Cleary v. Heyns et al

Filing 40

ORDER finding as moot 37 Motion for Order to Restore Privileges; granting 24 Motion for Leave to File Excess Pages; denying 25 Motion for Partial Summary Judgment; granting 27 Motion for Summary Judgment. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDY CLEARY, formerly known as
RANDY REITZ, formerly known as RANDY
REETZ,
Plaintiff,
Case No. 12–11988
Hon. Lawrence P. Zatkoff

v.
DANIEL HEYNS, RUTH JOHNSON,
MAURA CORRIGAN and DAVED B. BEHEN,
Defendants.
__________________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on March 21, 2014
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiff Randy Cleary’s Motion for Partial Summary Judgment
[dkt 25] and Defendants Daniel Heyns, Ruth Johnson, Maura Corrigan and Daved B. Behen’s Motion for
Summary Judgment [dkt 27].1 Both motions have been fully briefed. The Court finds that the facts and
legal arguments are adequately presented in the parties’ papers such that the decision process would not be
significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby

1

Also before the Court is Plaintiff’s ex–parte motion for leave to file excess pages for his partial motion for summary judgment
[dkt 24]. As the Court will consider all of Plaintiff’s Motion for Partial Summary Judgment, the Court hereby GRANTS
Plaintiff’s ex–parte motion for leave to file excess pages.

ORDERED that the motions be resolved on the briefs submitted without oral argument. For the following
reasons, Plaintiff’s motion is DENIED and Defendants’ motion is GRANTED.
II. BACKGROUND
Michigan Compiled Laws § 257.319(e) requires the Secretary of State for the State of Michigan
(“SOS”) to suspend an individual’s Michigan driver’s license upon receipt of an abstract of conviction for a
violation by that individual of another state’s law regulating a controlled substance. This mandatory
suspension is at the heart of the instant dispute, as the SOS suspended Plaintiff Randy Cleary’s (“Plaintiff”)
driver’s license in 2011 after receiving such an abstract for a drug conviction from the State of Georgia
(“Georgia”). Plaintiff asserts that he was never convicted of any drug–related offense in Georgia, and is
instead a victim of identity theft. Plaintiff alleges the mistake made by Georgia—and the subsequent
suspension of his driver’s license by the SOS—resulted in Plaintiff improperly losing his driver’s license for
over a year. Plaintiff further asserts that various State of Michigan agencies placed and maintained this
meritless conviction on Plaintiff’s criminal record by associating him with the person responsible for
stealing his identity, an association that Plaintiff alleges prevented him from attaining gainful employment.
Plaintiff maintains these actions have deprived him of his constitutional rights to due process and
unconstitutionally barred Plaintiff from employment opportunities with state licensed facilities. The facts
behind each claim will be addressed in turn.
A. SUSPENSION OF PLAINTIFF’S DRIVER’S LICENSE2
Plaintiff asserts the most recent suspension of his driver’s license stems from problems Plaintiff has
with an identity thief that began over two decades ago. Since 1987, another individual has used Plaintiff’s
identity during that person’s encounters with law enforcement. Plaintiff points to at least six prior occasions

2

Plaintiff’s claims surrounding the suspension of his license implicate only Secretary of State Ruth Johnson (“Defendant
Johnson”). As such, all arguments in Defendants’ Motion for Summary Judgment concerning Plaintiff’s suspended driver’s
license will be ascribed to Defendant Johnson.

2

where the State of Michigan has suspended Plaintiff’s driver’s license or associated Plaintiff with the actions
of his identity thief. As a result of these incidents, Plaintiff has been assessed numerous fines and has legally
changed his name twice. Notably, in 1999, Plaintiff had a “driver license alert”—or “flash”—placed on his
driver’s license so as to alert law enforcement officers that Plaintiff’s name had been used by another
individual and that they should ask for sufficient identification whenever Plaintiff’s name and date of birth
were used during a traffic stop. Plaintiff did not renew the “flash” when it expired in 2006.
Plaintiff’s myriad allegations relating to events prior to the most recent suspension of his driver’s
license enumerate interactions Plaintiff had with the State of Michigan and his identity thief over the past
twenty–five years. These interactions, however, have no bearing on the issue at hand: the 2011 suspension
of Plaintiff’s driver’s license by the SOS upon receiving a certified abstract of conviction from Georgia.3 As
such, the Court will focus its attention on this incident.
On August 26, 2011, the SOS issued an Order of Action suspending Plaintiff’s driver’s license from
September 11, 2011 through midnight of March 11, 2012. The Order of Action additionally required
Plaintiff to immediately surrender his license to the Bureau of Driver and Vehicle Records. The Order of
Action indicated this suspension was the result of a certified abstract of court received from Georgia
purporting Plaintiff had been convicted in Georgia for the offense of “drug crime.” Plaintiff points out that
this certified abstract referred to the conviction of a person named “Randy Clearly,”—Plaintiff’s name at
that time was “Randy Cleary” without the second letter “L”—with the same date of birth and driver’s
license number as Plaintiff. Defendant Johnson asserts SOS policy was followed, as the SOS utilizes a
two–out–of–three criteria match system using the driver’s name, date of birth, and Michigan driver’s license
number when applying in–state and out–of–state convictions to the driving records of Michigan drivers.

