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Goldman v. Consumers Credit Union

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

June 9, 2017



          Paul L. Maloney United States District Judge

         This 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.

         The 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.

         Factual Allegations

         Plaintiff 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[1] following his guilty plea to conspiring with Rosanna Dickenson to use false pretenses to obtain money from two credit unions or banks.[2] (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.

         In his 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.

         Sometime 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.

         Defendant 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.

         Plaintiff 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.

         Plaintiff 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 false pretenses.

         Plaintiff 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.[3] Plaintiff does not expressly make any of these claims in his Amended Complaint.

         In his 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.

         Defendant 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.

         Plaintiff 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.

         Defendant 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.[4]

         Defendant 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. Dickenson's arraignment.

         Defendant 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.

         Once 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.

         Defendant 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.

         Defendant 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.

         Plaintiff 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 ...

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