Moore v. Michigan, State of et al

Filing 33

ORDER Regarding Various Motions to Dismiss, Order Dismissing Action, and Order Finding Any Appeal Frivolous.. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS M. MOORE,
Plaintiff,
Case No. 13-11789
v.
HON. DENISE PAGE HOOD
STATE OF MICHIGAN, et al.,
Defendants.
___________________________/
ORDER REGARDING VARIOUS MOTIONS TO DISMISS,
ORDER DISMISSING ACTION,
and
ORDER FINDING ANY APPEAL FRIVOLOUS
I.

BACKGROUND
On April 22, 2013, Plaintiff Thomas M. Moore, proceeding pro se, filed an 18-

count Complaint against several defendants: State of Michigan, County of Macomb,
Macomb County Circuit Court, Macomb County Sheriff’s Office, Macomb County
Prosecutor Eric J. Smith, Macomb County Probation, City of Mt. Clemens and the
Michigan Department of Corrections. Moore alleges several claims, including
violations under: 42 U.S.C. § 1983, Americans with Disabilities Act, 42 U.S.C. §
12101, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and
various Michigan state law.
Based on a liberal reading of the Complaint, it appears that Moore’s claim arose

out of a July 2010 arrest by the Warren Police Department. Moore was charged with
a crime by the Macomb County Prosecutor Eric J. Smith. On July 12, 2010, Moore
was moved to the City of Mt. Clemens and entered into the “programs” by Macomb
County Circuit Court, the Macomb County Sheriff’s Office until December 9, 2010.
(Comp., ¶ 20) Moore was then charged with a probation violation on June 15, 2012.
(Comp., ¶ 21) Moore asserts that, while in jail, he issued several “kites” regarding his
asthma and chronic obstructive pulmonary disorder (“COPD”), claiming that he was
not being accommodated. He attempted to file complaints regarding his disability
with various entities, including the defendants in this case and the White House and
Department of Justice. Moore filed the instant suit so that someone else could listen
to his complaints.
This matter is now before the Court on the various Defendants’ Motions to
Dismiss or for Summary Judgment. Moore has filed documents, including a “Judicial
Notice,” and various supplemental and letter filings. The Court has held various
hearings in this matter.
II.

ANALYSIS
A.

Standard of Review

Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss
based on failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
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12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court
explained that “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do[.] Factual allegations must be enough to
raise a right to relief above the speculative level....” Id. at 555 (internal citations
omitted). Although not outright overruling the “notice pleading” requirement under
Rule 8(a)(2) entirely, Twombly concluded that the “no set of facts” standard “is best
forgotten as an incomplete negative gloss on an accepted pleading standard.” Id. at
563. To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at
570. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a
defendant's liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. at 557. Such allegations are not to be discounted because
they are “unrealistic or nonsensical,” but rather because they do nothing more than
state a legal conclusion–even if that conclusion is cast in the form of a factual
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allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). In sum, for a complaint to
survive a motion to dismiss, the non-conclusory “factual content” and the reasonable
inferences from that content, must be “plausibly suggestive” of a claim entitling a
plaintiff to relief. Id. Where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged, but it has not
shown that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The court
primarily considers the allegations in the complaint, although matters of public record,
orders, items appearing in the record of the case, and exhibits attached to the
complaint may also be taken into account. Amini v. Oberlin College, 259 F.3d 493,
502 (6th Cir. 2001).
Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant
summary judgment if the movant shows that 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). The presence of factual disputes will preclude granting of summary
judgment only if the disputes are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. Although the Court must view the motion in the light
most favorable to the nonmoving party, where “the moving party has carried its
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burden under Rule 56(c), its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A
court must look to the substantive law to identify which facts are material. Anderson,
477 U.S. at 248.
Federal courts hold the pro se complaint to a “less stringent standard” than
those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972). A pro se litigant
“must conduct enough investigation to draft pleadings that meet the requirements of
the federal rules.” Burnett v. Grattan, 468 U.S. 42, 50 (1984).
B.

Michigan Defendants’ Motion to Dismiss
1.

