Kelly v. PNC Bank, NA et al

Filing 93

ORDER Denying 86 89 Motions for Reconsideration, Denying 88 Motion to Proceed Without Prepaying Fees or Cost on Appeal, and Denying 91 Motion for Recusal. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ROGER LEE KELLY,
Plaintiff,
v.

Case No. 15-cv-10721
Honorable Thomas L. Ludington

PAUL F. BEGGS,
Defendant.
_______________________________________/
ORDER DENYING MOTIONS FOR RECONSIDERATION, DENYING MOTION TO
PROCEED WITHOUT PREPAYING FEES OR COSTS ON APPEAL, AND DENYING
MOTION FOR RECUSAL
Plaintiff Roger Lee Kelly’s pro se complaint against Defendants The PNC Financial
Services Group, Inc., the Small Business Administration, and Paul F. Beggs was removed to this
Court on February 26, 2015. ECF No. 1. Defendant Small Business Administration removed the
case pursuant to 28 U.S.C. § 1442(a)(1), which permits removal of a civil action involving “[t]he
United States or any agency thereof or any officer (or any person acting under that officer) of the
United States or of any agency thereof, in an official or individual capacity, for or relating to any
act under color of such office.” The case was referred to Magistrate Judge Patricia T. Morris.
ECF No. 6. Every Defendant except Paul Beggs, Kelly’s former criminal defense attorney, was
subsequently dismissed from the case. ECF Nos. 24, 40. On September 8, 2016, Judge Morris
issued a report and recommendation which concluded that there was not a continuing basis for
federal jurisdiction and recommending that the Court remand the case to state court. ECF No. 75.
On December 15, 2016, the Court issued an order which, among other things, agreed that Kelly’s
claims were better resolved in state court. ECF No. 81. The case was remanded on December 16,
2016. ECF No. 82.

On January 17, 2017, Kelly filed a motion for reconsideration challenging several aspects
of the Court’s jurisdictional analysis. ECF No. 86. He later filed a supplemental motion for
reconsideration which expanded upon those arguments. ECF No. 89. Kelly separately requests
that the Court give permission for him to proceed in forma pauperis on appeal, ECF No. 88, and
requests that the Court recuse itself from the case, ECF No. 91. Because Kelly’s motions do not
identify a clear error in the Court’s jurisdictional analysis or cause for recusal, they will be
denied.
I.
Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for
reconsideration of a previous order, but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows: “(1) a palpable defect, (2) the defect
misled the court and the parties, and (3) that correcting the defect will result in a different
disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 731, 733-34
(E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is “obvious, clear,
unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices,
Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). “[T]he Court will not grant motions for
rehearing or reconsideration that merely present the same issues ruled upon by the Court, either
expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
II.

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Kelly’s initial motion for reconsideration argues that the case should not be remanded,
first, because he is asserting federal constitutional claims and, second, because the state court is
biased against him.1
Kelly argues that Defendant Beggs’s “legal failures . . . led to the denial of federal
constitutional rights to effective assistance of counsel.” Mot. Reconsideration at 2, ECF No. 86.
However, Sixth Amendment claims for ineffective assistance of counsel are not cognizable in a
civil suit for damages. See Hudson v. Smith, No. 3:11-CV-00040, 2011 WL 161769, at *1 (M.D.
Tenn. Jan. 19, 2011). Rather, the appropriate avenue for an ineffective assistance of counsel
challenge is via habeas proceedings. Taylor v. Oakland Cty. Circuit Court, 831 F.2d 297 (6th
Cir. 1987). Thus, even if Defendant Beggs’s representation of Kelly in his criminal case was
constitutionally defective, that claim cannot be advanced in the current action. Kelly’s
allegations regarding Beggs’s alleged violations of the Sixth and Fourteenth Amendment do not
give rise to federal jurisdiction.
Second, Kelly attempts to bolster his argument, previously rejected, that the state court
has exhibited bias and prejudice against him. The Court previously explained that:
Kelly has not offered specific examples of bias or prejudice, except to the extent
that the state court rejected certain arguments. Kelly’s claims against Beggs might
have been previously dismissed for noncompliance with state court rules, but
Kelly does not argue that he had actually complied with the rules, simply that the
dismissal resulted in a “waste” of time. Kelly’s lack of success before the state
court is not evidence of bias or prejudice.
Dec. 15, 2016, Order at 6, ECF No. 81.

