United States District Court, W.D. Michigan, Southern Division
DERRICK L. OAKES, SR, Plaintiff,
KATHY DANHOF, et al., Defendants.
OPINION AND ORDER
T. NEFF, United States District Judge
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983. On February 5, 2016, the Magistrate Judge filed
a Report and Recommendation (R&R, Dkt 6), recommending
grounds that the complaint fails to state a claim on which
relief may be granted. The matter is presently before the
Court on Plaintiffs objections to the Report and
Recommendation (Objs., Dkt 8) and Motion to Appoint Counsel
(Dkt 12). In accordance with28 U.S. C.§ 636(b)(1) and
FED. RClV. P. 72(b)(3), the Court has considered de novo
those portions of the Report and Recommendation to which
objections have been made. The Court denies the objections,
denies the motion, and issues this Opinion and Order.
objects to the Magistrate Judge's recommendation that his
case be dismissed for failure to state a claim upon which
relief may be granted under Fed.R.Civ.P. 12(b)(6),
essentially because his complaint contains "sufficient
factual matter" and because his "motivation in
re-filing this complaint was prompted by the $410.00
that was recently taken from [Plaintiff], to terminate the
polygraph debt of $5, 638.78[, ] which will discontinue the
continuing wrong[, ] and to address all other constitutional
violations including the unlawful confinement" (Objs.,
Dkt 8 at PageID.80, 82-83).
s argument fails to demonstrate any factual or legal error in
the Magistrate Judge's analysis or conclusion. The
Magistrate Judge recommended dismissing Plaintiffs complaint
because it is a "delayed attempt to re-file or request
reconsideration of Case No. 1:09-cv-00952-RJJ, which was
dismissed on September 20, 2010" (R&R, Dkt 6 at
PageID.76). Plaintiffs prior complaint, Case No.
1:09-cv-00952-RJJ, was dismissed with prejudice, and
Plaintiff now seeks recovery on the same alleged
injury-improperly ordered polygraph tests and payments (Dkt 1
at PageID.2). The Magistrate Judge properly concluded the
instant suit was subject to dismissal on the ground of claim
preclusion. See Gonzalez v. Bostic, No. 1:16-cv-888,
2016 WL 4974977, at *3 n.5 (W.D. Mich. Sept. 19, 2016)
(doctrine of claim preclusion or res judicata, "provides
that if an action results in a judgment on the merits, that
judgment operates as an absolute bar to any subsequent action
on the same cause between the same parties or their privies,
with respect to every matter that was actually litigated in
the first case, as well as every ground of recovery that
might have been presented" (citing Black v.
Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th
Cir. 1994) and Kremer v. Chem. Const. Corp., 456
U.S. 461, 467 n.6 (1982)).
extent Plaintiff attempts to argue that this case involves a
"continuing wrong" (Obj s., Dkt 8 at PagelD. 83),
any such argument does not shield this case from claim
preclusion. See Zibbell v. Marquette Cty. Res. Mgmt,
No. 2:12-cv-302, 2013 WL 625062, at *11 (W.D. Mich. Feb. 20,
2013) ("Where it is obvious that the alleged ongoing
unlawful conduct is actually the defendant continuing on the
same course of conduct..., the court reviewing the second or
subsequent lawsuit must conclude that the plaintiff is simply
trying to relitigate the same claim ...»); see also
Dubuc v. Green Oak Twp., 312 F.3d 736, 748-49 (6th Cir.
2002) (declining to recognize a recurring issue of wrongdoing
based on later misconduct or to extend the continuing
violation theory to the doctrine ofclaim preclusion in a
§ 1983 context).
s obj ections are without merit. Because Plaintiff s
complaint is properly dismissed, his pending Motion for
Appointment of Counsel (Dkt 12) is denied as moot.
Regardless, Plaintiff fails to show any exceptional
circumstances justifying the appointment of counsel. See
Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993).
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).
HEREBY ORDERED that the objections (Dkt 8) are DENIED and the
Report and Recommendation (Dkt 6) is APPROVED and ADOPTED as
the Opinion of the Court.
FURTHER ORDERED that the Complaint (Dkt 1) is DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B) for the reasons
stated in the Report and Recommendation.
FURTHER ORDERED that Plaintiffs Motion to Appoint Counsel
(Dkt 12) is DENIED as moot.
FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C
§ 1915(a) that an appeal of the ...