UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

FRANK LEONARD BUTZ, 

 Plaintiff, 

 Case No. 2:15-CV-12232 

v. Judge Matthew F. Leitman 

 Magistrate Judge Anthony P. Patti 

JERRY CLAYTON, 

 Defendant. 

___________________________________/ 

REPORT AND RECOMMENDATION REGARDING DEFENDANT 

CLAYTON’S SEPTEMBER 16, 2015 MOTION TO DISMISS (DE 9) 

I. RECOMMENDATION: The Court should grant Defendant Clayton’s 

September 16, 2015 motion to dismiss. (DE 9.) 

II. REPORT: 

A. Background 

Plaintiff is a party to two cases in this Court.1

 On June 19, 2015, while 

incarcerated at the Washtenaw County Jail (WCJ) in Ann Arbor, Michigan, 

Plaintiff Frank Leonard Butz (WCJ #144609) filed the instant lawsuit pro se

                                                            

1

 Plaintiff’s other lawsuit, also filed on June 19, 2015, concerns the conditions and 

cost of phone service at Washtenaw County Jail (WCJ) and was filed against 

Wayne County Sheriff Jerry Clayton and Securus Technologies. See Case No. 

2:15-cv-12233-MFP-APP (E.D. Mich.). (DE 1 at 3.) 

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2 

against Jerry Clayton, the Washtenaw County Sheriff, in his official and personal 

capacities. (DE 1 at 1-2.) 2 In sum, Plaintiff’s complaint concerns an alleged 

inability to attend a court-ordered class due to his confinement in F-Block, an 

allegedly ambiguous disciplinary system, and kites purportedly not being delivered 

to the addressee. (See DE 1 at 3 ¶¶ 1-3.) He seeks the following forms of relief, as 

quoted verbatim: 

1) Allow prisoners to participate in ‘court ordered’ program[m]ing 

reg[a]rdless of their place of confinement. 

2) Post sanctions for misconduct, including ‘punitive segregation’ 

or give each prisoner a ‘rule book’ to include possible sanctions 

and punitive segregation. 

3) Place a box in each block for ‘kites’ to be delivered to 

addressed staff as U.S. Mail to ensure kites are delivered to 

those addressed. 

4) Pay me two million ($2,000,000) dollars for grief and suffering. 

(DE 1 at 4.) 

B. Instant Motion 

Currently pending in this case is Defendant Clayton’s September 16, 2015 

motion to dismiss (DE 9), regarding which a response was due on October 30, 

                                                            

2

 Defendant asserts Plaintiff was released from WCJ on June 17, 2015, two days 

before the instant matter was filed. (DE 9 at 9.) Consistently, Plaintiff’s August 

11, 2015 notice of change of address/contact information indicates that Plaintiff is 

no longer at WCJ and has moved to a private address in Three Rivers, Michigan. 

(DE 5.) 

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2015 (DE 10). Instead of filing a substantive response to this motion, Plaintiff has 

filed an “affidavit and response,” which lists ten challenges he faces and contains 

the following prayer for relief: 

Plaintiff Frank Butz prays the Court grant a hearing to determine if 

[P]laintiff can be appointed legal counsel, how to proceed, explain 

“Dismiss With Prejudice”, grant Defendant(s) Motions, or whatever 

the Court deems appropriate. 

(DE 13 at 2.) Sheriff Clayton has filed a reply. (DE 14.) 3

C. Fed. R. Civ. P. 12(b)(6) 

Defendant argues that Plaintiff’s claims must be dismissed for failure to state 

a claim upon which relief may be granted. (See DE 9 at 11-12.) By way of 

background, the Federal Rules of Civil Procedure require “[a] pleading that states a 

claim for relief [to] contain: . . . a short and plain statement of the claim showing 

that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). The rule 

governing defenses and objections provides corollary direction, namely that a party 

                                                            

3

 Technically, Defendant’s motion to dismiss (DE 9) is unopposed and could be 

granted on that basis. “A respondent opposing a motion must file a response, 

including a brief and supporting documents then available.” E.D. Mich. LR 

7.1(c)(1). Here, Plaintiff’s October 5, 2015 filing (DE 13) does not constitute a 

response to the substance of Defendant’s motion to dismiss (DE 9), and Defendant 

makes note of this in his reply (DE 14 at 6-7). See also, i.e., Humphrey v. U.S. 

Attorney Gen.'s Office, 279 F. App’x 328, 331 (6th Cir. 2008) (“where, as here, 

plaintiff has not raised arguments in the district court by virtue of his failure to 

oppose defendants’ motions to dismiss, the arguments have been waived.”). 

Relatedly, by an order dated March 31, 2016 (DE 20), the Court has denied 

without prejudice Plaintiff’s requests for appointment of counsel (DEs 13 & 17).

