Fernanders v. Daughtrey et al
Filing
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OPINION AND ORDER Dismissing Plaintiff's Complaint Under 28 USC Section 1915(e)(2)(B). Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDERSON LEE FERNANDERS,
Plaintiff,
v.
Case No. 16-10262
HON. TERRENCE G. BERG
HON. ELIZABETH A. STAFFORD
MARTHA CRAIG DAUGHTREY, et al.,
Defendants.
______________________________/
OPINION AND ORDER DISMISSING
PLAINTIFF’S COMPLAINT UNDER 28 U.S.C. § 1915(e)(2)(B)
Plaintiff Anderson Lee Fernanders, proceeding pro se, filed the instant
lawsuit on January 26, 2016 along with an application to proceed in forma pauperis.
(See Dkts. 1-2.) Plaintiff has filed several lawsuits in this District over the years –
at least one of which has been dismissed sua sponte pursuant to 28 U.S.C. §
1915(e)(2)(B).1 In this case, Plaintiff is suing the three Circuit Judges who heard his
appeal of a district court judgment dismissing his employment discrimination
lawsuit filed against the Michigan Department of Military and Veterans Affairs and
the Michigan Youth Challenge Academy. The Court of Appeals affirmed the
dismissal of Plaintiff’s case, and Plaintiff now brings this lawsuit against the
On January 9, 2015, Plaintiff filed Civil Case No. 15-10083 (assigned to the Honorable Avern Cohn)
against “Jeff Wright, Genesee County, Drain Commissioner, Darnel Earle, Flint’s State-appointed
Emergency Manager, Dayne Walling, Mayor of The City of Flint, and Mr. and Ms./Mrs. Jane and
John Doe/ Unknown (1-100)”, alleging that Defendants had “poisoned” Plaintiff and all other
residents of the City of Flint by providing water contaminated with toxins known as
“Trihalomethanes.” Judge Cohn dismissed this case sua sponte on January 20, 2015 under 28 U.S.C.
§ 1915(e)(2) for lack of subject matter jurisdiction.
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appellate judges because he believes they reached an incorrect result and therefore
denied him due process.
For the reasons that follow, Plaintiff’s application to proceed in forma
pauperis will be GRANTED, but Plaintiff's Complaint will be DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court will also certify that
any appeal from this decision cannot not be taken in good faith.2 See 28 U.S.C. §
1915(a)(3).
I. ANALYSIS
A. Plaintiff's Application to Proceed In Forma Pauperis
Plaintiff has filed an application to proceed in forma pauperis, or without the
prepayment of fees. Pursuant to 28 U.S.C. § 1915(a)(1), “any court of the United
States may authorize the commencement, prosecution or defense of any suit, action
or proceeding ... without prepayment of fees or security therefor, by a person who
submits an affidavit that includes a statement of all assets … [and] that the person
is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). If an
application to proceed in forma pauperis is filed along with a facially sufficient
affidavit, the court should permit the complaint to be filed. See Gibson v. R.G.
Smith Co., 915 F.2d 260, 261 (6th Cir. 1990). Once the complaint has been filed, it is
then tested to determine whether it is frivolous or if it fails to state a claim upon
which relief can be granted. See Gibson, 915 F.2d at 261. Here, the Court finds
Under 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.” The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445, (1962).
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Plaintiff's financial affidavit to be facially sufficient; therefore, the Court will grant
Plaintiff's motion to proceed in forma pauperis.
B. Dismissal Under § 1915(e)(2)
On April 19, 2012, Plaintiff filed suit against the Michigan Department of
Military and Veterans Affairs and the Michigan Youth Challenge Academy. This
case, Case No. 12-11752, was assigned to the Honorable Robert H. Cleland. In that
case, Plaintiff challenged his employment discharge from the Michigan Youth
Challenge Academy pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e–5; Section 301 of the Labor Management Relations Act (“LMRA”); 18 U.S.C.
§ 241; and Michigan law.