3

Michigan law provides for a three–year statute of limitations for 28 U.S.C. § 1983 (“§ 1983”) claims. See Carroll v. Wilkerson,
782 F.2d 44, 45 (6th Cir. 1986), Mich. Comp. Laws § 600.5805(10)

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The opposite side of the Order of Action includes sections titled “YOUR RIGHT TO APPEAL”
and “REQUEST FOR APPEAL.” Plaintiff contends neither of these sections contain means of contesting
the validity of the suspension. Plaintiff asserts the language instead indicates that Plaintiff could only
receive a hearing in the state where the conviction occurred—in this case, Georgia—and that Plaintiff must
attach a copy of the order or conviction from the city or state where the conviction occurred to any such
request for a hearing. Plaintiff never received a copy of the order or conviction, as it was sent to a fictitious
address provided to Georgia authorities by the person that stole Plaintiff’s identity. Defendant Johnson
asserts the Order of Action clearly notifies Plaintiff of his right to appeal the suspension by mailing or faxing
a written request.
The relevant sections at issue in the actual Order of Action read as follows:
SECTION II. YOUR RIGHT TO APPEAL
IT IS IMPORTANT YOU READ THESE INSTRUCTIONS CAREFULLY TO
THOROUGHLY PREPARE FOR YOUR HEARING.
You may request a hearing for a waiver of the suspension/restriction of similar duration in
the state where the conviction occurred and/or you held an out–of state license at the time
of the conviction.
WHAT PROOFS TO BRING TO HEARING OR SEND WITH REQUEST
...
II. If you wish to request your suspension be waived, send the following:
A. The attached ORDER OF ACTION
B. Proof of out–of–state suspension/restriction (from and through dates) with any
of the following:
1. Order from the court, court docket or judgment from city/state where the
conviction occurred.
2. Order from the Department of Motor Vehicles from the city/state where
the conviction occurred.
C. Proof of stay in the state for equal to or more than the period of Michigan
suspension. . . .
D. Proof of out–of–state license at the time of the conviction in question
E. Proof that you did not have a Michigan license during the period

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SECTION III. REQUEST FOR APPEAL
TO:

Driver License Appeal Division
Michigan Department of State
Box 30196
Lansing MI 48909–7696

In accordance with the statute, I hereby appeal the Decision to suspend or revoke my driving
privilege and request a hearing before the Driver License Appeal Division.
Signature of Appellant ________________________

Date ______________

Plaintiff never mailed back the Order of Action requesting a hearing. Instead, Plaintiff sent an e–
mail to SOS—46 days after SOS issued the Order of Action and 30 days after Plaintiff’s driver’s license
was officially suspended—asking how he could get his license back. A technician for the Department of
State Information Center responded, stating that Plaintiff needed to contact the “courts that the tickets are
on” in order to have his driving record amended.
Although Plaintiff’s initial request for relief included recovery of his license, his driver’s license has
since been restored.4 Defendant Johnson acknowledges that Plaintiff is not the individual that committed
the crimes in Georgia that were associated with Plaintiff’s name. Further, Plaintiff received a certificate
from the Director of the Criminal Justice Information Center (“CJIC”) on October 12, 2011, stating that
Plaintiff had no criminal history in Michigan and that Plaintiff may have been the victim of identity theft.
Plaintiff asserts that SOS procedures in suspending his driver’s license failed to provide him with
the type of procedural due process required by the Constitution for such a deprivation. Plaintiff alleges that
the SOS—in receiving nearly 1,000 complaints a year from individuals reporting identity theft–related
infractions—should give special consideration to citations issued to such individuals. By not doing so,
Plaintiff claims Defendant Johnson and the SOS failed to provide the due process such a deprivation
4

Both parties have offered several reasons as to why the delay Plaintiff suffered in regaining his driver’s license is the fault of the
other party. The evidence provided is rife with bickering and demonstrates a basic inability by either party to sort through even
basic scheduling arrangements. As Plaintiff has retained his driver’s license, the Court will disregard these “proofs” as nothing
more than adolescent incompetence submitted by both parties.

