Schied v. Khalil et al

Filing 147

MEMORANDUM AND ORDER OVERRULING PLAINTIFFS OBJECTIONS (Doc. 142) AND ADOPTING REPORT AND RECOMMENDATION (Doc. 140) AND DENYING PENDING MOTIONS AS MOOT (Docs, 24, 27, 61, 81, 82, 99, 106, 131) AND DISMISSING THE CASE AND ENJOINING PLAINTIFF FROM FURTHER FILINGS WITHOUT LEAVE OF COURT Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID SCHIED,
Plaintiff,

Case No.15-11840

vs.

HON. AVERN COHN

KAREN KHALIL, et al.,
Defendants.
____________________________________/
MEMORANDUM AND ORDER
OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 142)
AND
ADOPTING REPORT AND RECOMMENDATION (Doc. 140)
AND
DENYING PENDING MOTIONS AS MOOT (Docs, 24, 27, 61, 81, 82, 99, 106, 131)
AND
DISMISSING THE CASE
AND
ENJOINING PLAINTIFF FROM FURTHER FILINGS WITHOUT LEAVE OF COURT
I.
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff David
Schied, proceeding pro se and in forma pauperis, filed an 87 page complaint under
§1983, against multiple defendants, including nine individuals (District Judge Karen
Khalil, Cathleen Dunn, Joseph Bommarito, James Turner, David Holt, Jonathan Strong,
Police Officer Butler, John Schipani, and Tracey Schultz-Kobylarz), public or
governmental entities (Wayne County, Redford Township 17th District Court, Redford
Township, Redford Township Police Department, and Michigan Municipal Risk
Management Authority) and a private entity (Insurance Company of the State of

Pennsylvania, American International Group, Inc).1
The complaint presents the following claims:
Count I - Declaratory Judgment;
Count II - Fourteenth Amendment Substantive Due Process;
Count IV - Fourth Amendment Unlawful Seizure;
Count V - First Amendment Assembly, Free Speech, and Religion;
Count VI - Fourteenth Amendment Equal Protection; and
Count VII - Injunctive Relief.2 Plaintiff seeks money damages and injunctive
relief, particularly a declaration that Judge Khalil violated his constitutional rights.
In essential terms, plaintiff’s claims arise out of an incident on June 8, 2012 when
defendant District Court Judge Karen Khalil held him in contempt of court and ordered
plaintiff to serve 30 days in jail.
The matter was referred to a magistrate judge for pretrial proceedings. (Doc.
56). The various defendants filed motions to dismiss, presenting several arguments in
support of dismissal. See Docs. 24, 27, 61, 81, 82, 95, 99, 106 and 131. The
magistrate judge, after weeding through all of the papers,3 issued a report and

1

Plaintiff has been a prolific pro se filer in this district. A search of the Court’s
electronic database shows plaintiff has been a party in several cases, all of which have
been dismissed: Schied v. Daughtry, 08-14944, Schied v. Ward, 09-12374, Schied v.
Snyder, 09-11307, Schied v. Cleary, 10-10105, and Schied v. Nelson, 12-12791.
2

Plaintiff also references other federal statutes in the complaint, including 42
U.S.C. §§ 1981, 1982, 1985, and 1988.
3

Plaintiff has inundated the record with filings that are hundreds of pages,
including his responses to defendants’ motions. Plaintiff has also filed multiple
miscellaneous filings, including motions for writs of mandamus, a motion for summary
judgment, a motion for sanctions, “memorandums,” “notices,” and several documents
2

recommendation (MJRR), recommending sua sponte dismissal of the complaint and
termination of all pending motions as moot because all of plaintiff’s claims are barred by
the doctrine set forth in Heck v. Humphrey, 512 U.S. 477, 484 (1984) because relief on
any of plaintiff’s claims would call into question his contempt conviction which has not
been overturned or set aside. (Doc. 14). Although none of the defendants raised Heck,
the magistrate judge concluded that a fair reading of the complaint resulted in the
conclusion that all of plaintiff’s claims are barred.
Before the Court are plaintiff’s objections to the MJRR. (Doc. 142). For the
reasons that follow, the objections will be overruled, the MJRR will adopted, defendants’
motion will be denied as moot, and the case will be dismissed. Plaintiff will also be
enjoined from future filings without leave of court.
II.
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The
district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution

