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Faber v. Carey

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

October 24, 2017

ELIZABETH CAREY, et al., Defendants.



         This is an action brought by a federal prisoner. He is proceeding in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), 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. 28 U.S.C. §§ 1915(e)(2), 1915A. The Court must read Plaintiff's pro se 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, the Court will dismiss Plaintiff's complaint as frivolous.


         I. Factual allegations

         Plaintiff, Robert Andrew Faber, is presently incarcerated at Federal Correctional Institution Miami. On March 8, 2017, Plaintiff entered a plea of guilty to three supervised release violations. (No. 2:05-cr-53 (W.D. Mich.), J., ECF No. 96.) He is serving a sentence of 12 months' incarceration, to be followed by a 24 month term of supervised release. (Id.) Among the special conditions of supervision for Plaintiff's supervised release is a requirement that he have no contact or association with a former roommate. (Id., PageID.267.) It is that special condition that lies at the heart of Plaintiff's action against Defendants Elizabeth Carey and Amanda Terburg.

         Plaintiff's initial supervised release was conditioned upon him staying at a residential reentry center, in this instance the Kalamazoo Probation Enhancement Program (KPEP) in Kalamazoo, Michigan. Plaintiff's initial supervised release was also conditioned on him participating in mental health treatment and sex offender treatment. Plaintiff participated in the KPEP treatment programs while he resided there. He continued with the KPEP treatment programs after he obtained employment and moved into independent housing.

         KPEP is a private non-profit Michigan corporation. KPEP describes its mission as follows:

KPEP began in the fall of 1980 to provide a live-in residence for those individuals who need more structure than regular probation provides, but where extended jail time is not judged necessary. The goal of KPEP is to show the residents that they can become independent, contributing members of society. The organization works closely with all aspects of the criminal justice system, including local law enforcement departments, corrections and probation departments, and various circuit court judges.
Over the years, the populations served by KPEP have changed and now include: felony probationers, state parolees, Drug Treatment Court participants, SAI probationers and parolees, federal inmates, federal probationers, and clients who are currently on federal pre-trial status.


         Defendants, Elizabeth Carey and Amanda Terburg, served as Plaintiff's outpatient therapists at KPEP. In that role, they completed a report of Plaintiff's progress through the end of January, 2017. That report, in part, formed the basis for the special condition that limits Plaintiff's contact with his former roommate. Plaintiff is suing Defendants Carey and Terburg for allegedly lying on the report. Plaintiff claims the therapists committed perjury and that they conspired with Plaintiff's probation officer to accomplish that end. Plaintiff contends that the federal crimes of perjury and conspiracy are “the federal claims made” in this action. (Compl., ECF No. 1, PageID.4.) Plaintiff seeks monetary damages, criminal prosecution of Defendants, and reversal of any adverse judgment their report caused at Faber's violation hearing.[1]

         This is not Plaintiff's first action raising claims against Defendants Carey and Terburg. In Faber v. Web et al., No. 1:17-cv-433 (W.D. Mich.), Plaintiff sued Carey, Terburg, and their supervisor Ann Web because “the above therapists lied about Mr. Faber on his treatment file, which was later used in a violation [hearing] by Faber's probation officer T. Smith . . . .” (No. 1:17-cv-433, Compl., ECF No. 1, PageID.2.) In Plaintiff's first action, he sought monetary damages, prosecution of Defendants, retraction of all false statements, and investigation of KPEP. That action was dismissed for failure to state a claim on July 7, 2017. (No. 1:17-cv-433, Op. & J., ECF Nos. 12, 13.)

         II. Duplicative actions are frivolous

         Plaintiffs generally have “no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendants.” Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977).[2] Accordingly, as part of its inherent power to administer its docket, a district court may dismiss a suit that is duplicative of another federal court suit. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Adamsv. California Dep't of Health Serv., 487 F.3d 684, 688 (9th Cir. 2007); Missouri v. Prudential Health Care Plan, Inc., 259 F.3d 949, 953-54 (8th Cir. 2001); Curtis v. Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir. 2000); Smith v. SEC, 129 F.3d 356, 361 (6th Cir. 1997). The power to dismiss a duplicative lawsuit is meant to foster judicial economy and the ‚Äúcomprehensive disposition of litigation, ...

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