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requires. Further, Plaintiff alleges Defendant Johnson, as Secretary of State for the State of Michigan, has
refused to change these defective policies. Plaintiff asserts his claim put Defendant Johnson on notice that
these defects exist, and that, despite having the ability and authority to do so, Defendant Johnson’s refusal to
take any remedial action is further proof that Plaintiff’s procedural due process rights have been violated.
Plaintiff contends Defendant Johnson should thus be held personally liable.
Defendant Johnson alleges SOS procedures comply with constitutional procedural due process
requirements, as Defendant Johnson contends Plaintiff was given notice and a meaningful opportunity to be
heard at a post–deprivation hearing. Defendant Johnson also asserts that Plaintiff’s individual capacity
claim against her fails because she is protected by qualified immunity and Plaintiff does not show that
Defendant Johnson’s conduct violated clearly established statutory or constitutional rights.
B. PLAINTIFF’S DISQUALIFICATION FROM EMPLOYMENT IN STATE–RUN FACILITIES
Plaintiff’s other claims deal with his disqualification from working for a state–run facility. On
September 19, 2011, Plaintiff applied for a maintenance position with an adult foster care home called New
Hudson Manor. Plaintiff asserts he was denied employment with New Hudson Manor because the
statutorily required background check conducted by New Hudson Manor associated the criminal activities
of an identity thief with Plaintiff. Specifically, Plaintiff asserts New Hudson Manor was required by the
Department of Human Services (“DHS”) to perform a preliminary background check on all persons it
agreed to hire. In turn, Plaintiff contends DHS checked the Offender Tracking Information System
(“OTIS”) database operated by the Department of Corrections (“DOC”). That database, according to
Plaintiff, returned results matching Plaintiff’s name and birthday with one of the aliases of Plaintiff’s identity
thief. In accordance with this match, Plaintiff asserts DHS rules immediately disqualified Plaintiff from
employment with a DHS–licensed facility.

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Plaintiff contends this is an example of the continued failures in data storage committed by the
Defendants. Plaintiff asserts the evidence provided in the instant matter show that DHS and DOC databases
are not designed to be accurate or reliable for employment screening. Plaintiff claims the Department of
Management, Budget and Technology (“DMBT”)—the state government agency charged with housing
and servicing DOC data—has no policy to protect people from identity theft related to DOC systems.
Plaintiff argues the combined practices of Defendants5 have operated systematically to needlessly oppress
Plaintiff; that, by barring Plaintiff from working in his chosen profession and forcing him to hire attorneys,
Defendants have violated Plaintiff’s substantive due process rights. Defendants’ misappropriation of
criminal activity to his criminal record, Plaintiff alleges, has also resulted in defamation that has injured his
constitutionally protected reputation, good name, honor and integrity.
Defendants acknowledge that records from New Hudson Manor indicate Plaintiff was not hired
based on exclusionary findings New Hudson Manor received from OTIS. Defendant asserts, though, that
any search of the OTIS database does not associate Plaintiff—when searching for offenders with the name
“Randy Cleary”—with any criminal history. Further, Defendants claim Plaintiff has provided no proof that
his right to privacy or harm to reputation is a fundamental right that represents a valid claim under § 1983.
Finally, Defendants Johnson and Heyns assert Plaintiff’s claims against each in their individual capacity fail
due to the qualified immunity they possess.
C. PROCEDURAL HISTORY
On January 10, 2013, Plaintiff filed his amended complaint. In this complaint, Plaintiff sought
several types of relief. Specifically, Plaintiff requested:
1) A preliminary injunction against Defendants taking further adverse actions against Plaintiff
based upon the criminal activity of his identity thief;
2) Declaratory and injunctive relief barring further harm to Plaintiff;
5

Defendant Daniel Heyns (“Defendant Heyns”) is Director of the DOC. Defendant Maura Corrigan is director of DHS.
Defendant Daved Behen is the Chief Information Officer of DMBT.