Eleventh Amendment

The Michigan Defendants, including the State of Michigan, the MDOC and the
Probation Department, move to dismiss the federal claims under 42 U.S.C. §§ 1983,
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1985 and 1986 under the Eleventh Amendment of the United States Constitution
which provides:
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
The Eleventh Amendment prohibits private citizens from bringing suit against
a state or state agency in federal court. Alabama v. Pugh, 438 U.S. 781 (1978). There
are two exceptions to this rule. First, a state may waive its immunity and agree to be
sued in federal court. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
100 (1984). Second, a state may be sued in federal court where Congress specifically
abrogates the state’s immunity pursuant to a valid grant of Constitutional power. See
Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44
(1996). The Eleventh Amendment immunity has been interpreted to act as a
constitutional bar to suits against the state in federal court unless immunity is
specifically overridden by an act of Congress or unless the state has consented to suit.
Thiokol Corp. v. Dep’t of Treasury, State of Michigan, 987 F.2d 376, 381 (6th Cir.
1983).
Moore filed a response to the Michigan Defendants’ Motion to Dismiss at the
original hearing date of October 9, 2013, entitled a “Motion to Dismiss Defendants’
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Motion to Dismiss.” The Court allowed the Michigan Defendants time to file a reply
to Moore’s submission and adjourned the matter for further oral arguments. A review
of the Complaint and Moore’s submission shows that Moore is unable to overcome
the Eleventh Amendment immunity argued by the Michigan Defendants. The
Michigan Defendants have not agreed to be sued under any of the claims alleged by
Moore. It also does not appear on the Complaint that Moore seeks any prospective
injunctive or declaratory relief as to the Michigan Defendants. The federal claims
under 42 U.S.C. §§ 1983, 1985 and 1986 must be dismissed against the Michigan
Defendants.
2.

ADA and Rehabilitation Claims

The Michigan Defendants further assert that the claims under the ADA, 42
U.S.C. § 12131 et seq. and § 504 of the Rehabilitation Act should be dismissed for
failure to state a claim upon which relief may be granted because there are no facts
alleged relating to these claims as to the Michigan Defendants.
In Count II, the ADA claim, the Court’s review reveals that there are no facts
alleged against the Michigan Defendants. The ADA claim against the Michigan
Defendants is dismissed.
In Count III, the Rehabilitation Act claim, although the State of Michigan is
handwritten in the typed Complaint, there are no sufficient factual allegations alleged
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against the State. A claim under the Rehabilitation Act requires a plaintiff allege: 1)
the plaintiff is a “handicapped person” under the Act; 2) the plaintiff is “otherwise
qualified” for participation in the program; 3) the plaintiff is being excluded from
participation in, or denied benefits, or subjected to discrimination under the program
solely by reason of his handicap; and, 4) the relevant program or activity is receiving
Federal financial assistance. G.C. v. Owensboro Public Schools, 711 F.3d 623, 635
(6th Cir. 2013).
A review of the Complaint shows that Moore’s allegations under Count III are
conclusory and fail to allege facts to state a claim under the Rehabilitation Act as to
the Michigan Defendants. Count III must also be dismissed as to the Michigan
Defendants.
3.

State Law Claims

The Michigan Defendants assert that the remaining state law claims should be
dismissed without prejudice should the Court dismiss the federal law claims. The
Michigan Defendants claim that the state law claims are based on diversity
jurisdiction and there would be no complete diversity jurisdiction between Moore and
the Michigan Defendants.
When a federal court dismisses a plaintiff’s federal law claim, it should then
ordinarily dismiss the plaintiff’s state law claims without reaching the merits. Moon
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v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006). Because the Court
dismissed the federal claims, the Court will not reach the merits of the state law claims
and will dismiss, without prejudice, the state law claims against the Michigan
Defendants.
C.

The Macomb Defendants’ Motion to Dismiss
1.

Deficient Pleading

The Macomb Defendants, including Macomb County, the Macomb County
Circuit Court, the Macomb County Sheriff’s Office and the Macomb County
Prosecutor, seek to dismiss the claims against them for failure to state a claim upon
which relief may be granted. The Macomb Defendants also claim they are entitled to
immunity under federal and state law. Moore did not specifically file a response to
this motion, but has filed various documents with the Court as noted above.
The Macomb Defendants argue that Plaintiff alleges they violated an extensive
list of constitutional and statutory rights and protections under both federal and state
law. They claim that Plaintiff offers only a litany of conclusory assertions reflecting
his unsubstantiated belief that he was the victim of a host of discriminatory and
abusive acts. The Macomb Defendants argue that Plaintiff’s assertions are not
tethered to any manner of particularized facts showing who violated what under which
Amendment or statute, when and where such violations occurred, or the manner in
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which the violation was accomplished. They claim that the Complaint fails to provide
them with notice as to the nature of the claims against them. The Macomb Defendants
assert that the Complaint is “bizarre” and “indecipherable.”
This Court’s review of the Complaint reveals that Plaintiff lists a litany of laws,
statutes, events and allegations against various Defendants. The Court finds that the
allegations in the Complaint fail to satisfy the requirement under Rule 8(a)(2) of the
Rules of Civil Procedure that a plaintiff must allege well-pleaded facts in order to
show that the plaintiff is entitled to relief.
2.