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may assert the defense of “failure to state a claim upon which relief can be granted 

. . .” by motion. Fed. R. Civ. P. 12(b)(6). 

When deciding a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), the Court must “construe the complaint in the light most favorable to 

plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 

608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible 

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 

omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(concluding that a plausible claim need not contain “detailed factual allegations,” 

but it must contain more than “labels and conclusions” or “a formulaic recitation of 

the elements of a cause of action”). Facial plausibility is established “when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 

at 678. “The plausibility of an inference depends on a host of considerations, 

including common sense and the strength of competing explanations for the 

defendant’s conduct.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 

F.3d 502, 503 (6th Cir. 2013). 

Furthermore, the Court holds pro se complaints to “less stringent standards 

than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 

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(1972). However, even in pleadings drafted by pro se parties, ‘“courts should not 

have to guess at the nature of the claim asserted.”’ Frengler v. Gen. Motors, 482 

F. App’x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 

(6th Cir. 1989)). Furthermore, “courts may not rewrite a complaint to include 

claims that were never presented . . . nor may courts construct the Plaintiff’s legal 

arguments for him. Neither may the Court ‘conjure up unpled allegations[.]’” 

Rogers v. Detroit Police Dept., 595 F.Supp.2d 757, 766 (E.D. Mich. 2009) 

(Ludington, J., adopting report and recommendation of Binder, M.J.).4

D. Discussion 

 As an initial matter, I note that Plaintiff’s June 19, 2015 complaint is the 

only substantive matter he has filed in this case.5

 Moreover, the crux of his 

complaint is limited to one-page and states as follows: 

1) I was ordered by the court, while at this jail, to complete a 

“thinking matters” class,[6

] and was told by deputies that I 

                                                            

4 See also, Evans v. Mercedes Benz Fin. Servs., LLC, No. 11-11450, 2011 WL 

2936198, at *2 (E.D. Mich. July 21, 2011) (“Even excusing plaintiff's failure to 

follow Rules 8(a)(2) and 10(b), a pro se plaintiff must comply with basic pleading 

requirements, including Rule 12(b)(6).”). 

5

 Of the first twenty (20) matters filed in this case, Plaintiff has filed five (DEs 1, 8, 

12, 13 & 17), only one of which is substantive; the Court has filed nine matters 

(DEs 2, 3, 4, 5, 6, 10, 16, 19 & 20); and Defendant has filed the remaining six 

matters. (DEs 7, 9, 11, 14, 15 & 18). 

6

 Plaintiff appears to be referring to the “Thinking Matters” cognitive behavioral 

program. See http://www.michigan.gov/documents/corrections/03-01-16_-

_Section_611_SAI_Annual_Report_515804_7.pdf 

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could not attend the court ordered class because of my place of 

confinement (F-Block). At the same time, all the ‘kites’ I had 

sent concerning my placement in the class were answered as 

though I would be placed in the class. It being court ordered 

did not make it a privilege to attend. 

2) I was given a sanction of ‘loss of privileges’ for a misconduct, 

but did not learn of being ‘locked down’ in a punitive 

segregation for 30 days until after I had been there for 3 or 4 

days. There are listed misconducts (minor and major) posted, 

but nothing pertaining to ‘punitive segregation’ therefore, I 

believe the disciplinary system at this facility is ambiguous. 

3) Some of the kites I had sent never made it (delivered) to the 

person they were addressed to, and were returned with the 

receiving officer’s signature as the responding staff. 

(DE 1 at 3.) Upon consideration, the Court should grant Defendant Clayton’s 

motion to dismiss. (DE 9.) 

1. Plaintiff has failed to state a claim upon which relief may be 

granted. 

a. Plaintiff has not identified the legal basis or bases for 

his claims. 

As evidenced by the above-quoted paragraphs, Plaintiff does not identify the 

legal basis or bases for his claims, such as whether these allegations violate state 

and/or federal law. Therefore, his claims are not “sufficient to ‘give the defendant 

fair notice of what the . . . claim is and the grounds upon which it rests.’” U.S. ex 

rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 503 (6th Cir. 2008) (quoting 

Erickson v. Pardus, 551 U.S. 89, 93 (2007)) (quoting Twombly, 550 U.S. at 555). 

Given Plaintiff’s pro se status, the Court recognizes the possibility that he filed his 

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complaint pursuant to 42 U.S.C. § 1983 (“Civil action for deprivation of rights”). 

Even so, the United States Supreme Court has instructed: 

Section 1983 “is not itself a source of substantive rights,” but merely 

provides “a method for vindicating federal rights elsewhere 

conferred.” Baker v. McCollan, 443 U.S. 137, 144, n. 3 . . . (1979). 

The first step in any such claim is to identify the specific 

constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 

386, 394 . . . (1989); and Baker v. McCollan, supra, 443 U.S., at 

140[]. 