1

Kelly also argues that the Court improperly characterized his proposed amended complaint as not being a “short
and plain statement” as required by Federal Rule of Civil Procedure 8(a)(2). The document, ECF No. 68, speaks for
itself.

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Now, Kelly asserts that allegations are bias of premised on the state court’s “violations of
Michigan Court Rules, Michigan Compiled Laws, and Michigan Rules of Evidence.” Mot.
Reconsideration at 2. Kelly goes on to identify several specific errors he contends the state court
made. In particular, he asserts that the state court improperly refused to allow Kelly to introduce
character evidence under Michigan Rule of Evidence 404(a)(2) and improperly refused to allow
several of Kelly’s witnesses to testify. To the extent Kelly is seeking to appeal these purported
errors, the Court does not have jurisdiction. Rooker v. Fid. Trust Co., 263 U.S. 413, 415 (1923).
To the extent Kelly offers these purported errors as evidence of bias by the state court, the Court
is unpersuaded. Even assuming for the sake of argument that the state court did commit errors
below, Kelly has provided no evidence that the errors were malicious. Honest errors are not
evidence of bias. Accordingly, Kelly has not demonstrated a palpable defect in the Court’s
jurisdictional analysis.
In his supplemental motion for reconsideration, Kelly argues that the Court should retain
jurisdiction because the state court has dismissed his claim for failure to pay the filing fee. ECF
No. 89. Kelly asserts that the Saginaw Regional Facility Prison’s failure to credit his trust fund
with a returned check in a timely manner resulted in the failure to pay the filing fee. Kelly
attaches several opinions by the state court. In the most recent opinion, the state court explains
that it denied Kelly’s request to waive the filing fee on January 30, 2015. In the same order, the
state court directed Kelly to pay the filing fee within 21 days of certification of the order.2
Certified copies of the order were mailed to Kelly on February 4, 2015. Despite that order, Kelly
had not resubmitted his pleadings or paid the filing fee by February 26, 2015, when the case was
removed to this Court. The state court opinion thus reveals that Kelly’s action was not properly

2

The state court also explains that the 21 day period is provided by Mich. Comp. L. 600.2963(1) and does not
authorize the state court to extend the time period.

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initiated in the first place. Regardless of the reason for Kelly’s failure to pay the filing fee, Kelly
has not complied with state law governing the initiation of his suit. The removal of the action did
nothing to legitimize the suit. The Court declines to exercise jurisdiction.
Kelly has also filed a motion requesting this Court to recuse itself. ECF No. 91. In the
motion, Kelly reiterates the arguments made in his motions for reconsideration and asserts that
the “foregoing actions amount to affirmative bias against Plaintiff displayed by the Court.” Mot.
Recusal at 4, ECF No. 91. Kelly is understandably frustrated with the remand and subsequent
dismissal of his case. But lack of success on the merits is not, by itself, evidence of bias. As
explained above, Kelly has not demonstrated an error in the Court’s prior analysis. Because his
action was properly remanded, the Court declines to recuse itself.
Finally, Kelly has filed a motion for leave to proceed without prepaying fees or costs on
appeal. ECF No. 88, 90. Because any appeal would be frivolous, the Court declines to give Kelly
leave to proceed in forma pauperis. See Fed. R. App. P. 24(a).
III.
Accordingly, it is ORDERED that Kelly’s motions for reconsideration, ECF Nos. 86, 89,
are DENIED.
It is further ORDERED that Kelly’s motion to proceed in forma pauperis on appeal, ECF
No. 88, is DENIED.
It is further ORDERED that Kelly’s motion for recusal, ECF No. 91, is DENIED.

Dated: April 13, 2017

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

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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 on April 13, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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