Berry v. Van Allsburg

Filing 5

ORDER Dismissing Plaintiff's 1 Complaint Under 28 U.S.C. 1915(e)(2)(B) and Enjoining Future Filings Absent Leave of Court. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
TIMOTHY ARTHUR BERRY,
Plaintiff,
v.

Case No. 16-cv-10598
Honorable Thomas L. Ludington

JON A. VAN ALLSBURG,
Defendant.
__________________________________________/
ORDER DISMISSING PLAINTIFF’S COMPLAINT UNDER 28 U.S.C. § 1915(e)(2)(B)
AND ENJOINING FUTURE FILINGS ABSENT LEAVE OF COURT
On February 18, 2016 Plaintiff Timothy Arthur Berry filed his most recent complaint
against Judge Jon A. Van Allsburg. ECF No. 1. As with his previous actions, Berry’s claims
relate to an ongoing custody dispute over his son. Id. Berry now claims that after his son
resisted going back to his mother on number of occasions, Berry served Habeas Corpus on Judge
Van Allsburg, Ottawa County Sheriff Gary A. Rosema, Prosecuting Attorney Dolores Trese, and
Michigan State Attorney General Bill Schuette on February 2, 2016. Id.

He alleges that all

those served, including Judge Van Allsburg committed a “Violation of Jurisdiction” on February
9, 2016 when he “defaulted on the Habeas Corpus.” Id.
Berry further alleges that Judge Van Allsburg conspired with Ms. Trese to write and
serve an unconstitutional ex parte order to pick up Berry’s son and suspend Berry’s parenting
time. Id. He contends that through these actions Judge Van Allsburg violated his rights of due
process, freedom of speech, and freedom of religion, and broke his oath to support the
constitution. Id. He concludes that Judge Van Allsburg committed an act of treason, which is a
war crime. Id. As compensation Berry seeks (1) $250,000 per day for each of his five children

he is prevented from seeing, (2) to have an American soldier compensated in the amount of
$850,000 to be paid to Disabled American Veterans Charity, (3) pain and hardship damages in
the amount of $10,000 per day, beginning on January 21, 2016, and (4) costs, fees, fines,
transportation, time, and preparation incurred as a result of his litigation. Id. Having reviewed the
allegations of Plaintiff’s now-filed Complaint, the Court finds that this suit must be dismissed
under 28 U.S.C. § 1915(e)(2)(B).
I.
As with his previous action, Berry seeks to proceed in forma pauperis in his action
against Judge Van Allsburg.

Under 28 U.S.C. § 1915, a district court may authorize the

commencement of a civil action without prepayment of fees provided the applicant submits an
affidavit demonstrating that he or she “is unable to pay such fees or give security therefor.” 28
U.S.C. § 1915(a)(1). In determining IFP eligibility, “courts will generally look to whether the
persons are employed, the person’s annual salary, and any other property or assets the person
may possess.” Doebler v. Commissioner of Soc. Sec., 2012 WL 2891246, at *1 (E.D. Mich. May
3, 2012) report and recommendation adopted, No. 12-11795, 2012 WL 2899331 (E.D. Mich.
July 16, 2012). A district court has discretion to grant or deny an IFP petition. See Dillard v.
Liberty Loan Corp., 626 F.2d 363 (4th Cir. 1980). Because Berry has demonstrated that he is
unable to pay the requisite filing fees, his application to proceed in forma pauperis will be
granted.
II.
Because Berry is proceeding in forma pauperis, pursuant to 28 U.S.C. § 1915(e)(2)(B)
this Court must review Berry’s complaint and sua sponte dismiss it “if the court determined
that… the action or appeal (i) is frivolous or malicious, (ii) fails to state a claim upon which

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relief can be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.” Id.
As Berry has been informed numerous times in his past filings, “it is a general principle
of the highest importance to the proper administration of justice that a judicial officer, in
exercising the authority vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself.” Bradley v. Fisher, 13 Wall. 335, 347,
(1872). Accordingly, a judge is generally immune from suit itself, not just from the ultimate
assessment of damages. Mireles v. Waco, 502 U.S. 9, 112 (1991). This immunity extends to
officials performing discretionary acts of a judicial nature, including magistrate judges. See
Pierson v. Ray, 386 U.S. 547, 553–54 (1967). The absolute immunity of a judge applies
“however erroneous the act may have been, and however injurious in its consequences it may
have proved to the plaintiff.” Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (quoting
Bradley v. Fisher, 80 U.S. 335, 347 (1871)).

