Kelly v. Hayes
ORDER Sustaining in Part and Overruling in Part 8 Objections, Rejecting 7 Report and Recommendation, and Dismissing Plaintiff's 1 Complaint Pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL A. KELLY,
Case No. 17-cv-10962
Honorable Thomas L. Ludington
Director, My Brother’s Keeper,
ORDER SUSTAINING IN PART AND OVERRULING IN PART OBJECTIONS,
REJECTING REPORT AND RECOMMENDATION, AND DISMISSING PLAINTIFF’S
COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
On March 28, 2017 Plaintiff Michael A. Kelly initiated the above-captioned action
against Defendant Debra Hayes, the Director at My Brother’s Keeper (“MBK”). While not
explained in Plaintiff’s complaint, MBK is a non-profit corporation formed to serve as a
https://mybrotherskeeperflint.org/about-us. The shelter features 30 beds for emergency shelter
and 19 beds for Veterans through contracts with Ann Arbor and Saginaw Health Systems.
Plaintiff alleges that on February 8, 2017 he asked Debra Hayes which third party pays
MBK to house and feed veterans. See Compl. ECF No. 1. Ms. Hayes allegedly refused to
answer his question. Id. The day after he spoke with Ms. Hayes, on February 9 2017, Plaintiff
prepared a certified writing asking Ms. Hayes to what extent MBK was compensated by a third
party specifically to house and feed Plaintiff from December 19-31, 2016. See Compl. Ex. A.
Plaintiff further alleged that, through her role with MBK, Defendant was acting as an agent of
the federal government. Id. Plaintiff now seeks a Court order directing Ms. Hayes to answer his
request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), and seeks
$250 in damages. Id.
The matter was referred to Magistrate Judge Patricia T. Morris on April 3, 2017. See ECF
No. 5. Pursuant to the IFP screening procedure set forth in 28 U.S.C. § 1915(e)(2)(B), a
complaint must be dismissed sua sponte “if the court determined that… the action or appeal (i) is
frivolous or malicious, (ii) fails to state a claim upon which relief can be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” Id. On April 10, 2017 the
magistrate judge issued a report recommending that Plaintiff’s complaint be dismissed for failure
to state a claim upon which relief can be granted pursuant to § 1915(e)(2)(B). See ECF No. 7.
The magistrate judge reasoned that Plaintiff had not followed the proper procedures in making
his FOIA request. On April 17, 2017 Plaintiff Kelly timely filed a motion for reconsideration,
which will be construed as objections to the magistrate judge’s report and recommendation. See
ECF No. 8.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002).
Michael Kelly argues that the magistrate judge erred in claiming that he had not made a
proper written request under the FOIA. He emphasizes the certified writing attached to his
complaint that he allegedly sent to Ms. Hayes on February 9, 2017. See Compl. Ex. A. Because
Plaintiff is correct that the magistrate judge did not address his certified writing, Plaintiff’s
objection will be sustained in part and the report and recommendation will be rejected.
“Pursuant to 5 U.S.C. § 552(a)(4)(B), a district court reviews de novo an agency’s denial
of a request for disclosure of agency records.” See Lucaj v. Federal Bureau of Investigation, 825
F.3d 541, 545 (6th Cir. 2017). “Under the FOIA, each agency upon any request for records shall
make the records promptly available to any person, 5 U.S.C. § 552(a)(3)(A), unless one of nine
specific exemptions applies, 5 U.S.C. § 552(b)(1)-(9).” ACLU v. FBI, 734 F.3d 460, 465 (6th
Cir. 2013) (internal quotations omitted). Importantly, in order to be subject to the FOIA, a party
must qualify as an “agency.” See 5 U.S.C. § 552(a)(4)(B). “Agency” is statutorily defined as
“any executive department, military department, Government corporation, Government
controlled corporation, or other establishment in the executive branch of the Government
(including the Executive Office of the President), or any independent regulatory agency[.]” §
Even assuming that Plaintiff Kelly intended to sue MBK itself instead of its director
Debra Hayes, he has failed to state a claim under the FOIA. In order to qualify as an agency, an
entity must have substantial independent governmental authority. See Dong v. Smithsonian Inst.,
125 F.3d 877, 881 (D.C. Cir. 1997) (holding that the Smithsonian Institution did not qualify as
an “agency” within the meaning of § 552(f)). The mere fact that a private organization receives
federal funds and enjoys some control over their use does not render that organization an agency
under FOIA. Id. at 882; see also Lazaridis v. U.S. Dep’t of Justice, 713 F. Supp. 2d 64, 69
(D.D.C. 2010) (holding that neither the National Center for Missing and Exploited Children nor
the International Centre for Missing and Exploited Children qualify as agencies under the FOIA,
despite strong connections to Department of Justice divisions and the receipt of annual finding
from Department of Justice divisions). Plaintiff does not identify any statutory or regulatory
source authorizing MBK to exercise independent governmental authority. Id. Instead, MBK
“appears to be no different from any private [organization] which receives federal funds and
enjoys some control over their use.” Dong, 125 F.3d at 882. Any seeming “public authority” is
“entirely ancillary to its [social] mission.” Id.
Because MBK is not subject to the FOIA, Plaintiff Kelly’s complaint fails to state a claim
upon which relief can be granted. It therefore must be dismissed pursuant to 28 U.S.C. §
Accordingly, it is ORDERED that Plaintiff’ Kelly’s objections (filed as a motion for
reconsideration), ECF No. 8, are SUSTAINED IN PART AND OVERRULED IN PART.
It is further ORDERED that the report and recommendation, ECF No. 7, is
It is further ORDERED that Plaintiff Kelly’s complaint, ECF No. 1, is DISMISSED for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 23, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 23, 2017.
KELLY WINSLOW, Case Manager
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