Kenny v. Bartman
| Decision Date | 31 May 2016 |
| Docket Number | Case No. 1:16-cv-260 |
| Parties | JAMES MICHAEL KENNY, Plaintiff, v. MICHAEL JOHN BARTMAN, JR. et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Honorable Janet T. Neff
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), 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, Plaintiff's action will be dismissed on grounds of immunity and failure to state a claim.
Plaintiff James Michael Kenny currently is a pretrial detainee at the Clinton County Jail (CCJ). He sues the following Defendants: private citizens Michael John Bartman, Jr., Ted Allen Goodman, and Adam Joseph Goodman; Clinton County Prosecuting Attorneys Charles Sherman and Anthony Michael Ameche; 65A District Court Magistrate Dan Skorich; Chief Judge Randy L. Tahvonen; 65A District Court Judge Michael E. Clarizio; defense attorney Ronald A. Zawacki; Clinton County Sheriff Wayne Kangas; Clinton County Sheriff Department (CCSD) Deputies Eric Thompson, Zach Smith, (unknown) Johnson and Sean Dush; CCSD Sergeant Christopher Crawford; Clinton County Jail (CCJ) Captain Monica Hoskins; CCJ Sergeant (unknown) Wirth; CCJ Officer Michelle Elizabeth Monroe; City of Portland Police Officer Star Thomas; Portland Police Chief Robert Bauer; Michigan State Police Sergeant Christian Clute; and Governor Rick Snyder.
Plaintiff's 64-page complaint1 alleges numerous ostensible violations of his constitutional rights related to his arrest on May 29, 2015 and ongoing prosecution for aggravated stalking, MICH. COMP. LAWS § 750.411, felonious assault, MICH. COMP. LAWS § 750.82, and resisting and obstructing the police, MICH. COMP. LAWS § 750.81d, for which he faces a potential life sentence as a fourth felony offender, MICH. COMP. LAWS § 769.12. (See Compl., ECF No. 1, PageID.24.) In addition, Plaintiff makes a number of allegations about violations of his rights during his confinement at the CCJ, while he awaits trial. Plaintiff also alleges violations of state statutes and common law.
According to the complaint, a personal protection order that was issued on January 21, 2015 barred Plaintiff from contacting Defendant Monroe. During the week of May 22, 2015, Plaintiff was camped in a woodsy area near the River Walk in Portland, Michigan. He took many walks in the Portland area. Plaintiff acknowledges that, on May 25, 2015, he went to the apartment building at which Defendant Monroe formerly lived, but he found that her apartment was rented to a different person. During another walk on May 29, 2015, at about 3:20 p.m., Plaintiff went to the home of Defendant Bartman, whom Plaintiff had previously seen eating lunch with Defendant Monroe on May 23, 2015, and with whom he knew Monroe lived. Defendant Bartman allegedly used foul language against Plaintiff, telling Plaintiff that he was not allowed near Bartman's house. According to Plaintiff, Bartman charged at Plaintiff, and Plaintiff pushed Bartman down. The two then wrestled into Bartman's yard, and Plaintiff tried to place Bartman in a headlock. Bartman allegedly became frustrated and threatened to shoot Plaintiff. Bartman went to his truck, and Plaintiff ran away, dropping a butter knife. Bartman got into his truck and drove down the road and then returned to his driveway. Plaintiff came out of the woods, and Bartman backed up his truck, jumped out, and started chasing Plaintiff. Bartman allegedly fired three shots at Plaintiff as Plaintiff ran away.
While running away, Plaintiff was unaware that the police had been called and were pursuing him. At 4:55 p.m., an hour-and-a-half after the shooting, Plaintiff came out of the woods behind W. Looking Glass Road. Plaintiff claims that he was "ambush[ed]" by police, who had surrounded the area. (Id., PageID.13.) Plaintiff first encountered citizen Ted Goodman, who told Plaintiff to get down on the ground. Plaintiff refused, after which Defendant Officer Thomas ordered him to the ground. Citizens Ted and Adam Goodman assisted Defendant Thomas, holdingPlaintiff down while Thomas handcuffed him. Plaintiff then was ordered to stand up and face the CCS cruiser, and Defendant Thomas emptied Plaintiff's pocket, finding a camera, a sharp folding knife, a light-and-sound keychain, and light blue latex gloves. When Plaintiff asked why he was being arrested, an unidentified state police officer stated that it was "because of pulling out a butter knife on a guy." (Id., PageID.14.)