Albright v. Oliver, 510 U.S. 266, 271 (1994). Here, Plaintiff fails to describe the 

law upon which his claims are based, no specific constitutional right has been 

identified, and it is not incumbent upon this Court to guess what it might be. 

Nonetheless, Defendant’s argument that Plaintiff has failed to state a claim 

upon which relief may be granted also contains specific sub-arguments which 

attempt to address the three paragraphs of Plaintiff’s statement of claim. (DE 1 at 

3, DE 9 at 13-15.) Brief comment regarding each is warranted. 

 b. First paragraph of Plaintiff’s Statement of Claim 

To the extent Plaintiff argues that his confinement in F-Block prevented him 

from attending a state court-ordered “Thinking Matters” class (DE 1 at 3 ¶ 1), the 

Sixth Circuit has explained, albeit in an unpublished case, as follows: 

Prison officials generally have broad discretion in the internal 

management of prisons, and classification of prisoners is generally 

within the discretion of prison officials. Beyond that, a prisoner has 

no constitutional entitlement to a particular classification or to any 

particular eligibility for rehabilitative programs, and a change in the 

conditions of confinement does not normally invoke due process 

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considerations, even though it may have an adverse impact upon him, 

such as denial of access to rehabilitative programs. This is especially 

true, where, as in Michigan, state law has not created any liberty 

interest in those privileges[.] 

Griffin v. Kallen, 791 F.2d 933, at *1 (6th Cir. 1986) (table) (emphases added) 

(internal citations omitted). As the Supreme Court made clear in Sandin v. 

Conner, 515 U.S. 472, 482 (1995), federal courts are understandably reluctant to 

be involved “in the day-to-day management of prisons, often squandering judicial 

resources with little offsetting benefit to anyone.” Instead, in a view expressed in 

several Supreme Court cases, “federal courts ought to afford appropriate deference 

and flexibility to state officials trying to manage a volatile environment. Such 

flexibility is especially warranted in the fine-tuning of the ordinary incidents of 

prison life, a common subject of prisoner claims . . . .” Id. at 482-483 (internal 

citations omitted). Thus, without more specificity from Plaintiff, such as the 

details of the state-court’s order (i.e., was the completion of this class a condition 

of his release?) or why he was confined to F-Block (i.e., is F-Block the punitive 

segregation he mentions in Paragraph 2 or the portion of the general population 

warranted by his security classification), he has not alleged that the effect of his 

WCJ F-Block assignment on his attendance—at what appears to be a rehabilitative 

class ordered by the 15th Judicial District Court (Ann Arbor, Michigan)—

implicates a federal constitutional right. 

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 Nor has he alleged that his failure to attend this class—even assuming it was 

through no fault of his own—had an adverse effect on his length of sentence or 

conditions of release, or that it otherwise indicates a failure of due process. As the 

Supreme Court held in Sandin, supra., a liberty interest implicating the Due 

Process Clause only exists where the prisoner can demonstrate that the state action 

would “inevitably affect the duration of his sentence” or impose “an atypical and 

significant hardship on the inmate in relation to the ordinary incidents of prison 

life.” 515 U.S. at 484, 487. 

 c. Second paragraph of Plaintiff’s Statement of Claim 

To the extent Plaintiff claims the WCJ disciplinary system is ambiguous due 

to insufficient notice regarding punitive segregation (DE 1 at 3 ¶ 2), perhaps 

Plaintiff is attempting some type of Fourteenth Amendment procedural or 

substantive due process claim. Nonetheless, Plaintiff has likewise not alleged that 

his assignment to administrative segregation resulted in an “atypical and 

significant hardship.” See, i.e., Underwood v. Luoma, 107 F. App’x 543, 545 (6th 

Cir. 2004) (“placement in administrative segregation does not constitute an 

atypical and significant hardship on the inmate[,]” “[t]his court has never held that 

an extended stay in administrative segregation gives rise to an atypical and 

significant hardship on an inmate[,]” and “courts are reluctant to second-guess 

prison authorities’ decisions concerning security risks.”), Gareau v. Wilkinson, No. 

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97-3060, 1998 WL 69306, at *1 (6th Cir. Feb. 10, 1998) (“Gareau has not stated a 

due process claim because merely decreasing his security classification did not 

subject him to punishment qualitatively different from the punishment 

characteristically suffered by a person convicted of a crime which resulted in 

stigmatizing consequences, nor did it impose atypical and significant hardship on 

him in relation to the ordinary incidents of prison life.”) (referencing Sandin, 

supra., at 484). Plaintiff in the instant matter has failed to identify how an alleged 

failure to give clear notice with respect to an administrative segregation, in and of 

itself, violates a constitutional right, particularly if the segregation is otherwise 

legal. 

 d. Third paragraph of Plaintiff’s Statement of Claim 

To the extent Plaintiff claims some of his kites were not delivered to the 

addressee and were returned to him with the receiving officer’s signature (DE 1 at 

3 ¶ 3), he has not alleged how these instances or the WCJ grievance procedure has 

violated either his First Amendment right of access to the courts or some type of 

Fourteenth Amendment due process right. See, i.e., Rodgers v. Hawley, 14 F. 

