Kendrick v. Wayne, County of et al

Filing 43

ORDER granting State of Michigan's Motion to Dismiss 39 Motion to Dismiss. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES KENDRICK,
Plaintiff,

CASE NUMBER: 10-13752
HONORABLE VICTORIA A. ROBERTS

v.
WAYNE COUNTY, ET AL,
Defendants.
__________________________________/
ORDER
I.

INTRODUCTION
This matter is before the Court on the State of Michigan’s Motion to Dismiss.

(Doc. 39).
The Court GRANTS the motion.
II.

BACKGROUND
On September 21, 2010, Plaintiff, a prisoner, filed a pro se Complaint against

Wayne County, the State of Michigan, the Internal Revenue Service (IRS), and the
United States of America, claiming that several of his Freedom of Information Act
(FOIA) requests were denied and that his attempts to file documents with the State
were rejected. Plaintiff alleges the IRS, United States, and Wayne County wrongfully
withheld the information he requested. He also alleges that the Secretary of State
wrongfully refused to file a document and failed to return it under seal. He attempts to

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state claims for violation of his First and Fifth Amendment rights, violation of the FOIA,
violation of the Privacy Act, and common law negligence.
On June 29, 2011, the Court dismissed all claims against the IRS and United
States. (Doc. 34).
The State of Michigan now asks the Court to dismiss Plaintiff’s claims against it
for lack of jurisdiction.
III.

STANDARD OF REVIEW
To defeat a motion to dismiss for lack of subject-matter jurisdiction, "the plaintiff

must show that the complaint 'alleges a claim under federal law, and that the claim is
substantial.'" Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc.,
287 F.3d 568, 573 (6th Cir. 2002) (quoting Musson Theatrical, Inc. v. Fed. Express
Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)). The plaintiff "will survive the motion to
dismiss by showing 'any arguable basis in law' for the claims set forth in the complaint."
Id. (quoting Musson, 89 F.3d at 1248).
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally
come in two varieties: a facial attack or a factual attack.” Gentek Blding Products, Inc. v.
Steel Peel Litigation Trust, 491 F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat. Life Ins.
Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). If the attack on jurisdiction is a
facial attack on the complaint, the court must accept the allegations in the complaint as
true and construe them in a light most favorable to the non-moving party. United States
v. A.D. Roe Co., Inc., 186 F.3d 717, 721-722 (6th Cir 1999). If the attack is factual,
however, the court may weigh evidence and resolve factual disputes. Ohio Nat. Life

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Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
Because this appears to be a facial attack on the complaint, the Court accepts
Plaintiff’s allegations as true and construes them in the light most favorable to him.
IV.

ANALYSIS
Defendant says the Court should dismiss Plaintiff’s claims against it because the

Court dismissed the federal Defendants, and the claims against the State do not
present federal questions. The Court agrees.
On June 29, 2011, the Court decided it lacked subject matter jurisdiction over
Plaintiff’s FOIA claims against the federal Defendants. The Court also decided that
Plaintiff failed to state a claim for violation of the Privacy Act and for violation of any of
his Constitutional rights. With no remaining federal claims against these Defendants,
the Court declined to exercise supplement jurisdiction over the state law claims against
them.
Moreover, the Court sua sponte dismissed Plaintiff’s FOIA claims against Wayne
County for failure to state a claim on which relief may be granted under the in forma
pauperis statute. See 28 U.S.C. § 1915(e)(2)(B).
Plaintiff does not attempt to state any federal claims against the State of
Michigan, so no federal claims remain. Because the Court dismissed all claims over
which it has original jurisdiction, it declines to exercise supplemental jurisdiction over
any remaining state law claims. See 28 U.S.C. § 1367(c).
Since the only remaining claims in this case are under state law, the Complaint is
dismissed in its entirety.
V.

CONCLUSION
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Defendant’s motion to dismiss is GRANTED.
Plaintiff’s Complaint is DISMISSED.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 1, 2011
The undersigned certifies that a copy of
this document was served on the
attorneys of record and Charles Kendrick
by electronic means or U.S. Mail on
September 1, 2011.
s/Carol A. Pinegar
Deputy Clerk

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