styled “Crime Victim and Common Law Grievant Affidavit of Facts” purportedly
submitted by non-parties (See Docs. 110-123). This is not a new occurrence. Indeed,
in a prior case filed in this district, plaintiff took an appeal to the Court of Appeals for the
Sixth Circuit. See Schied v. Snyder, No. 10-1176. The Sixth Circuit took note of
plaintiff’s voluminous filings but declined defendants’ request that plaintiff be sanctioned
as a vexatious litigant. However, the Sixth Circuit did state that “Schied is hereby
warned that filing of further appeals claiming a right to criminally prosecute others for
perceived criminal transgressions will result in sanctions.”
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mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
A general objection, or one that merely restates the arguments previously
presented, is not sufficient to alert the court to alleged errors on the part of the
magistrate judge. An "objection" that does nothing more than state a disagreement with
a magistrate judge's suggested resolution, or simply summarizes what has been
presented before, is not an objection as that term is used in this context. Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 991) ("It is arguable in
this case that Howard's counsel did not file objections at all.... [I]t is hard to see how a
district court reading [the ‘objections'] would know what Howard thought the magistrate
had done wrong.").
III.
Plaintiff’s 409 page prolix objections do not address the magistrate judge’s
recommendation. At best from what can be gleaned, plaintiff asserts that the case law
cited by the magistrate judge are unrelated to the “dominating facts and the laws
applicable to this case.” Rather, the gravamen of plaintiff’s objections are an attack on
the magistrate judge and other judges in this district, including the undersigned, and
judges from other jurisdictions, as outlined in a series of “affidavits” executed by multiple
non-parties. Plaintiff accuses the various judicial officers of “criminal” acts. Plaintiff
provides no substantive objection to the magistrate judge’s recommendation. Under
these circumstances, plaintiff’s filing does not constitute a proper objection.
Many of the defendants have filed a response to plaintiff’s objections. See Docs.
143, 145, 146. The defendants agree that plaintiff’s objections are not in a proper form
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and that Heck applies and bars plaintiff’s claims.
The Court has reviewed the MJRR and agrees with the magistrate judge that
plaintiff’s claims, stripped of all irrelevancies, are at their core an attack on his contempt
conviction. Under Heck, because plaintiff’s conviction has not been set aside or
overturned, the Court cannot consider his claims.
IV.
Accordingly, for the reasons stated above, plaintiff’s objections are
OVERRULED. The MJRR is ADOPTED as the findings and conclusions of the Court.
Defendants’ pending motions are DENIED AS MOOT.
V.
Finally, some of the defendants have asked that plaintiff be sanctioned as a
vexatious litigant. The Sixth Circuit has held that district courts may properly enjoin
vexatious litigants from filing further actions against a defendant without first obtaining
leave of court. Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); See
also, Filipas v. Lemons, 690 F.2d 1145, 1146 (6th Cir. 1987). "There is nothing unusual
about imposing prefiling restrictions in matters with a history of repetitive or vexatious
litigation." Id. at 269. A prefiling review requirement is a judicially imposed remedy
whereby a plaintiff must obtain leave of the district court to assure that the claims are
not frivolous or harassing. See e.g., Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir.
1996). Often, a litigant is merely attempting to collaterally attack prior unsuccessful
suits. Filipas, 835 F.2d at 1146.
As noted above, plaintiff has been a frequent litigator. See n. 1, supra. All of his
complaints were dismissed for lack of merit. The Sixth Circuit has previously warned
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plaintiff that he may be sanctioned for his filings. See n. 3, supra. Plaintiff’s
voluminous, frivolous, and vexatious filings in this and prior cases warrant an injunction
barring plaintiff from further filings.
Accordingly, IT IS FURTHER ORDERED that plaintiff is ENJOINED and
RESTRAINED from filing any new documents in this case and any new complaints in
the United States District Court for the Eastern District of Michigan without first seeking
and obtaining leave of court by the presiding judge.4
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT COURT
Dated: September 12, 2016
Detroit, Michigan

4

The district judges rotate acting as the presiding judge and are usually
designated for one-week periods. The name of the presiding judge is not disclosed
before Monday at 8:30 am and can be obtained by contacting the Clerk’s office. See
E.D. Mich. LR 77.2.
6