Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Winburn v. Price

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

September 3, 2019

ROBERT WINBURN, Plaintiff,
v.
HERB PRICE, Defendant.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND GRANTING MOTION TO REVOKE IN FORMA PAUPERIS STATUS

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE.

         On September 10, 2018, Plaintiff Robert Winburn, aka Scott A. Libby, filed a complaint against Defendant H. Price, a warden at the Cotton Correctional Facility in Jackson, Michigan. Pl.'s Compl., ECF No. 1, PageID.1. Plaintiff is representing himself pro se and is both a prisoner serving a current sentence and a pretrial detainee in a pending case in Washtenaw County Circuit Court. In his complaint, Plaintiff alleges a civil rights violation under 42 U.S.C. § 1983, which states in relevant part, that “every person who … causes to be subjected … any citizen of the United States … to the deprivation of rights, privileges or immunities secured by the Constitution and law, shall be liable to the party injured.” Plaintiff specifically alleges that Defendant has failed to provide him access to two DVDs containing evidence necessary for Plaintiff to defend himself in his ongoing criminal case in Washtenaw County. Id. Plaintiff contends that he entered into a stipulation and order with the Government permitting him access to evidence while incarcerated.

         I.

         A.

         On September 10, 2018, Plaintiff filed an application to proceed in forma pauperis. ECF No. 2, PageID.15. The order was granted on October 9, 2018. ECF No. 4, PageID.19. On October 31, 2018, Plaintiff filed a motion for a temporary restraining order. ECF No. 8, PageID.25. He claimed that Defendant directed two inmate clerks to inspect Plaintiff's DVDs to determine which DVDs were operative. Plaintiff argued that the DVDs contain private information, specifically his role as an informant. Plaintiff alleged that the incident has put his safety at risk because other inmates now know of his role as an informant. He also argued that Defendant Price was obstructing his access to the DVDs and consequently preventing his preparation for his criminal trial.

         On November 1, 2018, Magistrate Judge Elizabeth Stafford issued a report and recommendation recommending that Plaintiff's motion be denied. ECF No. 9, PageID.29. She concluded that the relief sought in Plaintiff's temporary restraining order (to prevent Defendant from permitting other inmates to review Plaintiff's DVDs) was unrelated to the relief sought in Plaintiff's complaint (access to two DVDs that Plaintiff claims are missing). Id. at 3 (“Courts have consistently denied motions for injunctive relief when the requested relief is unrelated to the conduct alleged in the complaint.”). She also determined that Plaintiff did not establish that his criminal trial was imminent because he gave no indication as to when it was scheduled.

         On November 1, 2018, Plaintiff filed another motion for a temporary restraining order. ECF No. 10, PageID.35. It reiterated many of the same allegations and arguments from his previous motion. That same day, Judge Stafford issued a report and recommendation recommending that Plaintiff's motion be denied. ECF No. 11, PageID.183. She relied upon a state pretrial hearing transcript provided by Plaintiff to determine that Plaintiff's need for the evidence was not imminent. Id.; see also Pretrial Hearing, Ex. H, ECF No. 10. Judge Stafford explained that the state court judge had ordered the warden to appear at a show cause hearing on March 16, 2018 to resolve the issue of Plaintiff's access to DVDs. During the hearing, the Prosecutor assured the judge that he would not force Winburn to begin trial before Winburn had an opportunity to review all the evidence. Id. at PageID. 141 (“I understand his situation, so I'm not going to try to force him to get ready for trial when he doesn't feel he has enough time to prepare.”). Judge Stafford also noted that the state court judge entered an order on August 10, 2018 requiring the warden to grant Plaintiff access to the DVDs. Order Regarding Use of Elec. Equip., Ex. J, ECF No. 10.

         On November 11, 2018, Plaintiff filed objections to Judge Stafford's Report and Recommendations. ECF No. 12, PageID185. Plaintiff's objections were overruled and the report and recommendation denying the motions for temporary restraining orders was adopted. ECF No. 13, PageID.190.

         B.

         On February 15, 2019, Defendant Price moved to revoke Plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g), which provides, “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action … if the prisoner has, on 3 or more prior occasions, while incarcerated … brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” ECF No. 16, PageID.199.

         Magistrate Judge Stafford counted the following actions by Plaintiff as strikes. First, on August 12, 1998, Judge David McKeague of the Western District of Michigan dismissed a civil rights complaint filed by Plaintiff for failure to state a claim. ECF No. 18, PageID.261; see also Winburn v. Coles, 98-00243. Second, on January 7, 2008, Judge O'Meara dismissed another civil rights complaint filed by Plaintiff for failure to state a claim. ECF No. 18, PageID.262; see also Winburn v. Jackson, 07-cv-15440. Third, the Sixth Circuit affirmed Judge O'Meara's dismissal on December 9, 2008. Id. Each action will be discussed in turn.

         i.

         Plaintiff's first action was a civil rights complaint regarding his First Amendment rights. ECF No. 16-2, PageID.223; see also 07-CV-15440, ECF No. 1, PageID.1. The complaint was filed on August 12, 1998. ECF No. 16-2, PageID.223. Judge David McKeague of the Western District of Michigan dismissed the complaint for failure to state a claim. ECF No. 18, PageID.261.

         The second action involved a civil rights complaint filed by Plaintiff in the Eastern District of Michigan against Judge Thomas Jackson and his clerk, A.T. O'Sullivan. 07-CV-15440, ECF No. 1, PageID.1. Plaintiff claimed that Judge Jackson and his clerk, violated his First, Fifth, Thirteenth, and Fourteenth Amendment rights through “fraud, collusion, fabricated information, withholding relevant material, [and] malicious, reckless, and unreasonable acts.” Id. at PageID.2. On January 7, 2008, Judge O'Meara denied the complaint for failure to state a claim upon which relief could be granted. 07-CV-15440, ECF No. 5, PageID.79. On January 14, 2008, Plaintiff ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.