McGee v. United States of America, et al, No. 1:2008cv00154 - Document 108 (W.D. Mich. 2010)
Court Description: OPINION AND ORDER denying 104 motion for declaratory judgment ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ________________________________________________ STEVEN ALLEN MCGEE #10511-040, | | | Case No. 1:08-CV-154 | | | HONORABLE PAUL L. MALONEY | | Magistrate Judge Joseph G. Scoville | | | | Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ________________________________________________ OPINION and ORDER Denying the Plaintiff s Motion for Declaratory Judgment The Magistrate Judge issued a Report and Recommendation ( R&R )in June 2008 (Doc 56), and plaintiff Steven Allen McGee ( McGee ) filed objections (Doc 64). McGee attempted to appeal other interlocutory orders and rulings, but the U.S. Court of Appeals for the Sixth Circuit ( the Circuit ) dismissed two appeals in August 2008 and the other appeal in October 2008 (Docs 81 and 84). In March 2009, this court overruled McGee s objections and adopted the R&R. The court dismissed his claims against non-Michigan-resident Sixth Circuit employees for lack of personal jurisdiction and improper venue, dismissed his remaining federal claims as frivolous and failing to state a claim on which relief could be granted, and declined supplemental jurisdiction over any statelaw claims. The court also issued a third strike under 18 U.S.C. § 1915(g), and determined that a certificate of appealability was not warranted.. See McGee v. US, No. 1:2008-cv-154 Docs. 88 & 89, 2009 WL 909589 (W.D. Mich. Mar. 31, 2009) (Maloney, C.J.). On May 5, 2009, McGee filed a notice of appeal, see Doc. 96,and on May 19, 2009 the Sixth Circuit assigned Case Number 09-1617. Also in May 2009, this court denied McGee s motion to vacate and other miscellaneous motions filed by McGee. See McGee v. US, No. 1:2008-cv-154 Docs. 90 & 97, 2009 WL _________ (W.D. Mich. May 11, 2009) (Maloney, C.J.) (not yet available on WestLaw). In July 2009, McGee filed a motion for in forma pauperis status on appeal (Doc 101), and the Magistrate Judge directed him to pay an initial partial filing fee of $28.71 within thirty days, followed by installment payments until the full appeal fee was paid (Doc 102). On August 3, 2009, McGee filed a motion for declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 (Doc 104). McGee sought a declaration that 28 U.S.C. § 1915(b)(1) and § 1915(b)(2) are unconstitutional as applied to the instant case, specifically by requiring the collection of filing fees from his inmate trust account, in violating [his] Fourteenth Amendment right to the equal privileges [sic] and protection of the laws, his Sixth Amendment right of access to the federal courts, as well as the Plaintiff s Seventh Amendment right to a jury trial, in preventing Plaintiff McGee from prosecuting a civil action in accordance with the Federal Rules of Civil Procedure. Doc 104 at 1. McGee also sought a declaration that this court violated his rights under 28 U.S.C. § 1915(b)(4) by requiring him to the full appeal fee (albeit through periodic installment payments) to appeal the court s dismissal of his complaint. Id. McGee concluded his motion for declaratory judgment as follows: In support, Plaintiff incorporates by reference as though fully stated herein, his attached Motion to Chief District [Judge] Maloney to reconsider Magistrate s In Forma Pauperis Order of July 2009. Doc 104 at 1. This court considered the attached appeal and affirmed the Magistrate s IFP/Filing-Fee order on February 8, 2010. See McGee v. US, No. 1:2008-cv-154 Doc 106, 2010 WL 520708 (W.D. Mich. Feb.8, 2010) (Maloney, C.J.). That opinion addressed all the issues and arguments mentioned in McGee s motion for declaratory judgment , rejecting each of them as either meritless or not properly -2- before the court. The concluding Order section of said opinion, however, neglected to list the motion for declaratory judgment as denied. ORDER Plaintiff McGee s motion for declaratory judgment [doc. #104] is DENIED for the reasons stated in McGee v. US, No. 1:2008-cv-154 Doc 106, 2010 WL 520708 (W.D. Mich. Feb.8, 2010) (Maloney, C.J.). IT IS SO ORDERED on this 31st day of March 2010. /s/ Paul L. Maloney Honorable Paul L. Maloney Chief United States District Judge -3-
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