Causey v. City of Bay City et al

Filing 45

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION 34 , GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 23 , AND DISMISSING THIS ACTION WITHOUT PREJUDICE. Signed by District Judge Gershwin A. Drain. (TBan) 2/6/2018.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHOICE CAUSEY,
Case No. 16-cv-12747

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITY OF BAY CITY, ET AL.,
Defendants.
/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR RECONSIDERATION
[34], GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [23], AND
DISMISSING THIS ACTION WITHOUT PREJUDICE
I. INTRODUCTION
Presently before the Court is Defendant’s Motion for Reconsideration. Dkt.
No. 34. On July 25, 2016, Plaintiff filed a complaint against Defendants alleging
violations of Equal Protection. Dkt. No. 1. Defendants filed a Motion for Summary
Judgment on August 11, 2017. This Court granted in part and denied in part
Defendants’ Motion on November 1, 2017. The remaining defendant, Thomas
Pletzke, filed a Motion for Reconsideration on November 14, 2017. Dkt. No. 34.
This Court ordered Plaintiff to file a response on January 8, 2018. Dkt. No. 35. On
January 19, 2018, Plaintiff filed a response. Dkt. No. 36. For the reasons that

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follow, the Court will grant Defendant’s Motion and dismiss this action without
prejudice.
II. LEGAL STANDARD
Under this Court’s Local Rules, the Court may not grant a motion for
reconsideration that merely presents the same issues upon which the Court already
ruled. E.D. Mich. LR 7.1(h)(3) (E.D. Mich. July 1, 2013). Additionally, the movant
must demonstrate that there is a palpable defect in the opinion or order under attack
and that correcting the defect will result in a different disposition of the case. Id.;
Indah v. U.S. S.E.C., 661 F.3d 914, 924 (6th Cir. 2011). “A ‘palpable defect’ is a
defect which is obvious, clear, unmistakable, manifest, or plain.” Hawkins v.
Genesys Health Systems, 704 F. Supp. 2d 688, 709 (E.D. Mich. 2010) (quoting
Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich.
2001)).
III. DISCUSSION
Class-of-One Retaliation
In his Motion for Reconsideration, Defendant states that the Court
misinterpreted the test for the class-of-one theory. See Dkt. No. 34, pg. 7–8 (Pg. ID
787–88). Under the class-of-one theory, a Plaintiff must show: (1) disparate
treatment from similarly situated individuals; and (2) that the government actors
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had no rational basis for the difference; or (3) that the challenged government
action was motivated by animus. Paterek v. Vill. of Armada, Mich., 801 F.3d 630,
650 (6th Cir. 2015). This Court understood element three of the test as a distinct
element that Plaintiff could prove instead of proving the first two elements. See
Dkt. No. 30, pg. 17 (Pg. ID 772). However, element three is an alternative to
proving element two, as shown through prior case law. See EJS Props., LLC. v.
City of Toledo, 698 F.3d 845, 864–65 (6th Cir. 2012). A plaintiff must always
prove element one: disparate treatment from similarly situated individuals. See id.;
see also Paterek, 801 F.3d 630 at 650 (finding the class of one theory met when
there were similarly situated business to the plaintiff and a dispute about animus).
As this Court stated in its November 1, 2017 Opinion and Order, Plaintiff failed to
show a similarly situated individual. Dkt. No. 30, pg. 17 (Pg. ID 772). Therefore,
Plaintiff cannot succeed on his theory of retaliation based on a class-of-one theory.
First Amendment Retaliation
Plaintiff states that his motion for summary judgment response referenced
the theory of a First Amendment retaliation claim. Dkt. No. 36, pg. 3–4 (Pg. ID
798–99). Plaintiff then states that there is an issue of material fact with respect to
First Amendment retaliation that also supports the denial of summary judgment. Id.

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at pg. 4 (Pg. ID 799). Therefore, this Court’s decision about Plaintiff’s class-of-one
Equal Protection claim is not material to deciding the present Motion. See id.
This Court will now assess the viability of a First Amendment retaliation
claim. Plaintiff’s summary judgment response states, “a question of material fact
exists as to whether defendants targeted plaintiff based upon his prior lawsuit
which alleged constitutional violations.” Dkt. No. 26, pg. 22 (Pg. ID 524). The
elements of a retaliation claim under the First Amendment are: “(1) the plaintiff
engaged in constitutionally protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) the adverse action was motivated at least in part
by the plaintiff's protected conduct.” Paterek, 801 F.3d at 645. In this case, there is
enough evidence to create an issue of material fact about First Amendment
retaliation. The Sixth Circuit recognizes that there is a constitutional right of access
to the courts. Flagg v. City of Detroit, 715 F.3d 165, 173 (6th Cir. 2013).
Therefore, element one is satisfied because Plaintiff alleges retaliation based on his
previous lawsuit against Bay City. Elements two and three are also satisfied. This
Court previously found that there was an issue of material fact about whether
Pletzke’s actions were motivated by animus surrounding Plaintiff’s previous
lawsuit. Dkt. No. 30, pg. 17–18 (Pg. ID 772–73).