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3) Damages;
4) Any other appropriate relief; and
5) Costs and fees allowable under 42 U.S.C. § 1988.
At various points after this amended complaint was filed, it was discovered by the Court that
Plaintiff’s driver’s license was reinstated and that the Director of the CJIC had issued a certificate to Plaintiff
indicating he had no criminal history in the State of Michigan. Accordingly, the Court inquired as to
whether there was any further relief Plaintiff sought. In response, Plaintiff indicated he still sought:
1) Declaration that Plaintiff is not the identity thief;
2) An injunction against Defendants taking his license based on actions of a third party without
due process;
3) An injunction against Defendants prohibiting him from working based upon the criminal acts
of a third party;
4) An injunction against further defamation; and
5) Actual damages arising from Defendants’ taking of Plaintiff’s driver’s license and keeping it
from him after notice of the taking.
III. LEGAL STANDARD
Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Thompson v.
Ashe, 250 F.3d 399, 405 (6th Cir. 2001). The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact, and all inferences should be made in favor of the nonmoving
party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party discharges its burden by
“‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at
325).
Once the moving party has met its burden of production, the burden then shifts to the nonmoving
party, who “must do more than simply show that there is some metaphysical doubt as to the material facts.”
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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must
“go beyond the pleadings and by . . . affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477
U.S. at 324 (citing Fed. R. Civ. P. 56(e)). “[T]he mere existence of a scintilla of evidence in support of the
[nonmoving party’s] position will be insufficient [to defeat a motion for summary judgment]; there must be
evidence on which the jury could reasonably find for the [nonmoving party].” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986).
IV. ANALYSIS
A. PROCEDURAL DUE PROCESS
Plaintiff asserts a procedural due process claim under § 1983. Specifically, Plaintiff asserts
Defendant Johnson6 suspended Plaintiff’s driver’s license without due process by failing to provide any
notice or a meaningful opportunity to be heard. Plaintiff alleges Defendant Johnson failed to ever provide
any sort of pre–deprivation or post–deprivation hearing, the lack of which violates Plaintiff’s due process
rights. As relief for this deprivation, Plaintiff seeks a declaration from this Court finding that Plaintiff is not
the individual who committed the Georgia traffic offenses for which the SOS suspended Plaintiff’s driver’s
license. Plaintiff also seeks an injunction against present and future action by the SOS against Plaintiff based
upon the actions of third parties in the absence of positive government–issued identification of biometric
identification.
I. Legal Standard
In determining whether a violation of procedural due process has occurred, a court must first
determine whether the “right” at stake is within the protection of the 14th Amendment. Hamilton v. Meyers,
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Plaintiff’s procedural due process claim is brought against Defendant Johnson in her official and individual capacity. Plaintiff’s
suit against Defendant Johnson in her official capacity will be treated as a suit against the State of Michigan itself. See Hafer v.
Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials in their official capacity therefore should be treated as suits against the
State.”) While Plaintiff also seeks to hold Defendant Johnson liable in her individual capacity, the Court will address this claim
separately.

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281 F.3d 520, 529 (6th Cir. 2002). A court must look at independent sources of law—rather than the
Constitution—to determine whether the alleged right in property is actually recognized. See Bd. of Regents
of State Colleges v. Roth, 408 U.S. 504, 577 (1972) (“Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law–rules.”).
Once a property right is established, an analysis of the governmental and private interests at stake is
in order. Mathews v. Eldridge, 434 U.S. 319, 334 (1976). The Supreme Court illuminated three areas of
analysis a court’s review must contain in examining the process at issue: “First, the private interest that will
be affected by the official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Mathews, 434 U.S. at 335.
Finally, § 1983 is not itself a source of substantive rights, but rather provides a right of action for the
vindication of independent constitutional guarantees. See Braley v. City of Pontiac, 906 F.2d 220, 223 (6th
Cir. 1990). “A § 1983 plaintiff may prevail on a procedural due process claim by either (1) demonstrating
that he is deprived of property as a result of established state procedure that itself violates due process rights;
or (2) by proving that the defendants deprived him of property pursuant to a ‘random and unauthorized act’
and that available state remedies would not adequately compensate for the loss.” Macene v. MJW, Inc., 951
F.2d 700, 706 (6th Cir. 1991) (emphasis in original).
II. Analysis
Both parties agree the “right” at stake—the right to a driver’s license—is a property right protected
by the 14th Amendment. See Dixon v. Love, 431 U.S. 105, 112 (1977) (“It is clear that the Due Process

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Clause applies to the deprivation of a driver’s license by the [State].”).7 The parties disagree upon whether
Plaintiff was provided with the requisite due process for deprivation of this right.
i. Plaintiff’s Property Right at Stake did not Warrant a Pre–Deprivation Hearing
Plaintiff first contends that he was due a pre–deprivation hearing. Plaintiff relies on the Supreme
Court’s decision in Parratt v. Taylor in contending the SOS should have provided Plaintiff with a pre–
deprivation hearing because SOS was “feasibly” able to do so. The Court finds such reliance is in error;8
rather, the three–part analysis delineated by the Supreme Court in Mathews is the essential framework for
determining whether a procedural due process violation has occurred. Turning now to this three–part
analysis, the Court will assess whether Plaintiff’s procedural due process rights were violated by Defendant
Johnson in failing to provide a pre–deprivation hearing.
The private interest affected by the official action is Plaintiff’s license to operate a motor vehicle.
The Supreme Court previously found that such an interest was not so great as to require pre–deprivation
process. See Dixon, 431 U.S. at 113. The Supreme Court did recognize, however, the importance of this
interest, and a plaintiff’s inability to be made “entirely whole” if a suspension is later vacated due to the loss
of plaintiff’s right to drive in the interim. The Court thus finds that Plaintiff does have a recognizable and
significant private interest at stake.
The Court turns next to assess the risk of erroneous deprivation of this private interest and the
potential value of additional or substitute procedures. Plaintiff argues that the instant case—along with the
1,000 written complaints the State of Michigan receives per year from individuals complaining of identity
theft—provides clear evidence that there is a high risk of erroneous deprivation of an individual’s right to a
7

