Opinion
Case No. 1:08-cv-556.
September 29, 2008
Plaintiff Richmond Brown Taylor ("Taylor") is incarcerated in a Michigan state prison. The Michigan Parole Board ("Board") issued a report recommending that the Governor of Michigan not commute Taylor's sentence pursuant to the discretionary authority granted by Article 5, Section 14 of the Michigan Constitution of 1963. Taylor brings this action under 42 U.S.C. § 1983, contending that Michigan Parole Board Chairperson Sampson and Governor Granholm violated his procedural and substantive due process rights by failing to provide him with a copy of the Board's report. Pursuant to the Local Civil Rules, this matter was automatically referred to the Honorable Joseph G. Scoville, United States Magistrate Judge, for a Report and Recommendation ("R R").
Title 28 U.S.C. § 636(b)(1) provides, "Within ten days after being served with a copy [of an R R], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court." Likewise, Federal Rule of Civil Procedure 72 provides that "[w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations." See Deruso v. City of Detroit, 121 F. App'x 64, 66 n. 2 (6th Cir. 2005) ("The Rule requires parties to file objections to a magistrate's report and recommendation within ten days of the time the report is filed.") (citing FED. R. CIV. P. 72(a)); Rodger v. White, 1990 WL 95624, at *2 (6th Cir. July 11, 1990) ("Ordinarily, parties must file objections and exceptions to the magistrate's report within ten days of its issuance.") (citing 28 U.S.C. § 636(b)(1)).
Clerk's Office docket records indicated that the R R was issued on Tuesday, July 15, 2008 and Taylor filed a purported objection on Monday, July 21. The court found that that objection document was timely. The court also determined, however, that Taylor's July 21 objection was conclusory and not sufficiently specific, articulated, or supported to trigger de novo or any other level of review. Taylor's July 21 objection stated, in its entirety:
With accordance to due process, this plaintiff do[es] not have anything against the Governor, or Barbara S. Sampson, and this plaintiff is not asking them to pay any money. But only requesting that the court order defendant(s) to provide plaintiff a copy of the Parole Board's Recommendation only. A copy to plaintiff/Parole Board's recommendation that is, serves to "ensure the reliability of the evidence against this plaintiff, by subjecting it to rigorous testing" in an adversarial proceeding. This action is taken in absolute good faith, and states a claim of action.
All plaintiff is asking the court, is to order defendant(s) to provide plaintiff with said copy if he is entitled to same, and protect his constitutional procedural due process rights.
This plaintiff objects to the court's Report and Recommendation at this Time. Plaintiff declares under penalty of perjury that the foregoing is true and correct to the best of his knowledge and belief.
Taylor's July 21, 2008 Objection at 1. Relying on Peretz v. US, 501 U.S. 923, 939 (1991) and Thomas v. Arn, 470 U.S. 140, 141-42, 149-50 (1985), this court held that Taylor's July 21, 2008 objection was not sufficiently specific and articulated to trigger any review of the R R by this court, let alone de novo review. See July 25, 2008 Op. at 2-3 (footnote 1 and citations omitted).
This court also held that "[i]n any event . . . the R R's outcome and rationale [are] sound. For the reasons explained by the R R, Taylor's federal procedural due process and `substantive due process' claims fail to state a claim on which relief can be granted." July 25, 2008 Op. at 3-4 (footnotes 2 3 omitted).
Specifically, this court explained that "Taylor's procedural due process claim fails on its merits because he has no constitutionally protected liberty interest in the Governor's discretionary commutation of his sentence." July 25, 2008 Op. at 5 (citing Manning v. Unknown Parties, 56 F. App'x 710, 711 (6th Cir. 2003); Vertin v. Gabry, 1995 WL 613692, *1 (6th Cir. Oct. 19, 1995); and Floyd v. Kent Cty., Michigan, 2008 WL 2704711, *6 (W.D. Mich. July 9, 2008)).
This court also explained that "Taylor's substantive due process claim fails on its merits because, as a matter of law, the Board's failure or refusal to give him a copy of its commutation recommendation, or afford him input or influence in the formulation of that recommendation, do not `shock the conscience' or `[interfere[] with rights implicit in the concept of ordered liberty' . . . which is a formidable standard." July 25, 2008 Op. at 5-6 (citing Wilson v. Berghuis, 2007 WL 3302101, *6 (W.D. Mich. Nov. 6, 2007) (Maloney, J.) (quoting US v. Salerno, 481 U.S. 739, 746 (1987)) citing Lagendyk v. Mich. Parole Bd., 2008 WL 2704741, *5 (W.D. Mich. July 9, 2008) and Bringard v. Caruso, 2008 WL 1776974, *17 (W.D. Mich. Apr. 17, 2008) (Jonker, J.) (following Hampton v. Hobbs, 106 F.3d 1281, 1288 (6th Cir. 1997))).
