McKeown v. Ayotte et al

Filing 26

OPINION and ORDER Granting Motion for Summary Judgment 22 and Order Setting Dates. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SEAN MICHAEL MCKEOWN,
Case No. 13-11971
Plaintiff,
Hon. Denise Page Hood
v.
KELLY D. AYOTTE, JOANN
ROTTENBUCHER, MICHAEL
ALEXANDER, PATRICIA L. CARUSO,
DANIEL HEYNS and BRIAN J. SCHAF,
Defendants.
_____________________________________/

OPINION AND ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
AND
ORDER SETTING DATES

I.

BACKGROUND/FACTS
On May 3, 2013, Plaintiff Sean Michael McKeown filed the instant Complaint

against Defendants Kelley D. Ayotte, JoAnn Rottenbucher, Michael Alexander,
Patricia L. Caruso, Daniel Heyns and Brian J. Schaf alleging: Fourth, Fifth and
Fourteenth Amendment Violations as to Defendants Ayotte, Rottenbucher, Alexander,
Caruso and Heyns (Count I); Sixth Amendment Violation as to Defendant Schaf

(Count II) and Negligence as to Defendants Ayotte, Rottenbucher, Alexander, Caruso
and Heyns (Count III).
McKeown entered a plea of guilty to one count of home invasion, first degree,
in violation of M.C.L. § 750.110(A)(2) on December 9, 2002. (Resp., App. B,
Macomb County, Case No. 02-3716-FH) Judge Diane Druzinski of the Macomb
County Circuit Court sentenced McKeown to three years reporting probation, with the
first six months on an electronic tether on March 11, 2003. (Resp., App. B)
McKeown violated the term of his probation in Case No. 02-3716 by receiving
two subsequent convictions. McKeown entered a plea of guilty in Case No. 04-0520FH to one count of attempt home invasion, first degree, in violation of M.C.L. §
750.110(A)(2) and in Case No. 04-2639-FH to one count of attempted criminal sexual
conduct in the third degree, in violation of M.C.L. § 750.520(D)(1)(A). On November
12, 2004, McKeown was sentenced on all three cases. McKeown received 343 days
in the Macomb County Jail in both Case Nos. 04-0520 and 04-2639, to be served
concurrently, but consecutively to the probation violation sentence of 343 days, with
343 days credit. (Resp., App. B) The probation violation in Case No. 02-3716 was
extended to March 11, 2006. (Resp., App. B)
After McKeown served his jail time, he first reported to Probation Officer
Ayotte on September 12, 2005, at which time she informed him that he would never
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“make it” and would be in prison within 3 weeks. (Resp. App. C, S. McKeown Aff.)
McKeown satisfied his financial obligation in Case No. 02-3716 prior to his
anticipated probation end period of March 11, 2006. (Resp., App. C)
Without notice to McKeown, PO Ayotte submitted an ex parte petition to the
court seeking to extend McKeown’s probationary term until November 2007. The
petition was granted and a docket entry appears on February 23, 2006 titled “Petition
and Order Amending Probation”, but no details are entered on the docket as to the
length of the amended probation term. (Resp., App. B and D) PO Ayotte never
informed McKeown that she was going to seek an extension of the probation term, nor
did she serve McKeown with a copy of the order extending the probation term.
(Resp., App. C)
On March 22, 2006, McKeown appeared in court for arraignment of probation
violations in Case Nos. 04-0520 and 04-2639 for cutting off his tether transmitter on
March 11, 2006. (Resp., App. F, 3/22/06 Tr.) On April 4, 2006, McKeown pled
guilty to the probation violations in both Case Nos. 04-0520 and 04-2639. (Resp.
App. F, 4/4/06 Tr.) The circuit court continued probation with the original probation
term of three years through November 12, 2007 in both Case Nos. 04-0520 and 042639. (Resp. App. F, 4/11/06 Tr.)
On November 30, 2006, McKeown was in court for a probation violation
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hearing in Case Nos. 02-3716, 04-2639, and 04-0520. McKeown informed the circuit
court that he believed his probation in Case No. 02-3716 ended in March 2006.
McKeown claims it was at this hearing that he was first informed by the circuit court
that the probation term in Case No. 02-3716 was extended until November 12, 2007.
(Resp. App. G, 11/30/06 Tr.)
On January 4, 2007, after entering pleas of guilty to the probation violation
charges, the circuit court terminated without improvement the probation terms for
Case Nos. 02-3716, 04-2639 and 04-0520. McKeown was then sentenced in Case
Nos. 02-3716, 04-2639, 04-0520 and 06-5180, to concurrent terms of imprisonment
of 28 months to 20 years with the Michigan Department of Corrections. (Resp., App.
B) After filing a Motion from Relief of Judgment pursuant to MCR 6.500 in Case No.
02-3716, claiming that the sentence he received in that case was unconstitutional for
lack of notice of the extension of the probationary period, the circuit court entered an
order on May 6, 2011 granting the motion. (Resp., App. A) The instant suit followed
on May 3, 2013.
This matter is before the Court on a Motion for Summary Judgment filed by the
State of Michigan individual Defendants Ayotte, Rottenbucher, Alexander, Caruso,
and Heyns. (Doc. No. 22) McKeown filed a response to the motion. (Doc. No. 25)
No dispositive motion was filed on behalf of Defendant Schaf.
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II.