Although Plaintiff asserts he also has a liberty interest at stake that is protected by the 14th Amendment, the Court will not
separately address this argument. See Fox v. Van Oosterum, 176 F.3d 342, 348 n. 2 (6th Cir. 1999) (“We do not feel that analysis
of [Plaintiff’s liberty] interest is materially different from an analysis of [Plaintiff’s] property right in his driver’s license.”)
8
See Mathews, 424 U.S. at 334 (“There is no one set procedure required under the 14th Amendment; rather, the concept of due
process is a flexible one designed to be analyzed under the specific situation in which an issue arises.”); Macene, 951 F.2d at 706
(indicating that the Parratt rule is applied to those cases where defendants are accused of depriving plaintiff of property pursuant
to a random and unauthorized act, not where a property right was deprived as the result of established state procedure).

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driver’s license under the SOS’s current procedures. Plaintiff asserts the SOS should thus require pre–
deprivation process for all suspensions of driver’s licenses due to an out–of–state conviction.
The Court is not convinced. Although Plaintiff asserts his experience demonstrates the risk of
erroneous deprivation under the current process is high, the due process required by the Constitution does
not obligate the State of Michigan to provide a flawless system. See Mackey, 443 U.S. at 13 (“The Due
Process Clause simply does not mandate that all governmental decision[–]making comply with standards
that assure perfect, error–free determinations.”). Further, Plaintiff has provided no evidence that the pre–
deprivation process he currently seeks would add meaningful value to those processes the State already
provides. As correctly indicated by Defendant Johnson, the Supreme Court has found that, even where
suspensions and revocation decisions are largely automatic—such as the suspension in this case—“the risk
of erroneous deprivation in the absence of a prior hearing is not great.” See Dixon, 431 U.S. at 113. As such,
the Court finds no value in the potential additional procedures suggested by Plaintiff.
The Court is likewise unconvinced by Plaintiff’s argument that his interest in his driver’s license is
outweighed by the State’s interest in removing dangerous drivers from the road. The Supreme Court
recognized in Dixon the high burden placed on state agencies if every suspended driver could delay such a
suspension by requesting a pre–deprivation hearing of the sort Plaintiff asserts9 due process requires. Id., at
114. More fundamentally, the Court finds that allowing potentially reckless and unsafe drivers continued
access to public roads—solely because their out–of–state conviction was possibly perpetrated by an identity
thief—is not in the best interest of the public at large or the State of Michigan. The Court thus finds that this
factor, like the second Mathews factor, weighs heavily in favor of the SOS.
In addition to the Mathews analysis, the Supreme Court and the Sixth Circuit have both found that a
deprivation of a driver’s license does not require a pre–deprivation hearing so long as adequate post–
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Plaintiff alleges his pre–deprivation due process requirements would only be met by SOS if it were to provide Plaintiff with: a)
notice of the charges prior to any suspension, b) an explanation of the evidence supporting those charges, and c) an opportunity to
present his or her versions of the events. See Dkt. # 25, p. 19.

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deprivation process is provided. See Dixon, 431 U.S. at 115 (“We conclude that the public interests present
under the circumstances of this case are sufficiently visible and weighty for the State to make its summary
initial decision effective without a predecision administrative hearing.”); Fox, 176 F.3d at 349. While
Plaintiff suggests that these cases are different than the matter at hand, for neither party in these cases
challenged the underlying offense as credible, the Supreme Court also found this very distinction irrelevant.
See Mackey v. Montrym, 443 U.S. 1, 15 (1979). Finally, Plaintiff admits in his response to Defendants’
motion for summary judgment that a meaningful post–deprivation hearing would satisfy Plaintiff’s due
process requirements:
To the extent that State of Michigan wishes to continue to suspend licenses based on out of
state convictions, it must either adopt procedural safeguards to insure that it is not
suspending licenses based on erroneous data, or else provide prompt and meaningful post–
deprivation remedies for the restoration of those licenses.
See Dkt. #31, p. 8.
Therefore, pursuant to the above analysis, the Court finds the SOS and Defendant Johnson were not
required to provide Plaintiff with a pre–deprivation hearing.
ii. Defendant Johnson and SOS Provided Plaintiff with the Post–Deprivation
Process Required by the Due Process Clause
“The core of due process is the right to notice and a meaningful opportunity to be heard.”
LaChance v. Erickson, 522 U.S. 262, 266 (1998) (internal citations omitted). Plaintiff asserts he was
provided neither notice nor a meaningful opportunity to be heard, and that this violates Plaintiff’s procedural
due process rights to a post–deprivation hearing. As Plaintiff concedes, it is his burden to prove the
inadequacy of the SOS’s post–deprivation remedies. See Victory v. Walton, 721 F.2d 1062 (6th Cir. 1983).
Despite Plaintiff’s contentions otherwise, the Court finds that Defendant Johnson and the SOS
provided Plaintiff with both notice and a meaningful opportunity to be heard at a post–deprivation hearing.
First, the Court is perplexed by Plaintiff’s argument that he was not provided with any sort of notice.
13

