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, PlaintiffJack Smith (“Plaintiff”), 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, naming a number of Defendants. Before the Court is

Defendant CaryJohnson’s [“Defendant’s”] Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)

[Doc. #28], 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 Defendant’s motion be

DENIED. 

 I. BACKGROUND FACTS

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

he alleged civil rights violations related to the denial of parole. Case. no. 11-15342, Docket

1, 1-2 of 13. On February 3, 2012, the District Court dismissed the complaint without

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prejudice on the basis that Plaintiff had failed to provide a sufficient number of copies of the

complaint 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 by the current Defendants. Case no. 15-10090., Docket #1. He alleges that

he discovered on November 23, 2011 that present Defendants’ failure to mail a copy/copies

of the complaint to the court resulted in the dismissal of the previous case. Docket #1, 4 of

24. Along with the current Complaint, Plaintiff has provided a copy of the MDOC Step I

grievance dated November 24, 2011. Id. at 13. Plaintiff has also provided a copy of the 1

Step III grievance response dated March 20, 2012. Id. at 17. 

II. STANDARD OF REVIEW 

Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint “for failure of the

pleading to state a claim upon which relief can be granted.” In assessing a Rule 12(b)(6)

motion, the court accepts the plaintiff's factual allegations as true, and asks whether, as a

matter of law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416, 419(6

th Cir.2001).

In assessing the sufficiency of a complaint, the court must first determine whether it

1

Plaintiff’s December 6, 2011 case was filed under § 1983. However, the November

24, 2011 grievance states that the mishandled documents pertained to a petition for habeas

corpus. Docket #1, at 13. In any case, because the current case is brought under § 1983, the

statute of limitations for civil rights claims applies. 

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contains factual allegations, as opposed to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678 (citing Bell

Atlantic Corp. v. Twombley, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Second, the facts that are pled must show a “plausible” claim for relief. Iqbal, at 678–679.

III. ANALYSIS

Defendant Johnson argues that “even under a liberal reading of the [C]omplaint,”

Plaintiff seeks redress for incidents “occurring before November 13, 2011[] when he filed

a grievance complaining of the mailroom’s alleged mishandling of his mail.” Defendant’s

Motion, 5, Docket #28, Pg ID 124. He contends that the January 5, 2015 filing is well

outside Michigan’s three-year statute of limitations for § 1983 claims. Id. 

Plaintiff responds, in effect, that the statute of limitations was tolled between the

filing of his Step I grievance and the March 20, 2012 Step III grievance response. Response,

1-3, Docket #31, Pg. ID 124. 

In a § 1983 action, federal courts apply state personal injury statutes of limitations.

See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). For civil

rights suits filed in Michigan under § 1983, the statute of limitations is three years. See

M.C.L. § 600.5805(10); Carroll v. Wilerson, 782 F.2d 44, 45 (6th Cir.1986). In contrast,

accrual of the claim for relief is determined by federal law. Collyer v. Darling, 98 F.3d 211,

220 (6th Cir. 1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The limitations

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period begins to run when the plaintiff knows or has reason to know that the act providing

the basis of his or her injury has occurred. Friedman v. Estate of Presser, 929 F.2d 1151,

1159 (6th Cir.1991). 

Under 42 U.S.C. § 1997e(a): “No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a) (1999) (emphasis added). Because prisoners

are “prevented from bringing suit in federal court for the period of time required to exhaust,”

the applicable statute of limitations is tolled for the period that the state remedies are being

exhausted. Brown v. Morgan, 209 F.3d 595, 596 (6 Cir. 2000). th

As an initial matter, while Defendant contends that the claim accrued on November

13, 2011, Plaintiff’s Step I grievance states that he discovered the alleged misfeasance on

November 23, 2011, one day before filing the Step I grievance. Complaint at 13. Under

Plaintiff’s version, the statute of limitations on the claim would have expired on November

23, 2014. The January 5, 2015 complaint was filed 44 days later.

However, Plaintiff is correct that the statute was tolled during the period he was

exhausting his administrative remedies. See Brown, supra. He filed his Step I grievance on

November 24, 2011 and the process was completed when the MDOC issued a Step III on

March 20, 2012. Complaint at 17. As such, the statute of limitations was tolled for 118 days

(three months, 25 days) beyond the November 23, 2014 expiration. As such, Plaintiff’s

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January 5, 2015 filing left him with 74 days to spare before the statute of limitations expired. 

Plaintiff’s Step I grievance indicates that he became aware of the alleged malfeasance

from family members who informed him “over a month-and-a-half” after September 28,

2011 (the date he placed the documents in the mailbox) that the documents had not reached

the court. Complaint at 13. Even accepting Defendant’s position that Plaintiff had reason

to know of the alleged misfeasance at least as early as November 13, 2011, the current

Complaint is nonetheless well within the statute of limitations. 

IV. CONCLUSION

For these reasons, I recommend that Defendant’s Motion to Dismiss [Docket #28] be

DENIED. 

Any objections to this Report and Recommendation must be filed within 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which 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); and Smith th

v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to th

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

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Judge.

Any objections must be labeled as “Objection #1,” “Objection #2,” etc.; any objection

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

Not later than 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 as

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

s/R. Steven Whalen 

R. STEVEN WHALEN

United States Magistrate Judge

Dated: February 6, 2017

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

February 6, 2017, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager 

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