Fritz v. People of the State of Michigan

Filing 6

OPINION and ORDER Summarily Dismissing 1 Notice of Action of Removal Without Prejudice. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
HERMAN OTTO FRITZ,
Plaintiff,

Case No. 14-cv-14058

v

Honorable Thomas L. Ludington

PEOPLE OF THE STATE OF MICHIGAN,
Defendant.
__________________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE NOTICE OF REMOVAL
Plaintiff Herman Otto Fritz, a former Michigan prisoner presently living in Elkhart,
Indiana, recently filed a pro se “Notice of Action for Removal” under 28 U.S.C. § 1441. His
notice seeks to remove a Bill of Review from Cass County Circuit Court in Cassopolis,
Michigan, to this Court. Because Cass County does not lie within the Eastern District of
Michigan, this District is not the proper venue for Plaintiff’s federal action, and his notice of
removal must be dismissed.
I
Plaintiff filed his notice of removal on October 20, 2014. At the time, he was a state
prisoner at the G. Robert Cotton Correctional Facility in Jackson, Michigan. Records maintained
by the Michigan Department of Corrections on its official website indicate that Petitioner
pleaded guilty to two drug crimes in Cass County Circuit Court and was sentenced on May 27,
2011, to three to twenty years’ imprisonment.1
In his notice of removal, Plaintiff purports to remove a Bill of Review from Cass County
Circuit Court to this Court. The Bill of Review seeks to have the Cass County Circuit Court re1

See http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=801665.

sentence Plaintiff to time served and to immediately release him from custody with no parole
supervision. The Notice of Removal in this Court presents the following questions:
1.

Pursuant to the valid contractual obligation in the above cited State
of Michigan criminal accusations, did the Cass County Circuit
Court issue a valid judgment of sentence upon the DefendantAppellant, inclusive of the present?

2.

Have the agents, actors and employees of the Michigan
Department of Corrections (MDOC) in violation of constitution
and law usurped and voided the terms of that contractual obligation
by their creation and ex post facto application of sub-contract
obligations with private corporate entities and by their creation of
MDOC policy and procedure that also usurp the superior contract
of sentence?

3,

When the petitioner complained to the sentencing court, did the
state circuit court fail and/or refuse to correct the contractual
violation?
II

A threshold question is whether venue is proper in this District. “Venue in removed
cases is governed solely by [28 U.S.C. ]§ 1441(a).” Kerobo v. Southwestern Clean Fuels, Corp.,
285 F.3d 531, 534 (6th Cir. 2002). “Section 1441(a) expressly provides that the proper venue of
a removed action is ‘the district court of the United States for the district and division embracing
the place where such action is pending.’” Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 666
(1953). Plaintiff is removing an action from Cass County Circuit Court, the county where he
was convicted and sentenced. Cass County lies in the Southern Division of the Western District
of Michigan. See 28 U.S.C. § 102(b)(1). Consequently, this District is not the proper federal
district for Plaintiff’s removal action.
When a case is filed in the wrong district, the district court “shall dismiss, or if it be in the
interest of justice, transfer such case to any district or division in which it could have been
brought.” 28 U.S.C. § 1406(a). It appears to the Court that the Michigan Department of
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Corrections released Plaintiff to the Indiana Department of Corrections,2 and that the Indiana
Department of Corrections has discharged Plaintiff from prison.3

The interests of justice

therefore do not require transferring this case to the Western District of Michigan, which is the
proper federal district for Plaintiff’s action.
III
Accordingly, it is ORDERED that the “Notice of Action for Removal” (ECF No. 1),
which was docketed as a civil complaint, is DISMISSED without prejudice.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: December 18, 2014

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon Herman Fritz #801665, 933 McPherson, Elkhart, IN 46514 by first
class U.S. mail on December 18, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

2

See http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=801665 (the Michigan Department of
Corrections website indicating that Plaintiff’s assigned location is Indiana).
3
See http://in.gov/apps/indcorrection/ofs/ofs?lname=Fritz&fname=Herman (indicating the word “discharge” for the
Indiana “facility/location”).

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