Although the Court acknowledges that the Order of Action received by Plaintiff on August 26, 2011, is not
a beacon of clarity, it is beyond dispute that the Order of Action clearly states Plaintiff’s license must be
immediately surrendered and will be suspended starting September 11, 2011. Plaintiff incongruently asserts
that Defendant Johnson and the SOS did not provide notice by failing to provide Plaintiff with information
regarding the Georgia conviction. The notice required to satisfy Plaintiff’s due process is not notice of
information regarding the underlying crime; rather, the only notice Plaintiff is constitutionally entitled to is
the notice that his protected property interest is going to be deprived by the State of Michigan. See Jones v.
Flowers, 547 U.S. 220, 226 (“[W]e have stated that due process requires the government to provide ‘notice
reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the
action,”) (citing Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314 (1950)). The Court thus finds
the Order of Action satisfies SOS’s responsibility to provide Plaintiff with notice.
Next, Plaintiff contends that he did not receive a meaningful opportunity to be heard. Plaintiff
argues in numerous filings that the wording contained in the Order of Action informed Plaintiff that his sole
opportunity to receive a hearing was in Georgia, the state where the underlying conviction occurred.
Likewise, Plaintiff suggests the Order of Action did not provide any meaningful information about the
underlying conviction in Georgia, while informing Plaintiff that he must attach a copy of the order or
conviction from the city or state where the conviction occurred to any such request for a hearing. Plaintiff
asserts he was never provided this information. Plaintiff relies on the lack of this information—along with
his assertion that the Order of Action provides no means for contesting its validity—to argue that he was
denied a meaningful opportunity for a post–deprivation hearing.
Plaintiff’s argument misstates both the contents of the Order of the Action and the due process
requirements for a meaningful opportunity to be heard. First, Plaintiff asserts the following language
contained in the Order of Action indicates he may only receive a hearing in Georgia: “You may request a

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hearing for a waiver of the suspension/restriction of similar duration in the state where the conviction
occurred and/or you held an out–of state license at the time of conviction.” It is clear to the Court the type of
hearing this sentence describes involves “waiver” of a suspension, not the appeal Plaintiff suggests he is
entitled to. Further, this sentence speaks only to Plaintiff’s ability to waive the suspension in Michigan for
serving a suspension of similar duration in the state where the conviction occurred; nowhere in the sentence
is Plaintiff informed this is the only way Plaintiff could conceivably challenge his suspension. Likewise, all
of the language in the Order of Action that Plaintiff alleges requires him to provide information concerning
the underlying conviction is contained under the heading, “If you wish to request your suspension be
waived, send the following . . .”. As Plaintiff is not, nor has he ever, suggested that his suspension should be
waived, the Court finds this language irrelevant to the current issue.10
Further, the very same page of the Order of Action contains a section titled “REQUEST FOR
APPEAL,” which provides Plaintiff with an address to send his request for appeal to, along with a form
sentence reading: “I hereby appeal the Decision to suspend or revoke my driving privilege and request a
hearing before the Driver License Appeal Division.” Notably, this language does not refer to the “waiver”
hearing mentioned in the sentence relied on by the Plaintiff; instead, it plainly suggests that the recipient of
the Order of Action—in this scenario, Plaintiff—could return the Order of Action requesting an appeal of
his suspension. Plaintiff provides this Court with no explanation as to why he failed to return this Order of
Action to the SOS when he received it, nor does he explain how this particular section fails to provide
Plaintiff with a meaningful opportunity to be heard.11
Additionally, the Supreme Court has established that agencies need not provide individuals with
any other information when information concerning the ability to appeal a deprivation of a property right is
10

While the Court acknowledges the language contained with the section of the Order of Action labeled “SECTION II. YOUR
RIGHT TO APPEAL” is far from perfect, it certainly does not, as Plaintiff purports, mandate the only place Plaintiff could
receive a meaningful hearing was in Georgia.
11
Notably, Plaintiff also fails to provide any explanation as to why he did not contact the SOS or any State of Michigan
governmental agency until 44 days after the Order of Action was issued.

