United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
matter started out as a civil action brought by a state
prisoner asserting violation of various federal consumer
protection statutes. The Court granted Plaintiff leave to
proceed in forma pauperis. The Court conducted a
preliminary review of Plaintiffs complaint as required by the
Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT.
1321 (1996). By opinion and judgment entered April 20, 2017,
the Court dismissed Plaintiffs complaint for failure to state
a claim. (ECF Nos. 6, 7.) The Court has recently granted
Plaintiff s motion pursuant to Rule 59(e), vacating the
judgment and accepting for filing Plaintiffs Amended
Complaint. The Court must now undertake review of Plaintiff s
Amended Complaint pursuant to the PLRA.
Court is required to dismiss any prisoner action brought
under federal law 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. 28U.S.C. §§ 1915(e)(2), 1915A. The Court
must read Plaintiff spro se Amended 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, Plaintiffs action will be dismissed on grounds of
immunity and for failure to state a claim.
is presently incarcerated with the Michigan Department of
Corrections in the Cooper Street Correctional Facility in
Jackson, Michigan. He is serving two concurrent prison terms
of 10 to 90 months following his guilty plea to conspiring
with Rosanna Dickenson to use false pretenses to obtain money
from two credit unions or banks. (Plea Tr., ECF No. 10-1,
PageID.331-335.) Despite pleading guilty, Plaintiff contends
that virtually every aspect of the investigation and
prosecution of his crimes was defective. His relatively
concise initial complaint has been transformed into a
48-page, 148-paragraph rambling legal argument with a
periodic sprinkling of factual allegations.
initial complaint Plaintiff sued Consumers Credit Union
(CCU), one of the credit unions he victimized, Kalamazoo
County Deputy Jeffrey Baker, a loss prevention officer for
CCU and as well as the deputy who investigated Plaintiff s
crimes, Kalamazoo County Sheriff Richard Fuller, for
permitting Defendant Baker's improper actions, and
Kalamazoo County. The factual allegations were limited to the
incidents that led to his criminal prosecution. Specifically,
Plaintiff opened deposit accounts at two Kalamazoo-area
financial institutions, including CCU, during November, 2014.
Plaintiff deposited several checks made payable to him drawn
upon the Suntrust bank account of Rosanna Dickenson.
Plaintiff claims that under the terms of the contract he
entered into with CCU, the credit union could place a hold on
checks deposited by Plaintiff or grant him an unsecured line
of credit until the check cleared. All of the checks
deposited by Plaintiff were returned for insufficient funds.
Plaintiff alleges that he knew Ms. Dickenson did not have the
money in her account, but he expected the checks would be
covered by an overdraft line of credit.
between November 15 and 24, 2014, Defendant Baker called
Plaintiff and advised him that he was the loss-prevention
officer for CCU. According to Plaintiff, Baker also was
employed as a Kalamazoo County Sheriff s Deputy. Baker
informed Plaintiff that the checks from Ms. Dickenson had
been returned unpaid and advised Plaintiff to return the
money to CCU or Plaintiff and Ms. Dickenson would go to jail.
Mr. Baker informed Plaintiff that he must pay the obligation
within a certain time or further action would be taken.
Baker also informed Plaintiff that he had accessed Plaintiff
s credit report numerous times in order to monitor credit
checks being conducted by other financial institutions where
Plaintiff was seeking to open accounts. Baker told Plaintiff
he was contacting other financial institutions where
Plaintiff had opened accounts and warning them of the
activity on Plaintiff s CCU account. Plaintiff alleges that
Defendant Baker informed the other financial institutions
that he was a Sheriffs Deputy Detective and that he could
collect Plaintiffs debts to them.
alleges that Defendant Baker contacted him numerous times by
telephone and email regarding the debt he owed to CCU.
Plaintiff told Baker to stop calling him, but Baker continued
to leave him phone messages.
contends that it was a result of Baker's allegedly
unlawful searches of Plaintiff's credit report, that
Plaintiff was charged in Kalamazoo County with uttering and
publishing and obtaining money by false pretenses. Plaintiff
was arrested on the charges in Florida and extradited to
Michigan, where he pleaded guilty to one count of obtaining
money under false pretenses, MICH. COMP. LAWS §
750.2184A, and one count of conspiracy to obtain money under
s initial complaint essentially ended at that point.
Plaintiff claimed the Defendants' conduct violated the
Consumer Credit Protection Act (CCP A), 15U.S.C. § 1601
et seq., the Truth-in-Lending Act (TILA) 15U.S.C.
§ 1601 et seq., and the Fair Credit Reporting
Act (FCRA), 15U.S.C. § 1681 et seq. Plaintiff
further claimed that CCU violated the Right to Financial
Privacy Act (RFP A), 12 U.S.C. § 3401 et seq.,
by disclosing his financial records to the Kalamazoo County
Sheriff's Department without a subpeona or Plaintiff s
written consent. In his motion for reconsideration, Plaintiff
also argues that a claim under the federal Fair Debt
Collection Practices Act was implicit in his
allegations. Plaintiff does not expressly make any of
these claims in his Amended Complaint.
