McKissick-Johnson v. Detroit Police Department

Filing 7

ORDER Overruling Objections, Adopting 5 Report and Recommendation and Dismissing Complaint. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

ERINNA R. McKISSICK-JOHNSON,
Plaintiff,

Case No. 13-13309
Honorable Thomas L. Ludington

v.
DETROIT POLICE DEPARTMENT,
Defendant.
/
OPINION AND ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, AND DISMISSING COMPLAINT
On August 1, 2013, Erinna McKissick-Johnson filed a pro se complaint against the
Detroit Police Department (DPD) alleging violations of the Freedom of Information Act (FOIA).
Apparently, Erinna “filed two FOIA requests in accordance to the FOIA Act,” and she was told
the two requests “had been received and was [sic] being processed.” Pl.’s Compl. 1, 2, ECF No.
1. Although she attempted to contact various individuals for further information, at this point,
Erinna has “heard nothing[.]” Id. at 2. As a result, she requests “a judgment of $1,000.00 which
is $500.00 for each FOIA request submitted, as penalty for the DPD failing to respond to [her]
requests within a timely manner or to communicate at all.” Id. Erinna also suggests this Court
“demand that the DPD supply all of the information [she] requested in [her] FOIA
submissions[.]” Id.
Because Erinna was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915, her complaint was screened by United States Magistrate Judge Charles E. Binder. See 28
U.S.C. § 1915(e)(2). Judge Binder issued a report on August 21, 2013, recommending that
Erinna’s complaint “be sua sponte dismissed because the complaint fails to state a claim upon

which relief can be granted.” Report & Rec. 1 (emphasis omitted), ECF No. 5. Specifically,
Judge Binder indicated that “it is beyond question that the federal FOIA statute applies only to
federal and not to state agencies.” Id. at 3 (brackets omitted) (quoting Rimmer v. Holder, 700
F.3d 246, 258–59 (6th Cir. 2012)).
Erinna filed timely objections to Judge Binder’s report and recommendation.

She

indicates that she “was completely unaware that there is a difference between the state FOIA and
the federal FOIA.” Pl.’s Obj. 1, ECF No. 6. Erinna asserts that she “filed the lawsuit under the
impression that the federal statute governed all matters that fell within that category.” Id. So
Erinna requests that she be allowed to amend her complaint “to reflect the correct statutes under
which [she] is bringing [her] cause of action which are MCL 15.235 (A) and MCL 15. 240(7).”
Id. According to Erinna, her lawsuit “is about the gross misconduct of a state agency, which is
addressed under statute MCL 15.235 and the compensation that [she] should receive as a result
of it which is addressed under MCL 15. 0240(7).” Id.
With all due respect to Erinna’s cause (“proving the innocence of a young man who is
currently serving a jail sentence for a crime that he didn’t commit,” Pl.’s Compl. 3), this is not
the appropriate venue for her case. This Court lacks subject-matter jurisdiction over Erinna’s
complaint, and it will be dismissed.
For starters, the DPD is not an appropriate party here. As succinctly stated in Haverstick
Enters., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989 (6th Cir. 1994), “[a] suit against a city police
department in Michigan is one against the city itself, because the city is the real party in
interest.” Id. at 992 n.1. Thus, the City of Detroit should have been named as the defendant, not
the DPD.

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But even if Erinna was allowed to modify her complaint to substitute the City of Detroit
in place of the DPD, jurisdiction would be lacking. This is because, as Erinna points out, her
action is grounded entirely in Michigan State law. See Pl.’s Obj. 1 (“My lawsuit is about the
gross misconduct of a state agency, which is addressed under statute MCL 15.235”).
Accordingly, the Court could maintain jurisdiction only pursuant to diversity jurisdiction under
28 U.S.C. § 1332, which requires “complete diversity between the parties.” U.S. Motors v. Gen.
Motors Europe, 551 F.3d 420, 423 (6th Cir. 2008) (citing Graig v. Alt. Richfield Co., 19 F.3d
472, 476 (9th Cir. 1994)).
Erinna lives in Saginaw, Michigan, see Pl.’s Compl. 3, and the City of Detroit is, not
surprisingly, a citizen of the State of Michigan. See Schiavone Const. Co. v. City of New York,
99 F.3d 546, 548 (2d Cir. 1996) (“The City of New York is . . . a citizen of the State of New
York”); J.A. Olson Co. v. City of Winona, Miss., 818 F.2d 401, 404 (5th Cir. 1987) (“Here,
Winona, a Mississippi municipality, clearly is a citizen of Mississippi.”). Because both the City
of Detroit and Erinna are Michigan citizens, and because her action contemplates only Michigan
state law, this Court lacks subject-matter jurisdiction. Thus, if the action is appropriate at all, it
would be so only in Michigan state court. Because this Court lacks subject-matter jurisdiction,
the appropriate action is to dismiss Erinna’s complaint. See Parmelee v. Ackerman, 252 F.2d
721 (6th Cir. 1958) (per curiam).
Accordingly, it is ORDERED that Erinna’s objections to Judge Binder’s report and
recommendation, ECF No. 6, are OVERRULED.
It is further ORDERED that Judge Binder’s report and recommendation, ECF No. 5, is
ADOPTED.

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It is further ORDERED that Erinna’s complaint, ECF No. 1, is DISMISSED. This is a
final order and closes the case.
Dated: September 12, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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, and upon Erinna McKissick-Johnson, 3325 Court St.,
Saginaw, MI 48602 by first class U.S. mail, on September 12, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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