Bormuth v. Jackson, City of et al

Filing 81

OPINION AND ORDER GRANTING 49 Defendants' Motion to Dismiss as to any 1983 Claim against defendant Carlson; DENYING 51 Plaintiff's Motion for Partial Summary Judgment; GRANTING IN PART 69 Defendants' Motion as to the 1983 Claims against Defendants Lillie and Brandt and the Monell claim against the City of Jackson and denying 70 Plaintiff's Motion to Extend Time to Appeal. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PETER BORMUTH,
Plaintiff,
Case No. 12-11235

v.
CITY OF JACKSON, et al.,
Defendants.
/

OPINION AND ORDER DENYING PLAINTIFF’S FIRST MOTION FOR PARTIAL
SUMMARY JUDGMENT [Dkt. # 51] AND MOTION TO EXTEND [Dkt. # 70];
GRANTING DEFENDANT’S MOTION TO DISMISS [Dkt. # 49]; AND GRANTING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Dkt. # 69]
Proceeding pro se, Plaintiff Peter Bormuth sues the City of Jackson, Michigan,
Jackson Community College (“JCC”), a dean and an instructor at JCC, two Jackson
police officers, and a Jackson city attorney for alleged wrongs arising from Bormuth’s
failed attempt to perform at a JCC poetry reading. Bormuth submits three motions for
partial summary judgment (Dkts. # 51, 59, 78) and a motion to extend the time to appeal
(Dkt. # 70). The city attorney moves to dismiss (Dkt. # 49), and Jackson, the police
officers, and the city attorney move for summary judgment (Dkt. # 69). This order
denies one of Bormuth’s motions for partial summary judgment, denies Bormuth’s
motion to extend, grants the city attorney’s motion to dismiss, and grants in part the
pertinent Defendants’ motion for summary judgment. These motions are fully briefed,
and no hearing is needed. See E.D. Mich. LR 7.1(f)(2).

