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Berry v. Daly

United States District Court, E.D. Michigan, Southern Division

January 26, 2017

DUANE LETROY BERRY, Plaintiff,
v.
CRAIG A. DALY and DAVID M. LAWSON, Defendants.

         OPINION AND ORDER (1) GRANTING PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS (ECF #2), (2)DENYING PLAINTIFF'S MOTION FOR APPOINTMENT OF A GUARDIAN (ECF #4), (3) SUMMARILY DISMISSING PLAINTIFF'S COMPLAINT (ECF #1) WITHOUT PREJUDICE, (4) TERMINATING AS MOOT PLAINTIFF'S MOTION FOR EX PARTE HEARING FOR PRE-TRIAL MANAGEMENT (ECF #5) AND (5) CERTIFYING THAT ANY APPEAL COULD NOT BE TAKEN IN GOOD FAITH

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         On November 19, 2015, Plaintiff Duane Letroy Berry (“Berry”) was indicted in a criminal case in this Court. See United States v. Berry, No. 2:15-cr-20743, ECF #12 (E.D. Mich. Nov. 19, 2015). The case was assigned to United States District Judge David M. Lawson. During those proceedings, Judge Lawson held a hearing to determine whether Berry was competent to stand trial (the “Competency Hearing”). Judge Lawson found Berry incompetent to stand trial and ordered that Berry be civilly committed (the “Commitment Order”). See Id. at ECF #45 (E.D. Mich. August 30, 2016). Thereafter, Berry filed a petition for a writ of habeas corpus (the “Habeas Proceeding”). See Berry v. United States, No. 2:16-cv-12041, ECF #1 (E.D. Mich. June 2, 2016). On October 18, 2016, Judge Lawson denied the petition. See Id. at ECF #13 (E.D. Mich. Oct. 18, 2016). Pursuant to the Commitment Order, Berry is currently a civil detainee at the Butner Federal Medical Center in Butner, North Carolina.

         On December 28, 2016, Berry filed a pro se complaint (the “Complaint”) in this action against Craig A. Daly (“Daly”), his criminal defense attorney in the case before Judge Lawson, and Judge Lawson (collectively, “Defendants”). (See Compl., ECF #1.) In the Complaint, Berry alleges that during the Competency Hearing a psychologist erroneously testified that he “suffered from Delusional Disorder, Mixed Type, First Episode in which [his] thinking was affected by his paranoid ideation [that] he is the primary trustee of a trust that owns every Bank of America branch and asset around the world.” (Id. at 4, Pg. ID 4.) Berry insists that he is, in fact, the primary trustee of Bridgewater Capital Trust, which owns Bank of America's assets, and he claims that he was thus civilly committed for a condition he never had. (See id.) He also alleges that Defendants have abused their authority and retaliated against him because he placed a civil lien on their assets. (See Id. at 5, Pg. ID 5.) Finally, he claims that Defendant Daly did not communicate with him for more than nine months before the Competency Hearing and that Daly deprived him of an opportunity to present evidence, to subpoena witnesses, and to testify at that hearing. (See id.)

         Berry concludes the Complaint with three requests for relief: (1) an emergency hearing to prove his identity, (2) an immediate injunction forcing “the Defendant” (presumably Judge Lawson) to recuse himself, and (3) an immediate injunction ordering “the Defendant” (again, presumably Judge Lawson) to grant habeas relief in the Habeas Proceeding. (Id. at 6, Pg. ID 6.)

         Berry has also filed an application to proceed without prepayment of fees and costs (the “Application”), (See ECF #2), and a motion for appointment of a guardian ad litem (the “Motion”). (See ECF #4.) For the reasons stated below, the Court GRANTS the Application, DENIES the Motion, and DISMISSES the Complaint WITHOUT PREJUDICE.

         I

         Applications to proceed without the prepayment of fees or costs are governed by 28 U.S.C. § 1915(a)(1). That statute provides that a federal court “may authorize the commencement ... of any suit, action, or proceeding ... by a person who submits an affidavit that includes a statement of all assets ... that the person is unable to pay such fees....” Id.

         In the Application, Berry states that he is employed by Bridgewater Capital Trust & Bank of America in Clinton Township, Michigan, but that his salary has been deferred until 2018. (See Application, ECF #2 at 1-2, Pg. ID 46-47.) He further states that he has not received any money from various sources in the past twelve months and that he does not own any valuable property. (See id.) An official at the Butner Federal Medical Center has certified that Berry has $161.17 in his trust fund account at the Center. (See id.) The Court has reviewed the Application and is satisfied that the prepayment of the filing fee would cause Berry an undue financial hardship. The Court therefore GRANTS the Application and permits Berry to file his Complaint without prepaying the filing fee.

         II

         Berry seeks appointment of a guardian ad litem pursuant to Federal Rule of Civil Procedure 17(c)(2) (“Rule 17(c)(2)”). In relevant part, Rule 17(c)(2) provides that “[t]he court must appoint a guardian ad litem - or issue another appropriate order - to protect a minor or incompetent person who is unrepresented in an action.” Under Rule 17(c)(2) a district “court should not enter a judgment which operates as a judgment on the merits” without appointing a guardian for a mentally incompetent party. Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989) (emphasis added); see also Berrios v. New York City Housing Authority, 564 F.3d 130, 134-35 (2nd Cir. 2009) (where pro so plaintiff is incompetent, district court may not enter a dismissal on the merits that has res judicata effect without first appointing guardian).

         Here, as explained below, this Court is dismissing Berry's Complaint without prejudice under 28 U.S.C. § 1915(e)(2) because his claims are frivolous. That is “not a dismissal on the merits.” Stephens v. Hayes, 374 Fed. App'x 620, 622 (6th Cir. 2010) (describing a dismissal without prejudice under 28 U.S.C. § 1915(e)(2)). Because the Court is dismissing the Complaint without prejudice and is not entering a judgment on the merits, the Court has the discretion to deny Berry's request to appoint a guardian ad litem. See, e.g., Moreno v. Perez, 2016 WL 1000318, at *2 (C.D. Cal. March 14, 2016) (dismissing complaint by incompetent plaintiff without prejudice under 28 U.S.C. § 1915(e)(2) and holding that “[t]he Court need not appoint a guardian” because it was “clear that no substantial claim can be raised on Plaintiff's behalf based on the allegations of the [complaint]”); Merritt v. McKenney, 2013 WL 4552672, at **4-5 (N.D. Cal. 2013) (same); Mahoney v. State of New Hampshire, 2015 WL 3794854, at *2 (D.N.H. June 17, 2015) (same); Vasquez v. New York State Office of Mental Health, 2016 WL 1312567, at *5 n. 5 (N.D.N.Y. April 4, 2016) (same); see also, Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012) (explaining that inquiry into whether to appoint guardian for a pro se litigant under Rule 17(c)(2) “would usually occur after the preliminary merits screening under … 28 U.S.C. 1915(e)(2)”). The Court exercises its discretion not to appoint a guardian ad litem here because - since Berry's claims are patently frivolous - such an appointment would add unnecessary expense and delay to these proceedings. Accordingly, Berry's motion for appointment of a guardian ad litem (ECF #4) is DENIED.

         III

         When a plaintiff is allowed to proceed without the prepayment of fees or costs, the Court is required to screen the complaint and dismiss it if it (i) asserts frivolous or malicious claims, (ii) fails to state a claim upon which relief may be granted, and/or (iii) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2).[1] A complaint “is frivolous ...


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