Nelson #233909 v. Gabriel et al
Filing
5
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REGINALD DeWAYNE NELSON,
Plaintiff,
Case No. 1:12-cv-661
v.
Honorable Robert J. Jonker
JOSEPH GABRIEL et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. The
Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial
partial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321
(1996), the Court is required to dismiss this action if the complaint is frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune
from such relief. 28 U.S.C. § 1915(e)(2). The Court must read Plaintiff’s pro se complaint
indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as
true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33
(1992). Applying these standards, Plaintiff’s action will be dismissed for failure to state a claim and
on grounds of immunity.
Factual Allegations
Plaintiff Reginald DeWayne Nelson is a state prisoner incarcerated with the Michigan
Department of Corrections at the Bellamy Creek Correctional Facility. He sues the following
Defendants: Detective Joseph Gabriel of the Muskegon Police Department, Steven R. Farrell, Tim
Lewkowski, Judge John M. Wieworay, Paula Baker,1 Timothy Titus, Kathryn E. Strauss, Gerald
Mack, Andrew Fias, Officer (unknown) Danger, the Muskegon Police Department, the West
Michigan Enforcement Team, and the County of Muskegon.
In 2002, Plaintiff pleaded guilty to the delivery or manufacture of a controlled
substance, Mich. Comp. Laws § 333.7401(2)(a)(iii), for which he received a prison sentence of 7
years and 6 months to 20 years.2 According to his complaint, he was released on parole sometime
prior to December 2008. On December 4, 2008, Defendant Lewkowski contacted Defendant Farrell
to tell him that Lewkowski suspected that Plaintiff was involved in the sale of narcotics. Lewkowski
is a member of the West Michigan Enforcement Team, a drug-enforcement task force responsible
for conducting police investigations in western Michigan. Lewkowski indicated that the police had
recovered drugs and weapons after executing a search warrant; he recommended that Farrell obtain
a warrant for Plaintiff’s arrest.
Plaintiff was scheduled to be discharged from his parole on December 8, 2008.
Apparently, he was required to appear in person prior to his discharge, but Farrell told him that an
appearance would not be necessary because the relevant paperwork would be sent to Plaintiff
1
Apparently, Baker is a state prosecutor. (See Compl., docket #1, Page ID#7.)
2
Information regarding Plaintiff’s convictions and sentences is available on the Michigan Department of
Corrections (MDOC) website. See http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=233909 (accessed
Sept. 24, 2012).
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through the mail. After speaking with Lewkowski, Farrell sought a warrant for Plaintiff’s arrest,
falsely claiming that Plaintiff violated the terms of his parole by failing to appear. The arrest warrant
issued on December 5, 2008.
Around that time, Lewkowski sought and executed two warrants to search residences
in Muskegon Heights and Muskegon, Michigan. Plaintiff makes the following allegations regarding
Lewkowski’s affidavit in support of the warrants:
20. [D]efendant Lewkowski failed to include any allegations in his affidavit that
Plaintiff sold any drugs to said informant or anyone else[.]
21[.] Defendant Lewkowski alleged . . . that drugs were found in the home but does
not allege how he concluded that the drugs belonged to Plaintiff[.]
22[.] Defendant Lewkowki refers to a Confidential Informant . . . who told police
only that Plaintiff sold drugs from that location, giving no indication as to when[.]
24[.] Defendant Lewkowski[’]s informant made 7 controlled buys . . . but never
alleged that Plaintiff sold the [informant] any drugs during any of the buys[.]
(Compl., docket #1, Page ID#6.)
Defendant Titus sought and executed a search warrant for another residence. Plaintiff
contends that neither Lewkowski nor Titus “provided any information as to how they determined that
Plaintiff actually or constructively possessed the contraband found.” (Id.)
On December 11, 2008, Judge Wieworay issued another warrant for Plaintiff’s arrest.
According to Plaintiff, the warrant was not supported by probable cause and it violated state law
because the probable-cause determination was not based on an affidavit or sworn testimony. (See
Compl., docket #1, Page ID#7 (citing Mich. Comp. Laws § 764.1; Mich. Ct. R. 6.102).) Plaintiff
asserts that Defendants Baker and Gabriel conspired with Wieworay to effectuate Plaintiff’s arrest,
“without having met any of the mandatory procedural requirements” of state law, such as “affidavits,
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and specific allegations as opposed to conclusory statements.” (Compl., Page ID#7.) Plaintiff was
arrested in Texas on June 14, 2010, pursuant to the parole-violation warrant.