Judicial immunity is lost only in two

circumstances: (1) when the judge acts in a non-judicial capacity; and (2) when the judge acts in
complete absence of all jurisdiction. See Mann v. Conlin, 22 F.3d 100, 103 (6th Cir. 1994).
Berry appears to allege that Judge Van Allsburg acted outside of his jurisdiction after he
“defaulted on the Habeas Corpus” that Berry allegedly served on him on February 2, 2016. ECF
No. 1. It is unclear what this means. The mere act of filing a petition for habeas corpus naming
Judge Van Allsburg as a Respondent would not divest Judge Van Allsburg of jurisdiction.
Furthermore, “[a] default judgment is unavailable in a habeas corpus proceeding on the ground
that state officials fail to file a timely response to the petition.” Mahaday v. Cason, 222 F. Supp.
2d 918, 921 (E.D. Mich. 2002). This is in recognition of the fact that, without a response, the

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judge is missing half of the story and cannot properly adjudicate the Petitioner’s claims. Id.
Berry’s claim that Judge Van Allsburg acted outside of his jurisdiction is therefore without merit.
If Berry disagrees with Judge Van Allsburg’s rulings in his ongoing custody dispute,
Berry has the remedy of challenging those rulings through direct appeals to the Michigan Court
of Appeals. In the absence of a valid claim that Judge Van Allsburg acted in a non-judicial
capacity or acted in complete absence of all jurisdiction, Berry may not proceed in a civil suit
against Judge Van Allsburg in federal court.
III.
This is the eleventh IFP action that Berry has initiated in the Eastern District of Michigan
in the past 90 days containing allegations that, in making custody decisions adverse to Berry,
Judge Van Allsburg conspired with others to deprive Berry of his constitutional rights and
commit war crimes. See Berry v. Van Allsburg, 15-cv-14380 (E.D. Mich. Dec. 17, 2015)
(Ludington, J.); Berry v. Van Allsburg, 15-cv-10005 (E.D. Mich. Jan 4, 2016) (Ludington, J.);
Berry v. Morris, 16-cv-10170 (E.D. Mich. Jan 19, 2016) (Ludington, J.); Berry v. Morris, 16-cv10172 (E.D. Mich. Jan 19, 2016) (Ludington, J.); Berry v. Trese, 16-cv-10174 (E.D. Mich. Jan
19, 2016) (Ludington, J.); Berry v. Trese, 16-cv-10175 (E.D. Mich. Jan 19, 2016) (Ludington,
J.); Berry v. Armstrong, 16-cv-10176 (E.D. Mich. Jan 19, 2016) (Ludington, J.); Berry v. Ottawa
County Jail, 16-cv-10177 (E.D. Mich. Jan 19, 2016) (Ludington, J.); Berry v. Smith, 16-cv10293 (E.D. Mich. Jan 28, 2016) (Ludington, J.); Berry v. Ludington, 16-cv-10395 (E.D. Mich.
Feb. 4, 2016) (Lawson, J.); Berry v. Trese, 16-cv-10597 (E.D. Mich. Feb. 18, 2016) (Ludington,
J.). While two of those actions remain pending, the rest have been dismissed pursuant to 28
U.S.C. § 1915.

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Because Berry’s repetitive filing of frivolous lawsuits has misused the Court’s time and
resources, he will be barred from filing further IFP lawsuits. Berry will therefore be enjoined
from filing any future complaints in forma pauperis in this district relating to his custody dispute,
and Judge Van Allsburg’s rulings thereon, without obtaining prior authorization from this Court.
Plaintiff is specifically cautioned that any attempt to file without first securing the required leave
of the Court, or any request for leave that is frivolous or appears to have been submitted for an
improper purpose, may result in the imposition of sanctions or the initiation of contempt
proceedings.
IV.
It is further ORDERED that Plaintiff Timothy Berry’s Complaint, ECF No. 1, is
DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e) as frivolous.
It is further ORDERED that Plaintiff Timothy Berry is ENJOINED from filing any
future complaints in forma pauperis in this district arising out of, or related to, Berry’s custody
dispute, and Judge Van Allsburg’s rulings thereon, unless Plaintiff receives prior authorization
from this court.
It is further ORDERED that any complaint that Plaintiff Timothy Berry seeks to file
must be submitted to the Clerk of Court, along with an application for permission to file the
pleading demonstrating (1) that Plaintiff’s allegations are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law and that the factual allegations have, or are likely to have, evidentiary
support, and (2) that Plaintiff has not filed the pleading for any improper purpose, including the
harassment of any party, the causing of unnecessary delay in this or any other action, or the
needless increase in the cost of litigation.

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s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: March 16, 2016

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 March 16, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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