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Smith v. Taylor-Pedersen

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

April 30, 2018

STEPHEN SMITH, Plaintiff,
v.
TERI TAYLOR-PEDERSEN, MICHELLE RISLEY, A. LAWS WRIGHT, THEODORE JOHNSON, BARBARA BROWN, DAPHNE JOHNSON, and DENISE ALLSBERRY, Defendants.

          District Judge John Corbett O'Meara

          (1) REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S CLAIMS AGAINST DEFENDANTS THEODORE JOHNSON, BARBARA BROWN, DAPHNE JOHNSON AND DENISE ALLSBERRY PURSUANT TO THE SCREENING PROVISIONS OF 28 U.S.C. § 1915; AND, (2) ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL (DE 37)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION:

         The Court should dismiss Plaintiff's claims against Defendants Theodore Johnson, Barbara Brown, Daphne Johnson and Denise Allsbery because Plaintiff's complaint fails to state a claim upon which relief can be granted.

         II. REPORT

         A. Background

         1. Procedural background

         Plaintiff Stephen Smith was a Michigan state prisoner incarcerated in the Gus Harrison Correctional Facility at the time he filed his complaint. (DE 1, 11.) He was paroled on September 26, 2017. See Offender Search, http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=230413.

         Plaintiff filed his original complaint on May 12, 2017, naming Teri Taylor-Pedersen, Michelle Risley and A. Laws Wright as defendants. (DE 1.) The Court granted Plaintiff's applications to proceed in forma pauperis and directed service of the complaint by the U.S. Marshal on June 16, 2017. (DEs 2, 6, 7, 8.) That same day, Plaintiff filed his first amended complaint, adding Theodore Johnson, Barbara Brown, Daphne Johnson and Denise Allsberry as defendants. (DE 11.) Defendants Taylor-Pedersen, Risley and Wright were served and filed motions to dismiss, which were subsequently granted. (DEs 30, 36.) The Court held, with regard to Plaintiff's claims against Taylor-Pedersen, Risley and Wright, that: (1) Plaintiff's claims were barred by the Heck doctrine; (2) his § 1983 claims were also time-barred; (3) he fails to state a claim pursuant to any criminal statute; and (4) the Court would not exercise supplemental jurisdiction over Plaintiff's state law claims. (Id.) However, to date, Defendants Theodore Johnson, Barbara Brown, Daphne Johnson and Denise Allsberry have not been served.[1] The facts in Plaintiff's amended complaint will be accepted as true for the purposes of this § 1915(e)(2) screen.

         2. Factual background

         According to Plaintiff's first amended complaint, Plaintiff, a parolee, was involved in an argument with his former neighbor and friend on January 30, 2012, who then called the police and told them that Plaintiff had a gun. (DE 11 at 5.) Plaintiff claims that he did not have a gun, but that he was nevertheless taken into custody for a “tether violation.” (Id.) The “Offense Detail” attached to Plaintiff's first amended complaint, however, shows that Plaintiff was arrested on January 30, 2012 for aggravated felonious assault involving a gun, and although Plaintiff was described as “unarmed, ” a black handgun “used in the crime” was listed in the report. (Id. at 32-33.)

         Plaintiff alleges that on February 9, 2012, Defendant Teri Taylor-Pedersen, the Michigan Department of Corrections (MDOC) Record's Office Supervisor, sent a “writ of attachment” allegedly containing false information about Plaintiff (including inaccurate identifying information and a reference that there was a “pending charge” against him) to Defendant Barbara Brown at the Wayne County Prosecutors Office. (Id. at 5, 8, 30.) Plaintiff alleges that Brown failed to investigate whether the information in the writ was true, and that this “false writ” caused him to face criminal charges in state court. (Id. at 4-5, 22, 27.) According to Plaintiff, Pederson sent the “false writ” at the request of Defendant Michelle Risley, a prosecutor for the MDOC, to gain information for an upcoming March 12, 2012 parole hearing, because “MDOC officials have no Subpoena Power.” (Id. at 5.) On June 22, 2012, following a bench trial in state court, Plaintiff was acquitted of all charges for “Firearms - Possession by Felon, ” “Felonious Assault, ” and “Felony Firearm.” (Id. at 6, 34.)

         At the July 24, 2012 parole revocation hearing that followed, Plaintiff complains that Defendant A. Laws Wright, the administrative law judge presiding over the hearing, did not allow Plaintiff to speak or put the state court acquittal on the record. (DE 11 at 6.) He further asserts that Defendant Theodore Johnson was the attorney assigned by the MDOC to represent him at the hearing, but that Mr. Johnson “conspired with Michelle Risley and A. Laws Wright” and “refused to put [the] truth on the record in [sic] behalf of his client” that Plaintiff was “[a]cquitted of all charges against him.” (Id. at 11, 22, 26.) Plaintiff's parole was revoked for violating a condition of his parole prohibiting ownership or possession of a firearm and he was not reconsidered for parole for 60 months. (Id. at 6, 36.)

         Plaintiff alleges that he filed a grievance regarding his parole revocation hearing dated May 29, 2012, seeking to “[r]einstate to original parole states [sic], ” but that on October 15, 2012 he was told by Defendant Denise Allsberry, the Grievance Administrator, that his grievance, marked as received on October 11, 2012, was untimely, which he disputes. (Id. at 10, 22; DE 26 at 8-10.) He also claims that in December 2013 he filed a request for a “declaratory ruling” with Defendant Daphne Johnson, Administrator for the Office of Legal Affairs, regarding his parole revocation hearing, but that in her January 2014 response she improperly refused to investigate the MDOC, stating that the MDOC officials had already investigated the matter. (DE 11 at 22, 28; DE 26 at 3-7.)

         Although the first amended complaint is discursive and less than clear, it appears that Plaintiff asserts claims under 42 U.S.C. §§ 1983 and 1985 for violation of his due process rights and conspiracy. He also alleges violations of numerous criminal statutes, including 18 U.S.C. §§ 241, 242, 371, 494, 1001, 1343 and 1506, and asserts state law claims for fraud, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and violations of the Michigan Constitution. (DE ...


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