1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAMES MABEN, 

Plaintiff, 

v. 

ANN TERHUNE, ET AL., 

Defendants. 

Case No. 14-12899 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE

MONA K. MAJZOUB

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION [33]; DISMISSING 

PLAINTIFF’S CLAIMS AGAINST DEFENDANT TERHUNE; GRANTING DEFENDANT 

COUNTY OF ST. CLAIR AND DEFENDANT TOMLINSON’S MOTION FOR SUMMARY 

JUDGMENT [28]; GRANTING DEFENDANT VANDREW’S MOTION TO DISMISS [16];

DENYING PLAINTIFF’S MOTION TO STRIKE MOTION TO DISMISS [22]; DENYING 

AS MOOT PLAINTIFF’S MOTION FOR DISCOVERY [4]; DENYING AS MOOT 

PLAINTIFF’S MOTION OBJECTING TO CLERK’S DENIAL OF DEFAULT [14]; AND 

CLOSING CASE

 On January 30, 2015, the Magistrate Judge issued a Report and 

Recommendation (R&R) [Dkt. #33] concerning all pending matters. The Magistrate 

Judge recommended dismissal of all of Plaintiff’s claims. No party filed any 

objection to the R&R. On March 19, 2015, the Court issued an Order [34] adopting 

the R&R and dismissing all of Plaintiff’s claims, along with a final Judgment [35]. 

On April 20, 2015, Plaintiff filed a Motion to Alter or Amend Judgment [36], 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 1 of 8 Pg ID 357
2 

claiming that he never received a copy of the R&R. On October 7, 2015, the Court 

issued an Order [42] vacating the judgment and directing service of the R&R on 

Plaintiff. 

 On October 26, 2015, Plaintiff filed Objections to the R&R [43]. Defendant 

VanDrew filed a Response [44] on October 28, 2015. Defendants St. Clair County, 

St. Clair County Friend of Court, and Judge Tomlinson filed their own Response [45] 

on November 5, 2015. 

 For the reasons stated below, the Court ADOPTS the R&R [33]. Plaintiff’s 

claims are DISMISSED. 

FACTUAL BACKGROUND

 The R&R summarized the record as follows: 

 Plaintiff alleges that he and his ex-wife, Defendant Terhune, were 

divorced in 2009 and that they had joint custody of their two children, 

E.M. and J.M. (Docket no. 1 at 7.) And according to Plaintiff, at that 

time, there was a no-contact order barring contact between James Casey, 

Defendant Terhune’s boyfriend, whom Plaintiff refers to as a “convicted 

pedophile,” and E.M. and J.M. for “behavior consistant (sic) with C.S.C. 

3rd degree.” (Id. at 11.) The no-contact order, however, was included in 

the terms of the joint-custody agreement; it was not the result of a 

criminal conviction or any criminal charges. (See docket no. 28-2 at 1.) 

 In September 2013, Plaintiff pled guilty to Assault by 

Strangulation of Suffocation in violation of M.C.L. 750.841B, 769.12. 

After his conviction, Defendant Terhune, through her attorney, 

Defendant VanDrew, filed a motion in St. Clair County Circuit Court 

seeking sole legal custody of her children and a removal of the nocontact order related to Mr. Casey. (Id.) In support of her Motion, 

Defendant Terhune asserted that none of the allegations made by 

Plaintiff against Mr. Casey had been substantiated by Child Protective 

Services. (Id. at 1-2.) Defendant Terhune’s Motion and a Notice of 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 2 of 8 Pg ID 358
3 

Hearing were served on all of the interested parties, including Plaintiff, 

“by mail to their last known address.” (Docket no. 28-3.) After a short 

hearing in which Defendant VanDrew argued on behalf of her client, 

Judge Tomlinson cut her off, at which time he granted 

Defendant Terhune’s motion: 

. . . . I think obviously actions speak louder than words, and 

I want everybody to understand that. Mr. Maben has 

demonstrated through a consistent failure to do what this 

Court has asked of him, that he is an appropriate parent, or 

that he’s an inappropriate parent. He’s not demonstrated 

that he can even be appropriate. 

