-1-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENN MAYBIN #178072 Case No. 09-13755

Plaintiff, District Judge Avern Cohn

v. Magistrate Judge R. Steven Whalen

RAYMOND BOOKER, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Before the Court is Defendant Raymond Booker’s Rule 12(b) Motion for Dismissal

[Docket #8], filed January 11, 2010, which has been referred for a Report and

Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). 

For the reasons set forth below, I recommend that the motion be GRANTED,

dismissing this Defendant with prejudice. 

I. FACTUAL BACKGROUND

 On September 22, 2009, Plaintiff, a Michigan Department of Corrections (“MDOC”)

inmate, filed suit pursuant to 42 U.S.C. §1983, alleging violations of his First and Fourteenth

Amendments during his incarceration at the Ryan Correctional Facility (“RRF’”) by

Defendant Booker, RRF’s Warden, as well as other RRF staff members. Plaintiff, now

housed at the Thumb Correctional Facility (“TCF”) in Lapeer, Michigan, alleges that in
-2-

response to his complaints about the opening of his outgoing mail, prison staff retaliated

against him on January 17, 2006 by charging him with an attempted escape. Complaint at

2. As a result, he was placed in administrative segregation pending a hearing on the

attempted escape charge. Id. at 3. On January 24, 2006, a hearing was conducted at which

time Plaintiff was found not guilty. Id. at 4. He seeks monetary damages and declaratory

relief. Id. at 2. 

II. STANDARD OF REVIEW

 Fed.R.Civ.P. 12(b)(6) provides for dismissal of a complaint “for failure of the

pleading to state a claim upon which relief can be granted.” Rule 12(b) also provides that

if, on consideration of a motion under paragraph (6), “matters outside the pleading are

presented to and not excluded by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56 (summary judgment).” In assessing a Rule

12(b)(6) motion, the court accepts the plaintiff’s factual allegations as true, and asks whether,

as a matter of law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 416,

419 (6th Cir. 2001). 

 In assessing the sufficiency of a complaint, the court must first determine whether it

contains factual allegations, as opposed to legal conclusions. Ashcroft v. Iqbal, ---U.S.---,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., 129 S.Ct. at 1949

(citing Bell Atlantic Corp. v. Twombley, 550 U.S 544, 555, 127 S.Ct. 1955, 1964-1965, 167

L.Ed.2d 929 (2007)). Second, the facts that are pled must show a “plausible” claim for relief,
1

While finding that Plaintiff has failed to state a claim against Defendant Booker,

the undersigned makes no finding regarding the merits of the retaliation claim as to other

Defendants. 

-3-

which the Court described as follows:

“Determining whether a complaint states a plausible claim for relief will, as

the Court of Appeals observed, be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But

where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged–but it has not

shown–that the pleader is entitled to relief.”

129 S.Ct. at 1950 (internal citations omitted).

III. ANALYSIS

Defendant Booker’s Lack of Personal Involvement Mandates Dismissal1

Plaintiff does not make factual allegations that Defendant Booker was personally

involved in the events surrounding his stint in administrative segregation, but instead faults

the warden for failing to prevent the alleged constitutional violations of his subordinates.

This allegation is insufficient to support the claims against Booker. The Supreme Court has

specifically held that in a §1983 action, liability cannot be based on a theory of respondeat

superior, or mere supervisory liability. Monell v. Department of Social Services of City of

New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because Plaintiff has not

alleged that Booker impliedly authorized, approved or knowingly acquiesced in Defendant

Drake’s allegedly unconstitutional conduct, the supervisory claims should be dismissed.

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

Plaintiff argues unpersuasively that Defendant Booker’s processing of the Step Two
-4-

grievance response is sufficient to show “personal involvement” in the alleged constitutional

violations. Plaintiff’s Response at 6. He contends that Booker “knew or should have known

that Plaintiff was being unconstitutional[ly] detained.” Id. Sixth Circuit case law makes

clear that Booker’s denial of the administrative grievance at Step Two, unaccompanied by

claims that he “directly participated, encouraged, authorized or acquiesced in the claimed

retaliatory acts” is insufficient to state a claim of constitutional magnitude. Shehee v.

Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). 

Even assuming that Booker’s involvement in the Step Two grievance response would

have placed him on notice of an ongoing civil rights violation, Plaintiff does not allege that

he was still in segregation at the time Booker reviewed the Step Two grievance. Plaintiff,

presumably released from administrative segregation directly following the January 24, 2006

“not guilty” finding, filed his Step Two grievance over one month later on March 7, 2006.

Thus, Booker cannot have been said to have been acquiescing in a continuing violation, but

rather, reviewing allegations of a past one. 

IV. CONCLUSION

For these reasons I recommend that the motion for dismissal [Docket #8] be

GRANTED, dismissing Defendant Booker with prejudice. 

 Any objections to this Report and Recommendation must be filed within fourteen

(14) 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
-5-

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 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. Sullivan, 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.

Within fourteen (14) days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained within

the objections.

S/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: July 14, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on July 14, 2010.
-6-

S/G. Wilson 

Judicial Assistant