgment is appropriate “against a

partywho fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” Celetox

Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the “record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of

material fact, and summary judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d

945, 951 (6 Cir. 2000). th

Once the moving party in a summary judgment motion identifies portions of the

record which demonstrate the absence of a genuine dispute over material facts, the opposing

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party may not then “rely on the hope that the trier of fact will disbelieve the movant’s denial

of a disputed fact,” but must make an affirmative evidentiary showing to defeat the motion. 

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6 Cir. 1989). The non-moving party th

must identify specific facts in affidavits, depositions or other factual material showing

“evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at

252 (emphasis added). If, after sufficient opportunity for discovery, the non-moving party

cannot meet that burden, summary judgment is proper. Celotex Corp., 477 U.S. at 322-23.

B. 28 U.S.C. § 1915(a)

Because the Plaintiff requested and has been granted leave to proceed in forma

pauperis under 28 U.S.C. § 1915(a) [Doc. #4], his complaint is subject to screening under

28 U.S.C. § 1915(e)(2), which provides as follows:

“[T]he court shall dismiss the case at any time if the court determines that-

(A) the allegation of poverty is untrue; or

(B) the action or appeal-

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such

relief.”

This provision applies to all IFP cases, and empowers the Court to sua sponte dismiss

those complaints that are frivolous or fail to state a claim on which relief can be granted. 

Benson v. O'Brian, 179 F.3d 1014,1015 -1016 ( 6 Cir. 1999) (“If a complaint falls within th

the requirements of § 1915(e)(2) when filed, the district court should sua sponte dismiss the

complaint”); McGore v. Wrigglesworth, 114 F.3d 601, 612 (6 Cir. 1997). A case is

th

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frivolous if it lacks arguable basis in either law or fact. Neitzke v. Williams 490 U.S. 319,

325 (1989).

C. Fed.R.Civ.P. 12(b)(1)

In addition a Court may dismiss a frivolous complaint for lack of subject matter

jurisdiction under Fed.R.Civ.P. 12(b)(1). “[A] district court may, at any time, sua sponte,

dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the

Federal Rules of Civil Procedure when the allegations of a complaint are totally implausible,

attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple

v. Glenn, 183 F.3d 477, 479 (6 Cir. 1999). th

III. DISCUSSION

The plaintiff in a § 1983 case must show that a named defendant was personally

involved in the allegations underlying the complaint. Rizzo v. Goode, 423 U.S. 362, 372

(1976); Bellamy v. Bradley, 729 F.2d 416 (6 Cir. 1984). Plaintiff’s claims center on the th

alleged mishandling of his prison mail. Neither Defendant Scutt, Defendant Lockhart, nor

Defendant Johnson are alleged to have been personally involved in the misdirection of

Plaintiff’s mail. Rather, the supplemental complaint, at ¶¶ 6, 8-9, very specifically alleges

that the basis of Plaintiff’s claims against these three Defendants arises solelyfromtheir roles

as grievance respondents. However, the Sixth Circuit has held that liability may not be

imposed simply because a defendant reviewed or denied a grievance. Shehee v. Lutrell, 199

F.3d 295, 300 (6 Cir. 1999)(holding that prisoner's claims against defendants whose only th

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involvement was the denial of administrative remedies failed as a matter of law); Skinner

v. Govorchin, 463 F.3d 518, 525 (6 Cir. 2006) (same). See also Martin v. Harvey, 14 th

Fed.App’x. 307, *2 (6 Cir. 2001)(denial of a prisoner’s grievance does not give rise to §

th

1983 liability); Alder v. Corr. Med. Servs., 73 Fed.App'x 839, 841 (6th Cir.2003)(“The mere

denial of a prisoner's grievance states no claim of constitutional dimension.”). And to the

extent Plaintiff alleges liability based on the Defendants’ supervisory status, his claims also

fail. See Shehee, 199 F.3d at 300 (“§ 1983 liability must be based on more than respondeat

superior, or the right to control employees”); Skinner, 463 F.3d at 525-26.

Therefore, Defendants Scutt and Lockhart’s motion for summary judgment should be

granted, and, because the same allegations against Defendant Johnson fail to state a claim,

and are “frivolous, devoid of merit, [and] no longer open to discussion,” Apple v. Glenn, 183

F.3d at 479, he should be sua sponte dismissed under Fed.R.Civ.P. 12(b)(1) and 28 U.S.C.

§ 1915(a).1

 Defendants alternatively seek dismissal under 28 U.S.C. § 1997e(a), for 1

Plaintiff’s failure to properly exhaust his administrative remedies before filing his

complaint. Given that Plaintiff failed to name Defendants Scutt, Lockhart, and Johnson

in his grievance, in violation of MDOC Policy Directive 03.02.130, see Reed-Bey v.

Pramstaller, 603 F.3d 322, 324 (6 Cir. 2010), the Defendants’ exhaustion argument has th

merit. However, 28 U.S.C. § 1997e(c)(2) provides that “[i]n the event that a claim is, on

its face, frivoulous, malicious, [or] fails to state a claim upon which relief can be

granted...the court may dismiss the underlying claim without first requiring the exhaustion

of administrative remedies.”

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IV. CONCLUSION

For these reasons,Irecommend that Defendants’ motion for summaryjudgment [Doc.

#40] be GRANTED, and that Defendants Debra Scutt and Sean Lockhart be DISMISSED

WITH PREJUDICE.

I also recommend that the Court sua sponte DISMISS WITH PREJUDICE Defendant

Cary Johnson.

Any objections to this Report and Recommendation must be filed within fourteen (14)

days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v Arn, 474 U.S. 140 (1985); Howard v Secretary of HHS, 932 F.2d 505 (6th

Cir. 1991); United States v Walters, 638 F.2d 947 (6 Cir. 1981). Filing of objections which th

raise some issues but fail to raise others with specificity will not preserve all the objections

a party might have to this Report and Recommendation. Willis v Secretary of HHS, 931 F.2d

390, 401 (6 Cir. 1991); Smith v Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 th

(6 Cir. 1987). th

Anyobjections must be labeled as “Objection #1,” “Objection #2,” etc.; anyobjection

must recite precisely the provision of this Report and Recommendation to which it pertains. 

Not later than fourteen (14) days after service of an objection, the opposing party must file

a concise response proportionate to the objections in length and complexity. The response

must specifically address each issue raised in the objections, in the same order and labeled

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as “Response to Objection #1,” “Response to Objection #2,” etc.

Dated: July 5, 2017 s/R. Steven Whalen 

 R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

CERTIFICATE OF SERVICE

I hereby certify on July 5, 2017 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 non-registered ECF participants July

5, 2017.

s/Carolyn M. Ciesla 

Case Manager for the 

Honorable R. Steven Whalen 

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