United States District Court, W.D. Michigan, Southern Division
Honorable Janet T. Neff, Judge
an action brought by a state prisoner. The Court has granted
Plaintiff leave to proceed in forma pauperis. Under
the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321 (1996), the Court is required to dismiss any
prisoner 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), 1915A. 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 as frivolous, because there is no possible ground
upon which a reasoned argument can be made to sustain
Elijah Burke is presently incarcerated with the Michigan
Department of Corrections at the Lakeland Correctional
Facility in Coldwater, Michigan. He is serving a life
sentence of imprisonment for first-degree murder. Plaintiff
is suing George Williams G. Furtado, an attorney, for
malpractice. Defendant Furtado represented Plaintiff in a
prisoner civil rights action that Plaintiff previously
litigated in this Court. See Burke v. Lawrence, Case
No. 1:11-cv-1044 (W.D. Mich.).
asked the Court to appoint counsel to assist him in
proceeding to trial in the prior civil rights action. (Mot.
for Appointment of Counsel, Case No. 1:11-cv-1044,
PageID.291.) The Court appointed Defendant by order entered
April 7, 2014. (Ord., Case No. 1:11-cv-1044, PageID.334.)
Plaintiff's claim that the food service director, D.
Lawrence, retaliated against him by removing him from his job
in violation of the First Amendment was tried before a jury.
The jury determined that the food service director had not
retaliated against Plaintiff. (Jury Verdict, Case No.
the verdict, Plaintiff filed a pro se motion for new trial
and alleged that his counsel had been ineffective. (Mot. and
Notice, Case No. 1:11-cv-1044, PageID.513-523.) Counsel took
that as a breakdown in the attorney/client relationship, a
relationship that was expected to end following trial anyway
per the engagement letter, and sought leave to withdraw.
(Mot. to Withdraw, Case No. 1:11-cv-1044, PageID.525-527.)
The Court granted that relief. (Ord., Case No. 1:11-cv-1044,
PageID.531.) Plaintiff continued to pursue his claims through
appeals and through filings in this Court under Case No.
1:11-cv-1044 though November of 2016 to no avail.
then filed a new action against D. Lawrence in this Court,
alleging that she had slandered and defamed him when she
testified at the trial in the prior civil rights action.
Burke v. Lawrence, Case No. 1:16-cv-1376 (W.D.
Mich.) (Affidavit, Case No. 1:16-cv-1376, PageID.1-3.) On
January 10, 2017, the Court dismissed that action for failure
to state a claim. (Op. and J., Case No. 1:16-cv-1376,
PageID.27-31.) Two weeks later, Plaintiff filed this action.
alleges that Defendant failed to object to the testimony of
D. Lawrence at the trial in the prior civil rights action.
Essentially, Plaintiff complains that through that testimony
the jury was notified that Plaintiff was imprisoned for
murder and, for that reason, became prejudiced against him.
Defendant's failure to object, Plaintiff contends, is
attorney malpractice under state law.
seeks an award of actual and exemplary damages against
matter jurisdiction is always a threshold
determination.” American Telecom Co., L.L.C. v.
Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007).
Plaintiff makes no allegations in support of this Court's
jurisdiction over his claims and none is apparent from the
claim he raises.
Court has original diversity jurisdiction over a suit between
citizens of different states where the matter in controversy
exceed the sum or value of $75, 000 exclusive of interest and
costs. 28 U.S.C. § 1332(a). Plaintiff alleges, however,
that he and Defendant are residents of Michigan. (Compl., ECF
No. 1, PageID.1.)
Court also has original jurisdiction over “civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. To determine
whether a case arises under federal law, the Court must
assess whether a federal question appears in Plaintiff's
statement of his claim. Aetna Health Inc. v. Davila,
542 U.S. 200, 207 (2004). Plaintiff's allegations ...