UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASON NORTON,

Plaintiff, CIVIL ACTION NO. 08-CV-15127-DT

vs.

DISTRICT JUDGE MARIANNE O. BATTANI

JACQUELINE NADEAU, MAGISTRATE JUDGE MONA K. MAJZOUB

JERI ANN SHERRY,

MARK A. JOHNSON,

PATRICIA L. CARUSO,

Defendants.

__________________________/

REPORT AND RECOMMENDATION

I. RECOMMENDATION: The Motion for Summary Judgment filed by Defendants

Nadeau, Sherry, Johnson, and Caruso on June 3, 2009 (docket no. 15) should be GRANTED, and

this action should be dismissed.

II. REPORT:

A. Facts, Claims, and Procedural History

Plaintiff is a Michigan state prisoner who was incarcerated at the Straits Correctional Facility

beginning in December 2007. (Docket no. 1 at 2). He alleges in this action filed pursuant to 42

U.S.C. § 1983 that Defendants were deliberately indifferent to unsafe conditions at that prison, such

as a lack of fire suppression equipment, and to overcrowding there in violation of his Eighth

Amendment rights. (Id.). He seeks only injunctive relief. (Id. at 3). Plaintiff does not seek

damages. (Docket no. 16 at 1 (“there is no monatery [sic] damages as relief)).

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Defendants move for summary judgment arguing that Plaintiff’s claim fails to state a claim

upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b) and 56(b). (Docket no. 15). 

Defendants also argue that they are protected by Eleventh Amendment and qualified immunity. 

(Id.). Finally, Defendants argue that there are no genuine issues of material fact and that they are

entitled to summary judgment. (Id.).

Plaintiff has responded to Defendants’ motion. (Docket no. 16). Plaintiff also filed a change

of address notification which shows that he is no longer incarcerated at the Straits Correctional

Facility but has been transferred to the Thumb Correctional Facility in Lapeer, Michigan. (Docket

no. 18). All pretrial matters have been referred to the undersigned for action. (Docket no. 20). The

Court dispenses with oral argument pursuant to E.D. Mich. LR 7.1(e). Defendants’ motion is now

ready for ruling. 

B. Governing Law

Summary judgment is appropriate where “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party

has the burden of showing an absence of evidence to support the non-moving party’s case. 

Covington v. Knox County Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). Once the moving party has

met its burden of production, the non-moving party must come forward with significant probative

evidence showing that a genuine issue exists for trial. (Id.). A mere scintilla of evidence is

insufficient to defeat a supported motion for summary judgment; rather, “there must be evidence on

which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986).

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C. Analysis

A court may raise the issue of mootness sua sponte because it is a jurisdictional issue. 

Berger v. Cuyahoga Co. Bar Ass’n, 983 F.2d 718, 721 (6th Cir. 1993). The Sixth Circuit holds that

the transfer of a prisoner to a different prison moots the prisoner’s claim for injunctive relief. 

Cardinal v. Metrish, 564 F.3d 794, 798-99 (6th Cir. 2009) (citing Kensu v. Haigh, 87 F.3d 172, 175

(6th Cir. 1996)); Alexander v. Carrick, 31 Fed. App’x 176, 178 (6th Cir. 2002).

Plaintiff’s change of address to a different prison was filed about a month and a half after

Defendants filed their Motion for Summary Judgment. They do not raise this defense, apparently

because Plaintiff had not been transferred at the time they filed their motion. Nevertheless, because

the issue determines this Court’s jurisdiction, this Court must consider the effect of Plaintiff’s

transfer upon his claims. Plaintiff seeks only injunctive relief and not damages in this action. 

(Docket no. 1, 16). Plaintiff’s request for injunctive relief is moot given his transfer to a different

correctional facility. See Cardinal, 564 F.3d at 798-99. Therefore, Defendants are entitled to

summary judgment.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

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

but are required to act within ten (10) 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. Sec’y of Health &

Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th 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. Sec’y of Health

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& Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n Of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections

is to be served upon this Magistrate 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 ten 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.

Dated: September 08, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon Jason

Norton and Counsel of Record on this date.

Dated: September 08, 2009 s/ Lisa C. Bartlett 

Courtroom Deputy

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