Berry v. Daly et al

Filing 9

AMENDED OPINION and ORDER (1) Granting Plaintiff's 2 Request to Proceed In Forma Pauperis, (2) Denying Plaintiff's 4 MOTION for Appointment of a Guardian, (3) Summarily Dismissing Plaintiff's 1 Complaint Without Prejudice, (4) Terminating as Moot Plaintiff's 5 MOTION for Ex Parte Hearing for Pre-Trial Management and (5) Certifying that any Appeal Could Not Be Taken in Good Faith. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DUANE LETROY BERRY,
Plaintiff,

Case No. 2:16-cv-14495
Hon. Matthew F. Leitman

v.
CRAIG A. DALY and
DAVID M. LAWSON,
Defendants.
________________________________/
AMENDED OPINION AND ORDER (1) GRANTING PLAINTIFF’S
REQUEST TO PROCEED IN FORMA PAUPERIS (ECF #2), (2) DENYING
PLAINTIFF’S MOTION FOR APPOINTMENT OF A GUARDIAN (ECF
#4), (3) SUMMARILY DISMISSING PLAINTIFF’S COMPLAINT (ECF #1)
WITHOUT PREJUDICE, (4) TERMINATING AS MOOT PLAINTIFF’S
MOTION FOR EX PARTE HEARING FOR PRE-TRIAL MANAGEMENT
(ECF #5) AND (5) CERTIFYING THAT ANY APPEAL COULD NOT BE
TAKEN IN GOOD FAITH
On November 19, 2015, Plaintiff Duane Letroy Berry (“Berry”) was indicted
in a criminal case in this Court. See United States v. Berry, No. 2:15-cr-20743, ECF
#12 (E.D. Mich. Nov. 19, 2015). The case was assigned to United States District
Judge David M. Lawson. During those proceedings, Judge Lawson held a hearing
to determine whether Berry was competent to stand trial (the “Competency
Hearing”). Judge Lawson found Berry incompetent to stand trial and ordered that
Berry be committed for treatment pursuant to 18 U.S.C. §4241(d) (the “Commitment

Order”). See id. at ECF #45 (E.D. Mich. August 30, 2016). Thereafter, Berry filed
a petition for a writ of habeas corpus (the “Habeas Proceeding”). See Berry v. United
States, No. 2:16-cv-12041, ECF #1 (E.D. Mich. June 2, 2016). On October 18, 2016,
Judge Lawson denied the petition. See id. at ECF #13 (E.D. Mich. Oct. 18, 2016).
Pursuant to the Commitment Order, Berry is currently housed at the Butner Federal
Medical Center in Butner, North Carolina.1
On December 28, 2016, Berry filed a pro se complaint (the “Complaint”) in
this action against Craig A. Daly (“Daly”), his criminal defense attorney in the case
before Judge Lawson, and Judge Lawson (collectively, “Defendants”). (See Compl.,
ECF #1.) In the Complaint, Berry alleges that during the Competency Hearing a
psychologist erroneously testified that he “suffered from Delusional Disorder,
Mixed Type, First Episode in which [his] thinking was affected by his paranoid
ideation [that] he is the primary trustee of a trust that owns every Bank of America
branch and asset around the world.” (Id. at 4, Pg. ID 4.) Berry insists that he is, in
fact, the primary trustee of Bridgewater Capital Trust, which owns Bank of
America’s assets, and he claims that he was thus committed for a condition he never
had. (See id.) He also alleges that Defendants have abused their authority and
retaliated against him because he placed a civil lien on their assets. (See id. at 5, Pg.

