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)

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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. -2- 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 -3-

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