ANALYSIS
A.

Standard of Review

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
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
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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.
B.

Law on Qualified Immunity

The Eleventh Amendment precludes suits in federal court for monetary
damages against state entities. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
The Eleventh Amendment does not bar § 1983 actions brought against state officials
in their official capacities seeking prospective injunctive relief.

Williams v.

Commonwealth of Ky., 24 F.3d 1526, 1544 (6th Cir. 1994). Government officials are
entitled to qualified immunity where their actions do not “violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Green v. Reeves, 80 F.3d 1101, 1104 (6th Cir. 1996) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Qualified immunity is an initial threshold question the court
is required to rule on early in the proceedings so that the costs and expenses of trial
are avoided where the defense is dispositive. Saucier v. Katz, 533 U.S. 194, 201
(2001). Qualified immunity is “an entitlement not to stand trial or face the other
burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege
is “an immunity from suit rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id.
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The Supreme Court in Saucier instituted a two-step sequential inquiry to
determine qualified immunity. In Pearson v. Callahan, 555 U.S. 223 (2009), the
Supreme Court abandoned the requirement that the inquiry must be performed
sequentially. Although courts are free to consider the questions in whatever order is
appropriate, the Supreme Court ruled that the two questions announced in Saucier
remain good law and that it is often beneficial to engage in the two-step inquiry.
Pearson, 555 U.S. at 236.
The first step of a three-step inquiry to determine qualified immunity is, taken
in the light most favorable to the party asserting the injury, whether the facts alleged
show the official’s conduct violated a constitutional right. Siegert v. Gilley, 500 U.S.
226, 232 (1991). If no constitutional right would have been violated, there is no
necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at
201.
If a violation could be made out, the next step is to determine whether the right
was clearly established in light of the specific context of the case, not as a broad
general proposition. Id. Under the doctrine of qualified immunity, an official will not
be found personally liable for money damages unless the official’s actions violate
“clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818. “Qualified immunity ‘gives ample
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room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those
who knowingly violate the law.’” Chappell v. City of Cleveland, 585 F.3d 901 (6th
Cir. 2009) (citations omitted). The “clearly established” rights allegedly violated by
the official cannot be considered at an abstract level, but must be approached at a level
of specificity, “[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 639 (1987). The third step is to determine whether the facts
alleged indicate that what the official did was objectively unreasonable in light of
clearly established constitutional rights. Gaspers v. Ohio Dep’t of Youth Serv., 648
F.3d 400, 412 (6th Cir. 2011). “Reasonableness” is a question of law to be decided
by the trial court. Jeffers v. Heavrin, 10 F.3d 380 (6th Cir. 1993). Once the defense
of qualified immunity is raised, the plaintiff bears the burden of showing that a
defendant is not entitled to qualified immunity. Roth v. Guzman, 650 F.3d 603, 609
(6th Cir. 2011).
C.

