United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTIONS FOR RECONSIDERATION, DENYING
MOTION TO PROCEED WITHOUT PREPAYING FEES OR COSTS ON APPEAL,
AND DENYING MOTION FOR RECUSAL
L. LUDINGTON, United States District Judge
Roger Lee Kelly's pro se complaint against Defendants The
PNC Financial Services Group, Inc., the Small Business
Administration, and Paul F. Beggs was removed to this Court
on February 26, 2015. ECF No. 1. Defendant Small Business
Administration removed the case pursuant to 28 U.S.C. §
1442(a)(1), which permits removal of a civil action involving
“[t]he United States or any agency thereof or any
officer (or any person acting under that officer) of the
United States or of any agency thereof, in an official or
individual capacity, for or relating to any act under color
of such office.” The case was referred to Magistrate
Judge Patricia T. Morris. ECF No. 6. Every Defendant except
Paul Beggs, Kelly's former criminal defense attorney, was
subsequently dismissed from the case. ECF Nos. 24, 40. On
September 8, 2016, Judge Morris issued a report and
recommendation which concluded that there was not a
continuing basis for federal jurisdiction and recommending
that the Court remand the case to state court. ECF No. 75. On
December 15, 2016, the Court issued an order which, among
other things, agreed that Kelly's claims were better
resolved in state court. ECF No. 81. The case was remanded on
December 16, 2016. ECF No. 82.
January 17, 2017, Kelly filed a motion for reconsideration
challenging several aspects of the Court's jurisdictional
analysis. ECF No. 86. He later filed a supplemental motion
for reconsideration which expanded upon those arguments. ECF
No. 89. Kelly separately requests that the Court give
permission for him to proceed in forma pauperis on appeal,
ECF No. 88, and requests that the Court recuse itself from
the case, ECF No. 91. Because Kelly's motions do not
identify a clear error in the Court's jurisdictional
analysis or cause for recusal, they will be denied.
to Eastern District of Michigan Local Rule 7.1(h), a party
can file a motion for reconsideration of a previous order,
but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997). “[T]he Court will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or
by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
initial motion for reconsideration argues that the case
should not be remanded, first, because he is asserting
federal constitutional claims and, second, because the state
court is biased against him.
argues that Defendant Beggs's “legal failures . . .
led to the denial of federal constitutional rights to
effective assistance of counsel.” Mot. Reconsideration
at 2, ECF No. 86. However, Sixth Amendment claims for
ineffective assistance of counsel are not cognizable in a
civil suit for damages. See Hudson v. Smith, No.
3:11-CV-00040, 2011 WL 161769, at *1 (M.D. Tenn. Jan. 19,
2011). Rather, the appropriate avenue for an ineffective
assistance of counsel challenge is via habeas proceedings.
Taylor v. Oakland Cty. Circuit Court, 831 F.2d 297
(6th Cir. 1987). Thus, even if Defendant Beggs's
representation of Kelly in his criminal case was
constitutionally defective, that claim cannot be advanced in
the current action. Kelly's allegations regarding
Beggs's alleged violations of the Sixth and Fourteenth
Amendment do not give rise to federal jurisdiction.
Kelly attempts to bolster his argument, previously rejected,
that the state court has exhibited bias and prejudice against
him. The Court previously explained that:
Kelly has not offered specific examples of bias or prejudice,
except to the extent that the state court rejected certain
arguments. Kelly's claims against Beggs might have been
previously dismissed for noncompliance with state court
rules, but Kelly does not argue that he had actually complied
with the rules, simply that the dismissal resulted in a
“waste” of time. Kelly's lack of success
before the state court is not evidence of bias or prejudice.
Dec. 15, 2016, Order at 6, ECF No. 81.
Kelly asserts that allegations are bias of premised on the
state court's “violations of Michigan Court Rules,
Michigan Compiled Laws, and Michigan Rules of
Evidence.” Mot. Reconsideration at 2. Kelly goes on to
identify several specific errors he contends the state court
made. In particular, he asserts that the state court
improperly refused to allow Kelly to introduce character
evidence under Michigan Rule of Evidence 404(a)(2) and
improperly refused to allow several of Kelly's witnesses
to testify. To the extent Kelly is seeking to appeal these
purported errors, the Court does not have jurisdiction.
Rooker v. Fid. Trust Co., 263 U.S. 413, 415 (1923).
To the extent Kelly offers these purported errors as evidence
of bias by the state court, the Court is unpersuaded. Even
assuming for the sake of argument that the state court did
commit errors below, Kelly has provided no evidence that the
errors were malicious. Honest errors are not evidence of
bias. Accordingly, Kelly has not demonstrated a palpable
defect in the Court's jurisdictional analysis.
supplemental motion for reconsideration, Kelly argues that
the Court should retain jurisdiction because the state court
has dismissed his claim for failure to pay the filing fee.
ECF No. 89. Kelly asserts that the Saginaw Regional Facility
Prison's failure to credit his trust fund with a returned
check in a timely manner resulted in the failure to pay the
filing fee. Kelly attaches several opinions by the state
court. In the most recent opinion, the state court explains
that it denied Kelly's request to waive the filing fee on
January 30, 2015. In the same order, the state court directed
Kelly to pay the filing fee within 21 days of certification
of the order.Certified copies of the order were mailed
to Kelly on February 4, 2015. Despite that order, Kelly had
not resubmitted his pleadings or paid the filing fee by
February 26, 2015, when the case was removed to this Court.
The state court opinion thus reveals that Kelly's action
was not properly initiated in the first place. Regardless of
the reason for Kelly's failure to pay the filing fee,
Kelly has not complied with state law governing the
initiation of his suit. The removal of the action did nothing
to legitimize the suit. The Court declines to exercise
has also filed a motion requesting this Court to recuse
itself. ECF No. 91. In the motion, Kelly reiterates the
arguments made in his motions for reconsideration and asserts
that the “foregoing actions amount to affirmative bias
against Plaintiff displayed by the Court.” Mot. Recusal
at 4, ECF No. 91. Kelly is understandably frustrated with the
remand and subsequent dismissal of his case. But lack of
success on the merits is not, by itself, evidence of bias. As
explained above, Kelly has ...