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In an earlier version of this order, the Court said that Judge Lawson civilly
committed Berry. (ECF #6 at 1-2, Pg. ID 56-57.) That was incorrect.
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ID 5.) Finally, he claims that Defendant Daly did not communicate with him for
more than nine months before the Competency Hearing and that Daly deprived him
of an opportunity to present evidence, to subpoena witnesses, and to testify at that
hearing. (See id.)
Berry concludes the Complaint with three requests for relief: (1) an
emergency hearing to prove his identity, (2) an immediate injunction forcing “the
Defendant” (presumably Judge Lawson) to recuse himself, and (3) an immediate
injunction ordering “the Defendant” (again, presumably Judge Lawson) to grant
habeas relief in the Habeas Proceeding. (Id. at 6, Pg. ID 6.)
Berry has also filed an application to proceed without prepayment of fees and
costs (the “Application”), (See ECF #2), and a motion for appointment of a guardian
ad litem (the “Motion”). (See ECF #4.) For the reasons stated below, the Court
GRANTS the Application, DENIES the Motion, and DISMISSES the Complaint
WITHOUT PREJUDICE.
I
Applications to proceed without the prepayment of fees or costs are governed
by 28 U.S.C. § 1915(a)(1). That statute provides that a federal court “may authorize
the commencement ... of any suit, action, or proceeding ... by a person who submits
an affidavit that includes a statement of all assets ... that the person is unable to pay
such fees....” Id.

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In the Application, Berry states that he is employed by Bridgewater Capital
Trust & Bank of America in Clinton Township, Michigan, but that his salary has
been deferred until 2018. (See Application, ECF #2 at 1-2, Pg. ID 46-47.) He further
states that he has not received any money from various sources in the past twelve
months and that he does not own any valuable property. (See id.) An official at the
Butner Federal Medical Center has certified that Berry has $161.17 in his trust fund
account at the Center. (See id.) The Court has reviewed the Application and is
satisfied that the prepayment of the filing fee would cause Berry an undue financial
hardship. The Court therefore GRANTS the Application and permits Berry to file
his Complaint without prepaying the filing fee.
II
Berry seeks appointment of a guardian ad litem pursuant to Federal Rule of
Civil Procedure 17(c)(2) (“Rule 17(c)(2)”). In relevant part, Rule 17(c)(2) provides
that “[t]he court must appoint a guardian ad litem – or issue another appropriate
order – to protect a minor or incompetent person who is unrepresented in an action.”
Under Rule 17(c)(2) a district “court should not enter a judgment which operates as
a judgment on the merits” without appointing a guardian for a mentally incompetent
party. Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (emphasis added);
see also Berrios v. New York City Housing Authority, 564 F.3d 130, 134-35 (2nd

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Cir. 2009) (where pro so plaintiff is incompetent, district court may not enter a
dismissal on the merits that has res judicata effect without first appointing guardian).
Here, as explained below, this Court is dismissing Berry’s Complaint without
prejudice under 28 U.S.C. § 1915(e)(2) (“Section 1915(e)(2)”) because his claims
are frivolous. Such a dismissal of a pro se complaint for frivolousness under Section
1915(e)(2) is “not a dismissal on the merits.” Denton v. Hernandez, 504 U.S. 25, 34
(1992)2; Stephens v. Hayes, 374 Fed. App’x 620, 622 (6th Cir. 2010) (same).
Because the Court is dismissing the Complaint without prejudice and is not entering
a judgment on the merits, the Court has the discretion to deny Berry’s request to
appoint a guardian ad litem. See, e.g., Moreno v. Perez, 2016 WL 1000318, at *2
(C.D. Cal. March 14, 2016) (dismissing complaint by incompetent plaintiff without
prejudice under Section 1915(e)(2) and holding that “[t]he Court need not appoint a
guardian” because it was “clear that no substantial claim can be raised on Plaintiff’s
behalf based on the allegations of the [complaint]”); Merritt v. McKenney, 2013 WL
4552672, at **4-5 (N.D. Cal. 2013) (same); Mahoney v. State of New Hampshire,
2015 WL 3794854, at *2 (D.N.H. June 17, 2015) (same); Vasquez v. New York State
Office of Mental Health, 2016 WL 1312567, at *5 n. 5 (N.D.N.Y. April 4, 2016)

