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Rose v. Wayne County

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

September 25, 2019

WILLIE ROSE, Plaintiff,
v.
WAYNE COUNTY, WYLENE ABDULLAH, CATHY GARRETT, TAMMI PALMER, BARBARA BROWN, MILTON MACK, JENNIFER PHILLIPS, and ROBERT FICANO, Defendants.

          Patricia T. Morris Magistrate Judge.

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION, OVERRULING PLAINTIFF’S OBJECTIONS, GRANTING MOTIONS TO AMEND COMPLAINT, DENYING MOTIONS FOR PRELIMINARY INJUNCTION, DISMISSING DEFENDANT WAYNE COUNTY WITH PREJUDICE, AND DISMISSING REMAINING CLAIMS WITHOUT PREJUDICE

          David M. Lawson United States District Judge.

         Plaintiff Willie Rose, a Michigan Department of Corrections prisoner, pleaded guilty in the Wayne County, Michigan circuit court to assault and firearms charges. After he was sentenced to prison, he pursued unsuccessful appeals in the state appellate courts and filed a petition for a writ of certiorari in the United States Supreme Court. He also sought and was denied federal habeas relief. He apparently wants to mount additional challenges to his convictions, as he has endeavored and failed to obtain records - including transcripts - from the state courts. That quest brings him here, with a lawsuit brought against several court and Wayne County officials in which he alleges that their intransigence has frustrated his efforts and denied him access to the courts. The case was referred to Magistrate Judge Patricia Morris for pretrial management, and she conducted a screening, which courts must complete when indigent prisoners file civil rights complaints in federal court. See 28 U.S.C. §§ 1915(e), 1915A(a). Judge Morris filed a report recommending that the Court allow the plaintiff’s serial amendments to the complaint, deny his various motions for injunctions, dismiss Wayne County with prejudice, and dismiss the case against the other defendants without prejudice. The plaintiff objected to the recommendation, and the case is before the Court for fresh review.

         Since the recommendation was filed, the plaintiff has filed multiple sets of objections and more amended complaints. The Court has considered them all. They still suffer from the same defects identified by the magistrate judge. The plaintiff also filed a document received on September 18, 2019 asking that the case not be decided before September 20, as he wanted to file other materials. No additional documents have been received. Therefore, the Court will adopt the recommendation, deny the motions for injunctions, dismiss Wayne County as a defendant with prejudice, and dismiss the remaining claims without prejudice.

         I.

         Rose pleaded guilty in August 2012 to assault with intent to commit murder, felon in possession of a firearm, and possession of a firearm while committing a felony. He alleges that his procedural and substantive due process rights were violated in his original criminal case and he asserts that he is attempting to right those violations by filing a motion for relief from judgment in the state court. He contends that his impending motion is predicated on evidence contained in transcripts of his court hearings and other records, which he has been unable to obtain from the numerous defendants named in this suit. Rose alleges that the defendants’ refusals to turn over the documents are preventing him from utilizing post-conviction relief procedures and constitute additional constitutional violations of his First Amendment right to access the courts and other unspecified violations of his Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights.

         The plaintiff began his search for his transcripts by requesting them from defendant Franceschi, a court reporter, in 2016, but he contends that he was denied access because he was indigent. The plaintiff also wrote to defendant Palmer, a supervisor, to obtain court documents related to his criminal case but received no response. The plaintiff then turned to defendants Barbara Brown and the Wayne County Executive Office in 2016 and 2017 but was similarly unable to obtain the documents. The plaintiff alleges that he finally received transcripts from defendant Franceschi in 2018, but that they were only partial records of the hearings because defendant Franceschi “withheld, concealed, altered and/or destroyed records” from various proceedings. ECF No. 40, PageID.675.

         In September 2018 the plaintiff contends that Judge Donald Knapp ordered defendant Abdullah, another court reporter, to “produce free transcripts for court proceedings” but Abdullah failed to do so. ECF No. 40, PageID.676. The plaintiff believes that Abdullah chose to seize and destroy the records instead of turning them over to the plaintiff. ECF No. 40, PageID.677. The plaintiff also alleges that Wayne County officials - defendants Ficano, Garrett, and Phillips - became aware of Abdullah’s “custom of invidiously withholding transcript records from defendants as far back as 2009, ” and chose not to institute any corrective action. ECF No. 40, PageID.678.

