1

IFP status was previously ordered granted to plaintiff. Service was denied without

prejudice for the reason that the case fails to state a claim and is subject to sua sponte dismissal.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ARELIOUS RAY REED, 

Plaintiff, CIVIL ACTION NO. 08-14838

v. DISTRICT JUDGE DAVID M. LAWSON

SEVENTEENTH JUDICIAL MAGISTRATE JUDGE VIRGINIA M. MORGAN

COURT,

Defendant.

________________________________/

REPORT AND RECOMMENDATION

This is a pro se 42 U.S.C. § 1983 action in which the plaintiff (a non-prisoner) alleges

that he was improperly bound over for trial in a state court criminal matter on the basis of

insufficient and false evidence. The matter has been referred to this Court for hearing and

determination on all pretrial matters, including matters related to the review of in forma pauperis

cases provided for in 28 U.S.S. § 1915(e)(2). After conducting such review, this Court

recommends that plaintiff’s complaint be dismissed sua sponte for failure to state a claim upon

which relief can be granted.1

On November 18, 2008, plaintiff filed a complaint against defendants in which he alleges

that he was improperly bound over for trial in a state court criminal matter on the basis of

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insufficient evidence (D/E #1). According to the complaint, plaintiff was subsequently acquitted

on all charges. Based on his address filed with the court, plaintiff is not a prisoner.

Pursuant to 28 U.S.C. § 1915(e)(B) a court shall dismiss an action where a plaintiff is

proceeding in forma pauperis if it determines that the case is frivolous or that if fails to state a

claim upon which relief can be granted. In this case, plaintiff’s action fails to state a claim upon

which relief can be granted and, accordingly, it should be dismissed. Plaintiff’s complaint

alleges that defendant, the Seventeenth Judicial Court, violated his rights by binding him over for

trial without probable cause to believe that plaintiff committed a crime. However, while actions

for violations of constitutional rights may be pursued under 42 U.S.C. § 1983, a court is not a

“person” within the meaning of § 1983 and, therefore, a civil rights complaint cannot be brought

against it. Mumford v. Basinski, 105 F.3d 264, 266 (6th Cir. 1997); Foster v. Walsh, 864 F.2d

416, 418-419 (6th Cit. 1998).

While plaintiff only names a court as a defendant, he does identify the individual judge

who bound him over for trial at the preliminary examination. Nevertheless, even if plaintiff is

seen as alleging a claim against that individual judge, he still fails to state a claim upon which

relief can be granted. “It is well established that judges and other court officers enjoy absolute

immunity from suit on claims arising out of the performance of judicial or quasi-judicial

functions.” Foster v. Wallace, 864 F.2d 416, 417 (6th Cir. 1988) (citations omitted). See also

Stern v. Mascio, 262 F.3d 600, 606 (6th Cir. 2001) (granting summary judgment to a state court

judge because judges are not liable for their judicial acts, even when such acts are in excess of

their jurisdiction and are alleged to have been done maliciously or corruptly, and that immunity

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applies to actions brought under § 1983 to recover for alleged deprivation of civil rights);

Holloway v. Brush, 220 F.3d 767, 774 (stating that judges and other court officers are absolutely

immune from suit on claims arising out of their performance of judicial or quasi-judicial

functions, but not from suits that arise out of other conduct). As stated by the United States

Supreme Court:

If judges were personally liable for erroneous decisions, the

resulting avalanche of suits, most of them frivolous but vexatious,

would provide powerful incentives for judges to avoid rendering

decisions that likely provoke such suits. The resulting timidity

would be hard to detect or control, and it would manifestly detract

from independent and impartial adjudication.... Most judicial

mistakes or wrongs are open to correction through ordinary

mechanisms of review, which are largely free of the harmful sideeffects inevitably associated with exposing judges to personal

liability. [Forrester v. White, 484 U.S. 219, 226-227, 108 S.Ct.

538, 98 L.Ed.2d 55 (1988).]

“Absolute immunity is determined by a functional analysis that looks to ‘the nature of the

function performed, not the identity of the actor who performed it.’” Holloway, 220 F.3d at 774

(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). 

See also Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994). The alleged actions by court officers

in this case, i.e. binding plaintiff over for trial, are clearly judicial functions and, accordingly, the

individual judge mentioned in the complaint would be entitled to absolute immunity.

Given that the defendant is not a “person” within the meaning of § 1983 and that, if

named as a defendant, the individual judge would enjoy absolute immunity from plaintiff’s

claim, this Court recommends that plaintiff’s complaint be dismissed sua sponte for failure to

state a claim upon which relief can be granted.

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The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within ten (10) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues,

but fail to raise others with specificity, will not preserve all the objections a party might have to

this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

magistrate judge.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

each issue contained within the objections specifically and in the same order raised.

s/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: December 31, 2008

 PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon plaintiff via the Court’s ECF System and/or U. S. Mail

on December 31, 2008.

s/Jane Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

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