Davis-Bey v. Michigan, State of et al

Filing 4

ORDER Granting Plaintiff's 2 Application to Proceed in Forma Pauperis and 2 Dismissig Complaint Pursuant to 28 U.S.C. Section 1915(e)(2)(B) - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
Bobby D. Davis-Bey,
Plaintiff,

Case No. 14-cv-12315
Hon. Judith E. Levy
Mag. Michael J. Hluchaniuk

v.
State of Michigan et al.,
Defendants.
__________________________________/
ORDER GRANTING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS [2] AND DISMISSING
COMPLAINT [1] PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
Before the Court is plaintiff Bobby D. Davis-Bey’s complaint (Dkt.
1) and application to proceed in forma pauperis (Dkt. 2). This is one of
three similar complaints plaintiff filed in this district on June 2 and
June 12, 2014.

The other two have been dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B) for failure to state a claim. See Case Nos. 1412167, 14-12317.
Plaintiff, a resident of Michigan, brings this action against the
State of Michigan, the Michigan Department of Motor Vehicles, the City
of Novi, Michigan, the Novi Police Department, Judge Robert M. Bondy
of the 52nd District Court, Novi police officer J. Brandon, and Scott

Russell Baker.

Plaintiff styles his complaint as an “affidavit /

counterclaim / legal notice of removal” of a case from the 52nd District
Court in Novi, either case number 14-002213 or 14-21779. That case
appears to be related to a May 2014 traffic stop plaintiff alleges was
illegal.
Plaintiff claims to be a citizen of a foreign nation; namely, the
“Moorish National and Divine Movement of North, South and Central
America’s etc.” His 49-page complaint is very difficult to comprehend.
To the extent plaintiff’s claims can be ascertained, he appears to seek
dismissal of the state court case for failure of service, failure to state a
claim, and lack of jurisdiction. Plaintiff also appears to claim violation
of his constitutional right to travel, violation of rights under the Fourth,
Fifth, Ninth, and Fourteenth Amendments, violation of various federal
and state statutes, conspiracy, fraud, and unlawful detention.
For the reasons that follow, plaintiff’s application to proceed in
forma pauperis will be granted. Plaintiff’s complaint will be dismissed
for failure to state a claim upon which relief can be granted, pursuant to
28 U.S.C. § 1915(e)(2)(B).

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I.

Proceeding In Forma Pauperis

28 U.S.C. § 1915(a) provides that “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.” If such a motion to proceed in forma pauperis is accompanied
by a facially sufficient affidavit, the court should allow the complaint to
be filed. See Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir.
1990).
The Court has reviewed plaintiff’s application and finds that it
“contains allegations of poverty sufficient to allow [him] to proceed
without prepayment of costs.”1 Id. at 262.
II.

Removal

If plaintiff’s intent was to remove the 52nd district court case, the
removal was improper, since plaintiff failed to follow the statutorilymandated procedures for removal by not filing a copy of all process,
pleadings, and orders from the state court action. See 28 U.S.C. §
1446(a). Nor is there any indication that plaintiff has given notice to
In his application to proceed in forma pauperis, plaintiff states that he earns $710 per month and
has $1000 in a bank account. He has no other assets and is responsible for one dependent.

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the adverse parties in that action, or filed a copy of the removal notice
with the clerk of the 52nd district court. As a result, the removal was
not effective. See 28 U.S.C. § 1446(d) (“Promptly after the filing of such
notice . . . the defendant or defendants shall give written notice thereof
to all adverse parties and shall file a copy of the notice with the clerk of
such State court, which shall effect the removal . . .”).
Even if plaintiff had followed the proper procedure for removal,
this Court lacks jurisdiction because the case is not removable. Only
civil actions over which the federal district courts have original
jurisdiction may be removed. 28 U.S.C. § 1441(a). The party seeking
removal bears the burden of proving removal is proper, and all doubts
are resolved against removal. Province of Ontario v. City of Detroit, 874
F.2d 332, 339 (6th Cir. 1989).

Nothing here indicates that the 52nd

district court case raises a federal question or that complete diversity
exists among the parties to that case, plaintiff’s indication on the civil
cover sheet that he is a foreign nation notwithstanding.
III. Dismissal
Construing plaintiff’s claims, such as they are, as a complaint
originally filed in this Court, the claims must be dismissed pursuant to

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28 U.S.C. § 1915(e)(2)(B).
The Supreme Court has noted that § 1915 was created to give
indigent litigants “meaningful access to the federal courts.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).

“Congress recognized, however,

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.” Id. Thus, a
plaintiff proceeding in forma pauperis must meet the standards of 28
U.S.C. § 1915(e)(2)(B), which requires courts to dismiss complaints that
(1) are frivolous; (2) fail to state a claim upon which relief may be
granted; or (3) seek monetary relief from a defendant who is immune
from such relief.
To state a claim upon which relief may be granted, a plaintiff
must show “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Complaints
from pro se litigants must be construed liberally in the light most
favorable to the plaintiff and courts must accept all factual allegations
as true. Tacket v. M & G Polymers, USA LLC, 561 F.3d 478, 488 (6th
Cir. 2009). However, “the tenet that a court must accept as true all the

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allegations

contained

in

a

complaint

is

inapplicable

to

legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Here, plaintiff has alleged no facts that state a plausible claim to
relief.

In fact, even construing plaintiff’s complaint liberally, it is

unclear what plaintiff’s claims are. At various points plaintiff mentions
fraud, conspiracy, illegal detention, breach of contract, violation of his
right to travel, violation of his Fourth, Fifth, and Ninth Amendment
rights, and violation of federal criminal statutes. But plaintiff alleges
no facts sufficient to state a plausible claim for relief on any of those
grounds. By way of example, perhaps plaintiff’s clearest articulation of
a claim is his assertion that his 4th Amendment rights were violated by
officers “searching his person.” No other facts are alleged. Plaintiff’s
complaint must therefore be dismissed for failure to state a claim.
Plaintiff’s ostensible claims are precluded on other grounds as
well. For example, one claim appears to be that Michigan’s driver’s
license requirement violates plaintiff’s constitutional right to travel.
This claim clearly “lacks an arguable basis in law” and must be
dismissed as frivolous pursuant to section 1915(e)(2)(B)(ii). See Neitzke,
490 U.S. at 328. Similarly, plaintiff’s claims for monetary relief against

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the state of Michigan and the Michigan Department of Motor Vehicles
must be dismissed pursuant to section 1915(e)(2)(B)(iii), as those claims
are barred by the Eleventh Amendment.
IV.

Conclusion

Accordingly, the Court ORDERS that
Plaintiff’s motion to proceed in forma pauperis (Dkt. 2) is
GRANTED; and
Plaintiff’s complaint (Dkt. 1) is DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
The Court also certifies that any appeal from this decision could
not be taken in good faith. See 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
Dated: July 28, 2014
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court=s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 28, 2014.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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