Constitutional Violation/Procedural Due Process/Notice (Count I)

The Michigan Defendants argue there is no Procedural Due Process claim for
lack of notice in extending the probation term since Michigan law provides that a
judge may enter an order extending a probation term ex parte. The Michigan
Defendants assert that it was McKeown’s act of pleading guilty to a probation
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violation, knowing he did not receive a copy of the order, which caused him harm, not
any actions by the Michigan Defendants.
McKeown responds that it was the lack of notice that the probation term was
extended in Case No. 02-3716 which is alleged in this case. McKeown agrees that
Michigan law allows a court to extend the terms of probation in M.C.L. § 771.2 and
that the extension may be done ex parte, with no advance notice to the probationer.
However, the probationer must be immediately notified of any amendment to the
probationary term and be able to contest the changes under the United States
Constitution and Michigan case law.
In Michigan, an order of probation may be amended ex parte, and there is no
requirement that the defendant be given notice or an opportunity to be heard before
the amendment. People v. Britt, 202 Mich. App. 714, 716 (1993); M.C.L. § 771.2(2).
To state a due process claim, a plaintiff must first establish a liberty interest that is
entitled to protection by the due process clause. After a prisoner has been released on
probation, he has a constitutionally protected interest in remaining on probation.
Fields v. Quigley, 2008 WL 4562211 at *5 (W.D. Mich. Oct. 8, 2008). If the
probation is to be revoked, due process mandates procedural guarantees including
written notice of the claimed violation and a hearing on the matter. Black v. Romano,
471 U.S. 606, 612 (1985); Morrissey v. Brewer, 408 U.S. 477 (1972). However, an
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ex parte extension of a probation term does not violate a probationer’s due process
rights and no prior notice or hearing is required. Forgues v. United States, 636 F.2d
1126, 1127 (6th Cir. 1980). Probation is a non-custodial supervisory period far less
onerous to the probationer than the incarceration which results from the revocation of
probation. Id. A non-custodial period of supervision within the statutory limits does
not implicate a liberty interest sufficient to require a preextension hearing as a
constitutionally mandated right. Id. An extension of probation is not as “grievous”
a “loss” as revocation. Weaver v. Warden, London Correctional Institution, 2007 WL
2407058 at *4 (S.D. Ohio 2007) (citing Skipworth v. U.S., 508 F.2d 598, 601-602 (3rd
Cir. 1975). The primary “loss” suffered by an individual whose probation has been
extended lies not in the continuing restrictions themselves, but in the possibility of
future revocation. Id. While such a loss is indeed serious, it is merely potential at the
time of extension, and the due process clause clearly provides the protection of a
hearing in the event that revocation proceedings should subsequently occur. Id.
McKeown has failed to show that a constitutional violation occurred since he
has no Due Process right to notice prior to a court issuing an order extending a
probation term. As to whether a probationer is entitled to “immediate” notice of an
order extending a probation term, no case law has held that due process requires
“immediate” notice of an order extending a term of probation. Due Process only
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requires notice and opportunity to be heard prior to revocation of a criminal
defendant’s probation or parole. See, Gagnon v. Scarpelli, 411 U.S. 778 782 (1973).
The Michigan cases cited by McKeown, each addressed below, do not hold that a
probationer is required to have notice after an order extending a probation term has
been entered and do not address the specific issue of whether a probationer is required
notice after an ex parte order to extend probation is entered.
In People v. Marks, 340 Mich. 495 (1954), the Michigan Supreme Court stated
that while probation is a matter of grace, the probationer is entitled to fair treatment
and that a defendant’s rights are not impinged by the alteration of a probation order
made within the statutory period. Id. at 501. The Michigan Appeals Court held in
People v. Britt, 202 Mich. App. 714 (1993) that an order of probation may be
amended ex parte without notice to a defendant prior to the amendment and that the
ex parte order placing the defendant on the tether program was not an order of
confinement. There was no allegation in Britt that the defendant did not receive notice
of the ex parte order. In People v. Kendall, 142 Mich. App. 576 (1985), the issue was
whether the court had the authority to extend probation even if there was no violation
of the terms of probation. The Michigan Court of Appeals held that the court had such
authority as long as the additional term was within the statutory maximum, which in
this case was within the maximum five years. Id. at 579-80. The defendant received
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notice of the extension after the order was entered, therefore, the issue before the
appellate court did not involve lack of notice after the order was entered. The
Michigan Court of Appeals in People v. Graber, 128 Mich. App. 185 (1983), held that
a court is authorized to impose additional conditions of probation at any time and ex
parte. No prior notice and an opportunity to be heard was required. Id. at 190. The
defendant in Graber was immediately notified of the additional conditions of
probation, therefore, the issue of whether notice was required after the amended
probation order was entered was not addressed by the appellate court.
Although a potential violation of probation may be a serious loss, at the time
of the ex parte extension of the probation, such a loss was speculative. In this case,
McKeown had notice of the extension of the probation before the judge terminated his
probation in Case No. 02-3716 (and the other two cases) and before he was sentenced
to a term of imprisonment (concurrent with his other probation violations in other case
numbers and a new case, which he does not contest in this case). The record
submitted by McKeown shows that he pled guilty to the probation violations even
though he asserted before the circuit court that he had no notice of the extension of the
probation in Case No. 02-3716. (Resp. App. H, 1/4/2007 Tr.) Because McKeown
failed to allege a Due Process violation against the individual Michigan Defendants,
they are entitled to qualified immunity. McKeown has not stated a Due Process right
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that is recognized, nor well-established. No well-established due process right
requires that a probationer must receive notice immediately after an ex parte order
extending a probation term is entered. Due Process only attaches where such a
probation is revoked. Count I of the Complaint alleging a violation of Due Process
must be dismissed.
D.