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publically available. See City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999).12 Further, courts within
this District have previously relied on this principle. See, e.g., Blosser v. Land, No. 07–11781, 2008 WL
795748 (E.D. Mich. Mar. 25, 2008). As Defendant Johnson correctly points out, information concerning a
person’s ability to appeal a suspension of their license is readily available online. Indeed, this information is
available on the very same website Plaintiff eventually accessed to contact the SOS 30 days after the Order
of Action informed Plaintiff his suspension would commence.13 Published State of Michigan law also
specifically lays out the process by which individuals may appeal an SOS decision to suspend their driver’s
license. See Mich. Comp. Laws § 257.322. Plaintiff has provided no evidence as to why he could not
access these other readily available sources of information. Instead, Plaintiff seems to imply Defendant
Johnson and the SOS failed to provide him a meaningful opportunity to be heard by failing to take him
step–by–step through the process of appealing his suspension. The Court finds that requiring Defendant
Johnson and the SOS to take such action would contravene the express interpretations of the Due Process
Clause provided by the Supreme Court and practiced by other courts in this District. As such, the Court
finds that Defendant Johnson provided Plaintiff with a meaningful opportunity to be heard.
It is indisputable that Plaintiff did not commit the drug–related offenses for which his driver’s
license was suspended. The Court finds, though, that Plaintiff was given ample opportunity to prove this
through the process provided by the State of Michigan. For the reasons stated above, the Court finds that
Plaintiff was not denied his procedural due process rights, as he was provided notice and a meaningful

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In Perkins, the Supreme Court found that “[no] rationale justifies requiring individualized notice of state–law remedies which,
like those at issue here, are established by published, generally available state statutes and case law. Once the property owner is
informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures available to
him. The [public entity] need not take other steps to inform him of his options.”
13
See “Driver License Hearing Request” available at http://www.michigan.gov/sos/0,4670,7-127-1627_8665_9074-29353-,00.html

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opportunity to be heard at a post–deprivation hearing. As such, Plaintiff’s procedural due process claim
against Defendant Johnson is denied.14
B. SUBSTANTIVE DUE PROCESS
Plaintiff also asserts that his substantive due process rights were violated. Plaintiff alleges a
substantive due process claim based on two theories:
1) Defendants’ actions constitute arbitrary and capricious action by the State of Michigan; and
2) This action “shocks the conscience” in such a way as to violate Plaintiff’s substantive due
process rights.
As relief for these claims, Plaintiff seeks an injunction against Defendants prohibiting him from working
based upon the criminal acts of a third party, and an injunction against Defendants from further and future
defamation. Defendants assert Plaintiff cannot establish a violation or deprivation of a fundamental right or
protected liberty interest to maintain a substantive due process claim.
I. Legal Standard
Substantive due process is defined generally as “[t]he doctrine that governmental deprivations of
life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed[.]”
Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992). When government action is
challenged on substantive due process grounds, a court must first determine whether a fundamental right is
implicated. Should the interest presented be found “fundamental,” deprivation of such an interest will be
analyzed under strict scrutiny. Reno v. Flores, 507 U.S. 292, 301–302 (1993). If the right is not
fundamental, however, the court must apply a “rational basis” review. See, e.g., Seal v. Morgan, 229 F.3d
567, 575 (6th Cir. 2000) (“Government actions that do not affect fundamental rights or liberty interests . . .
will be upheld [if] they are rationally related to a legitimate state interest.”).

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As Plaintiff’s motion for partial summary judgment [dkt 25] deals solely with this issue, it is hereby DENIED. Further, the
Court will not consider Plaintiff’s arguments for declaratory or preliminary injunctive relief, as the Court’s ruling as to procedural
due process makes any discussion of either moot.

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II. Analysis
An interest is fundamental for the purposes of substantive due process analysis if it is “objectively,
deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that
neither liberty nor justice would exist if [it] were sacrificed.” Washington v. Glucksberg, 521 U.S. 702,
720–721 (1997). A long line of cases exist indicating liberties outside those specifically enumerated in the
Bill of Rights that are protected under the concept of substantive due process. Id. Determining a particular
right is “fundamental” for purposes of substantive due process relief, however, is a decision not easily made.
See Collins v. City of Harker Heights, Tex, 503 U.S. 115, 125 (1992) (“The doctrine of judicial self–restraint
requires us to exercise the utmost care whenever we are asked to break new ground in this field.”). Indeed,
“the [Supreme] Court has always been reluctant to expand the concept of substantive due process because
guideposts for responsible decision[–]making in this unchartered area are scarce and open–ended.” Id.
(internal citations omitted). A court must make certain to provide a “careful description” of the right
claimed within its substantive due process analytical framework, so as to properly determine whether such a
right is truly fundamental. See, e.g., Doe v. City of Lafayette, Ind., 377 F.3d 757, 769 (7th Cir. 2004) (“Our
careful description of the asserted right must be one that is specific and concrete, one that avoids sweeping
abstractions and generalities.”) (internal quotations and citations omitted).
In this matter, Plaintiff is specifically claiming an injury to his reputation in connection to the
“stigmatizing statements” made by Defendants in connecting Plaintiff’s name to that of his identity thief.
Specifically, Plaintiff asserts that Defendants continue to associate his name as a known alias on the criminal
records of his identity thief. This continued maintenance, Plaintiff contends, caused a state–run care facility
Plaintiff was attempting to gain employment with to inappropriately match Plaintiff’s name with his identity
thief’s criminal record. This match, Plaintiff argues, resulted in the loss of this employment opportunity.