After Defendants’ motion for summary judgment was granted and Plaintiff’s
motion for reconsideration denied, Plaintiff appealed to the Sixth Circuit Court of
Appeals. Plaintiff’s appeal was assigned to a three-judge panel. On May 28, 2015,
the panel issued its decision affirming the District Court. A mandate was then
issued. Plaintiff did not seek a rehearing or reconsideration of the Circuit Court’s
order and did not appeal to the United States Supreme Court. Instead, on July 27,
2015, Plaintiff filed a motion to recall the mandate. That motion was denied on
August 11, 2015.
On January 26, 2016, Plaintiff filed the above-captioned case against the
three Circuit Judges who decided his appeal, and also filed an application to
proceed in forma pauperis. Plaintiff’s Complaint details a series of reasons why he
disagrees with the Sixth Circuit’s decision to affirm the District Court. (See Dkt. 1.)
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According to Plaintiff, Defendants made a series of factual errors that led to a
flawed legal conclusion.3 (See id.) As a result, Plaintiff alleges that Defendants
violated his right to due process as guaranteed by the 5th and 14th Amendments,
breached their duty to be impartial under 18 U.S.C. § 242, and conspired to obstruct
justice under 42 U.S.C. § 1985(3). (Id. at 2.)
Plaintiff is requesting judgment in his favor, a jury trial, nominal damages,
the recall of the Sixth Circuit’s mandate, reversal and remand of the May 28, 2015
Sixth Circuit order, that the trier of fact be given the chance to “consider the
genuine issues of ultimate fact still existing on the record”, and that Defendants be
“disbarred” and all their decisions in their racial discrimination cases be reviewed.
(Id. at 25-26.) At bottom, Plaintiff is seeking relief from the Sixth Circuit’s May 28,
2015 order by filing this complaint and application to proceed in forma pauperis in
District Court.
The Supreme Court has recognized that Congress, in enacting the federal in
forma pauperis statute, “intended to guarantee that no citizen shall be denied an
opportunity to commence, prosecute, or defend an action, civil or criminal, in any
court of the United States, solely because ... poverty makes it impossible ... to pay or
secure the costs of litigation.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)). At the same
For example, Plaintiff asserts that Defendants erred by stating that one white employee was hired
after Plaintiff was fired while the record allegedly showed that “two or more white employees” were
hired in the wake of Plaintiff’s termination. (See Dkt. 1, ¶¶ 11-14.) Because of this and several other
errors, Plaintiff asserts that Defendants erroneously found that he had not established a prima facie
case of race discrimination. (See id.)
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time, however, “Congress recognized that ‘a litigant whose filing fees and court costs
are assumed by the public, unlike a paying litigant, lacks an economic incentive to
refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton, 504 U.S. at
31 (quoting Neitzke v. Wiliams, 490 U.S. 319, 324, (1989)). Responding to this
concern, Congress provided § 1915(e)(2), which establishes that a court “shall
dismiss the case” if it finds that:
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2).
When a Plaintiff proceeds without the assistance of counsel, a court is
required to liberally construe the document and hold it to a less stringent standard
than a similar pleading drafted by an attorney. See Haines v. Kerner, 404 U.S. 519,
520 (1972). Nevertheless, a complaint must contain more than legal labels,
conclusions, and a recitation of the elements of a cause of action. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Thus,
“[p]ro se plaintiffs are not automatically entitled to take every case to trial.” Price v.
Caruso, 451 F. Supp. 2d 889, 893 (E.D. Mich. 2006) (quoting Pilgrim v. Littlefield,
92 F.3d 413, 416 (6th Cir. 1996)).
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Here, the Court finds that even with most liberal reading of Plaintiff's
Complaint, the action is frivolous because the allegations lack an arguable basis in
law or fact. See Denton, 504 U.S. at 33 (noting that a court may dismiss a claim if
the facts are “clearly baseless,” “fantastic,” and “delusional”). Furthermore,
Plaintiff’s Complaint fails to state a claim upon which relief can be granted because
this Court lacks jurisdiction to grant relief from the appellate order. See Fed. R.
