Vincent Mensah v. MDOC, et al

Filing

Per Curiam OPINION filed : The appeal is therefore DISMISSED ( non-appealable order), and the case is REMANDED to the district court for further proceedings, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Raymond M. Kethledge, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

Case: 11-2365

Document: 006111578867

Filed: 02/04/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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 DEPARTMENT OF
CORRECTIONS; PATRICIA L. CARUSO,
in her individual and official capacity as
Director, Michigan Department of
Corrections; HUGH WOLFENBARGER, 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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FILED
Feb 04, 2013
DEBORAH S. HUNT, Clerk

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

Case: 11-2365

Document: 006111578867

Filed: 02/04/2013

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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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Case: 11-2365

Document: 006111578867

Filed: 02/04/2013

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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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