         In October 2018, the plaintiff submitted “pleadings” to the Wayne County Circuit Court, the Michigan Court of Appeals, and the Michigan Supreme Court unsuccessfully requesting assistance in obtaining other records, including the “Prosecutor’s file, Police file, Pre-trial services bond reduction report and psych report.” ECF No. 40, PageID.681. In November, the plaintiff wrote to defendant Mack, the state court administrator, requesting documents and records, also to no avail. The plaintiff then wrote to defendant Phillips in an attempt to purchase the documents but was once again unsuccessful. The plaintiff’s family and friends tried to obtain the documents, talking to numerous defendants via telephone, but they could not get them, either.

         In December 2018, the plaintiff alleges, he received proof that defendant Pickett maliciously destroyed his transcripts instead of allowing the plaintiff access to them. The plaintiff also alleges that Palmer either lied about the existence of specific transcripts or confirmed that Abdullah had willfully and intentionally destroyed the records. In his subsequent amended complaints, the plaintiff contends that the defendants’ various actions amount to violations of his constitutional rights.

         On December 6, 2018, the plaintiff filed a complaint in this Court under 42 U.S.C. § 1983 describing the alleged injuries he suffered because of numerous government officials’ failures to turn over documents from his original criminal case. He also filed a motion for preliminary injunction and temporary restraining order to compel the defendants to produce those transcripts.

         Eleven days later, the plaintiff filed an amended complaint to add three more defendants to the case, Doreen Pickett, Theresa Roberts, and Carla Franceschi - government officials that he says similarly violated his rights by denying him access to transcripts and reports. He also filed a second motion for preliminary injunction and temporary restraining order, again asking that the defendants be forced to produce documents.

         The Court granted the plaintiff’s application to proceed in forma pauperis and referred the case to Magistrate Judge Morris for general case management under 28 U.S.C. § 636(b). On January 29, 2019, the plaintiff filed a third motion for preliminary injunction or temporary restraining order, again asking the Court to order production of the transcripts. He also filed a second amended complaint, alleging more incidents where defendants had failed to turn over documents.

         After Judge Morris issued her report and recommendation, the plaintiff filed two sets of objections, one on March 11, 2019 and another the next day. Both sets of objections take issue with, among other things, Magistrate Judge Morris’ characterization of the plaintiff’s legal claims, his lack of opportunity to conduct discovery, and the suggested with-prejudice dismissal of defendant Wayne County.

         On May 10, 2019 the plaintiff filed another amended complaint and additional objections to Magistrate Judge Morris’ report and recommendation. The plaintiff’s amended complaint raises legal arguments already discussed in prior pleadings and maintains that the defendants continued refusal to turn over transcripts violates his rights. In his additional objections, the plaintiff reiterates that his constitutional rights have been violated, and again raises arguments against dismissing Wayne County as a party. On May 16, 2019 the plaintiff filed the most recent amended complaint, once more asking the Court to recognize that the defendants violated his constitutional rights by withholding transcripts and recordings. None of the amended pleadings were filed with leave of court.

         II.

         A.

         Magistrate Judge Morris recommended that Rose’s motions to amend his complaint be granted, even though none of the amendments would salvage the complaint or any of Rose’s claims. The same can be said for the later-filed pleadings. It is not clear why the magistrate judge did not simply grant the amendments herself, since she had the authority to do so under the order of reference. See Gentry v. Tennessee Bd. of Judicial Conduct, No. 17-00020, 2017 WL 2362494, at *1 (M.D. Tenn. May 31, 2017) (“Courts have uniformly held that motions to amend complaints are non-dispositive matters that may be determined by the magistrate judge and reviewed under the clearly erroneous or contrary to law standard of review set out in 28 U.S. § 636(b)(1)(A) and Rule 72(a), Federal Rules of Civil Procedure.”) (citing cases). Nonetheless, the Court agrees with that part of the recommendation, the motions to amend the complaint will be granted, and the Court will allow all the amendments.

         B.

         The magistrate judge’s report was submitted after she screened the case for merit. When, as here, a plaintiff has asked the Court to waive fees and costs because he cannot afford to pay them, the Court has an obligation to screen the case for merit and dismiss the case if it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In addition, Congress mandated in the Prison Litigation Reform Act (PLRA) that the Court screen for colorable merit every prisoner complaint filed against a state or governmental entity. 28 U.S.C. § 1915A(a) (“The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”)

         A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). “A complaint lacks an arguable basis in law or fact if it ... is based on legal theories that are indisputably meritless.” Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000) (citing Neitzke, 490 U.S. at 327-28). Dismissal on the Court’s initiative is appropriate if the complaint lacks an arguable basis when filed. Goodell v. Anthony, 157 F.Supp.2d 796, 799 (E.D. Mich. 2001).

         1.

         The magistrate judge recommended that Wayne County be dismissed from the case “with prejudice” because the plaintiff did not plead any facts that could show that the county violated the plaintiff’s federal rights through any policy, custom, or practice. The ...


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