LeVay v. Morken
| Docket Number | Case No. 1:20-cv-13146 |
| Decision Date | 11 March 2022 |
| Citation | 590 F.Supp.3d 1037 |
| Parties | Ross D. LEVAY, Plaintiff, v. David MORKEN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Ross LeVay, Bay City, MI, Pro Se.
Conor T. Fitzpatrick, Miller Canfield Paddock & Stone, PLC, Detroit, MI, for Defendants David Morken, Bandwidth.com CLEC., LLC, Bandwidth Inc.
Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendant United States of America.
This matter is before this Court upon Plaintiff Ross D. LeVay's two Motions to Disqualify, Motion to Vacate Order Consolidating Cases, and his complaint seeking injunctive relief under 42 U.S.C. § 1983 and impeachment of the undersigned under the Good Behavior Clause of the United States Constitution. As explained hereafter, the three Motions will be denied, and Plaintiff will be directed to serve Defendants Morken, Bandwidth.com, and Bandwidth Inc.
On November 29, 2021, Plaintiff Ross D. LeVay filed a pro se complaint against Defendants David Morken; Bandwidth.com CLEC., LLC; and Bandwidth Inc., alleging that Defendants failed to comply with law enforcement regarding communication assistance, 18 U.S.C. § 2522 ("CALEA"); aiding and abetting stalking, id. §§ 2, 2261A; interstate communication threats, id. § 875; malicious use of service, MICH. COMP. LAWS § 750.540e ; gross negligence; intentional and negligent infliction of emotional distress; concealment; and civil-rights violations, 42 U.S.C. § 1983. ECF No. 1. He concurrently applied to proceed in forma pauperis. ECF No. 2.
In December 2020, the case was referred to Magistrate Judge Patricia T. Morris for all pretrial matters. ECF No. 5. The same day, Judge Morris granted Plaintiff's application to proceed in forma pauperis. ECF No. 6. In January 2021, Judge Morris issued a report recommending that this Court dismiss Plaintiff's complaint sua sponte. ECF No. 7. Later that month, Plaintiff objected to the Report and Recommendation ("R&R"). ECF No. 11. The next month, this Court adopted the R&R, overruled Plaintiff's objections, and dismissed the case. ECF Nos. 12; 13. One month later, Plaintiff appealed the dismissal. ECF No. 14.
In November 2021, the Sixth Circuit Court of Appeals affirmed in part, vacated in part, and remanded the case regarding the dismissal of Plaintiff's CALEA and state-law claims. ECF No. 18. The Sixth Circuit explained that even though CALEA might not "provide[ ] a private right of action, it cannot be said that [Plaintiff's] complaint failed to allege facts that could support a [CALEA] claim." Id. at PageID.96. The Sixth Circuit elaborated that this Court improperly dismissed the CALEA claim because, "[ ]though the allegations are confusing," the complaint "lays out" "many more allegations ... in fairly elaborate, if somewhat confounding detail." Id.
In other words, the Sixth Circuit held that a complaint alleging "confounding" and "confusing" facts can state a claim under a statute that might not create a private right of action if it "lays out" the facts in "fairly elaborate" detail. See id. ; LeVay v. Morken , No. 21-1257, 2021 WL 7451691 (6th Cir. Nov. 15, 2021) (unpublished).
On December 16, 2021, this Court reopened the case and referred it to Judge Morris again for general case management. ECF No. 20. Twenty days later, Judge Morris scheduled the first Rule 26(f) conference in Case No. 1:20-cv-13146. ECF No. 21. Two weeks later, Plaintiff filed a new complaint seeking injunctive relief under 42 U.S.C. § 1983 and impeachment of the undersigned under the Good Behavior Clause of the United States Constitution. See LeVay v. United States , No. 1:22-cv-10120 (E.D. Mich. filed Jan. 20, 2022), ECF No. 1. Eleven days later, Plaintiff filed a motion to disqualify the undersigned, Judge Morris, and District Judge Laurie J. Michelson in both cases under both 28 U.S.C. § 144 and 455. LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Jan. 31, 2022), ECF Nos. 22; 23; LeVay v. United States , No. 1:22-cv-10120 (E.D. Mich. Jan. 31, 2022), ECF No. 5.
To address the motions, this Court vacated the order referring Case No. 1:20-cv-13146 to Judge Morris, returning the case to the undersigned. See LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Feb. 3, 2022), ECF No. 25. Thus, the case is back before the undersigned.
Plaintiff filed a consolidated petition to the Sixth Circuit for a writ of mandamus in both of his pending cases.
LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Feb. 28, 2022), ECF No. 27 LeVay v. United States , No. 1:22-cv-10120 (E.D. Mich. Feb. 28, 2022), ECF No. 8. Consistent with Plaintiff's intent, this court consolidated both cases. LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Mar. 1, 2022), ECF No. 28; LeVay v. United States , No. 1:22-cv-10120 (E.D. Mich. Mar. 1, 2022), ECF No. 9.
Incidentally, on March 2, 2022, this Court sent a notice to the parties regarding the consolidation of the cases, which was the first time Defendants Morken, Bandwidth.com, and Bandwidth Inc. became aware of this case, because Plaintiff's in forma pauperis status did not require him to serve Defendants. Byrd v. Stone , 94 F.3d 217, 219 (6th Cir. 1996) (); see ECF No. 29.
On January 31, 2022, Plaintiff filed a motion for the undersigned, District Judge Laurie Michelson, and Magistrate Judge Patricia T. Morris to recuse themselves from his case under 28 U.S.C. § 144 and 28 U.S.C. §§ 485(b)(1), (4). LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Jan. 31, 2022), ECF No. 22. He concurrently filed an affidavit in both cases but did not file the motion in both cases. LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Jan. 31, 2022), ECF No. 23; LeVay v. United States , No. 1:22-cv-10120 (E.D. Mich. Jan. 31, 2022), ECF No. 5. Because Plaintiff is proceeding pro se , his Motion to Recuse will be generously construed as applying to both cases.
Specifically, Plaintiff asserts two claims against three judges. First, he alleges that the undersigned, Judge Michelson, and Judge Morris should be recused for "recommend[ing], formulat[ing], adopti[ng], and upholding of a sham 28 USC § 1915 res judicata /claim preclusion dismissal of [Case No. 20-13146 and originating Case No. 20-12921], predicated upon an [sic] substantial and intricate web of particularized acts of malice. " LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Jan. 31, 2022), ECF No. 22 at PageID.105. "Their combined efforts," he continues, "required misclassification of Plaintiff's Amended Complaint as duplicative original action, with probable intent, direction of, or intercession by the EDM personnel or clerical staff, but ultimately rebuked by the 6th Circuit Court of Appeals who overturned the dismissal Nov. 15, 2021." Id. (emphasis omitted).
In other words, Plaintiff is complaining about judicial decisions that the three judges made, which he believes were animated by 56 acts of malice. See id. at PageID.105 (); see also id. at PageID.108–23 (detailing the acts).
Second, Plaintiff alleges that "Ludington's, Morris's, Michelson's, as yet potentially undiagnosed genomic psychopathy , so presents a condition where their officiating of Case No. 22-10120 presents a 28 USC § 485(b)(4) interest that could be substantially affected by the outcome of the proceedings. " Id.
In other words, Plaintiff is complaining that the three judges should be recused because he believes they were born as psychopaths, which would bias him, but they have never been diagnosed as such.
Two principal statutes govern judicial qualification: 28 U.S.C. § 144 () and 28 U.S.C. § 455 (). Because Plaintiff filed his Motions for Recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455(b)(1) and 28 U.S.C. § 455(b)(4), the Motions for Recusal will be analyzed under those three provisions.
By its terms, 28 U.S.C. § 144 applies to only district judges.1 United States v. White , No. 1:20-CR-20416, 532-33 (E.D. Mich. Jan. 27, 2022). Absent both an affidavit and motion, there is no basis for disqualification under § 144, and no appeal based on § 144 can be heard. See, e.g., United States v. Sammons , 918 F.2d 592, 599 (6th Cir. 1990). A valid affidavit is "a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." Granada v. United States , 51 F.3d 82, 84 (7th Cir. 1995) (citing BLACK'S LAW DICTIONARY 58 (6th ed. 1990)).
Plaintiff submitted his affidavit on January 31, 2022. LeVay v. Morken , No. 1:20-cv-13146 (E.D. Mich. Jan. 31, 2022), ECF No. 23. Section 144 states that such an affidavit must "be accompanied by a certificate of counsel of record that it is made in good faith." 28 U.S.C. § 144.
Plaintiff's affidavit does not satisfy § 144 ’s standard for a certificate of good faith. Plaintiff is pro se , so he has no attorney to certify that his affidavit is made in good faith, which § 144 seemingly requires. Although it is unclear whether pro se plaintiffs may sign their own affidavit for a motion to recuse, that would seem to be a manifestly unjust reason to deny a motion to recuse. Yet Plaintiff's affidavit is not notarized, violating a well-established criterion for the legal sufficiency of an affidavit. See Granada , 51 F.3d at 84 (...
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