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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JUAN CUNNINGHAM,

Plaintiff, No. 09-CV-12718-DT

vs. Hon. Gerald E. Rosen

JON WILSON, et al.,

Defendants.

________________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION, WITH MINOR CORRECTION, AND GRANTING

DEFENDANT COLBRY’S MOTION TO DISMISS PURSUANT THERETO, AND 

 ORDER DISMISSING PLAINTIFF’S CLAIMS AGAINST ALL OTHER 

 DEFENDANTS PURSUANT TO 28 U.S.C. §1915A FOR

FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on September 8, 2010 

PRESENT: Honorable Gerald E. Rosen

United States District Chief Judge

This Section 1983 prisoner civil rights matter is presently before the Court on the

July 28, 2010 Report and Recommendation of United States Magistrate Judge Paul J.

Komives recommending that the Court grant Defendant Colbry’s Motion to Dismiss in

which the Magistrate Judge concluded that Plaintiff’s Complaint against Defendant

Colbry is barred by the three-year statute of limitations applicable to Section 1983

actions. Plaintiff timely filed objections to the Report and Recommendations.
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 An Order directing service by the U.S. Marshal without prepayment of costs was

issued on November 10, 2009, the waivers of service were returned unexecuted on

December 22, 2009 and no actions have been taken since that time to effectuate service.

2

Having reviewed and considered the Magistrate Judge’s R&R, Plaintiff’s

objections thereto, and the entire record of this matter, the Court agrees with Magistrate

Judge Komives that Plaintiff’s Complaint against Defendant Colbry is time-barred.

Therefore,

IT IS HEREBY ORDERED that the Magistrate Judge’s Report and

Recommendation of July 28, 2010 [Dkt. # 22] is adopted by the Court with two minor

typographical corrections to page 3 of the R&R to correct two erroneous 2010 date

references (at line 6 of page three and in footnote 3) concerning events attested to by

Plaintiff in the affidavit attached to his Complaint as having occurred on July 24 and 25

in 2005. With these two date corrections, the R&R is hereby ADOPTED. Accordingly,

IT IS FURTHER ORDERED that Defendant Colbry’s Motion to Dismiss [Dkt. #

8] is hereby GRANTED and Plaintiff’s Complaint against Defendant Colbry,

accordingly, is hereby DISMISSED, with prejudice.

Although none of the other named defendants have been served,1

 pursuant to 28

U.S.C. § 1915(e)(2) and its obligation to screen prisoner complaints seeking redress from

any governmental entity or from any officer or employee of a governmental entity, as set

forth in 28 U.S.C. §1915A, the Court may dismiss a prisoner’s complaint at any time “if

the complaint, or any portion of the complaint, . . . is frivolous, malicious, or fails to
2

 Defendant Colbry is a correctional officer at the SJC; Defendant Wilson is the

Shiawasee County Sheriff; Defendant Lubreck was an inmate at the SJC who allegedly

assaulted Plaintiff in July 2005. Defendant Strong, a doctor, and Defendant Smith, a

nurse, treated Plaintiff for his injuries at the SJC.

3

 The Court notes that no specific claim is alleged in Plaintiff’s Complaint against

Defendant Lubreck, although Plaintiff does list him among the defendants in the caption

of some of his pleadings. Defendant Lubreck is not a county employee, hence, no

Section 1983 claim may lie against him. In any event, to the extent Plaintiff may allege a

claim against Lubreck at best it would be a state law assault and battery claim which is

subject to a two-year statute of limitations, see M.C.L. § 600.5805(2), and, as discussed

infra, such a claim would be time-barred.

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state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1).

As attested to by Plaintiff in the affidavit appended to his Complaint, and as the

Magistrate Judge found in considering Defendant Colbry’s motion, all of Plaintiff’s

claims in this action arose as a result of actions of Defendants Colbry, Wilson, Smith,

Strong and Lubreck that occurred at the Shiawassee County Jail (“SCJ”).2

 It is

undisputed that Plaintiff was transferred from the SCJ to the Michigan Department of

Corrections Jackson, Michigan prison intake on May 4, 2006, and is now incarcerated at

the MDOC’s Carson City Correctional Facility.

As the Magistrate Judge found with respect to Plaintiff’s claims against Defendant

Colbry, the events that should have alerted Plaintiff as to his claims against Defendants

Wilson, Smith and Lubreck were the July 24, 2005 incident and Defendants Wilson’s,

Smith’s and Strong’s ensuing actions while Plaintiff was in the SCJ. Therefore,

Plaintiff’s claims necessarily accrued and the statute of limitations began to run no later

than May 4, 2006, the date on which he was transferred from the SCJ.3

 Plaintiff’s
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Complaint was signed on June 29, 2009 and filed on July 9, 2009 -- two months after the

statute of limitations for a Section 1983 action had expired -- and, therefore, is timebarred.

For the foregoing reasons, the Court finds that Plaintiff’s Complaint fails to state a

claim upon which relief may be granted. Therefore, pursuant to 28 U.S.C. §§

1915(e)(2)(ii) and 1915A(b)(1), Plaintiff’s Complaint is DISMISSED in its entirety, with

prejudice.

Let Judgment be entered accordingly.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: September 8, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record

on September 8, 2010, by electronic mail and upon Juan Cunningham, #599834, Carson

City Correctional Facility, P.O. Box 5000, Carson City, MI 48811-5000 VCS by ordinary

mail.

s/Ruth A. Gunther 

Case Manager