42 U.S.C. § 1983 Claims against Macomb County

Macomb County argues that the § 1983, claims against it must be dismissed
because Plaintiff has failed to allege a causal link between a municipal policy or
custom to the alleged violations.
In order for a municipality to be liable under § 1983 there must be some
evidence that “execution of [the] government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” Monell v. Department of Social Services, 436 U.S. 658,
694 (1978). “[A] municipality cannot be held liable solely because it employs a
tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at 691. Generally, the doctrine of respondeat
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superior has no application in a § 1983 claim absent an allegation that the defendants
were following the government’s policies or customs. Dunn v. Tennessee, 697 F.2d
121, 128 (6th Cir. 1982). Rather, “the touchstone of the § 1983 action against a
government body is an allegation that official policy is responsible for a deprivation
of rights protected by the Constitution.” Monell, 436 U.S. at 690.
The Supreme Court noted that “municipal liability may be imposed for a single
decision by municipal policymakers under appropriate circumstances.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 480 (1986). However, “an ‘official policy’ is one
adopted by someone with ‘final authority to establish municipal policy with respect
to the action ordered.’ ” Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of
Educ., 926 F.2d 505, 515 (6th Cir.1991) (quoting Pembaur, 475 U.S. at 481)
(emphasis added). In other words, “[l]iability for unauthorized acts is personal; to
hold the municipality liable, Monell tells us, the agent’s action must implement rather
than frustrate the government’s policy.” Id. A municipal employee is not a “final
policymaker” unless his decisions “are final and unreviewable and are not constrained
by the official policies of superior officials.” Feliciano v. City of Cleveland, 988 F.2d
649, 655 (6th Cir.1993).
A review of Plaintiff’s Complaint shows that he has failed to allege or identify
any policy or custom by Macomb County which resulted in a violation of Plaintiff’s
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federal constitutional rights. The § 1983 claims against Macomb County must be
dismissed.
3.

State Law Claims Against Macomb County

Macomb County argues it enjoys immunity from state tort liability under MCL
§ 691.1401 et seq. which provides that all governmental agencies shall be immune
from tort liability in all cases wherein the governmental agency is engaged in the
exercise or discharge of a governmental function.

MCL § 691.1407(1).

A

government agency includes the state or a political subdivision. MCL § 691.1401(a).
Macomb County is a political subdivision of the State of Michigan and was engaged
in a governmental function when it operated the County jail where Plaintiff was
housed at one time. MCL § 45.16.
The Court finds that Macomb County is entitled to immunity under MCL §
691.1407(1) and any state law tort claims against it must be dismissed. Plaintiff’s
claims in his Complaint fail to overcome Macomb County’s governmental immunity
from any state law tort claims.
4.

Macomb County Sheriff’s Office

The Macomb County Sheriff’s Office asserts it is not entitled to be sued. A
municipal police or sheriff’s department is not a legal entity capable of being sued.
Matthews v. Jones, 35 F.3d 1046 (6th Cir. 1994); Haverstick Enterprises, Inc. v.
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Financial Federal Credit, Inc., 32 F.3d 989 (6th Cir. 1994). The Macomb County
Sheriff’s Office must be dismissed as to Plaintiff’s § 1983 claims.
5.

Macomb County Circuit Court

The Macomb County Circuit Court claims it is entitled to Eleventh Amendment
immunity. Michigan Circuit Courts are instrumentalities of the State. See, Michigan
Constitution, 1963, Art. VI, §§ 1, 11, 13. The Court finds the Macomb County Circuit
Court is entitled to Eleventh Amendment immunity. The judges of the Macomb
County Circuit Court are also immune from suit by the doctrine of judicial immunity.
Mireless v. Waco, 502 U.S. 9, 9-10 (1991). The Macomb County Circuit Court must
be dismissed.
6.

