Smith v. McGraw et al

Filing 13

ORDER Adopting 11 Report and Recommendation, Dismissing 1 Complaint for Lack of Subject Matter Jurisdiction, and Denying 7 Motion to Dismiss and 10 Motion to Strike as Moot. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
RICHARD A. SMITH,
Plaintiff,
v

Case No. 16-cv-13796
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

PATRICK J. MCGRAW, et al.,
Defendants.
__________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING
COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION, AND DENYING
MOTION TO DISMISS AND MOTION TO STRIKE AS MOOT
On October 25, 2016 Plaintiff Richard A. Smith initiated this pro se action against
Defendants Patrick J. McGraw, Barbara A. Kilmaszewski, and Sherrhowda Lynn Brown. ECF
No. 1. Plaintiff alleges that Defendants violated his constitutional rights under the First, Sixth,
Eight, and Fourteenth Amendment by making false statements to authorities in connection to a
child custody investigation. Id. Specifically, Plaintiff alleges that Ms. Brown falsely informed
Child Protective Services and police that Plaintiff was teaching his son how to make a bomb. As
a result of Defendant Brown’s actions and the actions of her attorney, Ms. Kilmaszewski,
Plaintiff alleges that Judge McGraw issued meritless personal protective orders. Id. The matter
was referred to Magistrate Judge Patricia T. Morris for general case management. See ECF No.
6.
On November 15, 2016 Defendant Kilmaszewski filed a motion to dismiss, arguing that
Plaintiff had failed to state a claim against her for a violation of 42 U.S.C. § 1983 because
Plaintiff had not pled facts sufficient to establish that Defendant Kilmaszewski was acting under
color of state law at the time of the relevant events. See ECF No. 7. On November 17, 2016

Defendant McGraw filed a motion to strike Plaintiff’s complaint for violating Federal Rule of
Civil Procedure 11(a). See ECF No. 10. In the alternative, Defendant McGraw moved for a more
definite statement under Rule 12(e).
The magistrate judge then issued a report and recommendation on November 30, 2016
recommending that Plaintiff’s complaint be dismissed for lack of subject matter jurisdiction
under the Rooker-Feldman doctrine. See ECF No. 11. Under that doctrine “[f]ederal district
courts do not stand as appellate courts for decisions of state courts.” See Rooker v. Fidelity Trust
Co., 263 U.S. 413, 44 (1923); Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103
(1983). Because Plaintiff’s alleged injuries arose out of the decisions of a state court, the
magistrate judge reasoned that his claims are not reviewable. In the alternative, the magistrate
judge recommended that the matter be dismissed for failure to state a claim upon which relief
could be granted under Federal Rule of Civil Procedure 12(b)(6). The magistrate judge reasoned
that Defendant McGraw is shielded by judicial immunity. The magistrate judge also noted that
neither Defendant Kilmaszewski nor Defendant Brown is a state actor, and Plaintiff does not
allege that either was acting under color of state law.
Although the magistrate judge’s report explicitly states that the parties to this action
could object to and seek review of the recommendation within fourteen days of service of the
report, neither Plaintiff nor Defendants filed any objections. The election not to file objections to
the Magistrate Judge’s report releases the Court from its duty to independently review the record.
Thomas v. Arn, 474 U.S. 140, 149 (1985). The failure to file objections to the report and
recommendation waives any further right to appeal.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation,
ECF No. 11, is ADOPTED.

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It is further ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED for lack
of subject matter jurisdiction.
It is further ORDERED that Defendant Kilmaszewski’s motion to dismiss, ECF No. 7
and Defendant McGraw’s motion to strike, ECF No. 10, are DENIED as moot.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: December 21, 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 December 21, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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