Statute of Limitations

The parties agree that the three-year statute of limitations applicable to personal
injury actions in Michigan, M.C.L. § 600.5805(8), applies to § 1983 actions. See
Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986). The Michigan Defendants
argue that McKeown’s § 1983 action must be dismissed since McKeown discovered
the existence of the ex parte order on November 30, 2006 and he did not file the
instant suit until May 3, 2013, beyond the three-year limitations period. McKeown
responds that it was not until May 6, 2011 that his claim began, which was the date
the circuit judge granted his Motion for Relief from Judgment. McKeown asserts that
filing the May 3, 2013 lawsuit was within the three-year limitations period.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a §
1983 cause of action attributable to an unconstitutional conviction or sentence does
not accrue until the conviction or sentence has been invalidated. Id. at 489-90. Based
on the principles in Heck, McKeown’s claim as to lack of notice of the ex parte order
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did not begin to accrue until the order relating to his resentencing to a term of
imprisonment related to the probation violation conviction was set aside on May 6,
2011. If McKeown had filed the lawsuit prior to that date, the suit may have been
dismissed under Heck since it would have been a collateral attack of the probation
violation conviction. McKeown’s lawsuit was filed within the three-year statute of
limitations from May 6, 2011 and will not be dismissed based on the statute of
limitations defense. However, for the reasons set forth above addressing the merits,
the McKeown’s Due Process claim in Count I is dismissed.
E.

