Thurmond v. Property and Casualty Insurance Company of Hartford et al

Filing 4

ORDER Granting IFP, DISMISSING CASE, Denying IFP on appeal. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAWAN PIERCE THURMOND,
Case No. 16-10333
Plaintiff,
v.

Paul D. Borman
United States District Judge

PROPERTY AND CASUALTY
INSURANCE COMPANY OF
HARTFORD, ET AL.,
Defendants.
______________________________/
OPINION AND ORDER:
(1) GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYMENT OF FEES OR COSTS (ECF No. 2);
(2) DISMISSING THE COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2) (ECF No. 1)
AND FOR LACK OF JURISDICTION; AND (3) CERTIFYING PURSUANT TO 28 U.S.C. §
1915(a)(3) THAT NO APPEAL MAY BE TAKEN IN FORMA PAUPERIS
The matter now before the Court is Plaintiff Dawan Pierce Thurmond’s “Application to
proceed in District Court without Prepayment of Fees or Costs.” (ECF Nos. 2.) For the reasons
set forth below, the Court will GRANT Plaintiff’s Application to Proceed without Prepayment of
Fees or Costs but will dismiss the Complaint, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2) as
frivolous and for lack of subject matter jurisdiction.
I.

Background

Plaintiff was a passenger in motor vehicle involved in serious accident on October 19,
2013 in Wayne County. (Compl. at 1-2.) Plaintiff sustained severe injuries from the accident.
(Id.) In October 2014, Plaintiff, represented by counsel, filed a civil action against Property and
Casualty Insurance Company of Hartford (“Hartford”) and the Michigan Assigned Claims Plan
relating to his motor vehicle accident in the 3rd Circuit Court of Michigan. (Id.) In that civil

action, Plaintiff seeks payment of benefits allegedly owed to him under Michigan’s No-Fault
Insurance Act. (Compl., Ex. A.)
In November, 2015, the state court apparently denied Hartford’s motion for summary
judgment and denied Plaintiff’s motion for summary judgment against the Michigan Assigned
Claims Plan.1 (Compl. at. 5.) In December 2015, the parties were involved in a case evaluation.
(Id.) Thereafter, the state court ordered an independent medical examiner to evaluate Plaintiff.
(Id.) Plaintiff alleges that Hartford’s counsel conspired with the Oakland County Sheriffs to
have Plaintiff arrested on a felony warrant when he was leaving his appointment with the
independent medical examiner. (Id.)
On January 6, 2016, Plaintiff’s civil counsel moved to withdraw from his state action.2
(Id. at 6.) Then, on February 1, 2016, Plaintiff filed the current action against Defendants
Hartford and the Michigan Assigned Claims Plan which purports to remove his on-going state
action and seeks a declaratory judgment. (ECF No. 1.)
II.

Application to Proceed without Prepayment of Fees or Costs

Pursuant to 28 U.S.C. § 1915(a)(1), a court may allow commencement of a civil action
without the prepayment of fees or costs if the applicant submits an affidavit demonstrating that

1

It is unclear from the attached “Register of Actions” the disposition of the summary
judgment motions filed in the state court, or which party filed which motion. (Ex. A, at 3-4.)
2

On January 6, 2016, Plaintiff attempted to remove that criminal action to federal court.
(See Thurmond v. Judge Andrea Andrews Larkin, case no. 16-cv-10035 (Tarnow, J.)). Plaintiff’s
attempt to remove his criminal action was summarily denied. (See Id., ECF no. 5, Order for
Summary Remand). Plaintiff has unsuccessfully attempted to remove criminal actions to this
court on at least two other occasions. (See Thurmond, et al. v. Cooper, case no. 16-10246
(Michelson, J.), at ECF No. 6, Order Denying Removal; Thurmond v. Oakland Cnty. Cir. Judge
Langford-Morris, No. 14-12701 (Michelson, J.), at ECF No. 4, Order Denying Removal).
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he or she is “unable to pay such fees or give security therefor.” In the instant action, Plaintiff has
supplied an affidavit which provides that he is not employed and receives no salary, he has no
savings or any other sources of income, and he is also responsible for $150,000 in medical bills.
(ECF No. 2.) Based on this information the Court will grant Plaintiff’s Application to Proceed
without Prepayment of Fees or Costs.
However, the Court is also required under 28 U.S.C. § 1915 to dismiss a complaint filed
without prepayment of fees that is frivolous, malicious, fails to state a claim upon which relief
can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §
1915(e)(2)(B). The United States Court of Appeals for the Sixth Circuit has explained:
Unlike prisoner cases, complaints by non-prisoners are not subject to the
screening process required by § 1915A. However, the district court must still
screen the complaint under § 1915(e)(2). ... Section 1915(e)(2) provides us with
the ability to screen these, as well as prisoner cases that satisfy the requirements
of the section. The screening must occur even before process is served or the
individual has had an opportunity to amend the complaint. The complaint must
be dismissed if it falls within the requirements of § 1915(e)(2) when filed.
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997) (overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007)). An action must be dismissed as frivolous when “it lacks an
arguable basis either in law or in fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989).
“Under § 1915(e), courts may dismiss a complaint not only when it is ‘based on an indisputably
meritless legal theory’ but also when the ‘factual contentions [on which it relies] are clearly
baseless.’” Anson v. Corr. Corp. of Am., 529 F. App’x 558, 559 (6th Cir. 2013) (quoting
Neitzke, 490 U.S. at 327). A complaint that is legally frivolous “ipso facto” fails to state a claim
upon which relief can be granted. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010) (citing
Neitzke, 490 U.S. at 328-29). Therefore, the “complaint must contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Id. (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
A pro se litigant’s complaint must be liberally construed and held to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520
(1972); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, a plaintiff must
provide more than just bare assertions of legal conclusions. Grinter v. Knight, 532 F.3d 567, 577
(6th Cir. 2008) (citing Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.
1988)). While specific facts are not necessary, the complaint must “give the defendant fair
notice of what the ... claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93
(quoting Twomby, 550 U.S. at 555).
III.

