Christenson et al v. Michigan, State of et al

Filing 31

OPINION AND ORDER granting defendants' Motion to Dismiss for lack of subject matter jurisdiction 21 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES CHRISTENSON, et al.,
Plaintiffs,
Case No. 15-14441
HON. GEORGE CARAM STEEH

vs.
CITY OF ROSEVILLE,
JAMES OSTERHOUT, and
TIMOTHY TOMLINSON,

Defendants.
___________________________________/
OPINON AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION (DOC. 21)
Pro se plaintiffs James Christenson and Christenson Law Trust
assert a claim under 42 U.S.C. § 1983, alleging that defendants the City of
Roseville, James Osterhout, and Timothy Tomlinson violated plaintiffs
Fourth Amendment rights. Courts liberally construe pro se complaints and
do not hold them to the same stringent standards as formal pleadings
drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
This matter is presently before the Court on defendant’s Rule 12(b)
Motion to Dismiss and Rule 56 Motion for Summary Judgment. (Doc. 21).
Plaintiffs have also filed a Motion for Preliminary Injunctive Relief, (Doc.
28), and a Motion for Summary Judgment, (Doc. 29). The Court dispenses
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with oral argument pursuant to Local Rule 7.1(f)(2). For the reasons stated
below, defendants’ motion to dismiss for lack of subject matter is
GRANTED, the remaining motions are moot, and plaintiffs’ complaint is
dismissed.
I. Background
On July 17, 2014, the City of Roseville (the City) “red tagged” a house
located at 27807 Garfield, Roseville, Michigan (the Property), signaling that
the Property was not approved for occupancy. At that time, the Property
was owned by Rech Realty. On November 13, 2014, Rech Realty
permitted the City to inspect the Property. The inspection revealed multiple
violations of the City of Roseville Building Code (Building Code). The City
informed Rech Realty that “[a]ll violations must be corrected, reinspected
and approved prior to the occupancy of this building.” (Doc. 21-2 at 4).
On October 12, 2015, Osterhout sent a letter to Rech Realty noting
the prior Building Code violations and requesting that it call to schedule a
reinspection. But Rech Realty no longer owned the Property; it was sold
to Brittany Westerlund and Merle Christenson on December 11, 2014.
Westerlund, Merle Christenson, and plaintiff James Christenson
subsequently wrote the City’s mayor, explaining that they now owned the
Property and did not believe that it should be subject to inspection.
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Westerlund and Merle Christenson transferred their interest in the
Property to the Christenson Law Firm Trust 27807 on October 20, 2015.
Thereafter, the City sent Westerlund a “Notice of Violation or NonConformity,” stating that she had 10 days to correct the violations. The
City’s attorney, Tomlinson, wrote Westerlund and the Christensons
explaining that the Property was not approved for occupancy because of
the Building Code violations. (Doc. 1 at 38). Tomlinson’s letter also stated
that although they “may not have had knowledge of the violations, it is still
your responsibility as the new property owner to ensure that the violations
are corrected.” (Id.). “As a matter of law, each and every one of the
violations in the section would constitute a criminal misdemeanor subject to
93 days in jail and/or up to a $500 fine.” (Id.). Tomlinson asserted that the
City sought entry to re-inspect the violations to determine whether they had
been corrected, noting that if they had not, Westerlund and the
Christensons may be held liable. (Id.). James Christenson responded,
stating that he did not consent to an inspection.
On December 15, 2015, while inspecting a home adjacent to the
Property, Osterhout observed that new electrical work had been completed,
garbage placed outside the Property, and newly posted ‘No Trespassing’
signs. Osterhout did not enter onto the Property, but merely observed
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these issues in plain view from the surrounding area. Osterhout thereafter
sent a “Violation Notice” to “Christenson Law Trust 27807,” notifying
Plaintiffs that electrical work was done without the proper permit, (Doc. 1 at
42), and a letter stating that the Property appeared to be unlawfully
occupied and requesting that Plaintiffs schedule an inspection. (Id. at 41).
On December 21, 2015, Plaintiff James Christenson sent a letter to
Glenn Sexton, the Director of the City’s Building Department, insisting that
the current Property owners did not consent to any inspection and that
Osterhout had violated their Fourth Amendment rights. Plaintiffs filed this
suit on December 23, 2015.
II. Standard of Review
Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1),
arguing that plaintiffs lack standing. Defendants’ also move to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) and seek summary judgment under
Fed. R. Civ. P. 56. The Court is “bound to consider the 12(b)(1) motion
first, since the Rule 12(b)(6) challenge becomes moot if this court lacks
subject matter jurisdiction.” Moir v. Greater Cleveland Regional Transit
Authority, 895 F.2d 266, 269 (6th Cir. 1990). It is the plaintiffs’ burden to
demonstrate that the court has subject matter jurisdiction. RMI Titanium
Co v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
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Motions to dismiss for lack of subject matter jurisdiction fall into two
general categories: facial attacks and factual attacks.” United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir.1994). “A facial attack is a challenge to
the sufficiency of the pleading itself. On such a motion, the court must take
the material allegations of the petition as true and construed in the light
most favorable to the non-moving party.” Id. (emphasis in original). “A
factual attack, on the other hand, is not a challenge to the sufficiency of the
pleading's allegations, but a challenge to the factual existence of subject
matter jurisdiction. On such a motion, no presumptive truthfulness applies
to the factual allegations” and “the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Id.
(emphasis in original). Defendants’ challenge to plaintiffs’ standing is a
factual attack. Thus, no presumptive truthfulness applies to the factual
allegations in the complaint. Id.
III. Analysis
Defendants argue that this action must be dismissed pursuant to Fed.
R. Civ. P. 12(b)(1) because plaintiffs lack standing to assert their claims. A
plaintiff’s lack of standing under Article III of the United States Constitution
deprives a federal court of subject matter jurisdiction. Stalley v. Methodist
Healthcare, 517 F.3d 911, 916 (6th Cir. 2008). “To satisfy the ‘case’ or
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‘controversy’ requirement of Article III, which is the ‘irreducible
constitutional minimum’ of standing, a plaintiff must, generally speaking,
demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly
traceable’ to the actions of the defendant, and that the injury will likely be
redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162
(1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992);
Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 471–472 (1982)).
An injury in fact is “an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560 (internal citations omitted). In preenforcement challenges, “a plaintiff satisfies the injury-in-fact requirement
where he alleges ‘an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.’” Susan B. Anthony v.
Driehaus, 134 S. Ct. 2334, 2342 (2014) (quoting Babbit v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
The Court lacks subject matter jurisdiction because plaintiffs have not
suffered an injury in fact. Defendants have not entered the Property to
conduct a search or seizure subsequent to December 11, 2014, when
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plaintiffs accrued an interest in the Property. Thus, this case falls into the
pre-enforcement context. Plaintiffs claim that defendants intend to engage
in conduct protected by their Fourth Amendment rights; prohibiting an
unconsented, warrantless search of the Property. But there is no credible
threat of prosecution for refusing to consent to an inspection.
The City’s right of entry is governed by Building Code § 225-21,
which states that “[t]he Code Official is authorized to enter the structure or
premises at reasonable times to inspect subject to constitutional restrictions
on unreasonable searches and seizures. If entry is refused or not
obtained, the Code Official is authorized to pursue recourse as provided by
law.” While failure to consent to entry may result in recourse, such
recourse does not involve a credible threat of prosecution. First, the
language of § 225-21 does not state that those who refuse consent will be
prosecuted. Furthermore, prosecution for refusing consent is not a
punishment provided by law. See Camara v. Municipal Court of City and
County of San Francisco, 387 U.S. 523, 532-34 (1967).
In Camara, a San Francisco building ordinance permitted
warrantless, unconsented inspections to enforce the city’s housing code.
The plaintiff refused to consent to an inspection, and was thereafter
charged with violating the housing code. The Supreme Court held that the
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building ordinance was unconstitutional because such administrative
searches constitute significant intrusions upon Fourth Amendment interests
and, when conducted without a warrant, lack the traditional safeguards that
are guaranteed by the Fourth Amendment. Id. Thus, citizens cannot
reasonably be put to the choice of consenting to warrantless inspection or
facing criminal charges. See id. at 532. See also City of Los Angeles v.
Patel, 135 S. Ct. 2443, 2452 (2015).
Additionally, it is unreasonable to find that any other section of the
Housing Code creates a credible threat of prosecution for refusing to
consent to an inspection. Refusing consent to an inspection cannot be
found as a violation of the Housing Code.1 See Housing Code § 225-30.
But, even if it was a violation, Camara would preclude a criminal conviction.
Therefore, § 225-31, which calls for “a fine of not more than $500 or
imprisonment for a term not to exceed 90 days, or both” upon conviction of

