United States District Court, E.D. Michigan, Northern Division
MICHAEL A. KELLY, Plaintiff,
DEBRA HAYES, Director, My Brother's Keeper, Defendant.
ORDER SUSTAINING IN PART AND OVERRULING IN PART
OBJECTIONS, REJECTING REPORT AND RECOMMENDATION, AND
DISMISSING PLAINTIFF'S COMPLAINT PURSUANT TO 28 U.S.C.
L. LUDINGTON United States District Judge.
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 homeless shelter
for adult men in Flint, Michigan. See My
shelter features 30 beds for emergency shelter and 19 beds
for Veterans through contracts with Ann Arbor and Saginaw
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.
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.
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).
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.
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[.]” § 552(f)(1).
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.”
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.
it is ORDERED that Plaintiff' Kelly's objections
(filed as a motion for reconsideration), ECF No. 8, are