Dunchock v. Corunna, City of

Filing 17

Memorandum and Order Granting Defendant's 13 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARNOLD D. DUNCHOCK,
Plaintiff,
vs.

Case No. 14-11799

THE CITY OF CORUNNA, by
CHARLES KERRIDGE, Mayor,

HON. AVERN COHN

Defendant.
______________________________________/

MEMORANDUM AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 13)1
I. Introduction
This purports to be a 42 U.S.C. § 1983 case asserting claims under the First and
Fifth Amendments. Plaintiff, proceeding pro se, claims that defendant, the City of
Corunna by Charles Kerridge, the Mayor (the City), has retaliated against him for
speaking out against the City and has taken his property. At issue appear to be three
parcels of property located in the City. The City has apparently issued notices to the
owners of the parcels following an inspection, stating that the parcels are unsafe and in
need of repair. The amended complaint contains the following counts, phrased by
plaintiff as follows:

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The Court deems this matter appropriate for decision without oral argument.
See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

Count II2

Defendant violated plaintiff’s rights pursuant to 42 United States
Code Section 1983 (free speech)

Count III

Plaintiff incorporates the factual allegations set forth in Count II but
seeks the same relief based on general tort law, pursuant to
Michigan law

Count IV

Plaintiff should be granted injunctive relief against the defendant
wrongfully gaining ownership of the real property set forth herein.

Before the Court is the City’s motion for summary judgment. For the reasons
that follow, the motion will be granted.
II. Background
Plaintiff initially filed this action in Shiawasssee County Circuit Court. The City
removed the case to this Court on the basis of federal question jurisdiction. (Doc. 1)
Plaintiff filed a paper titled “Plaintiff’s Objection To Removal” (Doc. 5). The Court
construed the paper as a motion to remand and required Defendant to file a response.
See (Doc. 6). Subsequently, plaintiff filed an amended motion to remand. (Doc. 9).
The Court denied plaintiff’s objection to removal and his amended motion to
remand, stating that
What can be gleaned from the complaint and subsequently filed papers,
however, is that Plaintiff claims Defendant retaliated against him for speaking out
against Defendant. Plaintiff claims a violation of his First and Fifth Amendment
rights. Because Plaintiff alleges violations of the Constitution, the Court has
subject-matter-jurisdiction under 28 U.S.C. § 1331.
(Doc. 11).
The City then filed the instant motion for summary judgment. The City contends
that plaintiff lacks standing because he is not the owner of two of the three parcels and
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The amended complaint in the record begins on page 28. Page 28 begins with
Count II.
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no adverse action has been taken by the City regarding the third parcel. The City also
contends that plaintiff’s claims of retaliation and taking lack merit as all of the City’s
actions with respect to the parcels of property have been done in accordance with the
law.
Plaintiff has filed a response. As best as can be gleaned,3 plaintiff withdraws his
claim under § 1983. He also says that he wants his claims to be heard in state court as
part of judicial review of an administrative proceeding.
III. Legal Standards
Although the City moved for summary judgment, some of the arguments it raises
are more appropriate to a motion to dismiss. For instance, the City argues that plaintiff
lacks standing. A motion to dismiss for lack of standing is properly analyzed under
Federal Rule 12(b) (1) because “[s]tanding is thought of as a ‘jurisdictional’ matter, and
a plaintiff's lack of standing is said to deprive a court of jurisdiction.” Ward v. Alt. Health
Delivery Sys., 261 F.3d 624, 626 (6th Cir.2001) (citations and internal quotation marks
omitted); see also Allstate Ins. Co. Global Med. Billing, Inc., 520 F. App'x 409, 410–11
(6th Cir. 2013) (stating that lack of standing is treated as an attack on the court's subject
matter jurisdiction and is therefore considered under Rule 12(b)(1)). To satisfy Article
III's standing requirement, a plaintiff must establish three elements: “1) an injury in fact
that is concrete and particularized; 2) a connection between the injury and the conduct
at issue-the injury must be fairly traceable to the defendant's action; and 3)[a] likelihood
that the injury would be redressed by a favorable decision of the Court.” Courtney v.

