McKissick-Johnson v. Wayne, County of

Filing 7

OPINION and ORDER Overruling 6 Objections, Adopting 5 REPORT AND RECOMMENDATION and Dismissing 1 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-cv-13310
Honorable Thomas L. Ludington

v.
WAYNE COUNTY, Office of the Prosecuting
Attorney,
Defendant.
______________________________________ /

OPINION AND ORDER ADOPTING JUDGE BINDER’S REPORT AND
RECOMMENDATION, OVERRULING PLAINTIFF’S OBJECTIONS,
AND DISMISSING COMPLAINT
On August 1, 2013, Plaintiff Erinna McKissick-Johnson filed a complaint against Wayne
County alleging that the Office of the Prosecutor refused to answer Freedom of Information Act
requests concerning Delrico Taylor, Lester Benford, and Robert T. Hinds. With these requests,
McKissick-Johnson believes she will obtain information that is “essential to proving the
innocence of a young man who is currently serving a jail sentence for a crime he didn’t commit.”
Compl. 3, ECF No. 1. The Office of the Prosecutor denied the three requests approximately one
month later, citing Mich. Comp. Law § 15.243(b). The Office of the Prosecurtor further claimed
that it was unable to locate the records regarding Mr. Hinds. Proceeding pro se, McKissickJohnson sought $1,500 in punitive damages as well as a court order compelling the Office of the
Prosecutor to release the information requested.
The Court referred the case to Magistrate Judge Binder, who granted McKissickJohnson’s application to proceed in forma pauperis on August 15, 2013. ECF No. 4. Judge

Binder then screened the pro se complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), which
requires a court to review all complaints where the plaintiff is proceeding in forma pauperis and
sua sponte dismiss a case before service of process if it determines the action fails to state a
claim upon which relief can be granted. In his report and recommendation, Judge Binder
suggested that McKissick-Johnson had failed to state a claim because the federal Freedom of
Information Act does not apply to state governments or agencies, such as the Wayne County
Office of the Prosecutor. Report and Recommendation 3, ECF No. 5. In the alternative, Judge
Binder suggests that dismissal is appropriate because McKissick-Johnson does not allege that she
had exhausted her administrative remedies before filing suit in federal court. Report 4.
McKissick-Johnson timely filed her objection to Judge Binder’s report and recommendation on
September 4, 2013. ECF No. 6.
I
The Court makes a “de novo determination of those portions of the report . . . to which
objection is made.” 28 U.S.C. § 636(b)(1); see also Thomas v. Arn. 474 U.S. 140, 149-52 (1985).
A party must file specific objections to the report or the party’s right to further review will be
waived. Thomas, 474 U.S. at 151. Moreover, “only those specific objections to the magistrate’s
report made to the district court will be preserved for appellate review; making some objections
but failing to raise others will not preserve all the objections a party may have.” Smith v. Detroit
Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987) (citations omitted).
McKissick-Johnson makes only one objection to Judge Binder’s report and
recommendation: she “soundly object[s] to your recommendation that the case be dismissed.”
Her objection thus reiterates her general disagreement with Judge Binder’s conclusions.

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An objection that does nothing more than state a disagreement with a magistrate’s
suggested resolution is not an “objection” as that term is used in the context of Federal Rule of
Civil Procedure 72. Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). “A general
objection to the magistrate’s report has the same effect as a failure to object.” Id. At 747-48.
McKissick-Johnson has not proffered sufficient evidence from which the Court must conclude,
as a matter of law, that her case should not be dismissed sua sponte for failure to state a claim on
which relief can be granted. Accordingly, McKissick-Johnson’s objection is overruled.
After stating her general objection to Judge Binder’s report and recommendation,
McKissick-Johnson then provides “an in-depth account of the events” and asks the Court’s
permission to amend her complaint to reflect that she is bringing a cause of action under state
law. Objection 1, ECF No. 6. If the Court granted McKissick-Johnson’s request to amend the
complaint, however, the Court would not have subject matter jurisdiction over her claim.
Currently, this Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because
McKissick-Johnson’s complaint asserted a claim under the federal Freedom of Information Act.
If McKissick-Johnson amended her complaint to allege a claim under state law, then the Court
would have neither federal question jurisdiction nor diversity of citizenship jurisdiction. Divested
of subject matter jurisdiction, the Court would be forced to dismiss McKissick-Johnson’s claim.
Therefore, permitting McKissick-Johnson to amend her complaint to assert a claim under state
law would be pointless.
II
Accordingly, it is ORDERED that Judge Binder’s report (ECF No. 5) is ADOPTED.
It is further ORDERED that Plaintiff’s objection (ECF No. 6) is OVERRULED.

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It is further ORDERED that the Plaintiff’s complaint (ECF No. 1) is DISMISSED.

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

Dated: September 20, 2013

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon Erinna R. McKissick-Johnson, at 3325 Court Street, Saginaw,
Michigan 48602 by first class U.S. mail on September 20, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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