App. P. 3-12.1; see also 3-27 Moore’s Federal Practice § 27.01 (2015). A court may
sua sponte dismiss a complaint for lack of subject matter jurisdiction at any time.
See Fed. R. Civ. P. 12(h)(3); McLaughlin v. Cotner, 193 F.3d 410, 412 (6th Cir.
1999). Finally, judicial immunity protects Defendants, all federal judges, from
personal liability for exercising judicial functions. Stump v. Sparkman, 435 U.S.
349, 356 (1978).
Plaintiff correctly states in his Complaint that if a party disagrees with the
outcome of a court’s decision, that party can appeal.4 (Dkt. 1, p. 2.) Here, Plaintiff is
requesting that the Sixth Circuit’s mandate be recalled, that the May 28, 2015 order
be reversed, that the alleged factual errors in that order be corrected and
reconsidered, and that he be given a jury trial. (Id. at 25-26.) This Court, however,
is a lower federal court that owes obedience to higher federal courts including the
Court of Appeals. See Fed. R. App. P. 3-12.1; see also 3-27 Moore’s Federal Practice §
Plaintiff states that “when an entity does not agree with a court order the answer is to appeal the
order (or sue the court).” In support of this assertion, Plaintiff cites United States v. Carroll, 667 F.3d
742, 745 (6th Cir. 2012). In that case, however, the federal government was suing a group of
bankruptcy trustees and was not seeking relief from an appellate court order or suing federal judges
in their individual capacities. See id.
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27.01 (2015); 18-134 Moore’s Federal Practice § 134.02 (2015) (“the general rule is
the higher court’s decision binds the lower court”).
Although this obedience is not blind, it is well accepted that “the district
courts in a circuit owe obedience to a decision of the court of appeals in that circuit
and ordinarily must follow it until the court of appeals overrules it.” 18-134 Moore’s
Federal Practice § 134.02 (2015); see, e.g., Morgan v. Sec’y of Health & Human
Servs., 52 F.3d 326 (6th Cir. 1995) (“once an appellate court has decided an issue,
that decision is binding on lower courts and other appellate courts during further
proceedings in the same action”); In re Korean Airlines Disaster, 829 F.2d 1171,
1173–1174 (D.C. Cir. 1987), aff’d on other grounds sub. nom. Chan v. Korean Air
Lines, Ltd., 490 U.S. 122 (1989) (binding precedent for district court is set by court
of appeals for that circuit); United States v. Mitlo, 714 F.2d 294, 298 (3d Cir. 1983)
(precedents set by circuit are binding on all inferior courts within circuit); Yockey v.
Jeffries, No. 5:06CV1192, 2007 WL 1023195, at *5 (N.D. Ohio Mar. 30, 2007)
(“rulings of a circuit court are binding on lower courts within that circuit”). If the
rule were otherwise, appellate review would be ineffectual. Accordingly, this Court
does not have the authority to review, reverse, or otherwise overrule the Sixth
Circuit order as Plaintiff requests.5
On the cover sheet submitted with his complaint, Plaintiff checked the boxes indicating that the
basis of jurisdiction is “diversity” and that Defendants are all citizens of a different state. (See Dkt.
1). Diversity jurisdiction exists “where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between - (1) citizens of different states . . ..” 28 U.S.C.
§ 1332(a). While it appears from Plaintiff’s Complaint that he lives in Michigan – and presumably is
a citizen of that state – Plaintiff’s Complaint is devoid of any facts indicating the citizenship of each
Defendant. Moreover, the facts alleged do not suggest that the amount in controversy exceeds
$75,000. The facts showing the existence of jurisdiction must be affirmatively alleged in Plaintiff’s
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If Plaintiff disagrees with the Sixth Circuit’s order or believes that
Defendants made material factual errors, he could have asked for a panel
rehearing, or for the panel to reconsider the decision, within 14 days after judgment
was entered.6 Fed. R. App. P. 40(a)(1). This action would have brought to the
attention of the panel any alleged errors in the facts of the case, or errors in the
application of correct precedent to the facts of the case. See Fed. R. App. P. 40; 6 Cir.
