Cook v. Friend of Court

Filing 5

ORDER Granting Plaintiff's 2 Application to Proceed In Forma Pauperis and Dismissing 1 Complaint Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARY L. COOK,
Plaintiff,
vs.

Case No. 12-14651

MICHIGAN STATE DISBURSEMENT UNIT,
FRIEND OF COURT,

HON. AVERN COHN

Defendants.
________________________________/

ORDER
GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS
AND
DISMISSING COMPLAINT
I. Introduction
Plaintiff, Mary L. Cook, proceeding pro se, filed a complaint naming “Michigan
State Disbursement Unit” and “Friend of Court” as defendants. Plaintiff seeks to
proceed in forma pauperis. Based upon the information in the Application to Proceed In
Forma Pauperis, the Court, under 28 U.S.C. § 1915, GRANTS plaintiff in forma
pauperis status. For the reasons that follow, however, the complaint will be dismissed
for lack of subject-matter jurisdiction and for failure to state a claim under 28 U.S.C. §
1915(e)(2). As will be explained, plaintiff has not set forth any claim over which this
federal court can grant her relief.
II. Legal Standard
The screening procedures established by § 1915 apply to cases filed by
non-prisoners and prisoners. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.

1997). Section 1915(e)(2) allows the Court to dismiss a case at any time if it
determines that the case is frivolous or malicious, that the plaintiff fails to state a claim
upon which relief may be granted, or seeks relief against a defendant who is immune
from such relief. A complaint "is frivolous where it lacks an arguable basis either in law
or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Moreover, a federal court is always “under an independent obligation to examine
their own jurisdiction,” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), and a
federal court may not entertain an action over which it has no jurisdiction. See
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
701 (1982). Indeed, a court is required to dismiss an action at any time if it lacks
subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); See Wagenknecht v. United
States, 533 F.3d 412, 416 (6th Cir.2008) (“a district court may sua sponte dismiss an
action when it lacks subject matter jurisdiction.”).
Finally, the Court has a duty to construe a pro se plaintiff's pleadings liberally,
see, e.g., Erickson v. Pardus, 551 U.S. 89, (2007), but in doing so, it will not re-write a
deficient complaint or otherwise serve as counsel for that plaintiff. See GJR Invs., Inc.
v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). While leave to
amend pleadings is generally to be liberally given, see Foman v. Davis, 371 U.S. 178
(1962); Fed R. Civ. P. 15(a), this is not true when the Court reviews a complaint under §
1915(e). See Hawkins v. Morse, 194 F.3d 1312, at *1 (6th Cir.1999) (table opinion)
(“The Court is not required to allow a plaintiff to amend his complaint in order to avoid a
sua sponte dismissal.”); McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
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III. The complaint
The Court has read the complaint. From what can be gleaned, plaintiff alleges
that the Michigan State Disbursement Unit failed to investigate lost or stolen checks and
that the Friend of the Court failed to follow proper procedures knowing that the checks
should have been found.
First, the Court cannot discern from the complaint the basis for federal jurisdiction
or the relief plaintiff seeks. As such, the complaint is subject to dismissal for lack of
subject matter jurisdiction.
Moreover, to the extent that plaintiff is challenging actions by defendants and
seeks damages, her claims are barred by the Eleventh Amendment. The Eleventh
Amendment to the United States Constitution states that “the judicial power of the
United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by citizens of another State, or by
citizens or subjects of any Foreign State.” U.S. Const. amend XII. The Eleventh
Amendment prohibition “specifically prohibits federal courts from entertaining suits
brought directly against the states or its agencies.” Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143 (1993). Courts constitute agencies of
the state and therefore are entitled to share in a state's sovereign immunity. See
Mumford v. Basinski, 105 F.3d 264, 269–70 (6th Cir. 1997). Neither Congress nor the
State of Michigan have waived Eleventh Amendment immunity for suits such as this.
As such, plaintiff's claims against defendants1 are claims against the state itself and
1

The Friend of the Court is clearly a state court. The Michigan Sate
Disbursement Unit “is a component of the Title IV-D (Child Support Enforcement)
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therefore are barred by the Eleventh Amendment.
IV.
For the reasons stated above, even under a liberal pleading standard, the
complaint fails to set forth a viable claim against the defendants. The complaint is
therefore DISMISSED for lack of subject-matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). It is also DISMISSED under 28 U.S.C. § 1915(e)(2). In light of this
disposition, the Court certifies that any appeal from this decision could not be taken in
good faith. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: October 24, 2012

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, October 24, 2012, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]

program. On November 3, 1999, Michigan Public Act 161 of 1999 was enacted to
provide the authority for the MiSDU to receive and disburse child support payments.”
https://www.misdu.com/secure/CustomerService/FAQs/FOCFAQs.aspx Thus, it
appears to fall under the rubric of a state agency.
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