The Indigenous American People Inhabiting the County of Wayne, Michigan v. Wayne County Muncipal Corporation et al

Filing 13

ORDER Overruling Plaintiff's Objection #12 , Accepting Report and Recommendation #11 , and Denying Plaintiff's Ex Parte Motion for a Temporary Restraining Order #2 . Signed by District Judge Laurie J. Michelson. (EKar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE INDIGENOUS AMERICAN PEOPLE
INHABITING THE COUNTY OF
WAYNE, MICHIGAN,
Plaintiff,

Case No. 2:19-cv-12579-LJM-DRG
Honorable Laurie J. Michelson
Magistrate Judge David R. Grand

v.
WAYNE COUNTY MUNICIPAL
CORPORATION, et al.,
Defendants.
ORDER OVERRULING PLAINTIFF’S OBJECTION [12], ACCEPTING REPORT
AND RECOMMENDATION [11], AND DENYING PLAINTIFF’S EX PARTE
MOTION FOR A TEMPORARY RESTRAINING ORDER [2]
On September 3, 2019, The Indigenous American People Inhabiting the County of Wayne,
Michigan (IAP), filed this lawsuit to halt a real property auction set for September 4, 2019. Along
with its complaint, IAP filed a motion for an ex parte temporary restraining order. (ECF No. 2.)
While the relief IAP requested was clear, the legal bases for the requested relief was not.
In its pro se complaint, IAP claims that the succession of the Wayne County Treasurer (from
Raymond Wojtowicz to Richard Hathaway to Eric Sabree) was unlawful. (ECF No. 1, PageID.2–
4.) IAP’s complaint also suggests that some (or all) of the homes of its members were unlawfully
deemed abandoned. (ECF No. 1, PageID.8.) As for its motion, IAP describes how the Wayne
County Treasurer is not lawfully in office (ECF No. 2, PageID.69), suggests that the Wayne
County Treasurer (or related entity) committed mail fraud (id. at PageID.70), claims that the “Land
Mandate” (apparently a quote from Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845)) entitles its

members to their properties (id. at PageID.71–72), suggests that property-tax-assessment
procedures were not followed (id. at PageID.73–75), and suggests that proper procedures were not
followed in deeming its members’ properties abandoned (id. at PageID.75–76). Many of these
claims are difficult to follow and recite verbatim the text of case law, regulations, and statutes. As
far as this Court can tell, members of IAP did not pay their taxes—or, at least, the Wayne County
Treasurer determined that they had not—and so their homes were foreclosed upon and slated for
the September 4 auction.
The day after this case was filed, on September 4, this Court referred all pretrial matters to
Magistrate Judge David R. Grand. He promptly addressed IAP’s motion for an ex parte temporary
restraining order; he recommends the motion be denied. (ECF No. 11.) IAP now objects. (ECF
No. 12.)
The Court will overrule IAP’s objections. As an initial matter, the IAP has not addressed
the Magistrate Judge’s finding that IAP did not comply with Rule 65’s procedural requirements
for an ex parte (as opposed to an inter partes) temporary restraining order. (See ECF No. 11,
PageID.156–157 (citing Fed. R. Civ. P. 65(b)(1)(B).) That alone is a sufficient basis to accept the
Magistrate Judge’s recommendation to deny the motion.
And even looking past Rule 65(b)(1)(B), IAP’s objections do not show that the Magistrate
Judge was wrong to recommend that the motion be denied. Perhaps IAP is correct that its members
could not, as the Magistrate Judge suggested (ECF No. 12, PageID.166), avoid irreparable harm
by redeeming their properties after the auction, see Mich. Comp. Laws § 211.78k(5). But an
injunction requires a showing of likelihood of success too, see Gonzales v. Nat’l Bd. of Med.
Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000), and the IAP’s objections do not show that the
Magistrate Judge was wrong to think that IAP is not likely to prevail when all is said and done (see

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ECF No. 11, PageID.158). The IAP objects that the Magistrate Judge lacked the ability to
understand the issues because “he is not Indigenous to this land.” (ECF No. 12, PageID.163.) But
being native to North America (or Wayne County) is not a qualification for becoming a federal
magistrate judge. See 28 U.S.C. § 631(b). And IAP’s objection that the Magistrate Judge is
“racially biased” has zero factual support. (ECF No. 12, PageID.165.) Nor is the Court persuaded
that the Land Mandate “directly entitles the Heirs to the Vast Estate.” (ECF No. 12, PageID.163.)
The IAP’s reference to a “consent agreement” in MorningSide Community Organization v. Wayne
County Treasurer appears to be mistaken: MorningSide was ultimately dismissed for lack of
subject-matter jurisdiction, No. 336430, 2017 WL 4182985, at *1 (Mich. Ct. App. Sept. 21, 2017).
Finally, the IAP faults the Magistrate Judge for not ruling on its ex parte motion until after the
auction and 15 days after the motion was filed. (ECF No. 12, PageID.165.) But the IAP does not
explain why it had to wait until the day before the auction to seek emergency ex parte relief. Nor
does it explain how the Magistrate Judge’s delay—if it could even be called that—resulted in any
prejudice. After all, the recommendation was to deny the motion.
In all, the Court will overrule the IAP’s objection and accept the Magistrate Judge’s
recommendation to deny the IAP’s motion for an ex parte temporary restraining order.1

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The IAP appears to be made up of eight individuals who own or owned real property in
Wayne County. (See ECF No. 1, PageID.54–62.) They say that “Declaration of Rights of
Indigenous Peoples, HR 489” states that “Native People and descendants of Native People along
with descendants of ex-slaves are the only peoples that are indigenous to this land called the United
States.” (ECF No. 2, PageID.70.) It is unclear if IAP is a formal association or simply a name that
the eight individuals used to file this case. It may be necessary for the individuals to file suit in
their own names because an association cannot proceed pro se, see Zanecki v. Health All. Plan of
Detroit, 576 F. App’x 594, 595 (6th Cir. 2014); Rivera v. Hoffman, No. 19-CV-3494, 2019 WL
3765928, at *1 (E.D. Pa. Aug. 8, 2019), and it is unclear that there would be associational standing,
see Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977). Further, it could
be that IAP has not stated “colorable” federal claims (but, in fairness to IAP, that bar is not high).
Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006). The Court leaves these issues to the
Magistrate Judge, to whom all pretrial matters remain referred.
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SO ORDERED.
Dated: October 9, 2019
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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 October 9, 2019.
s/Erica Karhoff
Case Manager to
Honorable Laurie J. Michelson

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