After the court reviewed and considered Taylor's July 21, 2008 objection, the court issued its opinion and order overruling that objection and adopting the R R on July 25, 2008. It now comes to the court's attention, due to an August 1, 2008 filing by Taylor, that he filed a second document intended to serve as an objection to the R R on July 22, 2008. It is unclear why Taylor withheld arguments from the purported objection document that he filed on July 21.
In any event, the court has considered Taylor's second purported objection, filed July 22, and it does not provide any basis to disturb this court's order adopting the R R. Taylor's rather disjointed and confusing July 22 objection states, in its entirety,
Issue: Whether the Court Mischaracterized the Facts of Plaintiff's Complaint Amounting to Misstatement of the Foundation of Plaintiff's Claim.
To establish that the District court has been impermissibly constrained, the plaintiff must show a "reasonable likelihood that the Court has applied the challenged Report and Recommendation in a way that prevents the consideration of Constitutionally relevant evidence and information." [citing no authority]
This Plaintiff is requesting, that the Court reverse its decision in its July 15 2008 Report and Recommendation because no where in Plaintiff's Complaint, it does not mention anything about a Liberty interest in Commutation at all. Plaintiff is not saying yet, that the Court deliberately altered the facts, but it can be considered so, if the Court does not change its position in the matter before then Court.
The court must apply a scheme that provides: (1) "clear and objective standards"; (2) "specific and detailed guidance"; and (3) an opportunity for rational review of the "process for imposing a Report and Recommendation that denies relief to this plaintiff".
The Grand Rapids Courthouse [the Magistrate Judge?], mentioned or misstated that in Plaintiff's complaint, that plaintiff raised the issue of LIBERTY INTEREST, plaintiff knows better than to do that, because a liberty interest only is granted, after the fact, and a liberty interest is CREATED before the fact: meaning if the Governor grants Commutation, and the Grand Rapids Court prevents him from leaving prison, plaintiff have [sic] a liberty interest in the Governor's Executive Order of Commutation, and know [sic] one can stop her in same; before the fact means to create an interest by way of Application Petition to her Executive Office. Further, the only way to have an [sic] liberty interest in an [sic] Parole Board scheme, is to have the Parole Board Grant Parole, and if the Parole Board revoke the same without Due Process, a Prisoner can claim that he or she have [sic] an [sic] liberty interest in an Hearing to determine their claim.
A liberty interest can be created by the United States Constitution Due Process Clause; it can be created by an Court Order; it can be created by Statutes and Regulations; Treaties and by the Governor's Power and other Authorities. [Plaintiff mentioned in his Application, to the Governor's Office, that when he gets out of prison, he will be indeed involved with the GEORGETOWN UNIVERSITY LAW CENTER . . . E-mail: cle@law.georgetown.edu where plaintiff have been studying through their Books, for 13 years now up to date]. Please be advised that www.georgetowncle.org and he will most certainly be involved with the ACLU American Civil Liberty Union, to help the elderly and the Poor folks of America, inc [sic] to be exact. And Business Schools, and Police Officers, Federal Agents in Washington, D.C. and across the Nation. The Governor is well informed of this Plaintiff indeed. Check his files in Barbara S. Sampson's office or the Governor's office, but only if you agree not to harm them or do anything stupid for life.
Plaintiff have [sic] 280,000 people praying for his safe return to society and, have great legal ideas for America, and to present to our President G.W. Bush who already knows about Plaintiff, so please do not go behind plaintiff's back and try to ruin his reputation any further, which is called Libel, Slander and Defamation in an Reasonable Court! www.icm.org.
REPORT AND RECOMMENDATION issue, continued.
The Report and Recommendation should be dealt with, should the Court decide to be reasonable, under the framework of e.g., FED. R. CRIM. P. 17(c)(2); The Primary limitation on the grand jury subpoena is Rule 17(c)(2) of the federal Rules of Criminal Procedure, which provides that "the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."
The Report and Recommendation by the Court, reminds Plaintiff of an defective warrant, where the good faith exception does not extend to cases in which the police have no reasonable grounds to believe that a warrant is valid. 468 U.S. at 922-23. The Supreme court has identified four situations in which police reliance on a warrant is not objectively reasonable: * * * *
The Plaintiff alleges that the Court's REPORT AND RECOMMENDATION contains factual inaccuracies, and [contends] that the Court in its own discretion, [should] hold an evidentiary hearing allowing this plaintiff to introduce evidence related to the alleged factual inaccuracy; the Grand Rapids Court must either make a finding as to the truth of the disputed portion of the Report and Recommendation/if the person responsible for the Report and Recommendation fails to make explicit findings, fails to disclaim reliance on the controverted matters, the Court should do so and correct the situation by ordering an Copy of The Parole Board's Report and Recommendation to this plaintiff, sense this is his only issue in his Complaint.