Defendant Thompson placed Plaintiff in a police cruiser, and Defendant Smith drove the cruiser away. At Defendant Dush's instruction, Defendant Smith drove Plaintiff to Defendant Monroe's house, where Defendants Monroe and Bartman identified Plaintiff. Smith then drove Plaintiff to the CCSD, where he was escorted into an interview room.
Plaintiff alleges that, during his first two weeks at CCJ, he suffered from flashbacks caused by having been shot at by Bartman. Plaintiff alleges that he described both what had happened and his flashbacks to a jail social worker on June 3, 2015, and to a psychiatrist and nurse at the Center for Forensic Psychiatry on July 14, 2015.
Plaintiff complains that Defendants Bartman and Monroe provided false evidence against him; that Defendant Thompson failed to properly investigate the incident; that Defendants Ted and Adam Goodman held Plaintiff down while Defendant Thomas falsely arrested Plaintiff; that Defendants Thompson, Smith and Dush participated in the false arrest; that Plaintiff was framed for pulling out a butter knife on Bartman; that Defendant Ameche engaged in ex parte communications with Defendant Skorich to obtain a warrant; that Defendant Skorich slandered Plaintiff in court; that Defendant Thompson committed perjury to get an arrest warrant; that Defendant Zawacki provided ineffective assistance of counsel; that Defendants Ameche and Sherman and the courts secured perjured testimony, ignored Plaintiff's six pro se motions, and failed to provide him copies ofevidence; that Defendant Tahvonen failed to cure the ineffective assistance of counsel; that Defendants Clarizio and Tahvonen violated Plaintiff's right to represent himself by requiring defense counsel to remain at the defense table as stand-by counsel; that Plaintiff has been denied a speedy trial; that Defendant Clute defamed Plaintiff and violated his First Amendment rights by preparing inaccurate police reports; that Defendant Monroe defamed Plaintiff and perjured herself; that Defendants Hoskins, Wirth, and Kangas denied him access to the courts by denying legal research, copying and writing materials; that Defendants Kangas, Tahvonen, Ameche and Sherman denied him access to the courts by adopting and executing the policy of maintaining no law library at CCJ; that Defendants Wirth and Hoskins refused to launder the clothes Plaintiff intended to wear to a court appearance; that Defendants Kangas and Tahvonen denied him a right to petition government by approving CCJ policies that fail to create a legitimate grievance process; that Defendants Bauer, Ameche and Clarizio failed to prosecute Defendants Bartman and Monroe for their conduct; that Defendant Snyder has failed to adopt reasonable restrictions on the Second Amendment; and that Defendant Ameche and unknown police officers are violating his right to privacy by keeping a copy of the pictures found on Plaintiff's camera.
For relief, Plaintiff seeks an immediate injunction for unspecified relief, together with compensatory and punitive damages.
Plaintiff claims that Magistrate Skorich violated his right to due process and a fair trial by engaging in an ex parte probable cause determination to issue a warrant. He alleges that Judges Clarizio and Tahvonen violated his right to represent himself by requiring stand-by counselto remain at the defense table. He also alleges that Defendant Ameche engaged in ex parte communications with Magistrate Skorich to obtain a warrant, that Ameche and Sherman unlawfully prosecuted him, failed to investigate, and introduced perjured testimony against him. All five Defendants are entitled to immunity.2
Generally, a judge is absolutely immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991) () (internal quotations omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be overcome in only two instances. First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the judge's judicial capacity. Mireles, 502 U.S. at 11; see Forrester v. White, 484 U.S. 219, 229 (1988) (). Second, a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction. Id. at 12.
Plaintiff's allegations clearly fail to...
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