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Tamburino v. Taylor

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

November 15, 2017

DOMINIC TAMBURINO, Plaintiff,
v.
VANESSA TAYLOR et al., Defendants.

          OPINION

          Janet T. Neff United States District Judge.

         This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (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. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). 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.

         Discussion

         I. Factual allegations

         Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at Parnall Correctional Facility (SMT) in Jackson County, Michigan. Plaintiff sues MDOC Director Heidi Washington, Ingham County Probation Agent Vanessa Taylor, an unidentified Ingham County District Attorney, unidentified Ingham County Court administration employees, unidentified Ingham County Jail administration employees, Court Recorder Susan Melton, State Court Administrator James Hughes, Court Transcriber Leslie Fox, Trial Court Services Division employee Stacy Westra, and another unidentified individual.

         According to the MDOC's Offender Tracking Information System, Plaintiff is incarcerated for two convictions of second-degree home invasion and one conviction of tampering with an electronic monitoring device, all of which are based on guilty pleas. In his complaint, Plaintiff alleges that he pleaded guilty to home invasion on February 17, 2005. According to documents attached to his complaint, he was set to be sentenced in March, but his sentence was delayed so that he could complete a residential program. He remained in jail while awaiting space in the program. He entered the residential program on May 16, 2005, but he did not complete the program so he returned to jail. On July 18, 2005, Defendant Vanessa Taylor completed a presentence report showing that Plaintiff was entitled to 198 days of jail credit. (Presentence Investigation Report, ECF No. 1-1, PageID.12.) On July 20, 2005, the Ingham County Circuit Court sentenced Plaintiff to 10 months in jail and three years of probation, with 198 days of credit for time served. (7/20/2005 J. of Sentence, ECF No. 1-1, PageID.26; see also Order of Probation & J. of Sentence, ECF No. 1-1, PageID.42.) Plaintiff alleges that the court told him at the sentencing hearing that he would be sentenced to “not more than 1 year 10 months time served and 3 years probation [sic].” (Compl., ECF No. 1, PageID.6.) Plaintiff apparently contends that this statement meant that he should have been released to probation because his sentence was for “time served.” In addition, he contends that he should have received credit for more than 198 days. The 198 days was allegedly calculated based on the time served up until the initial date scheduled for his sentence, March 23, 2005. (See 6/7/2006 Probation Violation Report, ECF No. 1-1, PageID.14.) Plaintiff contends that this number did not take into account his additional time in jail while awaiting space in the residential program (53 days), the time in jail after leaving the residential program until his sentence (14 days), and good time credit. If he had been given all the credit he contends was due to him, then he would have been eligible for immediate release on parole notwithstanding the 10-month jail sentence.

         When Plaintiff returned to the jail immediately after his July 20, 2005 sentencing hearing, he thought that he would be released and told to report to probation. However, he learned that he would not be released on probation until 61 days later, on September 19, 2005.

         Based on the documents attached to the complaint, it appears that Plaintiff was released on parole on September 19, 2005, and then he violated the terms of his parole on multiple occasions in December of that year. He was required to spend several days in jail and then was released on probation again. On June 15, 2006, he pled guilty to another violation of his probation and in July of that year his probation was revoked and he was sentenced to 18 months to 15 years in prison, with credit for 375 days in jail. (6/7/2006 J. of Sentence, ECF No. 1-2, PageID.93.) The probation violation report prepared in advance of that sentence indicates that he had 198 days of jail credit prior to March 23, 2005. (ECF No. 1-1, PageID.14.)

         At some point, Plaintiff attempted to glean more information about the sentence he received in July 2005. In 2013, he was able to obtain a copy of the plea and sentencing transcripts from 2005. Defendant Susan Melton was the court reporter. Defendant Leslie Fox prepared the transcripts. When Plaintiff reviewed the sentencing transcript, it did not match his memory of what the judge stated on the record. Instead of the judge telling Plaintiff that he would be sentenced to time served and 3 years of probation, the prosecutor states that Plaintiff's jail credit should be 198 days. (Sent. Tr., ECF No. 1-1, PageID.30.)[1]

         Apparently, Plaintiff asked the state administrative office to review the video of the sentencing hearing to determine whether it matched the sentencing transcript. Defendant James Hughes wrote Plaintiff a letter confirming that the video matched the transcript. (4/11/2014 Hughes letter, ECF No. 1-1, PageID.44.)

         Plaintiff also filed a motion for relief from judgment in Ingham County Circuit Court regarding the jail credit. The judge reviewed the motion and determined that Plaintiff was “partially correct-the trial court did erroneously calculate Defendant's jail credit at the time of sentencing on July 20, 2005 as 198 days when it should have been 265 days[.]” (7/25/2016 Cir. Ct. Order, ECF No. 1-1, PageID.47.) However, the court determined that the issue was “moot” because Plaintiff was given the total amount of credit to which he was entitled when he was sentenced again in July 2006. (Id.) In addition, the court concluded that Plaintiff appeared to have received all of his jail credit in 2005, notwithstanding the 198 days written on the sentence, because Plaintiff served only two months of his 10-month jail sentence. If he did not receive his credit, he would have served three and a half months of his sentence. (Id.)

         Plaintiff also filed an administrative complaint against Court Reporter Susan Melton with the Michigan Court Reporting and Recording Board of Review based on the alleged inaccuracies in the sentencing transcript. This complaint was dismissed by Stacy Westra because Hughes had already determined that there was no inconsistency between the video record and the written transcript. (See 9/8/2016 Westra Letter, ECF No. 1-1, PageID.54.)

         As the basis for his present action, Plaintiff asserts several claims. (See Compl., PageID.8-9 (“Question[]s Presented”).) First, he claims that the Ingham County Jail did not have the right to keep in him custody after July 20, 2005. Second, he claims that Probation Agent Taylor should have followed up after July 20, 2005, to determine whether Plaintiff had been released from custody. Third, he claims that he could not have violated his parole if the “Order of Probation” issued on July 20, 2005, was invalid. (Id.) Fourth, he claims that the Ingham County probation department, Ingham County prosecutor's office, and Ingham County court administration were present for a hearing in September 2005 and all of them received a copy of the order of probation, yet none of them corrected it. Fifth, he claims that unidentified individuals changed the audio or video of the July 20, 2005, sentencing hearing, in violation of state and federal law. Sixth, Defendant Hughes' determination that the transcripts match the video and audio must have been incorrect because the transcript contradicts the judgment of sentence (as well as the order of ...


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