Moralez v. City of Jackson Police Department et al

Filing 51

OPINION and ORDER Adopting Magistrate Judge's 37 and 39 Report and Recommendations; Denying Plaintiff's 40 MOTION for More Time to Perfect Service; Granting Defendant Joyce Draganchuk's 46 MOTION to Dismiss; and Dismissing Defendants. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ABELARDO MORALEZ,
Plaintiff,
Civil Case No. 13-12302
Honorable Linda V. Parker

v.
CITY OF JACKSON POLICE
DEPARTMENT, et al.,
Defendants.
________________________________/

OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE’S MAY 29,
2014 AND JUNE 25, 2014 REPORTS AND RECOMMENDATIONS [ECF
NOS. 37 & 39]; (2) DENYING PLAINTIFF’S MOTION FOR MORE TIME
TO PERFECT SERVICE [ECF NO. 40]; (3) GRANTING DEFENDANT
JOYCE DRAGANCHUK’S MOTION TO DISMISS [ECF NO. 46]; AND (4)
DISMISSING DEFENDANTS
On May 23, 2013, Plaintiff filed this civil rights action against forty-five
defendants. Plaintiff has filed return of service forms reflecting service on some
defendants; he has failed to serve other defendants. Several defendants have
successfully moved for dismissal.1 The matter has been referred to Magistrate
Judge Michael Hluchaniuk for all pretrial proceedings, including a hearing and

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The following defendants were dismissed with prejudice in an opinion and
order issued December 30, 2013: Elmer Hitt, Joseph S. Filip, Dannis M.
Diffenderfer, Gilbert Carlson, David Taylor, Karen A. Coffman, Amanda Riska,
Michael Overton, and Adam Brown. (ECF No. 34.)

determination of all non-dispositive matters pursuant to 28 U.S.C. § 636(b)(1)(A)
and/or a report and recommendation (“R&R”) on all dispositive matters pursuant
to 28 U.S.C. § 636(b)(1)(B). (ECF No. 11.) Presently before the Court are the
following: (1) the magistrate judge’s May 29, 2014 Report and Recommendation
(“R&R”) recommending that this Court dismiss without prejudice the unserved
defendants pursuant to Federal Rule of Civil Procedure 4(m) (ECF No. 37); (2) the
magistrate judge’s June 25, 2014 R&R recommending that this Court dismiss with
prejudice the remaining served defendants for failure to prosecute (ECF No. 39);
(3) Plaintiff’s July 11, 2014 motion for more time to perfect service; and (4)
Defendant Judge Joyce Draganchuk’s motion to dismiss and/or for summary
judgment, filed July 21, 2014 (ECF No. 46).
Magistrate Judge Hluchaniuk’s May 29, 2014 R&R and
Plaintiff’s Motion for More Time
On November 21, 2013, Magistrate Judge Hluchaniuk issued an order
requiring Plaintiff to show cause by December 12, 2013, as to why he failed to
serve the summons and complaints on the defendants who had not yet been served
at that time and as to why his complaint against those defendants therefore should
not be dismissed pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 37.)
Plaintiff subsequently filed certificates of service reflecting service on some of
those defendants, in addition to other defendants who already had been terminated
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from this litigation. Plaintiff failed to respond to the show cause order with respect
to the following defendants: City of Jackson Police Department, Rick Burkart,
Chuck Brant, Kevin Hillar, Richard Cook, Sr., Paul Gross, Matt Peters, John Lilly,
Thomas Tinklepaugh, Peter Postma, Steven Scarpino, Michael Galbreath, Matt
Heins, Dan Joe Wheeler, SSID Mental Disability, John Frye, International Metals
and Energy Technology, LTD, Ronald Radawicz, Patrick Burtch, Tomas Pickett,
Kim Vanevery, Andrew Dotterweich, Carlene Lefere, Bethany Smith, Andrew J.
Wrozkek, Jr., Joyce Draganchuk, Brian E. Thiede, and Victor Stanton.
Therefore, Magistrate Judge Hluchaniuk issued his May 29, 2014 R&R,
recommending that the Court dismiss without prejudice those unserved defendants
pursuant to Rule 4(m). (ECF No. 37.) At the conclusion of his R&R, Magistrate
Judge Hluchaniuk informs the parties that they must file any objections to the R&R
within fourteen days. (Id. at 4-5.) He further specifically advises the parties that
“[f]ailure to file specific objections constitutes a waiver of any further right to
appeal.” (Id. at 5.) No party filed objections to the R&R.
Plaintiff did file a motion on July 11, 2014, seeking an extension of time to
perfect service. (ECF No. 40.) That motion, however, does not address Plaintiff’s
failure to serve most of the defendants for whom the magistrate judge recommends
dismissal. Instead, it refers only to the Honorable Joseph S. Filip and the
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Honorable Richard N. LaFlamme (both of whom were already terminated, see
supra n. 1), the Honorable Joyce Draganchuk, Brian E. Thiede, and John Frye.
(Id.) With respect to Draganchuk, Thiede, and Frye, Plaintiff fails to show good
cause for his failure to serve these defendants within the time prescribed by Federal
Rule of Civil Procedure 4. See Fed. R. Civ. P. 4(m) (requiring the court to extend
the time for service “if the plaintiff shows good cause for the failure” to serve
within 120 days). The Court therefore is denying Plaintiff’s motion for an
extension of time to serve these defendants.2
The Court has carefully reviewed Magistrate Judge Hluchaniuk’s May 29,
2014 R&R and concurs with the conclusions reached therein. However, because
Draganchuk subsequently filed a motion to dismiss and/or for summary judgment
which the Court finds to have merit, see infra, it declines the magistrate judge’s
recommendation to dismiss Plaintiff’s complaint against her without prejudice.
The Court therefore is dismissing without prejudice Plaintiff’s complaint against
these defendants: City of Jackson Police Department, Rick Burkart, Chuck Brant,
Kevin Hillar, Richard Cook, Sr., Paul Gross, Matt Peters, John Lilly, Thomas
Tinklepaugh, Peter Postma, Steven Scarpino, Michael Galbreath, Matt Heins, Dan

