Miller v. Derusha et al

Filing 31

ORDER Overruling 30 Objections to Report and Recommendation; Adopting 28 Report and Recommendation; Denying 29 MOTION to Amend and Supplement Pleadings; and Dismissing Action With Prejudice as to All Defendants. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARTY MILLER,
Plaintiff,

Case No. 13-cv-15130
Hon. Matthew F. Leitman

v.
L. DERUSHA et al.,
Defendants.
_________________________________/
ORDER OVERRULING OBJECTIONS TO REPORT AND
RECOMMENDATION (ECF #30); ADOPTING REPORT AND
RECOMMENDATION (ECF #28); DENYING MOTION TO AMEND AND
SUPPLEMENT PLEADINGS (ECF #29); AND DISMISSING ACTION

Plaintiff Marty Bryan Miller (“Miller”), an inmate in the custody of the
Michigan Department of Corrections, brings this action under 42 U.S.C. § 1983.
Miller complains about an alleged assault, rape, killing, and cover-up that occurred
at some point in the late 1980’s or early 1990’s. The rape and assault were
allegedly committed against Miller’s girlfriend while Miller’s young son watched.
The victim of the murder was another inmate.
Defendants Leon Derusha, Daniel Heynes, and Jeffery Yonkers have all
filed motions to dismiss. (See ECF #21 and #23.) Defendant Sandra Girard has
never been served with the Complaint. (See ECF #18)

The Magistrate Judge

issued a Report and Recommendation (the “R&R”) suggesting that Miller’s
1

Complaint is fundamentally flawed in myriad respects and suggesting that the
Court dismiss the entire action – including claims against the Defendants who have
not been served nor appeared in the action. (See ECF #28.) Miller has filed timely
objections to the R&R. (See ECF #30.)

The Magistrate Judge’s analysis is

persuasive, and the Court now overrules Miller’s objections and adopts the R&R.
As the Magistrate Judge properly concluded, to the extent that Miller is
trying to assert criminal claims and/or to assert civil claims on behalf of his
girlfriend and son, he plainly lacks standing to do so. See Smith v. Jefferson
County Bd. of Sch. Comm’rs, 641 F.3d 197, 208 (6th Cir. 2011).

Miller’s

objections offer no legal authority that would support his standing to assert such
claims.
Likewise, the Magistrate Judge accurately determined that Miller’s claims
are barred by the applicable three-year statute of limitations found in Mich. Comp.
Laws 600.5805(10). Miller counters in his objections that his claims are not timebarred because he did not know the identity of all of the state actors and because he
continues to suffer trauma as a result of witnessing some of the alleged
misconduct. As the Magistrate Judge aptly noted, however, a plaintiff may file suit
against John Doe Defendants and thereby toll the statute of limitations if he cannot
reasonably ascertain the identity of the alleged wrongdoers.

Indeed, Miller

understands that he may take this course of action – he named three such “John
2

Doe Defendants” here. Thus, Miller’s claims cannot be considered timely on the
ground that he did not know all of the state actors. Simply put, none of Miller’s
claims are timely because they all could have been brought within three years of
the alleged crimes and wrongdoing. And Miller’s objections cite no persuasive
authority to support his claim that the statute of limitations does not expire so long
as an alleged victim continues to feel the effects of the alleged wrongdoing.
Miller has also filed a motion to amend or supplement his Complaint to add
the name of an additional state actor as a Defendant. (See ECF #29.) This
amendment would not save any of his claims because Miller’s claim against that
new Defendant is time-barred. Moreover, Miller makes no effort to show how he
has standing to pursue claims against the new Defendant on behalf of his girlfriend
and son.
As the Magistrate Judge properly concluded, this entire action (against all
Defendants, even those who have not appeared in this action and/or Miller has not
served with his Complaint) is subject to dismissal under 28 U.S.C. § 1915 because
there is no basis whatsoever for Miller’s claims.

3

Accordingly, IT IS HEREBY ORDERED that (1) Miller’s objections to
the R&R are OVERRULED; (2) the R&R is ADOPTED; (3) Miller’s motion to
amend or supplement his pleadings (ECF #29) is DENIED; and (4) this action is
DISMISSED WITH PREJUDICE as to all Defendants.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 24, 2014
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 24, 2014, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

4