1

§ 225-30 states that “It shall be unlawful for any person, firm or corporation to erect, construct, alter,

extend, repair, remove, demolish, maintain, fail to maintain, provide, fail to provide, occupy, let to another
or occupy or permit another person to occupy any premises, property, structure or equipment regulated
by this code, or cause same to be done, contrary to or in conflict with or in violation of any of the
provisions of this code, or to fail to obey a lawful order of the Code Official, or to remove or deface a
placard or notice posted under the provisions of this code.” In summary, this provision prohibits impacting
property covered by the code in a manner contrary to the provisions of this code. It does not state, nor
does it imply, that refusing to consent to an inspection is an unlawful act.

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a Housing Code violation, is not applicable to refusing consent to an
inspection.
IV. Conclusion
Plaintiff lacks an injury in fact, and therefore, lacks standing to bring
their claims. As a result, the Court does not have subject matter
jurisdiction. As such, the remaining motions are moot. See Moir, 895 F.2d
at 272.
For the reasons stated above,
IT IS ORDERED that defendants’ 12(b) Motion to Dismiss is
GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ complaint is DISMISSED.
Dated: January 24, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 24, 2017, by electronic and/or ordinary mail and also
on James Christenson, 22014 Fresard, Saint Clair Shores, MI
48080.
s/Marcia Beauchemin
Deputy Clerk

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