I. BACKGROUND
JCC instructor John Yohe occasionally hosted a public poetry event, which
included both a reading by a featured poet and an “open microphone” time for anyone
else who wanted to perform. In late 2010, Bormuth read a poem during “open mic” that
led Yohe to ask whether Bormuth would like to be the featured poet at a future reading.
Bormuth proclaims himself a pagan, and his poetry often criticizes Christianity. Yohe
assured Bormuth, however, that Yohe was “not bothered by any anti-Christian subject
matter.” (Dkt. # 78, Ex. 2, email 1.) “In fact,” Yohe wrote, “I’m very open to it!” (Id.) In
response Bormuth described his background, including his repeated trouble with people
who retaliated against him for “t[elling] the truth about their evil religion” and for failing to
observe “their ‘respect all religious path’ politically correct bullshit.” (Id. email 2.) Yohe
wrote back, “Thanks for the background. I’m no fan of Christianity either, and I liked
your [poetry] presentation , . . as did others. So let’s try it once [Bormuth’s being a
featured poet] and see what happens.” (Id. email 3.)
About two months later, in February, 2011, Bormuth emailed Yohe and asked to
enlist as an “open mic” performer for the next reading. “[It] seems like you are drawing
more people who want to read,” he noted. (Id. email 6.) Yohe answered, “Sorry, I can’t
give you special treatment. You have to show up early like every one else!” (Id. email
7.) To this Bormuth replied that he had twice seen names already on the “open mic”
sign-up sheet when the sheet appeared at a reading. (Id. email 8.) Yohe explained that
a JCC student can sign up before the event. He added, “If you don’t like the way I run
things, don’t come.” (Id. email 9.) In response Bormuth said that he would stop
attending the readings if Yohe thought his absence best served Yohe’s students.
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Bormuth proposed, however, that Yohe’s students might learn from Bormuth, a rare
“druidic bard” who “speak[s] for the beings this society denies a voice.” (Id. email 10.)
Yohe replied, “The reason people don’t like you is not because you’re anti-christian, but
because you’re an arrogant asshole. You are not welcome at my readings. Do not
write to me again.” (Id. email 11.)
In a September 27, 2011, email to a JCC administrator, Bormuth said that he
planned to attend Yohe’s poetry reading the next day and that he would sue JCC for
religious discrimination if Yohe excluded him while allowing a specific “christian woman”
to perform. (Id. email 12.) An email discussion ensued among the administrator, Yohe,
and a JCC dean, Todd Butler. Yohe reported that Bormuth never appeared on
September 28; but, he wrote, “My fear is that [Bormuth] likes attention . . . . My big fear
is that he will try to make a scene at the next reading.” (Id. email 14.) Writing to
Bormuth on October 5, Butler said that Yohe could not accommodate all performers
because of time constraints, not religion. (Id. email 18.) Bormuth responded, “Your
excuse is lame and [I] do not buy it.” (Id. email 19.)
On October 25, 2011, Bormuth went to the restaurant holding that night’s poetry
reading. He found Yohe and asked to sign up as an “open mic” performer. (Pl.’s Aff. 3,
Dkt. # 60.) Yohe said Bormuth could not participate; but Bormuth persisted, until Yohe
said “I’m sorry you are doing this” and went to speak with the restaurant’s manager. (Id.
at 4.) A restaurant employee then asked Bormuth to leave, but Bormuth refused; he
“noted that he was one of the best poets in Jackson County and that the [JCC] students
might enjoy hearing him[.]” (Id.) A few minutes later two police officers arrived. They
too told Bormuth to go. Bormuth insisted he had a First Amendment right to stay, and
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he stayed, so the officers arrested and removed him. (Id. at 5.) The City of Jackson
charged Bormuth with trespassing. Assistant city attorney Gilbert Carlson tried the
case, and Bormuth won an acquittal. (Pl.’s Aff. 8; Dkt. # 61, Ex. C.)
On March 20, 2012, Bormuth began this action against Jackson, JCC, and Yohe.
A June 19, 2012, amended complaint adds the two officers (named only as “J. Lillie”
and “M. Brandt”) as well as Butler and Carlson.
II. DISCUSSION
The amended complaint never enumerates specific counts against specific
defendants. Although it contains two substantive sections, “Argument on Constitutional
Grounds of Protected Public Speech” and “Argument on Statutory Grounds,” no
coherent organizing principle dictates the division. Each section digresses into several
disparate topics. For example, the section on “statutory grounds” discusses the Warren
Court’s First Amendment jurisprudence; the views of Adams, Madison, and Jefferson;
the United States’ 1796 treaty with Tripoli; and the proper practice of paganism and
animism. Within the broader commentary reside only a few scattered and perfunctory
references to the Civil Rights Act of 1964 and the Elliot Larsen Civil Rights Act, without
the elements of a claim listed and without allegations against a specific defendant.
Bormuth will need to clarify what he asserts against whom.
In any event, the amended complaint’s introduction and conclusion mention the
First and Fourth Amendments, 42 U.S.C. § 1983, the Civil Rights Act of 1964, malicious
prosecution, false arrest, and slander. It seems best to address first the pending
motions that contest either a procedural issue or one of Bormuth’s discernable federal
law claims.
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A. Assistant City Attorney Carlson’s Motion to Dismiss
When considering a motion to dismiss, a court must accept as true the facts
alleged in the complaint. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2079 (2011). But if the
facts alleged fail to state a claim, the moving defendant is entitled to dismissal. Total
Ben. Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th
Cir. 2008). Carlson contends that the amended complaint states no claim against him
because he enjoys absolute immunity. A prosecutor is absolutely immune from liability
under 42 U.S.C. § 1983 for an act “intimately associated with the judicial phase of the
criminal process.” Van de Kamp v. Goldstein, 555 U.S. 335, 340-41 (2009); Adams v.
Hanson, 656 F.3d 397, 402 (6th Cir. 2011).
“Intimately associated with the judicial phase of the criminal process” describes
perfectly the wrongful act Bormuth alleges against Carlson. Bormuth asserts only that
during the criminal case Carlson submitted a brief containing information Carlson knew
was false. (Am. Compl. 9, 24-25.) The analysis can end right there—although it bears
noting that the accusation against Carlson is baseless. Bormuth merely disagrees with
some of the opinions Carlson expressed in the brief; for instance, an opinion that
Bormuth’s emails to Yohe “became increasingly rude and belligerent.”
The motion to dismiss raises authority involving only Section 1983.
Accordingly, any claim against Carlson under Section 1983 fails.

