1:25-cv-01657•Buford #179711 v. Getting et al
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FREDRICK LEDELL BUFORD #179711, Plaintiff, v. JEFFREY S. GETTING, et al. Defendant. ______________________________/ Hon. Robert J. Jonker Case No. 1:25-cv-1657 REPORT AND RECOMMENDATION This is a civil rights action brought by a convicted prisoner under 42 U.S.C. § 1983. Plaintiff sues Kalamazoo County Prosecutor Jeffrey Getting and unidentified assistant prosecutors in that office. (ECF No. 1 at PageID.3.) 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) (PLRA), 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. 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, and pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the Court DISMISS Plaintiff's complaint for failure to state a claim. I. Background Plaintiff is presently incarcerated with the Michigan Department of Corrections at the Richard A. Handlon Correctional Facility. Case 1:25-cv-01657-RJJ-SJB ECF No. 6, PageID.<pageID> Filed 12/10/25 Page 1 of 6
2 Plaintiff alleges that on May 4, 2024, Travon Blakely assaulted him with an exhaust pipe at 830 West Main St. in Kalamazoo, Michigan. Anthony Thomas Lipsey, Blakely’s cousin, witnessed the assault. Plaintiff was able to run out of the house and make it to a nearby gas station, where police officers arrived and found Plaintiff beaten and bloody. Plaintiff reported to the officers that Blakely had assaulted him with an exhaust pipe. Thereafter, an ambulance arrived and took Plaintiff to Bronson Hospital, where he received more than 20 stitches on the left side of his forehead and more than 15 staples on the top and back of his head. (Id. at PageID.4.) Because Plaintiff feared for his life, his niece rescued him from the hospital. (Id.) Less than two weeks later, Plaintiff encountered Blakely at a gas station, where Blakely asked Plaintiff, “You good?” (Id.) Plaintiff reported this encounter to the police at the Kalamazoo Public Safety station on Crosstown-Parkway Street. He then went to the court building and spoke with a female assistant prosecutor, who told Plaintiff that she was going to re-issue another warrant for Blakely due to Plaintiff’s injuries. (Id.) Less than two months after Plaintiff’s assault, officers arrested Blakely for the stabbing murder of his stepfather/mother’s boyfriend. Anthony Lipsey, who witnessed Blakely’s assault of Plaintiff, was arrested for the shooting murder of Mike Powers in front of numerous witnesses. (Id.) For relief, Plaintiff seeks $66,000,000.00 for ongoing pain and suffering, plastic surgery, mental/physical therapy for life, and relocation of Plaintiff and his family members. Plaintiff also seeks removal of his present conviction and sentence, as well as attorney’s fees and costs. (Id. at PageID.5.) Plaintiff contends that such relief against Defendant Getting and the unnamed assistant prosecutors is warranted due to “reckless negligence and dereliction of duty” that caused the release of an apprehended suspect (Blakely) and resulted in a “threat of death” and “United States liability of multiple death(s).” (Id.) Case 1:25-cv-01657-RJJ-SJB ECF No. 6, PageID.<pageID> Filed 12/10/25 Page 2 of 6
3 II. Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citations and footnote omitted). As the Supreme Court has held, to satisfy this rule, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. If the complaint simply “pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks omitted). As the Court further observed: Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not “show[n]”—“that the pleader is entitled to relief.” Id. at 678–79 (internal citations omitted). III. Discussion Based on the facts Plaintiff alleges in his complaint, it is unclear why Plaintiff sues Defendant Getting or the unnamed assistant prosecutors. Blakely assaulted Plaintiff on May 4, Case 1:25-cv-01657-RJJ-SJB ECF No. 6, PageID.<pageID> Filed 12/10/25 Page 3 of 6
4 2024. There is no indication that Getting or any assistant prosecutor had anything to do with the assault or injuries Plaintiff suffered. Plaintiff alleges that he encountered Blakely at a gas station about two weeks after the assault, but he does not allege that Blakely did anything to him. Plaintiff spoke to an assistant prosecutor, who indicated that she was going to re-issue an arrest warrant for Blakely. It is unclear whether Blakely was arrested, but two months later, Blakely murdered someone else, not Plaintiff. Plaintiff does not allege that Blakely harmed him at any time after the May 4, 2024 assault. Plaintiff fails to demonstrate how Defendant Getting or any assistant prosecutor is even arguably responsible for the injuries Blakely inflicted on Plaintiff, and Plaintiff cannot claim any injury based on Blakely’s subsequent murder of someone else. In any event, Plaintiff fails to allege a cognizable constitutional violation pursuant to 42 U.S.C. § 1983. First, to the extent that Plaintiff intends to assert that Defendant Getting or any assistant prosecutor failed to arrest and/or prosecute Blakely, he fails to allege a constitutional violation. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) (no due process right to have someone else arrested for a crime); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (no constitutional interest in prosecution or non-prosecution of another); Webb v. Caldwell, 664 F. App’x 695, 696 (10th Cir. 2016) (“Though one might receive a benefit from having someone prosecuted or arrested, one lacks a constitutional right to such a response from governmental officials.”). In addition, Defendant Getting and the assistant prosecutors owed Plaintiff no duty of protection from Blakely. As the Supreme Court has explained, nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure Case 1:25-cv-01657-RJJ-SJB ECF No. 6, PageID.<pageID> Filed 12/10/25 Page 4 of 6
5 that those interests do not come to harm through other means. Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989). See Chigano v. City of Knoxville, 529 F. App’x 753, 756 (6th Cir. 2013) (“While the Due Process Clause prohibits the State from depriving any person of life or liberty, it does not affirmatively require the State to protect the life and liberty of its citizens against actions by private actors.”). Last, Plaintiff’s request for removal of his current conviction and sentence is not proper relief as it bears no relationship to this action. Moreover, a request for release from prison constitutes a challenge to the fact or duration of confinement, which should be brought as a petition for habeas corpus; it is not the proper subject of a civil rights action brought pursuant to Section 1983. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (discussing that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody and the traditional function of the writ is to secure release from illegal custody). Thus, Plaintiff's request for removal of his conviction and sentence is not properly asserted in this action. See Adams v. Morris, 90 F. App’x 856, 858 (6th Cir. 2004) (concluding that dismissal is appropriate where Section 1983 action seeks equitable relief and challenges fact or duration of confinement). IV. Conclusion For the foregoing reasons, I recommend that the Court dismiss Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A for failure to state a claim. The Court must also decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Good faith is judged objectively, Coppedge v. United States, 369 U.S. 438, 445 (1962), and an appeal is not taken in good faith if the issue presented is frivolous, defined as lacking an arguable basis either in fact or law. See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. Case 1:25-cv-01657-RJJ-SJB ECF No. 6, PageID.<pageID> Filed 12/10/25 Page 5 of 6
6 2001). For the same reasons that I recommend dismissal of the action, I discern no good faith basis for an appeal and recommend that, should Plaintiff appeal this decision, the Court assess the $605.00 appellate filing fee pursuant to Section 1915(b)(1), see McGore, 114 F.3d at 610-11. Date: December 10, 2025 /s/ Sally J. Berens SALLY J. BERENS U.S. Magistrate Judge NOTICE OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Case 1:25-cv-01657-RJJ-SJB ECF No. 6, PageID.<pageID> Filed 12/10/25 Page 6 of 6
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