R. 40; 6 Cir. I.O.P. 40. Alternatively, Plaintiff could have sought relief by appealing
to the United States Supreme Court within 90 days of the Sixth Circuit’s entry of
judgment against him. See Supreme Court Rule 13. Plaintiff has done neither, and
the time to do either has passed.7
With respect to Plaintiff’s claims of due process violations, breach of duty,
and conspiracy to obstruct justice, the doctrine of judicial immunity protects the
Complaint. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, (1936); Cincinnati Sch.
Dist. v. Bd. of Educ., No. 04-4258, 2005 WL 6781829, at *3 (6th Cir. Oct. 17, 2005) (citing Fed. R.
Civ. P. 8; Bd. of Trustees of Painesville Twp. v. City of Painseville, 200 F.3d 396, 398 (6th Cir. 1999);
Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)). Here, Plaintiff
appears to be asserting claims arising under federal law. See 28 U.S.C. § 1331.
Plaintiff also could have considered petitioning for a rehearing en banc, but the standards are rigid.
See Fed. R. App. P. 35; see also 6 Cir. R. 35. A rehearing en banc “is not favored” and is ordered only
when necessary to “secure or maintain the uniformity of the court’s decisions” or when “the
proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a). The petition must
state that the decision in question conflicts with a United States Supreme Court decision or with
another Sixth Circuit decision, or that the proceeding presents one or more questions of significant
importance such as a conflict with other United States Courts of Appeals. Fed. R. App. P. 35(b).
“Alleged errors in the determination of state law or in the facts of the case (including sufficient
evidence), or errors in the application of correct precedent to the facts of the case, are matters for
panel rehearing but not for rehearing en banc.” 6 Cir. I.O.P. 35(a). Plaintiff would have had to file
any such petition within 14 days of the entry of final judgment, however. See Fed. R. App. P. 35(c)
and 40(a)(1).
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Under Sixth Circuit Rule 40, a motion to extend time to file a petition for rehearing will be granted
“only for the most compelling reasons.” 6 Cir. R. 40(a).
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Defendant federal judges from personal liability for acts undertaken in carrying out
their official judicial duties. As the Supreme Court recognized as early as 1871, it is
“a general principle of the highest importance to the proper administration of
justice that a judicial officer, in exercising the authority vested in him, [should] be
free to act upon his own convictions, without apprehension of personal consequences
to himself.” Bradley v. Fisher, 80 U.S. 335, 347 (1871). Accordingly, the Court held
that “judges of courts of superior or general jurisdiction are not liable to civil actions
for their judicial acts, even when such acts are in excess of their jurisdiction, and
are alleged to have been done maliciously or corruptly.” Id. at 351. The doctrine of
judicial immunity exists “not for the protection or benefit of a malicious or corrupt
judge” but for “the benefit of the public, whose interest it is that the judges should
be at liberty to exercise their functions with independence and without fear of
consequence.” Pierson v. Ray, 386 U.S. 547, 554 (1967).
As the Sixth Circuit has clarified, “judicial immunity is immunity not just
from the ultimate assessment of damages but is immunity from suit itself.” King v.
McCree, 573 F. App’x 430, 438 (6th Cir. 2014) (citing Mireles v. Waco, 502 U.S. 9, 11
(1991)). There is an exception for “nonjudicial actions, i.e., actions not taken in the
judge’s judicial capacity.” Id. An act is a “judicial” one if “it is a function normally
performed by a judge” and whether the parties “dealt with the judge in his judicial
capacity.” Stump, 435 U.S. at 362. A Court must “look to the particular act’s
relation to a general function normally performed by a judge.”8 Mireles, 502 U.S. at
The Supreme Court has offered several examples of acts that are “judicial” within the meaning of
its judicial-immunity doctrine. These include: entering an order striking an attorney’s name from the
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13. Under this approach, “immunity is justified and defined by the functions it
protects and serves, not by the person to whom it attaches.” Forrester v. White, 484
U.S. 219, 224, 227 (1988).