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At the time of the decision in Denton, the statutory provision for dismissal of a
frivolous in forma pauperis complaint was 28 U.S.C. § 1915(d). See Denton, 504
U.S. at 27 (identifying statute). That provision is now found in Section 1915(e)(2).
See Brown v. Bargery, 207 F.3d 863, 866, n. 4 (6th Cir. 2000).
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(same); see also, Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012) (explaining
that inquiry into whether to appoint guardian for a pro se litigant under Rule 17(c)(2)
“would usually occur after the preliminary merits screening under … 28 U.S.C.
1915(e)(2)”). The Court exercises its discretion not to appoint a guardian ad litem
here because – since Berry’s claims are patently frivolous – such an appointment
would add unnecessary expense and delay to these proceedings. Accordingly,
Berry’s motion for appointment of a guardian ad litem (ECF #4) is DENIED.
III
When a plaintiff is allowed to proceed without the prepayment of fees or costs,
the Court is required to screen the complaint and dismiss it if it (i) asserts frivolous
or malicious claims, (ii) fails to state a claim upon which relief may be granted,
and/or (iii) seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2).3 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).

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Berry contends that even though he is incarcerated, he is not a “prisoner” under the
Prison Litigation Reform Act and that the Court thus need not screen the Complaint
under 28 U.S.C. § 1915A. (Compl., ECF #1 at ¶11, Pg. ID 5.) The Court has serious
doubts about that assertion, but it need not resolve whether screening is required
under 28 U.S.C. § 1915A because, as described below, the Court dismisses the
Complaint under the separate screening required by Section 1915(e)(2).
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The Complaint here is frivolous because, among other things, it fails to
provide any “arguable basis” for the three types of injunctive relief that Berry seeks.
To begin, Berry’s requests for injunctive relief do not make sense as applied to Daly.
Daly is a private defense attorney who does not have the power to grant habeas relief,
convene evidentiary hearings, or officially confirm Berry’s identity.
There is likewise no “arguable basis” for the relief sought against Judge
Lawson. Judge Lawson is immune from Berry’s claims under the well-established
doctrine of judicial immunity. Under that doctrine, Judge Lawson enjoys both
immunity from liability and immunity from suit, see Mireles v. Waco, 502 U.S. 9,
11 (1991), and this immunity protects Judge Lawson even though Berry seeks
injunctive relief rather than money damages. See Kipen v. Lawson, 57 Fed. App’x
691, 691 (6th Cir. 2003) (citing Bolin v. Story, 225 F.3d 1234, 1240-42 (11th Cir.
2000)).
Berry has not come close to overcoming Judge Lawson’s judicial immunity.
Such immunity “is overcome in only two sets of circumstances,” Mireles, 502 U.S.
at 11-12, and neither circumstance is even arguably present here. “First, a judge is
not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's
judicial capacity.” Id. at 11. “Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 12. Here,
Judge Lawson has had jurisdiction over Berry’s criminal case and his habeas case at

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all relevant times, and Judge Lawson was plainly acting in his judicial capacity in
all of his challenged interactions with Berry.
Moreover, it is absolutely clear that the undersigned has no authority to grant
injunctive relief against Judge Lawson compelling Judge Lawson to take action in a
case assigned to Judge Lawson. For all of these reasons, Berry’s claims against Daly
and Judge Lawson are “frivolous.”
Because all of the claims and requests for relief in the Complaint are frivolous,
the Complaint is DISMISSED WITHOUT PREJUDICE under Section
1915(e)(2)(B).
Because the Court is dismissing the Complaint, Berry’s Motion for Ex Parte
emergency Hearing for Pre-Trial Management (ECF #5) is TERMINATED AS
MOOT.
Finally, the Court certifies that any appeal from this decision cannot be taken
in good faith. See 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 30, 2017

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I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 30, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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