Harris #194166 v. Balgooyen et al

Filing 8

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN ARTHUR HARRIS, JR.,
Plaintiff,

Case No. 1:12-cv-1208

v.

HON. JANET T. NEFF

FREDRIC F. BALGOOYEN, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. On December 5,
2012, the Magistrate Judge filed a Report and Recommendation (Dkt 4), recommending that the
action be dismissed upon initial screening pursuant to 28 U.S.C. § 1915(e)(2) on grounds that the
complaint failed to state a claim upon which relief may be granted. The matter is presently before
the Court on Plaintiff’s objections (Dkt 6) to the Report and Recommendation and the supplement
to his objections (Dkt 7). In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3),
the Court has performed de novo consideration of those portions of the Report and Recommendation
to which objections have been made. The Court denies the objections and issues this Opinion and
Order.

Plaintiff raises two objections to the Magistrate Judge’s Report and Recommendation. First,
Plaintiff asserts that his contempt proceeding was a violation of the double jeopardy clause1 (Dkt
6) and, second, he contends this grants federal subject matter jurisdiction (Dkt 7).
Plaintiff’s first objection, that his contempt hearing for failure to pay child support violated
“the double jeopardy clause” (Dkt 6 at 2), is without merit. Plaintiff refers to two proceedings
regarding the enforcement of his child support obligations. One proceeding was a show cause
hearing in response to a petition by the mother of Plaintiff’s child (Dkt 6 at 1-2). This hearing
resulted in a modification of the order (id. at 2). The other proceeding was apparently a criminal
proceeding initiated by the State that resulted in conviction (id.). Even accepting as true Plaintiff’s
contention that the contempt prosecution was for a null and void order, Plaintiff has not shown any
way in which these facts implicate double jeopardy. Because Plaintiff failed to state a claim for any
Constitutional violations, this objection is denied. The Magistrate Judge properly concluded that
“the facts alleged in Plaintiff’s complaint, even if accepted as true, fail to state a claim upon which
relief may be granted” (R & R, Dkt 4 at 3).
Plaintiff’s second objection is also without merit. Because Plaintiff has not presented any
facts that plausibly allege a constitutional violation, the Magistrate Judge properly concluded that
Plaintiff has failed to establish federal subject matter jurisdiction. See e.g., Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. Cnty. of Oneida,

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Plaintiff also references equal protection and due process violations as well as ineffective
assistance of counsel (Dkt 1 at 4; Dkt 6 at 2-3). However, Plaintiff has failed to state a claim
regarding any of these alleged violations as well. Furthermore, Plaintiff has not alleged any error
in the Magistrate Judge’s Report and Recommendation regarding these claims, he has merely
restated the facts and allegations contained in the Complaint. To the extent that Plaintiff’s
objections merely reargue his claims, they are not proper objections to the Report and
Recommendation.
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414 U.S. 661, 666 (1974)) (no federal subject matter jurisdiction where “the claim is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
devoid of merit as not to involve a federal controversy’”). Accordingly, this objection is also
denied.
A Judgment will be entered consistent with this Opinion and Order. See FED. R. CIV. P. 58.
For the above reasons and because this action was filed in forma pauperis, this Court also certifies
pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Judgment would not be taken in good faith.
See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), overruled on other grounds
by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).
Accordingly:
IT IS HEREBY ORDERED that the objections (Dkts 6, 7) are DENIED and the Report and
Recommendation (Dkt 4) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Complaint (Dkt 1) is DISMISSED pursuant to 28
U.S.C. § 1915(e)(2) for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C § 1915(a) that
an appeal of the Judgment would not be taken in good faith.

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Dated: April ___, 2013

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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