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This filing, like plaintiff’s prior filings in this case, is virtually unintelligible.
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Smith, 297 F.3d 455, 459 (6th Cir. 2002) (internal citation and quotation marks omitted).
Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally
come in two varieties: a facial attack or a factual attack. Gentek Bldg. Prods., Inc. v.
Sherwin–Williams Co., 491 F.3d 320, 330 (citation omitted). A facial attack on the
subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of
the pleading. Id. Here, the City facially attacks plaintiff’s standing to sue. In such a
circumstance, the Court may go beyond the face of the complaint and consider the
evidence presented by the parties. See Cartwright v. Garner, 751 F.3d 752, 759 (6th
Cir. 2014) (on motion to dismiss based on factual lack of jurisdiction, court has “broad
discretion with respect to what evidence to consider in deciding whether subject matter
jurisdiction exists, including evidence outside the pleadings, and has the power to weigh
the evidence and determine the effect of that evidence on the court’s authority to hear
the case.”).
The City also argues that the allegations in the complaint are insufficient to state
a plausible 42 U.S.C. § 1983 claim because plaintiff has not suffered a constitutional
injury and has failed to allege a constitutional deprivation caused by the City. To
survive dismissal, “a complaint must contain sufficient factual matter ... to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim is facially plausible if the “plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007).
In order to prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege the
following two elements: 1) that he was deprived of a right secured by the United States
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Constitution or laws of the United States, and 2) that the deprivation was caused by a
person while acting under color of state law. Stewart v. City of Middletown, 136 F.
App’x 881, 882 (6th Cir. 2012).
Finally, as to summary judgment, “[t]he 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). A moving party may
meet that 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.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Revised Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to
properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the
court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is
entitled to it; or
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(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under Rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Ultimately a district court must determine whether the record as a whole presents a
genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light
most favorable to the non-moving party,” Hager v. Pike County Bd. Of Education, 286
F.3d 366, 370 (6th Cir. 2002).
IV. Analysis
In light of plaintiff’s statement to withdraw his claim under § 1983, Count II must
be dismissed. No further discussion is necessary.
As to Count III, it is nothing more than a title. There are no allegations or
recitation of legal authority. Simply incorporating prior allegations and referencing
“general tort law pursuant to Michigan law” does not provide fair notice of the claim
much less state a plausible claim for relief. Count III must be dismissed for failure to
state a claim upon which relief may be granted.
As to Count IV, the City is correct that regarding the two parcels that plaintiff
does not own, he lacks standing to challenge any actions taken against them. Plaintiff
does not deny that he only owns one of the parcels, but says he has some interest in all
three parcels.

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Putting aside the standing issue, Count IV fails on other grounds, as explained by
the City:
There was no taking of property. There was no judicial action taken by the
defendant to attempt to take or seize any of the properties. Even if the proper
parties were before this court to make such claims concerning the Shiawasssee
Street properties, there would be no claim. There was no foreclosure action, no
condemnation action, no eminent domain action. The City of Corunna did not
affect the ownership interest in any of the properties in any way.
(Doc. 13 at p. 16).
Plaintiff offers no argument or evidence challenging the City’s statements. At
best, plaintiff says that the City has “captured” the property using “militaristic” tactics.
The record, however, record shows that the City issued a “Notice of Dangerous
Structures” as to each parcel stating that an inspection showed the parcel was in
violation of City ordinances, deemed unsafe, and required repair. Plaintiff cites no
authority that issuing such a notice amounts to a taking or a violation of due process.
Indeed, as to the parcel which plaintiff owns, the record shows there was a hearing
regarding the alleged violations. The record also contains a document entitled “Results
of Hearing For Dangerous and Unsafe Structure(s) . . .” Under the space entitled
“Hearing Officer Notes and Directives,” it states:
As this structure has been vacant for some time and allowed to deteriorate, I find
the structure uninhabitable in its current state. The roof must be repaired and
open window fixed by October 31, 2013. . . .
Again, there is nothing in the record to show that the City’s actions in any way deprived
plaintiff of his due process rights or amount to a taking.

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V. Conclusion
For the reasons stated above, the City’s motion is GRANTED. This case is
DISMISSED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: March 12, 2015
Detroit, MI
I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, March 12, 2015, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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