The Due Process Clause forbids the Judge to rely on materially false or unreliable information, and this Timely Objection goes further to create other objections, should the Court intended not to be reasonable, where the "contemporaneous objection rule" applies to claims of improper judicial misconduct, where plaintiff objects to the court being, an advocate for the unreasonable people who doesn't [sic] want this plaintiff personally to prevail, where this plaintiff ojects[sic]/objects to the court taking inappropriately activist role in falsifying issues not made by plaintiff, plaintiff objects to any and all gestures by the judge of disbelief in this simple Complaint, by the judge saying after he misstated the facts, that plaintiff has taken his complaint out in Bad Faith, where it is in fact taken in absolutely good Faith, plaintiff objects to the strike that the Court placed on him, under the 3 strike provision, and because of the conduct of the judge, plaintiff is demanding his recusal if he does not correct this situation, where this plaintiff objects to this judge being on this case making judge biased [sic] spelled out in prejudicial Report and Recommendation, plaintiff objects to the selection of this magistrate, see, e.g., § 2254 Rules, supra note 1, R. 8(b)(4) ("[J]udge . . . shall make a de novo determination of those portions of the [magistrate's] report . . . to which objection is made.").
RELIEF SOUGHT
WHEREFORE this plaintiff, with regards [sic] to his present situation that he submits, that he understands that this is an high profile case, of extraordinary nature, perhaps never before in history, where our judicial members have to admit that they were wrong, and reconstruct properly their action in writing, that this plaintiff Moves the Court to examine his complaint, and find no where in same did he ever mention the liberty issue subjecting him to prejudicial harm of denied relief, and to the 3 strike provision and delay in relief, grant his request for a copy of the Parole Board's Report and Recommendation to the Governor's Office, although as noted in these Objections, the Governor have and has Granted same to prisoners who, created an liberty interest for commutation of illegal sentence,: [sic] through the circumstances of the crime to which they are being held in prison for.
Taylor's July 22, 2008 Objection at 1-3 (emphasis in original) (penultimate paragraph break added).
To the extent that this second objection re-asserts a procedural due process claim or a substantive due process claim, it does nothing to undermine the reasoning in the R R or this court's prior opinion adopting the R R. Taylor still has not provided legal authority for the proposition that this court can compel the Michigan Parole Board or the Governor to provide him with a copy of the Board's report and recommendation to the Governor under these circumstances.
The court also rejects, as frivolous and unsupported, Taylor's demand that this judge and/or the Magistrate Judge recuse themselves from this matter. Finally, the court rejects, as conclusory and unsupported, Taylor's belief that the dismissal of the instant complaint should not count as a "strike" against him.
ORDER
Accordingly, having reviewed Taylor's complaint, the R R, Taylor's July 21 and July 22 objections, this court's opinion and order of July 25, and Taylor's August 1 motion for reconsideration:Taylor's motion for reconsideration, entitled "Request for Docket Sheet and Request for Re-Evaluation of Objections" [document # 19], is DENIED.
Taylor's July 22, 2008 objection [document # 16] is OVERRULED.
The complaint remains dismissed and the case remains terminated and closed.
The court DETERMINES that there is no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3).
A certificate of appealability SHALL NOT ISSUE from this court, because he has not "`made a substantial showing of the denial of a federal constitutional right.'" Wardlaw v. Howes, ___ F. Supp.2d ___, ___, 2008 WL 4183535, *1 (W.D. Mich. July 15, 2008) (quoting Harbison v. Bell, 503 F.3d 566, 568 (6th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1479, cert. granted on other grounds, ___ U.S. ___, 128 S.Ct. 2959 (2008) (Nos. 07-8520 07-8521). This is because Taylor has not demonstrated that "`reasonable jurists could disagree with the district court's resolution of his constitutional claims'" or that jurists could conclude that the issues raised are "`adequate to deserve further review.'" Wardlaw, ___ F. Supp.2d at ___, 2008 WL 4183535 at *1 (quoting Harbison, 503 F.3d at 569 (citing Banks v. Dretke, 540 U.S. 668, 705 (2004))).
In considering whether to grant Taylor a certificate of appealability ("COA"), the court has not predicated his entitlement to a COA on a showing that he would be likely to succeed on appeal. See Wardlaw, ___ F. Supp.2d at ___, 2008 WL 4183535 at *1 (citing Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) and Walker v. Carlton, 114 F. App'x 687, 690 (6th Cir. 2004)).