Amended Complaint, Plaintiff again sues the initial
Defendants (Baker, CCU, Fuller, and Kalamazoo County) and
adds twenty new ones. Plaintiff's focus has shifted from
the pre-prosecution attempt to collect the debt to the
criminal prosecution itself. Each of the Defendants played
some role in Petitioner's arrest, extradition,
prosecution, or punishment. The roles of Defendant Baker and
CCU are described above. Plaintiff contends that Defendant
Fuller and Kalamazoo County developed and maintained policies
or customs that caused Plaintiff s rights to be violated.
Specifically, Plaintiff claims Defendants Fuller and
Kalamazoo County developed a "hands off" policy or
custom with regard to the illegal activities undertaken by
Defendant Baker, such that Baker believed that he could
violate Plaintiff s rights with impunity.
Magistrate Nicholas Schaberg signed the felony complaint
submitted by Defendant Baker. Defendant Assistant Prosecuting
Attorney Gregory W. Russell authorized the warrant. The
complaint charged three counts of uttering and publishing,
one count of false pretenses, and one count of conspiracy to
commit false pretenses.
contends that Defendant Baker's complaint was deficient
in that it lacked facts to support the statutory violations
alleged. Plaintiff claims Defendant Baker, therefore,
committed common law and statutory offenses of perjury,
obstruction of justice, contempt, moral turpitude, and
misconduct in office, in violation of state and federal law,
and violated Plaintiff s civil rights under the state and
federal constitutions. Plaintiff claims that Defendant
Schaberg conspired with Defendant Baker to deprive Plaintiff
and Ms. Dickenson of their due process rights.
Michigan Governor Rick Snyder, based on the defective warrant
which was based on the defective complaint, signed the
extradition papers that brought Plaintiff from Florida to
Michigan for prosecution. Assistant Prosecuting Attorney
Heather S. Bergmann prepared the application that prompted
Defendant Snyder's action.
District Court Judge Christopher T. Haenicke presided over
Plaintiffs arraignment, set plaintiffs bond, and bound
Plaintiff over to Circuit Court following his preliminary
examination. Plaintiff argues that Defendant Haenicke should
have recused himself because he had also presided over Ms.
Assistant Prosecuting Attorney Michael Stein served as
prosecutor at Plaintiff s preliminary examination. Defendant
Stein voluntarily dismissed the uttering and publishing
charges, but he also added a new false pretenses charge.
Plaintiff contends he was maliciously prosecuted.
the matter was bound over to circuit court, Defendant Russell
filed a new information alleging five counts of false
pretenses and one count of conspiracy to commit false
pretenses. Plaintiff contends the information lacks
sufficient factual allegations and, therefore, is deficient.
Because the complaint, arrest warrant, and information are so
deficient, Plaintiff argues that Defendant 8th District Court
and 9th Circuit Court never obtained subject-matter
jurisdiction. Defendant Judge Gary C. Giguere, Jr. has
refused to acknowledge Plaintiff s jurisdictional arguments.
Plaintiff claims that his appointed counsel Defendant Matthew
Glaser, Defendant Giguere, and Defendant Assistance
Prosecuting Attorney Kenneth N. Barnard tricked Plaintiff
into pleading guilty by deceiving him with regard to the
expected sentence, thereby rendering his plea unknowing,
unintelligent, and involuntary.
Michigan Court of Appeals Judges Colleen A. O'Brien, Mark
J. Cavanaugh, and Kathleen Jansen, and Defendant Michigan
Court of Appeals, wronged Plaintiff by denying his delayed
application for leave to appeal. Plaintiff sues the Michigan
Supreme Court as well, presumably because that court also
denied Plaintiffs application for leave to appeal.
Michigan Attorney General William Schuette has heard
Plaintiff s complaints regarding the prosecutors and
government officials as alleged in Plaintiff s complaints but
has done nothing. Similarly, Defendant MDOC Director Heidi
Washington has failed to prevent the MDOC from accepting
invalid sentences and judgments. Plaintiffsues Defendant MDOC
for conspiring with the judges to keep prisoners illegally
incarcerated to maintain funding and make "BIG BUSINESS
out of the Judicial and Penal System." (Am. Compl., ECF
No. 10-1, Page ID.231-232.) Defendant also complains that all
of the Defendants have conspired together, in violation of
the Racketeer Influenced and Corrupt Organizations Act,
18U.S.C. § 1961 et seq. (RICO) to keep MDOC
prisons populated, to further their political goals, and to
generate contract and kick-back profits.
does not reveal why he has sued Defendant Michigan Parole
Board; however, he does contend that it is unfair that the
statute specifying the Michigan Parole Board's
jurisdiction excludes him because, as Plaintiff reads the
statute, his minimum sentence is less than one year and thus
is not a "term of years." MICH. COMP. LAWS §
791.234(1). The Michigan Court of Appeals has expressly
rejected that reading of the statute suggested by Plaintiff
because it "would lead to an absurd result"
Kelly v. Michigan Parole Board, No. 292836, 2010 WL
4260900, *2 (Mich. Ct. App. Oct. 28, 2010). Based on the
Michigan Court of Appeals analysis, it appears the
legislature referenced "an indeterminate sentence ...
with a minimum in terms of years" to distinguish it from
a sentence with aminimum term of life, as opposed to
distinguishing it from a sentence with a ...