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Tobias v. State

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

July 17, 2018


          David R. Grand Magistrate Judge.



         Plaintiff Kanesha Tashae Tobias filed a pro se complaint for damages against the judges and prosecutors involved in a pending prosecution against her in a Michigan court for carrying a concealed weapon. In addition to damages, Tobias seeks an order declaring unconstitutional the statute under which she is charged. The Court referred this case to Magistrate Judge David R. Grand for pretrial management. Thereafter, the defendants filed motions to dismiss the complaint. The plaintiff also filed a motion for a declaratory judgment. Judge Grand filed a report on January 16, 2018 recommending that the motions to dismiss be granted and the motion for declaratory judgment be denied. He further recommended that the Court dismiss the complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B). The plaintiff filed timely objections, and the matter is now before the Court.


         On October 10, 2017, paramedics discovered plaintiff Kanesha Tashae Tobias, distraught and crying, outside a Westland, Michigan Lowe's store. As paramedic Matt Dicosola began to help her into an ambulance, he noticed a handgun in Tobias's purse and called the Westland Police. Tobias told the responding Westland Police Department officers that the gun belonged to her boyfriend and that he had given it to her for protection. The officers discovered that Tobias did not possess a permit to carry a concealed firearm and placed her under arrest.

         On October 12, 2017, Tobias was arraigned before state district judge Sandra A. Cicirelli, in Michigan's Eighteenth Judicial District Court. On October 26, Judge Cicirelli conducted Tobias's preliminary examination and bound the case over for trial in the Wayne County, Michigan circuit court. On November 9, the Honorable Dana M. Hathaway presided over Tobias's arraignment, appointed an attorney to represent her, and scheduled a competency hearing for February 15, 2018. Tobias was charged with violating Michigan Compiled Laws § 750.227, a state statute prohibiting the concealed carry of firearms without a proper permit.

         On November 17, 2017, a week after her arraignment before Judge Hathaway, Tobias filed the present lawsuit pro se against the State of Michigan, the Westland Police Department, Amanda Cloonan (the Wayne County prosecutor for Tobias's case), Judge Hathaway, and Judge Cicirelli. Tobias alleges section 750.227 is unconstitutional, that the Westland Police Department “put [Tobias] in jail for exercising [her] 2nd amendment rights, ” and that Cloonan “authorized the action against [Tobias] in state court.” Tobias also alleges misconduct on the parts of Judges Hathaway and Cicirelli, arguing, among other things, that both denied her the right to a fair hearing and improperly allowed the case against her to continue. Tobias asks this Court to enter a “declaratory Judgement . . . that MCL 750.227 is wholly unconstitutional as an infringement on my 2nd amendment rights.” Tobias further asks that she “be relieved from all pending actions in any courts concerning this matter, ” and that a judgment of $780, 000 be entered against the defendants. Ibid.

         On December 6, 2017, Judge Cicirelli and the Westland Police Department answered the plaintiff's complaint, asserting that there is no factual or legal merit to the plaintiff's claims. The next day, defendant Cloonan filed a motion to dismiss the complaint or for summary judgment. The State of Michigan subsequently filed a motion to dismiss. On December 19, 2017, the plaintiff filed a “demand for declaratory judgment” on the constitutionality of Michigan Compiled Laws § 750.227.

         On January 16, 2018, Judge Grand issued a report recommending that the Court grant the defendants' motions to dismiss, deny the plaintiff's demand for declaratory judgment, and dismiss the complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B). The plaintiff thereafter filed motions to stay the state court proceedings and “amend the docket, ” which have not been addressed by the magistrate judge. The plaintiff also filed several responses to the magistrate judge's report and recommendation.


         In concluding that the case should be dismissed, the magistrate judge first found that the doctrine of judicial immunity precludes the plaintiff's claims for damages against Judges Cicirelli and Hathaway. He also noted that the plaintiff's allegation that Judge Hathaway “stole her property” is too vague to satisfy the pleading requirements under Ashcroft v. Iqbal, 556 U.S. 662');">556 U.S. 662, 678 (2009). The magistrate judge found that the plaintiff's allegations against the Westland Police Department should be dismissed as a matter of law because as a municipal entity, the Department cannot be held liable under 42 U.S.C. § 1983 under a respondeat superior theory. Noting that the claims for damages against Cloonan and the State of Michigan are lumped together in a single sentence in the complaint, the magistrate judge concluded that Cloonan enjoys absolute immunity for her prosecutorial conduct and that the Eleventh Amendment forecloses monetary relief from the State of Michigan. The magistrate judge concluded that the Court should deny the plaintiff's motion for a declaratory judgment on the constitutionality of the criminal statute because, in seeking a ruling on the validity of current criminal charges pending against her, her claim is precluded by the Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1984). The magistrate judge additionally explained that dismissal also is appropriate under the abstention doctrine articulated in Younger v. Harris, 401 U.S. 37, 44 (1971), because federal courts are directed to abstain from interfering in ongoing state court proceedings absent exceptional circumstances.

         Tobias filed three sets of objections. They appear to be identical in substance and differ only in format.

         The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This fresh review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

         “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

         The Court has reviewed the pleadings, the report and recommendation and the plaintiff's several objections, and has made a de novo review of the record in light of the parties' submissions.

         The plaintiff has responded to each section of the magistrate's report and recommendation; in some but not all of these sections, she enumerated specific objections to the report. Tobias's objections generally allege that the defendants have conspired to deprive her of her constitutional rights. She suggested several times that she believes the defendants have targeted her due to her race, gender, religion, or national origin - although race is the most frequently invoked. Tobias first raises objections to Judge Grand's analysis of claims against ...

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