2

Apparently Plaintiff did serve Draganchuk on June 30, 2014. (ECF No. 47 at
n.2.) Draganchuk thereafter filed a motion to dismiss and/or for summary
judgment which is addressed infra.
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Joe Wheeler, SSID Mental Disability, John Frye, International Metals and Energy
Technology, LTD, Ronald Radawicz, Patrick Burtch, Tomas Pickett, Kim
Vanevery, Andrew Dotterweich, Carlene Lefere, Bethany Smith, Andrew J.
Wrozkek, Jr., Brian E. Thiede, and Victor Stanton.
Magistrate Judge Hluchaniuk’s June 25, 2014 R&R
On May 29, 2014, Magistrate Judge Hluchaniuk issued a show cause order,
requiring Plaintiff to respond by June 9, 2014, as to why the matter should not be
dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to
prosecute these defendants: Douglas Patterson, Patrick Patterson, Sr., Dennis
Wayne Patterson, Bob’s Takeout/Lotto Ticket Sales, Julius J. Rim, Kevin M.
Thomson, and Polish National Hall Alliance Group. (ECF No. 38.) When
Plaintiff failed to respond to the show cause order, Magistrate Judge Hluchaniuk
issued his June 25, 2014 R&R, recommending that the matter be dismissed with
prejudice against these defendants for failure to prosecute. (ECF No. 39.)
At the conclusion of his R&R, Magistrate Judge Hluchaniuk informs the
parties that they must file any objections to the R&R within fourteen days. (Id. at
6-7.) He further specifically advises the parties that “[f]ailure to file specific
objections constitutes a waiver of any further right to appeal.” (Id. at 7.) No party
filed objections to the R&R.
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The Court has carefully reviewed the R&R and concurs with Magistrate
Judge Hluchaniuk’s recommendation. Therefore, the Court is dismissing with
prejudice Plaintiff’s complaint against Douglas Patterson, Patrick Patterson, Sr.,
Dennis Wayne Patterson, Bob’s Takeout/Lotto Ticket Sales, Julius J. Rim, Kevin
M. Thomson, and Polish National Hall Alliance Group.
Defendant Joyce Draganchuck’s Motion to Dismiss and/or for Summary
Judgment

