Jones v. Perry

Filing 14

OPINION AND ORDER granting 8 Motion for Order; adopting 12 Report and Recommendation, IN FORMA PAUPERIS STATUS IS REVOKED. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSE JONES,
Plaintiff,
Case No. 12-12042
Honorable Patrick J. Duggan

v.
BRAD PERRY,
Defendant.
________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO REVOKE
PLAINTIFF’S IN FORMA PAUPERIS STATUS
Plaintiff, a Michigan Department of Corrections’ prisoner, filed this lawsuit
seeking to “appeal” the Michigan courts’ decisions dismissing his civil rights lawsuit
against Defendant. Plaintiff has been granted leave to proceed without prepayment of the
filing fee. On June 22, 2012, Defendant filed a motion to revoke Plaintiff’s “in forma
pauperis” status and to dismiss the Complaint pursuant to 28 U.S.C. § 1915(g) because
Plaintiff has filed more than three frivolous lawsuits. On the same date, this Court
referred the lawsuit to Magistrate Judge Laurie J. Michelson for all pretrial proceedings,
including a hearing and determination of all non-dispositive matters pursuant to 28 U.S.C.
§ 636(b)(1)(A) and/or a report and recommendation on all dispositive matters pursuant to
28 U.S.C. § 636(b)(1)(B).
On July 16, 2012, Magistrate Judge Michelson issued a Report and
Recommendation (“R&R”) recommending that the Court grant Defendant’s motion,

revoke Plaintiff’s in forma pauperis status, and dismiss the lawsuit if Plaintiff fails to pay
the filing fee within fourteen days. (Doc. 12.) Magistrate Judge Michelson finds that
Plaintiff has filed at least three frivolous lawsuits in the Western District of Michigan, is
not asserting that he is an imminent danger of serious injury, and that he therefore is not
entitled to proceed in forma pauperis in this lawsuit pursuant to 28 U.S.C. § 1915(g). At
the conclusion of the R&R, Magistrate Judge Michelson informs the parties that they
must file any objections to the R&R within fourteen days. (Id. at 5.) On July 26, 2012,
Plaintiff filed objections to Magistrate Judge Michelson’s R&R.
When objections are filed to a report and recommendation by a magistrate judge
on a dispositive matter, the Court “make[s] 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). The Court, however, “is not required to articulate all of the
reasons it rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D.
Mich. 2001) (citations omitted). A party’s failure to file objections to certain conclusions
of the Report and Recommendation waives any further right to appeal on those issues.
See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Likewise, the failure to object to certain conclusions in the magistrate judge’s report
releases the Court from its duty to independently review those issues. See Thomas v. Arn,
474 U.S. 140, 149, 106 S. Ct. 466, 472 (1985).
In his objections, Plaintiff argue that this matter is not subject to 28 U.S.C.
§ 1915(g) because it is an “appeal” of the state courts’ decisions. Plaintiff also argues
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that one of his prior lawsuits discussed by Magistrate Judge Michelson in her R&R– a
lawsuit filed in the Eastern District of Michigan and assigned to the Honorable Bernard
A. Friedman– was not dismissed as frivolous. As to Plaintiff’s second argument, even if
he is correct, it does not change the fact that judges in the Western District of Michigan
dismissed as frivolous at least three of Plaintiff’s prior lawsuits.
As to Plaintiff’s first argument, he is incorrect that § 1915(g) does not apply to this
action. This is not an “appeal” of the state courts’ decisions. The Michigan courts’
decisions dismissing Plaintiff’s claims are not appealable to the federal district courts;
instead, any review would have to be had in the United States Supreme Court. See 28
U.S.C. § 1257; see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
476, 103 S. Ct. 1303 (1983) (holding that a federal district court lacks authority to review
final determinations of state or local courts because such review can only be conducted by
the Supreme Court of the United States under 28 U.S.C. § 1257). Federal district courts
are required to give full faith and credit to the state courts’ determination. See, e.g.,
Smithrud v. City of Minneapolis, 456 F. App’x 634, 635 (8th Cir. 2012) (citing Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517 (2005)
(“[T]he United States Supreme Court’s appellate jurisdiction over state-court judgments
precludes federal district courts from exercising subject matter jurisdiction over ‘cases
brought by state-court losers complaining of injuries caused by state-court judgments . . .
[that invite] district court review and rejection of those judgments.’”)).

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In short, this Court agrees with Magistrate Judge Michelson’s analysis of
Defendant’s motion and finds no basis in Plaintiff’s objections to rule differently.
Accordingly,
IT IS ORDERED that Plaintiff’s objections to Magistrate Judge Michelson’s
Report and Recommendation are rejected, the Report and Recommendation is adopted,
and Defendant’s motion to revoke Plaintiff’s in forma pauperis status is GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s in forma pauperis status is
REVOKED and this lawsuit will be dismissed if Plaintiff fails to pay the filing fee within
fourteen (14) days of this Opinion and Order.

Date: August 6, 2012

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Jesse Jones, #260563
Baraga Correctional Facility
13924 Wadaga Road
Baraga, MI 49908-9204
AAG Kevin R. Himebaugh
Magistrate Judge Laurie J. Michelson

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