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Plaintiff therefore asserts Defendants’ misappropriation of Plaintiff’s name is defamation of his reputation of
the sort that violates Plaintiff’s fundamental substantive due process rights.
Plaintiff’s argument is based upon a faulty premise. While Plaintiff asserts that individuals may
assert claims for injury to their reputation based on “stigmatizing statements” that cause loss of employment,
Plaintiff has failed to prove that any fundamental interest is implicated. Although Plaintiff has not portrayed
his argument in this fashion, Defendants correctly point out that Plaintiff is asserting Defendants violated
Plaintiff’s right to informational privacy by disseminating information associating Plaintiff with his identity
thief. Any plaintiff alleging a violation of their right to informational privacy must prove their interest at
stake relates to a fundamental right. See Lambert v. Hartman, 517 F.3d 433, 440 (6th Cir. 2008). As the
Supreme Court and Sixth Circuit have both indicated, there is no stand–alone liberty interest in one’s
reputation. See Paul v. Davis, 424 U.S. 693, 708–09 (1976); Lambert, 517 at 443–45.
In the same vein, Plaintiff’s assertions that Defendants’ actions are arbitrary and capricious and
“shock the conscience” miss the mark. These arguments fail to address the underlying requirement that the
interest at stake implicates a fundamental right. Additionally, Plaintiff has provided no proof that listing his
name as a known alias used by his identity thief is “arbitrary and capricious,”15 or that Defendants’ reliance
on name matches for connecting out–of–state convictions with Michigan driver’s license holders “shocks
the conscience.” As such, the Court finds that no fundamental interest is at stake in this case.
In the absence of a fundamental right, the Court must assess Plaintiff’s substantive due process
claim using the rationale basis standard enumerated above. It is the plaintiff’s burden to establish that the
defendant’s action is not rationally related to a legitimate government interest. Valot v. Southeast Local Sch.
Dist. Bd. of Educ., 107 F.3d 1220, at 1228 (6th Cir. 1997). As Plaintiff provides no argument that

15

As noted by Defendants, Plaintiff’s claim that a search of the OTIS system using Plaintiff’s name—“Randy Cleary”—
produces the criminal record of Plaintiff’s identity thief is simply false.

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Defendants’ actions in this case are not rationally related to a legitimate government purpose, the Court
finds that Plaintiff has failed to meet this burden.
As such, the Court finds that Plaintiff’s substantive due process claim must fail.
C. QUALIFIED IMMUNITY
In addition to bringing claims against Defendants in their official capacity, Plaintiff seeks relief
against Defendant Johnson and Defendant Heyns in their individual capacity. Plaintiff asserts that, by filing
the instant action, both Defendants Johnson and Heyns were put on actual notice of the violations of
Plaintiff’s rights they were committing. Instead of fixing their mistakes, however, Plaintiff asserts neither
Defendant Johnson nor Defendant Heyns did anything to correct the misinformation connected with
Plaintiff or the allegedly defective policies that led to this false connection. This inaction, Plaintiff contends,
constitutes actions for which each must be held personally liable.
As Plaintiff acknowledges, a crucial part of determining whether qualified immunity defense exists
is determining whether the facts show a violation of a constitutional right has occurred. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). As is established above,
the facts do not show that Defendants violated any of Plaintiff’s constitutional rights. A discussion of
qualified immunity for Defendants Johnson and Heyns, therefore, is irrelevant.

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V. CONCLUSION
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s Motion
for Partial Summary Judgment [dkt 25] is DENIED and Defendant’s Motion for Summary Judgment [dkt
27] is GRANTED.
IT IS FURTHER ORDERED that, as this Order dismisses all of Plaintiff’s claims, Plaintiff’s
pending motion for Order Restoring Driving Privileges [dkt 37] is DENIED as moot.
IT IS SO ORDERED.
S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT COURT
Dated: March 21, 2014

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