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Cureton v. Vance

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

August 29, 2017

JAMIL CURETON, Plaintiff,
v.
ANTHONY VANCE, CRAIG F. WININGER, and THOMAS SONDGEROTH, Defendants.

          MONA K. MAJZOUB, MAG. JUDGE.

          ORDER ACCEPTING REPORT AND RECOMMENDATION (DOC. 20) GRANTING DEFENDANTS’ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT (DOC. 14), AND OVERRULING PLAINTIFF’S OBJECTIONS (DOC. 21)

          GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Jamil Cureton alleges that defendant Assistant United States Attorneys (“AUSAs”) Anthony Vance and Craig Wininger and FBI agent Thomas Sondgeroth are liable for malicious prosecution. Defendants filed a motion to dismiss which this court referred to Magistrate Judge Mona K. Majzoub for a report and recommendation. Because plaintiff submitted many exhibits outside the pleadings for the court’s review, the magistrate judge converted the motion into a motion for summary judgment. The magistrate judge has now issued her report and recommendation. Plaintiff has filed objections to that report which the court has duly considered. Having done so, the court shall overrule the objections, accept the report and recommendation, and grant defendants’ motion.

         I. Background

         The Complaint alleges that jurisdiction is based on diversity as plaintiff is a resident of Durham, North Carolina, and defendants are citizens of Michigan. Although plaintiff does not identify Bivens, as the basis for relief, given plaintiff’s pro se status, and the requirement that the court construe pro se plaintiff’s pleadings liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), the court finds that the magistrate judge properly analyzed plaintiff’s Complaint under both Michigan and federal law.

         The Magistrate Judge set forth the pertinent facts of this case in her report and the court reiterates those salient facts here. On May 3, 2012, a grand jury returned an indictment that charged plaintiff and eleven others with participating in a conspiracy to distribute cocaine, crack cocaine, and marijuana. Plaintiff was charged with one count of Racketeering Conspiracy under 18 U.S.C. § 1962(d) and one count of Distribution of Cocaine Base under 21 U.S.C. § 841(a)(1). The grand jury foreperson and defendants Vance and Wininger signed the indictment. Plaintiff was detained pending trial after a finding that he posed a danger to the community based in part, on his prior felony convictions for drug and firearm offenses. Plaintiff was acquitted on July 22, 2014.

         Plaintiff filed his pro se Complaint against AUSAs Vance and Wininger alleging that Vance sought prosecution with the knowledge that plaintiff had not done anything wrong, and that Wininger sought prosecution due to Agent Sondgeroth’s falsified evidence. In his response and sur-reply to defendants’ motion, plaintiff’s allegations are refined and allege that the defendant AUSAs presented false evidence to the grand jury, and that they themselves fabricated false evidence, and that Agent Sondgeroth falsified evidence. Specifically, plaintiff alleges that the false evidence was a statement by Theresa McCloud from September, 2009 that she purchased crack cocaine on September 9, 2009 from an individual she later identified in a photograph as the plaintiff. The statement was taken by Sergeant Wright and the photograph identification of plaintiff was obtained from McCloud by Task Force Officer Darren L. Lopez.

         None of the defendants began working on the Howard Boys investigation until after McCloud made her statement. Over a year after the indictment issued, in October, 2013, McCloud recanted her earlier statement. Plaintiff argues that McCloud’s earlier statement identifying him as the seller of crack cocaine constitutes falsified evidence.

         Magistrate Judge Majzoub found that defendants AUSAs Vance and Wininger were entitled to absolute immunity as they were performing their duties as prosecutors for the conduct alleged. The magistrate judge also found that Agent Sondgeroth did not join the investigation until 2010, and McCloud did not recant her identification until 2013; thus, Agent Sondgeroth could not be liable for McCloud’s allegedly false identification in 2009. The magistrate judge issued her report and recommendation based upon the parties’ written submissions and found that no evidentiary hearing was warranted. The court turns now to plaintiff’s objections to the report and recommendation.

         II. Standard of Review

         The standard of review to be employed by the court when examining a report and recommendation is set forth in 28 U.S.C. § 636. This court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This court “may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         III. Analysis

         1. Conversion of Motion

         In his first objection, plaintiff argues that the magistrate judge should not have converted defendants’ motion to dismiss into a motion for summary judgment. Plaintiff’s objection lacks merit as the conversion was warranted based on his reliance on matters outside the pleadings. The magistrate judge notified the parties of the conversion and specifically authorized plaintiff to submit any other additional matters in his objections to the report and recommendation. Despite this opportunity, plaintiff did not do so. In addition, plaintiff filed a sur-reply brief in which he responded to all of the exhibits relied upon by ...


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