Removal

It appears from Plaintiff’s complaint and civil cover sheet that he is attempting to remove
his two-year-old civil case from the 3rd Judicial Circuit of Michigan. However, in addition to
failing to follow any of the proper procedures to remove a civil action (including filing a Notice
of Removal per 28 U.S.C. § 1446(b)), Plaintiff’s attempt at removal is improper because Plaintiff
is attempting to remove a case in which he is the named plaintiff. This cannot be done. See 28
U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil action....”) (emphasis
added); 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of Congress any
civil action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants...”) (emphasis added).
Accordingly, Plaintiff’s attempt at removing his own civil action form state court is improper
and frivolous on its face.

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IV.

Request for Declaratory Judgment

In addition to attempting to remove his own civil case pending in the 3rd Circuit Court of
Michigan, Plaintiff also seeks a declaratory judgment from this Court to determine whether “the
No-Fault Act” applies to Plaintiff’s state law claims and determine the amount of benefits owed
to Plaintiff under the same. (Compl. at 8.) Plaintiff asserts that the state court denied Hartford’s
motion for summary judgment “but failed to enter an order to that effect which makes the ruling
itself non effects [sic] and / or Nullity.” (Compl. at 6.) Plaintiff goes on to argue that because of
this failure, the state court “erred and abused its discretion.” (Id.)
The Court finds that it lacks proper subject matter jurisdiction over Plaintiff’s request for
a declaratory judgment. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (recognizing that a
court can and should raise a lack of subject matter jurisdiction sua sponte.); see also FED. R. CIV.
P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.”). The Declaratory
Judgment Act does not confer jurisdiction upon a federal court; a complaint that seeks relief
under the Act must state an independent source of jurisdiction. See Skelly Oil Co. v. Phillips
Petroleum Co., 339 U.S. 667, (1950); Marel v. LKS Acquisitions, Inc., 585 F.3d 279 (6th Cir.
2009) (Mem. Op.) (“The federal Declaratory Judgment Act did not expand the scope of federal
subject matter jurisdiction.”). “The point of the statute is to create a remedy for a preexisting
right enforceable in federal court. It does not provide ‘an independent basis for federal subject
matter jurisdiction.’” Mich. Corr. Org. v. Mich. Dept. of Corr., 774 F.3d 895, 902 (6th Cir. 2014)
(quoting Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir. 2007)).

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In this action, Plaintiff seeks a declaratory judgment awarding him benefits pursuant to
Michigan’s No-Fault Act. The dispute does not implicate any federal question and there is no
diversity between the parties.3 Therefore, the Court lacks subject matter jurisdiction over
Plaintiff’s claim.
V.

Conclusion

For all these reasons, the Court GRANTS Plaintiff’s Application to Proceed without
Prepayment of Fees or Costs (ECF No. 2) and DISMISSES Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915(e)(2) as frivolous and because this Court lacks subject matter jurisdiction (ECF
No. 1).
Further, the Court CERTIFIES that any appeal from this decision would be frivolous and
not taken in good faith. Therefore, an appeal may not be taken from this decision in forma
pauperis under 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: February 22, 2016

3

The Court notes that Plaintiff is a resident of Michigan and one of the named defendants
is “Michigan Assigned Claims Plan.” Further, Plaintiff indicated on his civil cover sheet that the
citizenship of all the defendants is Michigan.
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on February 22, 2016.
s/Deborah Tofil
Case Manager

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