On July 21, 2014, Draganchuk filed a motion seeking dismissal and/or
summary judgment. (ECF Nos. 46, 47.) Plaintiff has not responded to the motion,
although the time for doing so expired on August 14, 2014. See E.D. Mich. LR
7.1(e)(1)(B). In her motion, Draganchuk asserts three arguments as to why
Plaintiff’s complaint should be dismissed against her: (1) it fails to state a claim
upon which relief may be granted; (2) she is entitled to absolute immunity; and (3)
the Rooker-Feldman doctrine bars Plaintiff’s claims. The Court finds it necessary
to address only one of these arguments, although all have merit.
Plaintiff’s claims against Draganchuk arise from Draganchuk’s role as the
judge presiding over state court matters involving Plaintiff. The federal doctrine of
judicial immunity affords judges absolute immunity from suit arising out of the
performance of their judicial functions. Pierson v. Ray, 386 U.S. 547, 553-54
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(1967). “Immunity applies even when the judge is accused of acting maliciously
and corruptly.” Id. Moreover, judges are “absolutely immune from liability for
[their] judicial acts even if [their] exercise of authority is flawed by the commission
of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978). This
immunity extends to state and federal judges alike and it applies to actions alleging
a violation of the United States Constitution. Briscoe v. LaHue, 460 U.S. 325, 334
(1983). There are two circumstances where judicial immunity will not shield a
defendant; however, neither exception applies in the present matter.3
Therefore, the Court is granting Draganchuk’s motion to dismiss and is
dismissing Plaintiff’s complaint against her with prejudice.
Summary
For the reasons set forth above, the Court is adopting Magistrate Judge
Hluchaniuk’s May 29, 2014 and June 25, 2014 R&Rs, except as to the dismissal
without prejudice of Plaintiff’s claims against Draganchuk. The Court is granting
Draganchuk’s motion to dismiss and therefore is dismissing those claims with

3

Judges are not immune from liability arising from non-judicial actions nor are
they “immune for actions, though judicial in nature, taken in the complete absence
of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 10-11 (1991).

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prejudice. Plaintiff fails to provide good cause to support his motion for more time
to perfect service on any defendant.
Accordingly,
IT IS ORDERED, that Plaintiff’s complaint is DISMISSED WITHOUT
PREJUDICE pursuant to Federal Rule of Civil Procedure 4(m) against the
following defendants: City of Jackson Police Department, Rick Burkart, Chuck
Brant, Kevin Hillar, Richard Cook, Sr., Paul Gross, Matt Peters, John Lilly,
Thomas Tinklepaugh, Peter Postma, Steven Scarpino, Michael Galbreath, Matt
Heins, Dan Joe Wheeler, SSID Mental Disability, John Frye, International Metals
and Energy Technology, LTD, Ronald Radawicz, Patrick Burtch, Tomas Pickett,
Kim Vanevery, Andrew Dotterweich, Carlene Lefere, Bethany Smith, Andrew J.
Wrozkek, Jr., Brian E. Thiede, and Victor Stanton;
IT IS FURTHER ORDERED, that Defendant Judge Joyce Draganchuk’s
motion to dismiss (ECF No. 46) is GRANTED;
IT IS FURTHER ORDERED, that Plaintiff’s complaint is DISMISSED
WITH PREJUDICE against the following defendants: Judge Joyce Draganchuk,
Douglas Patterson, Patrick Patterson, Sr., Dennis Wayne Patterson, Bob’s

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Takeout/Lotto Ticket Sales, Julius J. Rim, Kevin M. Thomson and Polish National
Hall Alliance Group.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 10, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 10, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager

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