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B. Jackson, Carlson, and the Police Officers’ Motion for Summary Judgment
Summary judgment is proper only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A genuine dispute of material fact exists if “a reasonable jury could return a
verdict for the non[-]moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
The police officers argue that qualified immunity defeats Bormuth’s claims
against them as a matter of law. “A law enforcement officer is entitled to qualified
immunity if a reasonable officer could have believed his actions to be lawful, in light of
clearly established law and the information the officer possessed.” Hensley v.
Gassman, 693 F.3d 681, 687 (6th Cir. 2012) (quotation omitted); see Humphrey v.
Mabry, 482 F.3d 840, 847 (6th Cir. 2007). Bormuth’s statements at the time of his
arrest and, more informatively, the content of his response brief (Dkt. # 79) reveal that
he challenges the officers’ conduct under the First Amendment. A claim under the First
Amendment cannot arise from an arrest supported by probable cause. Barnes v.
Wright, 449 F.3d 709, 720 (6th Cir. 2006); see also Leonard v. Robinson, 477 F.3d 347,
367 (6th Cir. 2007) (Sutton, J., concurring in part and dissenting in part). Also, a plaintiff
must show that protected free speech was the but-for cause of his arrest. Leonard, 477
F.3d at 355.
The First Amendment claim against the officers displays three distinct defects.
First, Jackson says that its trespass ordinance provides, “No person shall . . . remain
upon the land or premises of another after being notified to depart therefrom by the
owner or occupant or the agent or servant of either.” (Dkt. # 69, Ex. B.) The two
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officers were called to a restaurant, by the restaurant, because the restaurant wanted
someone removed. At the restaurant the officers found a person “remain[ing] upon the
. . . premises of another after being notified to depart[.]” Probable cause supported an
arrest. Second, although Bormuth strings together judicial quotes stressing the
importance of free speech, he fails to address (except with bare assertions) the specific
situation the officers faced. In other words, Bormuth fails to establish that a reasonable
officer in Lillie and Brandt’s shoes could not rely on the trespass ordinance to remove
Bormuth from the restaurant. Bormuth cites nothing that shows the arrest violated
“clearly established law.” See Reichle v. Howards, 132 S.Ct. 2088 (2012). And third,
no record evidence suggests the officers arrested Bormuth because of protected
conduct. The officers arrested Bormuth because he was in a restaurant against the
restaurant’s will. On this record, at least, Bormuth’s reason for being in the restaurant
was irrelevant.
Bormuth asserts liability against Jackson under Section 1983 and Monell v. New
York City Department of Social Services, 436 U.S. 658 (1978), based on a failure to
train Lillie and Brandt. To create a Monell claim, a failure to train must “amount[] to
deliberate indifference to the rights of persons with whom the police come into contact.”
Miller v. Sanilac Cnty, 606 F.3d 240, 255 (6th Cir. 2010) (quotation and emphasis
omitted); see also City of Canton v. Harris, 489 U.S. 378, 390 (1989).
No party addresses with insight (1) whether JCC’s hosting the poetry reading
meant that the private restaurant became a traditional or limited public forum or (2) if the
restaurant was a public forum, what Bormuth needs to prove to establish a
Section 1983 claim against Jackson, JCC, or Yohe. The available evidence—especially
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the early emails between Bormuth and Yohe—suggests strongly that Yohe’s banning
Bormuth had nothing to do with Bormuth’s poetry or religion or anti-religion. At any rate,
assuming Bormuth enjoyed a First Amendment right to remain at the restaurant, and
assuming the arrest was unlawful, Bormuth still fails to establish a Monell claim against
Jackson. A city must use finite time and resources to train police officers for the
