Thurmond v. Southfield, City of et al
Filing
123
ORDER Adopting 120 Report and Recommendation, AND Granting 21 Motion to Dismiss filed by Oakland County - Signed by District Judge Laurie J. Michelson. (JJoh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAWAN PIERCE THURMOND,
Plaintiff,
v.
Case No. 15-cv-13167
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen
CITY OF SOUTHFIELD, et al,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [120] AND GRANTING
DEFENDANT OAKLAND COUNTY’S MOTION TO DISMISS [21]
In September 2015, Plaintiff Dawan Pierce Thurmond, proceeding pro se, filed a
complaint and an amended complaint in this Court, asserting various claims against a multitude
of defendants. (Dkts. 1, 16.) Several of those defendants—Oakland County and its Prosecutor’s
Office, jail, and Sherriff’s Department—filed a motion to dismiss. (Dkt. 21.) In a December
2015 order, the Court dismissed each of the Oakland County defendants, except for the county
itself. (Dkt. 64.) The Court later referred all pretrial matters to Executive Magistrate Judge R.
Steven Whalen (Dkt. 88), who recommends granting Oakland County’s motion to dismiss (Dkt.
120, R. & R.). Thurmond objects. (Dkt. 121, Obs.)
Having performed a de novo review of those portions of the magistrate judge’s report and
recommendation to which Thurmond has objected, 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3);
Thomas v. Arn, 474 U.S. 140, 150 (1985), the Court will adopt the recommendation of the
magistrate judge for the reasons explained below.
Thurmond first objects on this basis:
Magistrate Whalen Report and recommendation to dismiss with Prejudice
Defendant ‘Oakland County’ is not only ‘erroneous’ but continues to give
Defendants a ‘get out of Court free card’ and a ‘tactical advantage’ to continue to
violate Federal law and the Collateral estoppel Doctrine by falsely Prosecuting
State Case. Plaintiff never received his day in Court and predicts he will never as
this Court continues to Sua Sponte terminated Defendants before answering any
allegation in complaint which to prevents the truth being stipulated.
(Obs. at 3.) Thurmond does not explain how the ruling is erroneous. This appears to be an
objection not to the report and recommendation but rather to the Court’s prior orders dismissing
certain defendants and claims sua sponte. As the Court explained in those orders (Dkts. 30, 64),
when a plaintiff proceeds in forma pauperis (as Thurmond has here), the Court is required to
perform an initial screening of the claims and dismiss any that fail to state a claim for which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Court will not revisit its findings
from those orders. This first objection therefore is overruled.
Thurmond’s second objection is as follows:
Magistrate Whalen report is bias and completely prejudice to Plaintiff Due
Process rights in State and Federal Court. Mag Report flaunted the ‘totality of the
circumstances’ test. And at best is based upon conclusory facts and Statements.
Magistrate could had easily ordered an conference to stipulate facts. Defendant
has not provided one document to negate or even rebut any allegations(s).
Magistrate Whalen continues to suppress Plaintiffs proofs and exhibits which
have been stricken to prevent U.S. Sixth Circuit COA from having any factual
bases to GRANT injunction. Moreover, Thurmond allegations are support by
physical evidence and transcripts and are assumed to be true. The fact that
Thurmond was beaten by seven white unknown deputies, false imprison for 21
days and case was dismissed Nolle Prosequie on its Fact sufficient to survive
Preliminary stages.
(Obs. at 4–5.) Like the first objection, this objection again mostly appears to contest something
outside the scope of the magistrate judge’s report and recommendation. Specifically, the
magistrate judge recently struck from the record numerous “exhibits” that Thurmond improperly
filed in this case. (Dkt. 115.) To the extent that Thurmond challenges that order, the Court will
2
not consider this objection. Moreover, judicial rulings alone almost never constitute a valid basis
for a finding of judicial bias. See Liteky v. United States, 510 U.S. 540, 555 (1994).
To the extent that Thurmond objects to the magistrate judge’s recommendation to dismiss
Oakland County as a defendant, the Court agrees with the magistrate judge. As the magistrate
judge noted, while Thurmond’s amended complaint contains allegations that Oakland County
sheriff’s deputies beat him at the county jail, denied him emergency medical treatment, and
wrongfully arrested him, Thurmond “has not alleged, nor can it be plausibly inferred from his
amended complaint, that any of these individuals was acting pursuant to a formal, or even an
informal policy of Oakland County.” (R. & R. at 4.)
For the reasons stated, having reviewed the report and recommendation (Dkt. 120) and
Thurmond’s objections (Dkt. 121), the Court will ADOPT the report and GRANT Defendant
Oakland County’s motion to dismiss (Dkt. 21).
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: May 4, 2016
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on May 4, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?