United States District Court, W.D. Michigan, Southern Division
L. MALONEY UNITED STATES DISTRICT JUDGE.
a civil rights action by an individual proceeding pro
se. On March 3, 2017, United States Magistrate Judge Ray
Kent issued a Report and Recommendation
(“R&R”), recommending that the Court grant
motions filed by Defendants County of Calhoun, the State of
Michigan, and the Michigan Department of Corrections
(“MDOC”) (ECF No. 27). Plaintiff has filed
objections to the R&R (ECF No. 28). For the reasons that
follow, Plaintiff's objections will be denied and the
R&R will be adopted as the opinion of the Court.
Court is required to make a de novo review of those
portions of a R&R to which specific objections are made,
and may accept, reject, or modify any or all of the
Magistrate Judge's findings or recommendations. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b)(3).
Defendants State of Michigan and MDOC
R&R recommends granting the motion for dismissal of
Defendants State of Michigan and the MDOC because they are
immune from suit in federal court. Plaintiff objects that he
did not sue “Michigan”; rather, he sued
“de facto corporate forms (COUNTY OF CALHOUN;
STATE OF MICHIGAN; MICHIGAN DEPARTMENT OF CORRECTIONS) who
are not entitled to ‘sovereign immunity[.]'”
(Pl.'s objs., ECF No. 28, PageID.176.) However Plaintiff
chooses to characterize them, the State of Michigan and the
MDOC are defendants in this action and they are immune from
suit in federal court. Thus, the Court discerns no error in
the recommendation for their dismissal.
contends that the R&R acknowledged his claim under 42
U.S.C. § 1983, but did not acknowledge his claims under
other statutes, including: 18 U.S.C. §§ 1582,
1593A, 1595; and 28 U.S.C. § 1651. Even if the R&R
erred in overlooking these claims, this error does not change
the result. 18 U.S.C. §§ 1582 and 1593A are
criminal statutes. They are not enforceable by private
citizens. A private citizen “lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.” Diamond v. Charles, 476 U.S. 54, 64
(1986); see also Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973); Martin v. Koljonen, No. 03-2169,
2004 WL 445720, at *1 (6th Cir. Mar. 9, 2004). Although 18
U.S.C. § 1595 provides a civil remedy to redress harm
from a violation of these criminal statutes, Congress did not
abrogate state sovereign immunity through § 1595.
Mojsilovic v. Oklahoma ex rel. Bd. of Regents for Univ.
of Okla., 841 F.3d 1129, 1134 (10th Cir. 2016).
Consequently, Defendants State of Michigan and the MDOC are
immune from suit for that claim as well. Finally, the All
Writs Act, 28 U.S.C. § 1651, is not an independent
source of jurisdiction for a court. It permits the issuance
of writs in aid of the jurisdiction that the Court
independently possesses. Syngenta Crop Protection, Inc.
v. Henson, 537 U.S. 28 (2002); Tropf v. Fidelity
Nat. Title Ins., Co., 289 F.3d 929, 943 (6th Cir. 2002)
(holding that federal courts must have an independent basis
for subject matter jurisdiction in order to issue a writ
under § 1651). Because the Court does not have
independent jurisdiction over any claims against the State of
Michigan and the MDOC, the All Writs Act does not apply.
Defendant Calhoun County
R&R recommended treating Defendant Calhoun County's
motion for dismissal under Rule 12(b)(5) as a motion to quash
service. Plaintiff served the complaint on Calhoun County
himself rather than using a third party, in violation of Rule
4(c) of the Federal Rules of Civil Procedure. The R&R
recommends granting Plaintiff an additional 14 days to effect
acknowledges in his objections that he personally mailed the
complaint and summons to Defendant, but he contends that it
was the United States Postal Service that actually served the
complaint. Even if service by an employee of the postal
service complies with Rule 4(c), however, Plaintiff also
failed to comply with Rule 4(j), which applies to service
upon a state or local government. This Rule provides that a
county must be served by “delivering a copy of the
summons and of the complaint to its chief executive officer,
” or in a manner permitted by state law. Fed.R.Civ.P.
4(j)(2). State law permits service upon a county by
personally serving “the chairperson of the county
commission or the county clerk.” Mich. Ct. R.
2.105(G)(1). Plaintiff has not complied with any of these
rules. Thus, the Court agrees that service was improper.
contends, without support, that the Court should ignore the
requirements of Rule 4 and deem the complaint to have been
properly served because Defendant's attorney has filed an
appearance and a motion to dismiss. A party may file a motion
objecting to the sufficiency of service without waiving the
service requirements. “A Rule 12(b)(5) motion is the
proper vehicle for challenging the mode of delivery of the
summons and complaint.” 5B Wright & Miller Federal
Practice and Procedure: Civil 3d § 1353 (2004).
Defendant has filed such a motion and is entitled to a ruling
for the reasons stated herein and in the R&R:
IS ORDERED that Plaintiff's objections to the
R&R (ECF No. 28) are DENIED.
IS FURTHER ORDERED that the R&R (ECF No. 27) is
APPROVED and ADOPTED as the
opinion of this Court.
IS FURTHER ORDERED that the motion to dismiss filed
by Defendants State of Michigan and the Michigan Department
of Corrections (ECF No. 8) is GRANTED.
Defendants State of Michigan and the ...