Phillips v. Doe

Filing 24

ORDER accepting and adopting 22 Report and Recommendation, Granting 15 defendant's Motion to Dismiss and dismissing action. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SIMON PHILLIPS, III, #761660,
Plaintiff,
Case No. 10-12387
HON. GEORGE CARAM STEEH

vs.
MAX BRYANT, et al.,
Defendants.
____________________________/

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [#22],
GRANTING DEFENDANT’S MOTION TO DISMISS [#15] AND DISMISSING ACTION
On January 18, 2012, Magistrate Judge Mark A. Randon issued a report and
recommendation recommending that the court grant the defendant’s motion to dismiss and
dismiss plaintiff’s complaint. Magistrate Judge Randon found that this court lacks subject
matter jurisdiction over this controversy. The court agrees with the magistrate judge’s
conclusion and dismisses plaintiff’s complaint.
The standard of review to be employed by the court when examining a report and
recommendation is set forth in 28 U.S.C. § 636. This court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court “may
accept, reject or modify, in whole or in part, the findings or recommendations made by the
magistrate.” Id.
Plaintiff filed this action alleging that defendant, a union representative for the
American Federation of Government Employees, Local 2092, AFL-CIO, breached his duty
of fair representation concerning plaintiff’s discharge from employment with the Veterans
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Administration in August of 2008. As the magistrate judge correctly found, exclusive
jurisdiction for breach of fair representation claims against a federal employee’s union is
before the Federal Labor Relations Authority. See 5 U.S.C. § 7118(a)(1); Karahalios v.
National Federal Employees, Local 1263, 489 U.S. 527 (1989) (no private cause of action
available to enforce union’s duty of fair representation). Thus, this court lacks subject
matter jurisdiction over this action.
On or about January 31, 2012, plaintiff filed a “response to report and
recommendation,” which the court construes as plaintiff’s objection to the report and
recommendation. In his objection, plaintiff provides no legal authority or argument which
compels the court to conclude that it has subject matter jurisdiction over this breach of fair
representation action. Rather, plaintiff argues that his request for counsel should have
been granted. See Dkt. No. 19. Magistrate Judge Randon denied plaintiff’s request for
counsel on July 29, 2011. Id. Therefore, if plaintiff sought review of the magistrate judge’s
order, he was required to file an objection no later than fourteen days after the magistrate
judge’s July 29, 2011 order. See Fed. R. Civ. P. 72(a). In any event, plaintiff is not entitled
to appointment of counsel in this civil action. The “appointment of counsel in a civil case
is a privilege and not a constitutional right. It should be allowed in civil actions only in
exceptional cases.” Lopez v. Reyes, 692 F. 2d 15, 17 (5th Cir. 1982); see also, Lavado v.
Keohane, 992 F. 2d 601, 605 (6th Cir. 1993) (internal citations and quotations omitted);
Henry v. Detroit Manpower Dep’t, 763 F. 2d 757, 760 (6th Cir. 1985).
Plaintiff also argues that the reassignment of his case to this district judge as a

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companion to plaintiff’s discrimination case against the Veteran’s Administration1 compels
the conclusion that the present matter has merit. Under this court’s local rules, companion
cases “arise out of the same transaction or occurrence . . . .” See E.D.L.R. 83.11(b)(7). To
promote judicial efficiency, a companion case may be reassigned to a judge of this court
having the earlier case number. Therefore, reassignment of a case as a companion to an
earlier filed case has no bearing on whether the case has merit. Plaintiff’s objection to the
report and recommendation is denied.
For the reasons stated above, the court hereby ACCEPTS and ADOPTS the
magistrate judge’s report and recommendation as its findings of fact and conclusions of law
in this matter. Defendant’s motion to dismiss [#15] is GRANTED and plaintiff’s motion to
waive fees and costs [#16] is MOOT. Plaintiff’s complaint is DISMISSED.
SO ORDERED.
Dated: February 9, 2012
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 9, 2012, by electronic and/or ordinary mail and also
to Simon Phillips at St. Louis Correctional Facility, 8585 N.
Croswell Rd., St. Louis, MI 48880.
S/Josephine Chaffee
Deputy Clerk

1

On August 2, 2011, the court dismissed plaintiff’s discrimination action, case
number 10-cv-11195, for failure to state a claim.
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