Plaintiff’s MDOC record indicates that he was later convicted of several offenses for
conduct occurring on December 4, 2008, including: possession of a firearm as a felon, Mich. Comp.
Laws § 750.224f; delivery or manufacture of marijuana, Mich. Comp. Laws § 333.7401(2)(d)(iii);
and delivery or manufacture of a narcotic, Mich. Comp. Laws § 333.7401(2)(a)(iii). In September
2011, the Muskegon County Circuit Court sentenced Plaintiff to 4 to 10 years of imprisonment for
the firearm conviction, 4 to 8 years of imprisonment for the marijuana-related conviction, and life
in prison for the narcotics conviction.
In sum, Plaintiff contends that several of the named Defendants obtained, issued or
executed, or conspired to obtain, issue, and execute, search and arrest warrants that were not valid,
either because they were not supported by probable cause, or because they violated the requirements
of state law. As relief, Plaintiff requests compensatory and punitive damages.
Discussion
I.
Immunity
Plaintiff asserts that Judge Wieworay issued an arrest warrant that was not supported
by probable cause. Generally, a judge is absolutely immune from a suit for monetary damages.
Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (“[I]t 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,
shall be free to act upon his own convictions, without apprehension of person consequences to
himself.”) (internal quotations omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997);
Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be
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overcome in only two instances. First, a judge is not immune from liability for non-judicial actions,
i.e., actions not taken in the judge’s judicial capacity. Mireles, 502 U.S. 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.
Plaintiff’s allegations clearly fail to implicate either of the exceptions to judicial
immunity. There is no doubt that issuing a warrant is a judicial act, and while Plaintiff asserts that
the warrant was invalid, he does not allege that Judge Wieworay acted in the absence of all
jurisdiction. See id. (“If judicial immunity means anything, it means that a judge ‘will not be
deprived of immunity because the action he took was in error . . . or was in excess of his authority.’”)
(quoting Stump v. Sparkman, 435 U.S. 349, 356 (1991)). Consequently, the action against Wieworay
is subject to dismissal because he is immune from suit.
II.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679.
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Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that
the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. § 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A.
Insufficient allegations
Plaintiff fails to allege any specific conduct by Defendants Strauss, Mack, Fias or
Danger. They are not even mentioned in the body of the complaint. It is a basic pleading essential
that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 544
(holding that, in order to state a claim, a plaintiff must make sufficient allegations to give a defendant
fair notice of the claim). Where a person is named as a defendant without an allegation of specific
conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro
se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing
complaint where plaintiff failed to allege how any named defendant was involved in the violation
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of his rights); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s
claims where the complaint did not allege with any degree of specificity which of the named
defendants were personally involved in or responsible for each alleged violation of rights); Griffin
v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring
allegations of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010, 1990
WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without
a basis in law as the complaint is totally devoid of allegations as to them which would suggest their
involvement in the events leading to his injuries”). Plaintiff’s allegations with regard to Defendants
Strauss, Mack, Fias and Danger fall far short of the minimal pleading standards under FED. R. CIV.
P. 8 (requiring “a short and plain statement of the claim showing that the pleader is entitled to
relief”). Consequently, Plaintiff’s action against Defendants Strauss, Mack, Fias and Danger will
be dismissed for failure to state claim
Furthermore, Plaintiff’s allegations against Defendant Titus are too vague to state a
claim. Plaintiff merely alleges that Titus sought and executed a search warrant and failed to provide
any information to explain how he determined that Plaintiff “possessed the contraband found.”
(Compl., docket #1, Page ID#6.) The foregoing allegations are wholly insufficient to “allow the
court to draw the reasonable inference” that Titus is liable for any misconduct. See Iqbal, 556 U.S.
at 679. Thus, Titus will also be dismissed for failure to state claim.
B.
Municipal Liability
Plaintiff also sues the County of Muskegon. A municipality like Muskegon County
may only be liable under § 1983 when its policy or custom causes the injury, regardless of the form
of relief sought by the plaintiff. Los Angeles Cnty. v. Humphries, 131 S. Ct. 447, 453-54 (2010)
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(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1974)). It may not be sued in an action
under § 1983 for an injury inflicted solely by its employees or agents under a theory of respondeat
superior. Monell, 436 U.S. at 691. Thus, in a municipal-liability claim, the finding of a policy or
custom is the initial determination to be made. Doe v. Claiborne Cnty., 103 F.3d 495, 509 (6th Cir.
1996). The policy or custom must be the moving force behind the constitutional injury, and a
plaintiff must identify the policy, connect the policy to the governmental entity and show that the
particular injury was incurred because of the execution of that policy. Turner v. City of Taylor, 412
F.3d 629, 639 (6th Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003); Doe, 103 F.3d at
508-09.
