Johnson et al v. Wickersham et al

Filing 47

ORDER Adopting 43 and 45 Report and Recommendations Granting in Part and Denying in Part Defendants' 17 Motion to Dismiss, and Denying Plaintiffs' 11 Motion for Temporary Restraining Order. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEONTAY JOHNSON, et al.,
Plaintiffs,

Case No. 13-cv-13672
Hon. Matthew F. Leitman

v.
ANTHONY WICKERSHAM, et al.,
Defendants.
_________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATIONS (ECF ## 43,
45), GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS (ECF #17). AND DENYING PLAINTIFFS’
MOTION FOR TEMPORARY RESTRAINING ORDER (ECF #11)

Plaintiffs Deontay Johnson (“Johnson”), Ronald Whitney (“Whitney”), and
Dorian Willis (“Willis”) (collectively, “Plaintiffs”) have filed a prisoner civil rights
Complaint related to their incarceration at the Macomb County Jail. Plaintiffs
allege that two employees of the jail, Defendants Anthony Wickersam and
Michelle Sanborn (collectively “Defendants”), violated their First and Fourteenth
Amendment rights. (See Compl., ECF #1.) Plaintiffs have also moved for a
Temporary Restraining Order. (See ECF #11.)
Plaintiffs allege that in August 2013, the Macomb County Jail instituted a
new policy with respect to inmate mail.

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(See Compl. at ¶1)

According to

Plaintiffs, before establishment of this new policy, inmates at the Macomb County
Jail could receive any magazine that did not “create a threat to jail order” or that
did not “contain sexual, racial, or ethnic profanity…” (Id. at Exhibit B, Pg. ID 16.)
Plaintiffs assert, however, that the new policy, among other things, allows inmates
to receive only twelve specifically identified magazines, such as Time and The
Oprah Magazine. (Id. at Exhibit A, Pg. ID 12.) Plaintiffs contend that the new
policy prevents them from receiving the magazines of their choice, including
“African-American magazines” such as Ebony. (Id. at ¶1, n.1.) In addition,
Plaintiff Whitney filed a “supplemental” Complaint, alleging that a prison official
identified only as “Deputy Officer, Badge #333” wrongly denied him receipt of a
letter from a non-incarcerated individual. (See ECF #13 at ¶¶1-2.)
Defendants filed a Motion to Dismiss all of Plaintiffs’ claims, including
Whitney’s “supplemental” Complaint. (See Motion, ECF #17.) On September 10,
2014, the Magistrate Judge issued a Report and Recommendation (the “September
10 R&R”) recommending that the Court deny Defendants’ motion with respect to
Plaintiffs’ initial Complaint. (See ECF #43.) The Magistrate Judge found that
while Plaintiffs “may or may not ultimately prevail,” they “have stated a factually
plausible First Amendment claim.” (Id. at 8, Pg. ID 226.) As to Whitney’s
“supplemental” Complaint, the Magistrate Judge recommended that the Court

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dismiss that claim because “Whitney has not alleged the personal involvement of
the named Defendants, Anthony Wickersham and Michelle Sanborn.” (Id.)
On September 11, 2014, the Magistrate Judge issued a Report and
Recommendation (the “September 11 R&R”) recommending that the Court deny
Plaintiffs’ motion for a temporary restraining order.

(See ECF #45.)

The

Magistrate Judge first recommended that the Court deny Plaintiffs’ motion with
respect to Plaintiffs Johnson and Willis because neither is currently incarcerated at
the Macomb County Jail, and their claims for a TRO are therefore moot. (See id.
at 4, Pg. ID 234, citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).) The
Magistrate Judge then analyzed Whitney’s claim separately because the Magistrate
Judge believed Whitney still to be incarcerated at the Macomb County Jail. The
Magistrate Judge recommended that the Court hold that Whitney had not
established an entitlement to preliminary relief. (See id. at 4-8, Pg. ID 235-238.)1
No party has objected to either the September 10 R&R or the September 11
R&R.

1

Failure to file objections to a Report and Recommendation waives any

The Court notes that it now appears that Plaintiff Whitney is no longer
incarcerated at the Macomb County Jail. Previous orders the Court has sent to
Whitney at the Macomb County Jail have been returned to the Court as
undeliverable. (See, e.g., ECF ## 40, 41; see also ECF #36 in which the Macomb
County Jail returned a notice the Court had sent to Whtiney at that location with
the notation “NOT HERE.”) In addition, the Macomb County Sherriff’s Office
website does not list “Ronald Whitney” as a current inmate at the Macomb County
Jail. Whitney has not, however, filed a change of address with the Court as
required by Local Rule 11.2.
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further right to appeal. See Howard v. Sec'y of Health and Human Servs., 932 F.2d
505 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370,
1373 (6th Cir. 1987). Likewise, the failure to object releases the Court from its
duty to independently review the matter. See Thomas v. Arn, 474 U.S. 140, 149
(1985). The Court has nevertheless reviewed both the September 10 R&R and the
September 11 R&R and agrees with the findings and conclusions of the Magistrate
Judge included in both reports.
The Court further notes an additional reason for denying Plaintiffs’ motion
for a temporary restraining order. As explained in footnote one above, it appears
that Plaintiff Whitney is no longer incarcerated at the Macomb County Jail. (See
ECF ## 36, 40, and 41.) Therefore, Whitney’s request for preliminary relief – like
the request of his co-plaintiffs – is now moot.2
Therefore, IT IS HEREBY ORDERED that the September 10 R&R (ECF
#43) and the September 11 R&R (ECF #45) are ADOPTED as the Opinion of this
Court. IT IS FURTHER ORDERED, for the reasons stated in the September 10
R&R, that Defendants’ December 23, 2013, Motion to Dismiss (ECF #17) is
GRANTED with respect to Plaintiff Whtiney’s “supplemental” Complaint (ECF
#13) and DENIED with respect to Plaintiffs’ initial Complaint (ECF #1.) IT IS
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The relief Plaintiffs seek in their motion for a temporary restraining order is the
kind of relief that may be found to be capable of repetition, yet avoiding review,
and thus the Court will consider a properly-supported request for injunctive relief
as this matter progresses.
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ADDITIONALLY ORDERED, for the reasons stated in the September 11 R&R,
that Plaintiffs’ Motion for Temporary Restraining Order (ECF #11) is DENIED.

Dated: September 30, 2014

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 30, 2014, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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