situations that are either the most dangerous or the most likely to arise. See Harris, 489
U.S. at 390 n.10. It follows that a single misstep by the police almost never establishes
that a failure to train equaled “deliberate indifference.” See City of Oklahoma City v.
Tuttle, 471 U.S. 808, 824 (1985). To support his Monell allegation Bormuth cites only
his own arrest, which occurred because a community college instructor barred Bormuth
from speaking at an event in a private building. Bormuth provides no analysis and no
evidence showing that Jackson obviously needed to train officers to respond to the
entirely odd circumstances of Bormuth’s arrest.
The Section 1983 claims against the police officers and the Monell claim against
Jackson each fail.
C. Bormuth’s First Motion for Partial Summary Judgment
Bormuth argues that Defendants may not re-litigate issues contested during
Bormuth’s criminal trial for trespass, which resulted in Bormuth’s acquittal. “But an
acquittal on criminal charges does not prove that the defendant is innocent; it merely
proves the existence of a reasonable doubt as to his guilt.” United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 361 (1984); see, e.g., One Lot Emerald Cut
Stones & One Ring v. United States, 409 U.S. 232, 235 (1972); Helvering v. Mitchell,
303 U.S. 391, 397 (1938); Murphy v. United States, 272 U.S. 630, 632-33 (1926); Stone
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v. United States, 167 U.S. 178, 188 (1897). Thus the “failure of one party to carry the
burden of [proof] on an issue should not establish the issue in favor of an
adversary”—such as Bormuth—“who otherwise would have the burden of persuasion
on that issue in later litigation.” 18 Wright & Miller, Federal Practice & Procedure Juris.
§ 4422 (2d ed.).
Because the burdens of proof in criminal and civil cases differ, Bormuth’s criminal
acquittal governs no issue in this action.
D. Bormuth’s Motion to Extend the Time to Appeal
Bormuth moves to “extend the time” to appeal an August 10, 2012, order denying
one of Bormuth’s motions to recuse. The request for an extension is misplaced,
however, because Bormuth cannot yet appeal as a matter of right and because no valid
reason appears to permit an interlocutory appeal. See 28 U.S.C. §§ 1291–92; Coopers
& Lybrand v. Livesay, 437 U.S. 463, 474 (1978); cf., e.g., United States v. Parker, 428
Fed.Appx. 260 (4th Cir. 2011) (summarily dismissing for want of jurisdiction an
interlocutory appeal challenging the denial of a motion to recuse or disqualify); Burlseon
v. Sprint PCS Group, 76 Fed.Appx. 280 (10th Cir. 2003) (same).
III. CONCLUSION
IT IS ORDERED that Carlson’s motion to dismiss [Dkt. # 49] is GRANTED in that
any Section 1983 claim against Carlson is DISMISSED WITH PREJUDICE. The
pertinent Defendants’ motion for summary judgment [Dkt. # 69] is GRANTED IN PART
in that the Section 1983 claims against Lillie and Brandt and the Monell claim against
the City of Jackson are DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that Bormuth’s first motion for partial summary
judgment [Dkt. # 51] and motion to extend the time to appeal [Dkt. # 70] are DENIED.
IT IS FURTHER ORDERED that by November 29, 2012, Bormuth shall submit a
paper of no more than three pages specifying each claim he asserts against each
Defendant.
IT IS FURTHER ORDERED that by November 29, 2012, JCC and Yohe shall
submit a paper of no more than twenty pages answering (1) whether JCC’s hosting the
poetry reading meant that the private restaurant became a traditional or limited public
forum, (2) if the restaurant was a public forum, what Bormuth needs to prove to
establish a Section 1983 claim against JCC or Yohe, and (3) why Bormuth can or
cannot prove a claim against JCC or Yohe. Bormuth may respond in twenty pages or
fewer by December 17, 2012.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 13, 2012

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 13, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\12-11235.BORMUTH.SeveralMotions.ckb.wpd

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