Plaintiff’s claim fails at the first step because he does not identify a policy or custom
attributable to Muskegon County, much less allege that his injuries are the result of that policy or
custom. Indeed, it appears that Plaintiff’s claim is based solely on an impermissible theory of
respondeat superior. Therefore, he fails to state a claim against Muskegon County.
C.
Fourth Amendment
Plaintiff claims that Lewkowski sought and executed two search warrants, and it is
implied that Lewkowski’s affidavit in support of the warrants lacked sufficient information to
support a finding of probable cause. Construing the complaint generously, Plaintiff arguably asserts
a Fourth Amendment claim against Lewkowski. Under the Fourth Amendment, no search warrant
shall issue without probable cause. United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006).
Probable cause exists where there is a “fair probability” or “reasonable grounds for belief” that police
will find evidence of a crime at the location of the proposed search. Id. An affidavit demonstrating
such a probability must establish “a nexus between the place to be searched and the evidence
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sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United
States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).
However, “[a] person who claims that his Fourth Amendment rights were violated
by an unreasonable search must establish that he or she had a subjective expectation of privacy in
the premises searched and that society would recognize his or her expectation as legitimate.” United
States v. Harris, 255 F.3d 288, 294 (6th Cir. 2001) (citing Minnesota v. Carter, 525 U.S. 83 (1998)).
Conversely, “[o]fficial conduct that does not ‘compromise any legitimate interest in privacy’ is not
a search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. 405, 408 (2005) (quoting
United States v. Jacobsen, 466 U.S. 109, 123 (1984)).
Plaintiff alleges that Lewkowski sought and executed warrants to search several
residences in Michigan. Although the text of the Fourth Amendment suggests that its protections
extend only to people in “their” houses, the Supreme Court has held that in some circumstances a
person may have a legitimate expectation of privacy in the house of someone else. Minnesota, 525
U.S. at 89. As the Sixth Circuit has explained:
In determining whether an individual has a legitimate expectation of privacy, we look
to the nature of the individual’s ties to the property. Although an overnight guest
may possess a legitimate expectation of privacy in a residence being searched, a
temporary visitor to a residence may claim no such protection. This is particularly
true where . . . the person seeking the protections of the Fourth Amendment was on
the premises for the sole purpose of engaging in drug-related business transactions.
Harris, 255 F.3d at 294-95.
Plaintiff fails to identify any connection between himself and the properties searched.
He merely alleges that they were residences, and that one was “occupied by a man identified as
Samuel Nelson.” (Compl., docket #1, Page ID#6.) If anything, Plaintiff seems to disavow any
connection to the places searched; his claim appears to be based on the notion that the affidavit failed
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to implicate him in any illegal activity at the locations searched. Thus, Plaintiff has not alleged a
basic element of a Fourth Amendment claim, which is that Defendant Lewkowski compromised
Plaintiff’s legitimate expectation of privacy. Therefore, Plaintiff fails to state a Fourth Amendment
claim against Lewkowski.
D.
Heck v. Humphrey
To the extent that the search warrants executed by Lewkowski or Titus produced
evidence used to convict Plaintiff, his claim regarding those warrants is subject to dismissal for the
additional reason that it is barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck,
the Supreme Court held that “‘in order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
[overturned].’” Edwards v. Balisok, 520 U.S. 641, 646 (1997) (emphasis in original) (quoting Heck,
512 U.S. at 486-87). Thus, a state prisoner cannot make a cognizable claim under § 1983 for an
allegedly unconstitutional conviction or for “harm caused by actions whose unlawfulness would
render a conviction or sentence invalid” unless the prisoner shows that the conviction or sentence
has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a writ
of habeas corpus.” Heck, 512 U.S. at 486-87 (footnote omitted).
Plaintiff alleges that the search warrants uncovered evidence of drug-related activity,
and he implies that Lewkowski and Titus determined that this evidence belonged to Plaintiff. In
addition, Plaintiff’s MDOC record indicates that he was convicted of drug-related offenses after the
warrants issued. Thus, it appears that the search warrants at issue produced evidence used to convict
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Plaintiff of additional crimes. If that is the case, Plaintiff’s challenge to those warrants is barred by
Heck because it undermines the validity of those convictions and there is no indication that those
convictions have been overturned or called into question by state or federal processes. See
Shamaeizadeh v. Cunigan, 182 F.3d 391, 398-99 (6th Cir. 1999) (holding that, where an allegedly
illegal search produced evidence used to obtain a conviction, the convicted cannot bring a § 1983
claim challenging the search until the conviction is overturned), overruled in other part by Wallace
v. Kato, 549 U.S. 384, 393 (2007).