Macomb County Prosecutor Eric Smith

A prosecutor is entitled to absolute immunity for a prosecutor’s conduct in
initiating a prosecution and in presenting the case before the courts. Lanier v. Bryant,
332 F.3d 999, 1005 (6th Cir. 2003); Buckley v. Fitzsimmons, 509 U.S. 259, 272-73
(1993); Imbler v. Pachtman, 402 U.S. 409 (1976). The § 1983 claims against the
Macomb County Prosecutor must be dismissed.
As to any state law claims, the Macomb County Prosecutor is shielded from
liability under Michigan’s governmental immunity statute accorded to the highest
elected and appointed executive officials of a governmental agency, MCL §
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691.1407(5). The state law claims against the Macomb County Prosecutor must be
dismissed.
D.

City of Mount Clemens

The City of Mount Clemens filed a “Motion for Summary Judgment Pursuant
to FRCP 12(b)(6).” Motions for summary judgment are governed by Rule 56 of the
Rules of Civil Procedure and the standard is dismissal if there are no genuine issues
of material fact presented by the opposing party. Fed. R. Civ. P. 56(a). Rule 12(b)(6)
of the Rules of Civil Procedure provides for dismissal for failure to state a claim upon
which relief may be granted and only the pleadings, here the Complaint, may be
considered. Fed. R. Civ. P. 12(b)(6). The Court considers the City of Mount
Clemens’ motion as a Motion to Dismiss under Rule 12(b)(6) in light of its argument
that Plaintiff’s Complaint fails to state a claim upon which relief may be granted.
The City of Mount Clemens asserts that it is only mentioned in paragraphs 10
and 20 of Plaintiff’s Complaint. While it is true that the Macomb County Circuit
Court and the Macomb County Jail are both located within the City of Mount
Clemens, the City argues it had no involvement in the criminal prosecution of Plaintiff
or any subsequent punishment resulting from the criminal prosecution.
The Court’s review of the Complaint shows that Plaintiff failed to state a claim
upon which relief may be granted as required by Rules 12(b)(6) and 8(a). There are
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no factual allegations against the City of Mount Clemens that support any violation
of any federal or state law. As noted above, Plaintiff merely lists a litany of laws,
statutes, events and allegations against various Defendants. Plaintiff’s rambling
statements fail to satisfy the requirement under Rule 8(a)(2) of the Rules of Civil
Procedure that a plaintiff must allege well-pleaded facts in order to show that the
plaintiff is entitled to relief. The claims against the City of Mount Clemens must be
dismissed.
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that the Motion to Dismiss filed by Defendants County of

Macomb County, Macomb County Circuit Court, Macomb County Sheriff’s Office
and Macomb County Prosecutor Eric J. Smith (Doc. No. 11) is GRANTED.
IT IS FURTHER ORDERED that the City of Mount Clemens’ Motion for
Summary Judgment (Doc. No. 14), considered by the Court as a Motion to Dismiss,
is GRANTED.
IT IS FURTHER ORDERED that the Motion to Dismiss filed by the State of
Michigan, the Michigan Department of Corrections and Macomb County Probation
(Doc. No. 24) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Dismiss (Doc. No. 28),
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which is Plaintiff’s Opposition to the Motion to Dismiss filed by the Michigan
Defendants, is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Application to Proceed Without
Prepaying Fees or Costs (Doc. No. 23) is deemed MOOT, the Court having already
granted Plaintiff’s Application to Proceed In Forma Pauperis. (See Doc. No. 6)
IT IS FURTHER ORDERED that the Complaint is DISMISSED with
prejudice.
IT IS FURTHER ORDERED that the claims in the Complaint are deemed
frivolous under 28 U.S.C. § 1915(e)(2)(B). An Appeal of this Order would be
frivolous and would not be taken in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v.
United States, 369 U.S. 438, 445 (1962),McGore v. Wrigglesworth, 114 F.3d 601,
610-11 (6th Cir. 1997).
s/Denise Page Hood
Denise Page Hood
UNITED STATES DISTRICT JUDGE

Dated: March 27, 2014
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on this
date, March 27, 2014, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry
Case Manager, [phone]

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