App’x 403, 409 (6th Cir. 2001) (“Prison officials deny prisoners their right to 

access the courts by depriving them of a ‘reasonably adequate opportunity’ to 

challenge their sentence or conditions of confinement.”), Walker v. Michigan Dep't 

of Corr., 128 F. App'x 441, 445 (6th Cir. 2005) (“the lack of a constitutional right 

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to unfettered access to a grievance procedure means that Walker is not entitled to 

relief on his claim that the modified access procedure arbitrarily denied him access 

to the prison's grievance procedures.”). 

2. Plaintiff has failed to allege Defendant Clayton’s personal 

involvement in the matters forming the basis of his 

complaint. 

Defendant is correct that “Plaintiff’s pleading[] fail[s] to allege any personal 

involvement by Defendant.” (DE 9 at 16.) “[A] complaint must allege that the 

defendants were personally involved in the alleged deprivation of federal rights.” 

Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (citing Hall v. United 

States, 704 F.2d 246, 251 (6th Cir.1983)). As can be seen from the above-quoted 

three-paragraph statement of claim (DE 1 at 3), Plaintiff has not made any specific 

allegation that Sheriff Clayton was “personally involved in or responsible for” any 

of the violations Plaintiff alleges. See Frazier v. Michigan, 41 F.App’x 762, 764 

(6th Cir. 2002) (“Frazier’s complaint contained no specific facts in support of his 

conclusory allegations that the defendants violated his constitutional and statutory 

rights. Moreover, Frazier failed to allege with any degree of specificity which of 

the named defendants were personally involved in or responsible for each of the 

alleged violations of his federal rights.”). 

In addition, to the extent Plaintiff names Sheriff Clayton as a defendant on 

the basis of the control he may have over the WCJ, “[t]he law is clear that liability 

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of supervisory personnel must be based on more than merely the right to control 

employees: 

Without more, such a theory would allow liability on a respondeat 

superior basis-a basis expressly rejected by the Supreme Court in 

Monell v. Department of Social Services, 436 U.S. 658 . . . (1978) 

under [§] 1983, and by this court in Jones v. City of Memphis, 586 

F.2d 622 (6th Cir. 1978) in a direct constitutional action pursued in 

accordance with the case of Bivens v. Six Unknown Named Agents, 

403 U.S. 388 . . . (1971). 

 

Hays v. Jefferson Cty., Ky., 668 F.2d 869, 872 (6th Cir. 1982). In other words, 

“the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute 

liability onto supervisory personnel . . . unless it is shown that the defendant 

‘encouraged the specific incident of misconduct or in some other way directly 

participated in it.’” Horton v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005) 

(citing Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691–95 (1978), 

(quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984)). Plaintiff’s 

complaint not having even mentioned Defendant Sheriff Clayton by name or title, 

Plaintiff has, likewise, not shown specific misconduct or direct participation on 

Defendant’s part. 

3. Arguments Not Addressed and Conclusion 

Finally, if the Court agrees with my foregoing conclusions, then it need not 

address Defendant’s additional arguments that “Plaintiff’s requests for injunctive 

relief are moot because he has been released from confinement[,]” (DE 9 at 16-18) 

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and “Plaintiff’s claims against Defendant in his official and individual capacities 

must be dismissed because Defendant enjoys qualified immunity from these 

claims[,]” (DE 9 at 18-19). Nor would the Court need to address Defendant’s 

argument in reply that “Plaintiff’s response reveals that Plaintiff’s complaint was 

filed in violation of Rule 11, and this Court may dismiss his complaint sua 

sponte[,]” (DE 14 at 9-11.) In sum, the Court should simply conclude that 

Defendant is entitled to dismissal of the complaint against him, pursuant to Fed. R. 

Civ. P. 12(b)(6), because Plaintiff has failed to state a claim upon which relief may 

be granted, and because he has failed to allege Defendant’s personal involvement. 

III. PROCEDURE ON OBJECTIONS 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Fed. R. Civ. P. 72(b)(2) and E.D. Mich. LR 72.1(d). Failure to 

file specific objections constitutes a waiver of any further right of appeal. Thomas 

v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 

505 (6th Cir. 1991). Filing objections that 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. Sec’y of Health & Human Servs., 931 F.2d 

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

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1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections 

must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

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 may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: April 7, 2016 s/Anthony P. Patti 

Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on April 7, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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