NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 13a0123n.06

No. 11-2365

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VINCENT MENSAH,

Plaintiff-Appellee,

v.

MICHIGAN DEPART MENT OF

CORRECTIONS; PATRICIA L. CARUSO,

in her individual and official capacity as

Director, Michigan Department of

Corrections; HUGHWOLFENBARGER, in

his individual and official capacity as

Macomb Correctional Facility Warden;

RANDALL HAAS, in his individual and

official capacity as Macomb Correctional

Facility Deputy Warden,

Defendants-Appellants.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF MICHIGAN

Before: DAUGHTREY, KETHLEDGE, and DONALD, Circuit Judges.

PER CURIAM. After resigning from his administrative position at the Macomb

Correctional Facility, plaintiff Vincent Mensah filed this employment discrimination action

against the Michigan Department of Corrections (MDOC), MDOC Director Patricia Caruso,

Macomb Warden Hugh Wolfenbarger, and Deputy Warden Randall Haas. Mensah alleged

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 1981 and 1983, the

Michigan Elliot-Larsen Civil Rights Act, and Section 17 of the Michigan Constitution. The

individual defendants filed motions to dismiss on various bases, including failure to state
No. 11-2365

Mensah v. Michigan Department of Corrections, et al.

a claim and qualified immunity. The district court granted the motions in part but denied

dismissal under Federal Rule of Civil Procedure 12(b) and on the ground of qualified

immunity. This interlocutory appeal followed, in which defendants Wolfenbarger and Haas

claim that the district court “erred by denying [their] motion to dismiss Mensah’s § 1983

claim” and that “Mensah has not pleaded an equal protection claim that defeats [the

defendants’] qualified immunity.” We conclude, for the reasons set out below, that the

appeal must be dismissed.

As to the § 1981 claims, it is now clear that the district court lacked subject matter

jurisdiction to decide them. The Supreme Court held in Jett v. Dallas Independent School

District, 491 U.S. 701, 735 (1989), that Congress intended § 1983 to provide the exclusive

remedy for the violation of rights guaranteed by § 1981 when the alleged violator is a local

government. In McCormick v. Miami University, 693 F.3d 654, 661 (6th Cir. 2012), the

Sixth Circuit recently interpreted Jett to apply to suits against state actors sued in their

individual capacity. Thus, § 1981 cannot afford Mensah a means of relief against the

defendants in this action. But, it is equally clear that we have no jurisdiction to review this

claim on interlocutory appeal, unless certified by the district court pursuant to 28 U.S.C. § 

1292(b). There appears to be no such certification in the record.

We also decline to review the question of qualified immunity, otherwise appealable

under the “collateral order” doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 528 (1985).

After the defendants moved to dismiss the plaintiff’s § 1983 claims, the magistrate judge

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No. 11-2365

Mensah v. Michigan Department of Corrections, et al.

analyzed the merits of those claims under the Fourteenth Amendment’s guarantees of

equal protection and procedural and substantive due process. The judge found that the

due process claims were not supported by the record and should be dismissed. But the

judge also found that the plaintiff’s equal protection claims against Wolfenbarger and Haas

were not subject to dismissal and, further, recommended to the district court that “[the

defendants’] request for qualified immunity . . . be denied.” 

The defendants were allowed 14 days in which to file objections to the magistrate

judge’s report and recommendation, with an admonition that “[f]ailure to file specific

objections constitutes a waiver of any further right of appeal,” citing Thomas v. Arn, 474

U.S. 140, 142 (1985), and Howard v. Secretary of Health and Human Services, 932 F.2d

505, 506 (6th Cir. 1991). The defendants thereafter filed timely objections, but their

objection to the recommendation regarding the § 1983 claims was not only oblique but also

made no reference at all to qualified immunity. In its entirety, the objection reads:

The vague and ambiguous accusations in Plaintiff’s Complaint do not

support a finding, at any stage, that Defendants knowingly violated his

federal right to equal protection under the law. Plaintiff has not presented or

alleged the existence of any direct evidence of discrimination or put forth any

comparative analysis that could justify a finding of disparate treatment. 

We conclude that in the absence of a specific objection, further appeal of the

magistrate judge’s ruling on the question of qualified immunity has been waived. 

Moreover, as a direct result of the failure to object, the issue of qualified immunity was not

brought to the attention of the district court and, in turn, the court did not address the issue

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No. 11-2365

Mensah v. Michigan Department of Corrections, et al.

in its order denying the motion to dismiss in part and granting it in part. Because there was

no ruling in the district court’s order on qualified immunity under § 1983, there is nothing

to review on interlocutory appeal. Finally, when the appeal was docketed and the

defendants’ attorney was asked to designate the parties on appeal and the “specific issues

you propose to raise,” counsel responded, “The specific issue is whether Defendants

Wolfenbarger and Haas have qualified immunity from Plaintiff's claim that they violated 42

U.S.C. 1981 by allegedly interfering with Plaintiff's alleged contract with Defendant

Michigan Department of Corrections.” Thus, there was no reference to the plaintiff’s claims

of discrimination under § 1983.

The appeal is therefore DISMISSED, and the case is REMANDED to the district

court for further proceedings.

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