Kennedy #237216 v. Froberg et al

Filing 13

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 6 and dismissing complaint ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

M O N T E Z KENNEDY, P l a in tif f , F ile No. 2:08-CV-26 v. HON. ROBERT HOLMES BELL M A R Y ANN FROBERG, et al., D e f e n d a n ts . / O R D E R ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT O n April 15, 2008, United States Magistrate Judge Timothy P. Greeley issued a R ep o rt and Recommendation ("R&R") recommending that Plaintiff Montez Kennedy's p ris o n e r civil rights action be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U .S .C . § 1997e(c) for failure to state a claim on which relief can be granted. (Dkt. No. 6, R & R .) After obtaining an extension of time to file objections, (Dkt. No. 10, Order Granting M o t. to Enlarge), Plaintiff filed objections to the R&R on May 23, 2008. (Dkt. No. 11, Obj. to R&R.) This Court is required to make a de novo determination of those portions of the R&R to which objection has been made, and may accept, reject, or modify any or all of the M a g is tra te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 7 2 (b ).

The R&R recommends dismissal of Plaintiff's complaint because Plaintiff has failed to state a claim for denial of access to the courts. P lain tiff had an opportunity through his objections to clarify his access to the courts c la im . Instead he has confused the issues even further. It is not clear who Plaintiff contends is culpable or for what action they are culpable. He has not alleged that the state court failed to follow Michigan law. Accordingly, it is not clear what he suggests the state court d e f e n d a n ts did improperly. He objects to the R&R's suggestion that he expected to obtain c o p ie s of legal forms from the prison defendants for free, but he has not stated that he offered to pay for copies. Accordingly, it is not clear what he suggests the prison defendants did im p ro p e rly. Plaintiff has alleged a number of acts that cumulatively resulted in an action not b e in g filed in the state court, but he has not alleged what each Defendant did that denied P la in tif f a specific constitutional right. Although Plaintiff correctly asserts that liberal p lead ing rules do not require him to plead facts, notice pleading still requires him to assert th e elements of a claim. Plaintiff has not stated what duty was owed to him that was b r e a c h e d . Because Plaintiff has not given fair notice of what the Defendants did to make th e m liable for a civil rights violation, Plaintiff has failed to state a claim for denial of access to the courts. T h e R&R contains an alternative determination that Plaintiff's claims against D e f en d a n ts Froberg and Stark are barred by the Rooker-Feldman doctrine. The Court has s o m e concerns regarding the application of the Rooker-Feldman doctrine to this case because

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P la in tif f is not challenging any underlying state court judgment. See Exxon Mobil Corp. v. S a u d i Basic Indus. Corp., 544 U.S. 280, 284 (2005) (holding that the Rooker-Feldman d o c trin e is confined to cases brought by state-court losers complaining of injuries caused by s t a t e - c o u r t judgments). However, in light of the Court's determination that Plaintiff has f a ile d to state a claim, it is not necessary for the Court to address the application of the R o o k e r-F e ld m a n doctrine. Accordingly, I T IS HEREBY ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 11) are DENIED. I T IS FURTHER ORDERED that to the extent the R&R recommends dismissal of P la in t if f ' s complaint for failure to state a claim, the R&R is APPROVED and ADOPTED a s the opinion of the Court. However, the Court declines to adopt that portion of the R&R th a t discusses application of the Rooker-Feldman doctrine. IT IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c). I T IS FURTHER ORDERED that this dismissal shall count as a STRIKE for p u rpo ses of 28 U.S.C. § 1915(g). I T IS FURTHER ORDERED that the Court finds no good-faith basis for appeal w ith in the meaning of 28 U.S.C. § 1915(a)(3).

Dated: October 30, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE 3