Quasi-Judicial Immunity

Because judicial immunity applies to a § 1983 action, based on the analysis
above, this issue is moot.
The Michigan Defendants argue that PO Ayotte is entitled to quasi-judicial
immunity because she was acting in a quasi-judicial capacity as a probation officer
regarding the notice allegation of the ex parte order. McKeown responds that PO
Ayotte is not entitled to judicial immunity since she was the individual who was
tasked with sending notice to McKeown after the order was entered. McKeown is not
challenging her authority to advise the court prior to a change in a term of probation,
but that Ayotte failed to notify McKeown of the entry of the order.
Whether a defendant is entitled to immunity from a § 1983 action is a question
14

of federal law. See, Martinez v. California, 444 U.S. 277, 284 n. 8 (1980). Judges are
immune from liability for damages for acts committed within their judicial
jurisdiction. Pierson v. Ray, 386 U.S. 547, 553-54 (1967). The absolute immunity
that protects judicial officers engaged in judicial functions also protects state officials
engaged in adjudicative functions. Dean v. Byerley, 354 F.3d 540, 555 (6th Cir.
2004). Quasi-judicial immunity extends to those persons performing tasks so integral
or intertwined with the judicial process that these persons are considered an arm of the
judicial officer who is immune. Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994).
Quasi-judicial immunity does not apply to functions performed by state officers that
are not judicial in nature. Balas v. Leishman-Donaldson, 1992 WL 217735, at *4 (6th
Cir. 1992). “Whether an action is judicial depends on the nature and function of the
act, not the act itself.” DePiero v. City of Macedonia, 180 F.3d 770, 784 (6th Cir.
1999). The Sixth Circuit has noted that a “general, routine, investigative act is neither
an adjudicative task nor a task so integral or intertwined with the judicial process such
that quasi-judicial immunity applies.” Draine v. Leavy, 504 Fed. App’x 494, 495 (6th
Cir. 1992). The function of a probation officer in submitting a parole violation report
is neither adjudicatory nor prosecutorial in nature. Id. at 496 (citing Ray v. Pickett,
734 F.2d 370, 374 (8th Cir. 1984)). Judicial immunity does not apply; only qualified
immunity. Id.
15

In this case, the issue is whether PO Ayotte’s failure to give notice is a judicial
function. Based on the above-cited cases, it is not. PO Ayotte is not entitled to quasijudicial immunity, but is entitled to qualified immunity. However, the Due Process
in Count I is dismissed as to Ayotte for the reasons set forth above.
F.

Remaining Counts

At the hearing the parties confirmed that Count II, the Sixth Amendment
Violation claims as to Defendant Schaf only, remains. Although Defendants argued
after inquiry from the Court that the state law negligence claim in Count III must also
be dismissed based on immunity grounds, Defendants did not raise this argument in
their written briefs. Defendants raised the qualified immunity argument which only
applies to individual government officials from liability on federal law constitutional
actions brought under 42 U.S.C. § 1983. Sheffey v. City of Covington, 564 Fed. Appx.
783, 788-89 (6th Cir. Apr. 28, 2014). Defendants are also not entitled to quasijudicial immunity protections as noted above.
III.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that the Motion for Summary Judgment (Doc. No. 22) is

GRANTED filed by Defendants Kelley D. Ayotte, JoAnn Rottenbucher, Michael
Alexander, Patricia L. Caruso and Daniel Heyns. The federal Due Process Claim
16

(Count I) only is DISMISSED. The remaining claims are Count II (Sixth Amendment
claim as to Defendant Brian J. Schaf) and Count III (Negligence claims as to
Defendants Kelley D. Ayotte, JoAnn Rottenbucher, Michael Alexander, Patricia L.
Caruso and Daniel Heyns).
IT IS FURTHER ORDERED that the following dates govern this matter:
Proposed Joint Final Pretrial Order
(See LR 16.2) must be submitted by: April 6, 2015
Motions in Limine must be filed by: April 6, 2015
Final Pretrial Conference:
April 13, 2015, 2:00 p.m.
All parties with authority to settle must appear at the conference.
Jury Trial:

May 19, 2015, 9:00 a.m.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: February 12, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 12, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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