Likewise, Plaintiff’s claim that Farrell falsely accused Plaintiff of violating the terms
of his parole, and improperly obtained an arrest warrant on that basis, is barred by Heck because it
calls into question the validity of the revocation of Plaintiff’s parole. The principles in Heck have
been applied to § 1983 actions challenging the revocation of parole in the absence of a previous
decision by a state or federal tribunal declaring that revocation invalid. See Norwood v. Mich. Dep’t
of Corr., 67 F. App’x 286, 287 (6th Cir. 2003). Plaintiff does not claim that the revocation of his
parole has been overturned or declared invalid. Indeed, his MDOC record shows that he is still
serving the sentence for his 2002 conviction. Thus, Heck applies and Plaintiff’s claim against Farrell
is subject to dismissal for that reason.
E.
Conspiracy
Plaintiff asserts that Defendants Baker and Gabriel are also liable for the issuance of
the second arrest warrant because they conspired with Judge Wieworay to obtain it. To state a claim
for conspiracy, a plaintiff must plead with particularity, as vague and conclusory allegations
unsupported by material facts are insufficient. Twombly, 550 U.S. at 565 (recognizing that
allegations of conspiracy must be supported by allegations of fact that support a “plausible
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suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir.
2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534,
1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106 (6th Cir. 1985); Pukyrys v. Olson, No. 951778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996). A plaintiff’s allegations must show: (1) the
existence or execution of the claimed conspiracy, (2) overt acts relating to the promotion of the
conspiracy, (3) a link between the alleged conspirators, and (4) an agreement by the conspirators to
commit an act depriving plaintiff of a federal right. Lepley v. Dresser, 681 F. Supp. 418, 422 (W.D.
Mich. 1988). “[V]ague allegations of a wide-ranging conspiracy are wholly conclusory and are,
therefore, insufficient to state a claim.” Hartsfield v. Mayer, No. 95-1411, 1996 WL 43541, at *3
(6th Cir. Feb. 1, 1996). A simple allegation that defendants conspired to cover up wrongful actions
is too conclusory and too speculative to state a claim of conspiracy. Birrell v. Michigan, No. 942456, 1995 WL 355662, at *2 (6th Cir. June 13, 1995).
Plaintiff’s allegations of conspiracy are wholly conclusory. Plaintiff alleges no facts
indicating that either Baker or Gabriel engaged in any conduct to further the alleged conspiracy,
much less that they agreed with each other and with Judge Wieworay to violate Plaintiff’s rights.
Indeed, there is no allegation of any specific conduct by Baker or Gabriel. Plaintiff merely alleges,
in conclusory fashion, that they conspired to arrest him and failed to abide by procedures required
by state law. Such allegations fail to state a claim against Baker and Gabriel, conspiracy or
otherwise.
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F.
State law claims
To the extent that Defendants violated state law, § 1983 does not provide redress for
such a violation. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d
1162, 1166 (6th Cir. 1994). Moreover, to the extent that Plaintiff asserts independent state-law
claims, the Court declines to exercise jurisdiction over such claims. In determining whether to retain
supplemental jurisdiction over state-law claims, “[a] district court should consider the interests of
judicial economy and the avoidance of multiplicity of litigation and balance those interests against
needlessly deciding state law issues.” Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182
(6th Cir. 1993). Ordinarily, where a district court has exercised jurisdiction over a state-law claim
solely by virtue of supplemental jurisdiction and the federal claims are dismissed prior to trial, the
court will dismiss the remaining state-law claims. Id. Dismissal, however, remains “purely
discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 129 S. Ct. 1862, 1866-67
(2009). Here, the balance of the relevant considerations weighs against the continued exercise of
supplemental jurisdiction. Accordingly, Plaintiff’s state-law claims, if any, will be dismissed
without prejudice.
G.
Remaining defendants
After dismissal of the claims against the Defendants who appear to be associated with
the Muskegon Police Department or the West Michigan Enforcement Team (Defendants Danger,
Farrell, Gabriel, Lewkowski and Titus), there is no basis for maintaining a claim against these
entities. Consequently, they will also be dismissed.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s § 1983 claims will be dismissed on immunity grounds and for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2). To the extent that Plaintiff asserts claims arising
under state law, the Court declines to exercise jurisdiction over them. See 28 U.S.C. § 1367(c)(3).
The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated:
October 3, 2012
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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