Report and Recommendation

Sua Sponte Dismissal and Motion to Dismiss

1 White v. Saginaw Co. Jail; 09-13470

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARK WHITE, et al., Case No. 09-13470

Plaintiffs, Arthur J. Tarnow

vs. United States District Judge

SAGINAW COUNTY JAIL, Michael Hluchaniuk

United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

SUA SPONTE DISMISSAL OF PLAINTIFF WHITE’S COMPLAINT

AND DENIAL OF MOTION TO DISMISS AS MOOT (Dkt. 30)

I. PROCEDURAL HISTORY

Plaintiff filed a complaint for injunctive relief only on September 2, 2009

alleging that he was denied access to the prison law library and seeking to proceed

in forma pauperis under 28 U.S.C. § 1915(a)(1). (Dkt. 1). On September 14,

2009, this Court dismissed plaintiff’s complaint pursuant to 28 U.S.C. § 1915(g)

after concluding that plaintiff had filed at least three prior civil rights complaints

which were dismissed for being frivolous, malicious, or for failing to state a claim. 

(Dkt. 6). The Court also found that plaintiff did not allege any facts sufficient to

meet the statutory exception of “imminent danger.” Id. Plaintiff was instructed

that if he wished to pursue the allegations in his complaint, he could pay the filing

fee within 30 days and the Court would re-open the case. Id. 
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Sua Sponte Dismissal and Motion to Dismiss

2 White v. Saginaw Co. Jail; 09-13470

On September 30, 2009, plaintiff filed a motion for reconsideration alleging

that he should be permitted to proceed in forma pauperis because he was under

imminent danger of serious physical injury, thus meeting the statutory exception. 

(Dkt. 9). The Court concluded that since plaintiff alleged that he was under danger

of serious physical injury, he was permitted to proceed in forma pauperis as to the

allegations raised in his complaint filed September 2, 2009 and ordered the case

reopened. (Dkt. 13). District Judge Arthur Tarnow then referred this matter to the

undersigned for all pretrial proceedings. (Dkt. 17).

Plaintiff filed several separate motions for injunctive relief, which the

undersigned, on April 16, 2010, recommended be denied as unlikely to succeed on

the merits. (Dkt. 63). Judge Tarnow has not yet addressed that report and

recommendation. Defendant filed a motion to dismiss plaintiff White’s claim on

January 5, 2010. (Dkt. 30). Plaintiff filed a response on January 5, 2010. (Dkt.

26). On April 29, 2010, plaintiff White filed a notice of change of address with the

Court. (Dkt. 66). According to plaintiff, he has been transferred to another

facility. Id. For the reasons set forth below, the undersigned RECOMMENDS

that plaintiff’s complaint for injunctive relief be DISMISSED as MOOT and in

light of this conclusion, that defendant’s motion to dismiss, as to plaintiff White

only, be DENIED as moot.

II. PLAINTIFF’S COMPLAINT
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Sua Sponte Dismissal and Motion to Dismiss

3 White v. Saginaw Co. Jail; 09-13470

In his complaint, plaintiff alleges that jail officials refuse to respond to any

Step II or Step III grievance appeals, so he has been prevented from exhausting his

grievances. He also alleges that jail officials refuse to give him access to an

adequate law library. He also alleges that jail officials refuse to supply him with

adequate paper, pens, envelopes, and postage to pursue this legal action and other

active state and federal court cases. Plaintiff requests injunctive relief only,

including an order that the jail maintain a minimum standard law library and

implement rules for providing inmates with supplies and postage for effective

access to the Courts. (Dkt. 1). 

III. ANALYSIS AND CONCLUSIONS

On April 29, 2010, plaintiff White filed a notice of change of address with

the Court. (Dkt. 66). According to plaintiff, he has been transferred to another

facility. Id. When a prisoner sues for equitable relief and, by virtue of a transfer to

another prison, is no longer under the control or custody of the defendants, his

claims for injunctive and declaratory relief are moot. Kime v. Jones, 2007 WL

586793, *3 (W.D. Mich. 2007), citing, Mowatt v. Brown, 902 F.2d 34, 1990 WL

59896 (6th Cir. 1990); Tate v. Brown, 902 F.2d 35, 1990 WL 58403 (6th Cir.

1990); Howard v. Heffron, 884 F.2d 1392, 1989 WL 107732 (6th Cir. 1989);

Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). “Underlying the rule is the

premise that injunctive relief is appropriate only where plaintiff can show a
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Sua Sponte Dismissal and Motion to Dismiss

4 White v. Saginaw Co. Jail; 09-13470

reasonable expectation or demonstrated probability that he is in immediate danger

of sustaining direct future injury as the result of the challenged official conduct.” 

Kime at *3, citing, Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); see also,

Brieger v. Teletronics, Inc., 816 F. 2d 678, 1987 WL 37131 (6th Cir. 1987)

(injunctive relief generally inappropriate where remedy at law, i.e., money

damages, is available). Indeed, prior “exposure to an isolated incident of illegal

conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to

the illegal conduct again.” Kime, at *3 (collecting cases). Finally, a court should

assume that, “absent an official policy or practice urging unconstitutional behavior,

individual government officials will act constitutionally.” Id. 

As noted above, plaintiff was transferred to another correctional facility in

April, 2010. Therefore, plaintiff’s claims for injunctive relief are moot. Given that

plaintiff only requests injunctive relief, his complaint should be dismissed in its

entirety.

IV. RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS that plaintiff’s

complaint for injunctive relief be DISMISSED as MOOT and in light of this

conclusion, that defendant’s motion to dismiss, as to plaintiff White only, be

DENIED as MOOT.

The parties to this action may object to and seek review of this Report and
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Sua Sponte Dismissal and Motion to Dismiss

5 White v. Saginaw Co. Jail; 09-13470

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

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

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 and

Human Servs., 932 F.2d 505 (6th Cir. 1981). 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

and 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “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), Local Rule 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.
Report and Recommendation

Sua Sponte Dismissal and Motion to Dismiss

6 White v. Saginaw Co. Jail; 09-13470

s/Michael Hluchaniuk 

Date: May 26, 2010 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on May 26, 2010, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Christina M. Grossi and Lawrence W. Smith, Jr., and

I certify that I have mailed by United States Postal Service the paper to the

following non-ECF participant(s): Mark White, ID # 228524, R & GC, 3855

Cooper Street, Jackson, MI 49201, and Roger Kelly, ID # 748808, SAGINAW

CORRECTIONAL FACILITY, 9625 Pierce Road, Freeland, MI 48623, and

Christopher Sperry, ID # 686220, BELLAMY CREEK CORRECTIONAL

FACILITY, 1727 West Bluewater Highway, Ionia, MI 48846.

s/Tammy Hallwood 

Case Manager

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7887

tammy_hallwood@mied.uscourts.gov