Plaintiff complains of multiple acts taken by Defendants that he alleges are
not judicial. In particular, Plaintiff alleges that Defendants “did not perform a
judicial act”:
1. “by changing the number of White employees hired after Plaintiff was
terminated to 1 when the record before [Defendants] showed that 2 or
more White employees hired after Plaintiff was terminated.” (Dkt. 1, ¶¶
63-65.)
2. “by holding believable Defendants-Appellants of case number 13-2613
articulated reason in light of the record containing proof that Plaintiff’s
supervisors did not have the authority nor was directed by an appointing
authority to terminate him.” (Id. at ¶¶ 66-68.)
3. “by holding believable Defendants-Appellants of case number 13-2613
articulated reason with the record showing that Plaintiff did not have any
type of corrective action plan or any form of verbal or written discipline or
just cause violation.” (Id. at ¶¶ 69-71.)
4. “by holding that Plaintiff was not similarly situation to Wallace given the
fact that the record before [Defendants] proved that both worked the same
position, both were hired without prior military experience, and Wallace
worked one or more positions that preferred prior military experience.”
(Id. at ¶¶ 72-74.)
Plaintiff alleges that this “bevy of none [sic] judicial acts perpetrated under color of
law in the capacity as a judge in case number 13-2613” violate Plaintiff’s due
process rights. (Id. at ¶¶ 75-77.)
roll of attorneys entitled to practice before the bar, Bradley, 80 U.S. at 356–57; adjudging parties
guilty when their cases are before a judge’s court, Pierson, 386 U.S. at 553; and approving petitions
relating to the affairs of minors, Stump, 435 U.S. at 362.
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The Court finds that all of the acts identified by Plaintiff are in fact “judicial”,
and Defendants are therefore immune from suit under the doctrine of judicial
immunity. See Stump, 435 U.S. at 359. In deciding whether Defendants’ actions are
judicial, the Court looks both to “the nature of the act itself” and “the expectations
of the parties.” See id. at 362. Here, Plaintiff voluntarily appealed to the Sixth
Circuit, which had jurisdiction to hear an appeal of an order of final judgment in a
case before the Eastern District of Michigan, and his claims were adjudicated by the
panel of judges assigned to his case. Moreover, examining the record, making
factual findings, and drawing legal conclusions from such findings are tasks at the
heart of a judge’s essential duties.
Plaintiff believes that the Court of Appeals decided his case incorrectly. Even
if that were true, the Supreme Court has stated that a judge’s “errors may be
corrected on appeal” but that judicial immunity exists so that a judge “should not
have to fear that unsatisfied litigants may hound him with litigation charging
malice or corruption.” Pierson, 386 U.S. at 554. The Court therefore finds that
Defendants are entitled to judicial immunity.
II. CONCLUSION
Accordingly, IT IS ORDERED that Plaintiff’s request to proceed in forma
pauperis is GRANTED but Plaintiff’s Complaint is DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) because this action is frivolous
or malicious, this Court does not have the authority to grant the relief Plaintiff
requests, and Defendants are entitled to judicial immunity.
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For the same reasons that the Court dismisses this case, the Court discerns
no good-faith basis for an appeal. See 28 U.S.C. § 1915(a)(3); see also McGore v.
Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). The Court therefore certifies that
any appeal from this decision could not be taken in good faith and denies Plaintiff
leave to appeal this decision in forma pauperis. See 28 U.S.C. § 1915(a)(3).
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: February 16, 2016
Certificate of Service
I hereby certify that this Order was electronically submitted on February 16,
2016 using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager
Copy mailed to:
Anderson Lee Fernanders
5801 Marlowe Drive
Flint, MI 48504
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