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Additionally, Defendant would not be entitled to qualified immunity under a
First Amendment claim of retaliation. To establish qualified immunity, courts ask
“whether the facts alleged or shown make out a violation of a constitutional right
and whether the right at issue was clearly established at the time of the incident.”
Id. To be clearly established, “the case law must dictate, that is, truly compel (not
just suggest or allow or raise a question about), the conclusion for every likesituated, reasonable government agent that what defendant is doing violates federal
law in the circumstances.” Clemente v. Vaslo, 679 F.3d 482, 490 (6th Cir. 2012)
(quoting Saylor v. Bd. Of Educ. Of Harlan Cty., 118 F.3d 507, 515 6th Cir. 1997)).
However, “some violations of constitutional rights are so obvious that a materially
similar case would be unnecessary.” Id. at 651 (quoting Binay v. Bettendorf, 601
F.3d 640, 646–47 (6th Cir. 2010)). The facts alleged in this case make out a
violation of the right of access to the courts. Access to the courts is a constitutional
right that the Sixth Circuit has clearly established. Flagg, 715 F.3d at 173. In
conclusion, this Court finds that there is a genuine issue of material fact regarding
First Amendment retaliation that would survive a qualified immunity defense.
However, Plaintiff’s complaint fails to allege First Amendment retaliation as
a theory of recovery. The Federal Rules of Civil Procedure require “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The Sixth Circuit has held that “the Rules require . . . a short and
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plain statement of the claim that will give the defendant fair notice of what the
plaintiff’s claim is . . . .” Carter v. Ford Motor Co., 561 F.3d 562, 566 (6th Cir.
2009) (quoting E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.
2001)).
Here, Plaintiff does not have any statement in his complaint alleging First
Amendment retaliation as a theory of recovery. Paragraph 23 of Plaintiff’s
complaint alleges that Defendants discriminated against him because of his race
and/or in retaliation for his prior complaint against Bay City. Dkt. No. 1, pg. 5–6
(Pg. ID 5–6). However, this paragraph is in Plaintiff’s recitation of the facts and
only mentions retaliation generally—it does not state a specific theory of recovery.
Paragraph 28 of Plaintiff’s complaint generally alleges that Defendants
discriminated against him for retaliatory reasons. Id. at pg. 7 (Pg. ID 7). However,
paragraphs 29 and 30 then elaborate on the claims alleged in paragraph 28.
Plaintiff alleges “[t]hat specifically . . . Plaintiff was targeted and treated
differently and more harshly as a result of his earlier lawsuit . . . .” Id. This
statement sounds like an Equal Protection claim under a class-of-one theory, and
not a First Amendment retaliation claim. Plaintiff does not mention retaliation
elsewhere in his complaint; count II of Plaintiff’s complaint only references race.
See id. at pg. 9–11 (Pg. ID 9–11). Plaintiff’s complaint is therefore not an adequate
statement of a First Amendment retaliation claim such that Defendants would have
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notice of the claim. The first time that Plaintiff asserts the First Amendment
retaliation claim is in his summary judgment response. Dkt. No. 26, pg. 22 (Pg. ID
524).
In conclusion, this Court holds that Plaintiff cannot succeed on a theory of
First Amendment retaliation because this theory did not appear in his complaint.
Therefore, this Court will grant Defendant’s Motion for Reconsideration because
Plaintiff’s Equal Protection claim under a class-of-one theory fails. The Court will
dismiss this action without prejudice so that the Plaintiff may re-file his claim with
a First Amendment retaliation theory within the three-year statute of limitations.
See Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516, 519 (6th Cir. 1997)
(holding that “the proper limitations period for a § 1983 action is the limitations
period for personal injury actions in the state in which the § 1983 claim arises.”);
see also Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) (holding “the
appropriate statute of limitations to be borrowed for § 1983 actions arising in
Michigan is the state’s three-year limitations period for personal injury claims.”).
IV. CONCLUSION
The Court’s interpretation of the class-of-one test was a palpable defect. The
correction of that defect results in a different outcome of the case. The Court will
therefore grant Defendant’s Motion for Reconsideration. Plaintiff’s class-of-one
Equal Protection theory was the only claim that survived Defendants’ Motion for
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Summary Judgment in this Court’s November 1, 2017 Opinion and Order.
Accordingly, the Court will grant Defendants’ Motion for Summary Judgment in
its entirety. This Court will dismiss this action without prejudice so that Plaintiff
may re-file with his First Amendment retaliation theory.
SO ORDERED.
Dated:

February 6, 2018
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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