 There has (sic) been a number of efforts by this 

Court to try to, to facilitate or permit a relationship between 

the children and Mr. Maben. He has not met those efforts 

with appropriate behavior, and that’s really what it kind of 

comes down to. I’d like to leave the window open for 

everyone so that they can demonstrate that, you know, 

maybe I’ve made some mistakes but I’m going to be able to 

do this. I am not somebody that’s going to continue to 

make those efforts when I’m not met with cooperation by 

him. 

 His most recent incarceration obviously is consistent 

with the other behaviors that he’s exhibited in the past. 

Habitual fourth is not something that you get too easily, 

and so it is very significant incarceration. It also effectively 

removes him from being an appropriate parent for these 

children for the remainder of their minority. . . . 

 . . . 

 . . . . The other thing I’m going to say about Ms. (sic) 

Casey, I want to explain the reason I put limitations on Mr. 

Casey was at that point I was working on, working on a 

relationship. There were a number of distractions. Mr. 

Casey’s criminal record was concerning. I think that Ms. 

Terhune has demonstrated a willingness and an ability to 

keep her children safe, even in the light of potential dangers 

from other people. 

 I’m not certain that Mr. Casey presents any danger 

like that, but I’m going to tell you given Ms. Terhune’s sole 

legal and physical custody I assume that she’s going to do 

what is in the best interest of her children. . . . 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 3 of 8 Pg ID 359
4 

(Docket no. 28-4 at 5-7.) 

 Following termination of his parental rights, Plaintiff filed his 

instant Complaint. 

ANALYSIS

 Plaintiff brings claims under 42 U.S.C. § 1983 for violations of his due process 

rights and his right of access to the courts. He also brings a claim under the Sex 

Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., for 

“failing to protect minor children from sex offenders.” Finally, he brings a state law 

claim for intentional infliction of emotional distress (IIED). 

 The R&R concluded that all of Plaintiff’s claims should be dismissed. It 

recommended dismissing his claims against Judge Tomlinson under the doctrine of 

absolute judicial immunity. It concluded that Plaintiff cannot maintain his § 1983 

claims against the St. Clair County Defendants because he has alleged no 

unconstitutional policy or custom. It concluded that his § 1983 claims fail against 

Defendants VanDrew and Terhune as well because neither defendant was acting 

under the color of state law. It recommended dismissing Plaintiff’s SORNA claim on 

the grounds that SORNA does not create a private cause of action. Finally, it 

concluded that Plaintiff failed to allege extreme and outrageous conduct sufficient to 

state an IIED claim. 

 Plaintiff raises six objections to the R&R. The Court must review the relevant 

portions of the R&R de novo. 28 U.S.C. § 636(b)(1)(c). 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 4 of 8 Pg ID 360
5 

I. Criminal history of Defendant Terhune’s boyfriend 

 Plaintiff seeks to correct an alleged factual error in the R&R. Plaintiff claims 

that Defendant Terhune’s boyfriend, James Casey, has been convicted of sex offenses 

against children. Plaintiff asserts that the R&R overlooked this fact. However, the 

R&R did not rely on Casey’s criminal history, or lack thereof, in analyzing Plaintiff’s 

claims. Since Plaintiff identifies no way in which the alleged factual error 

undermined the R&R’s analysis, this objection is unavailing. 

II. Defendants’ failure to notify Plaintiff of custody hearing 

 In his second objection, Plaintiff seeks to correct another alleged factual error 

in the R&R. Plaintiff notes that in summarizing the record, the R&R stated that 

Defendant Terhune’s motion and notice of hearing were served on Plaintiff by mail to 

his last known address. Plaintiff asserts that he was never served. However, the R&R 

did not overlook this allegation. It specifically stated that Plaintiff’s § 1983 claims 

failed against Defendants VanDrew and Terhune because they were not acting under 

color of state law “[e]ven if the Court accepts as true Plaintiff’s allegation that he was 

not properly notified of the custody hearing.” The R&R did not rely on a finding of 

proper service with respect to Plaintiff’s other claims, either. Thus, Plaintiff has not 

shown that the R&R misconstrued his factual allegations or, if it did, that the mistake 

undermined its analysis. 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 5 of 8 Pg ID 361
6 

III-IV. Construction of claims against Defendants VanDrew and Terhune 

Plaintiff does not challenge the R&R’s conclusion that he cannot maintain his 

§ 1983 claims against Defendants VanDrew and Terhune because he has not alleged 

that they acted under the color of state law. However, in his third and fourth 

objections, Plaintiff argues that the R&R should have construed these § 1983 claims 

as intentional tort claims under state law. He does not identify any particular tort 

theory that may be supported by his factual allegations. As noted, Plaintiff 

specifically raised a state-law tort claim for IIED. The R&R concluded that the IIED 

claim fails for failure to allege extreme and outrageous conduct—and Plaintiff does 

not object to that conclusion. Thus, Plaintiff appears to argue that the R&R should 

have construed the § 1983 claims under some tort theory other than IIED. Since 

Plaintiff has not identified any such theory supported by his allegations, the objection 

is unavailing. 

V. Discovery regarding unconstitutional policies or customs 

 Plaintiff objects that it would be premature to dismiss his § 1983 claims against 

the St. Clair County Defendants for failure to allege an unconstitutional policy or 

custom without first allowing him to conduct discovery. However, it is appropriate to 

dismiss a plaintiff’s claim prior to discovery if the plaintiff fails to plead “factual 

content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 6 of 8 Pg ID 362
7 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Here, as the R&R noted, 

“Plaintiff has not alleged any facts related to St. Clair County whatsoever.” Plaintiff 

has not met the pleading standards required to proceed to discovery. 

VI. Judicial immunity

 Plaintiff objects to the R&R’s conclusion that his claims against Judge 

Tomlinson are barred by the doctrine of judicial immunity. He emphasizes the 

Supreme Court’s instruction that judicial immunity does not apply where a judge acts 

in the “clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 

(1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)). He argues that Judge 

Tomlinson acted in the clear absence of all jurisdiction because Plaintiff was not 

properly served, depriving Judge Tomlinson’s court of personal jurisdiction over 

Plaintiff. However, it is only the absence of subject-matter jurisdiction, not personal 

jurisdiction, that may abrogate judicial immunity. Leech v. Deweese, 689 F.3d 538, 

542–43 (6th Cir. 2012) (citing Stern v. Mascio, 262 F.3d 600 (6th Cir. 2001)). 

Plaintiff’s objection is therefore unavailing. 

CONCLUSION

 For the reasons stated above, the R&R is ADOPTED and entered as the 

findings and conclusions of the Court. Accordingly, 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 7 of 8 Pg ID 363
8 

IT IS ORDERED that Plaintiff’s claims against Defendant Terhune are 

dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon 

which relief may be granted. 

IT IS FURTHER ORDERED that Defendant County of St. Clair and 

Defendant Tomlinson’s Motion for Summary Judgment [28] is GRANTED. 

IT IS FURTHER ORDERED that Defendant VanDrew’s Motion to Dismiss 

[16] is GRANTED. Plaintiff’s Motion to Strike the Motion to Dismiss [22] is 

DENIED. 

IT IS FURTHER ORDERED that Plaintiff’s Motion for Discovery [4] and 

Plaintiff’s Motion Objecting to Clerk’s Denial of Default [14] are DENIED AS 

MOOT. 

IT IS FURTHER ORDERED that this case is CLOSED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: December 8, 2015 Senior United States District Judge 

2:14-cv-12899-AJT-MKM Doc # 47 Filed 12/08/15 Pg 8 of 8 Pg ID 364