Price v. Edwards et al

Filing 42

OPINION and ORDER re 32 REPORT AND RECOMMENDATION re 22 MOTION to Dismiss Defendants' Amended Motion for Judgment on the Pleadings, and 10 MOTION to Dismiss - Signed by District Judge Nancy G. Edmunds. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JEFFREY T. PRICE,
Case No. 17-10601
Plaintiff,
Honorable Nancy G. Edmunds
v.
DON EDWARDS, ET AL.,
Defendants.
/

OPINION AND ORDER ACCEPTING THE MAGISTRATE JUDGE'S FEBRUARY 8,
2018 REPORT AND RECOMMENDATION [32]
I.

Introduction
Plaintiff filed this pro se civil suit against Defendant Richard Snyder (Governor of the

State of Michigan), Kristie Etue (Director of the Michigan State Police), Don Edwards
(Montmorency County Sheriff), and Vicki P. Kundinger (Montmorency County Prosecutor)
in their official capacities1. Plaintiff alleges Defendants contributed to his wrongful arrest
for violations of the 2006 and 2011 amendments to the Sex Offender Registration Act
("SORA") and later forced him to move from his home. Currently before the Court is
Magistrate Judge Whalen's Report and Recommendation [32] addressing Kristie Etue
("Etue") and Richard Snyder's ("Snyder") April 26, 2017 Motion to Dismiss [10] under Fed.
R. Civ. P. 12(b)(1) and (6), and Edwards and Kundinger's July 7, 2017 Motion for Judgment
on the Pleadings [21] under Fed. R. Civ. P. 12(c). Magistrate Judge Whalen's Report and

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Plaintiff's First Amended Complaint [8] does not refer to Don Edwards ("Edwards") and
Vicki P. Kundinger ("Kundinger") by name but the docket refers to them respectively as the
Sheriff of Montmorency County and the Montmorency County Prosecutor.

Recommendation [32] recommends GRANTING in part both motions as to the claims for
money damages but DENYING in part both motions as to the claims for declaratory and
injunctive relief. Defendants Snyder and Etue have since filed one Objection [35] stating
Plaintiff did not plead injunctive relief in his Amended Complaint [8] and that the Magistrate
Judge incorrectly construed Plaintiff's pro se pleadings to find a request for injunctive relief
where none existed. Edwards and Kundinger joined and concurred in the objection [37].
For the reasons that follow, the Court OVERRULES Defendants' objection, ADOPTS the
Report and Recommendation, GRANTS Defendants' Motion to Dismiss [10] and
Defendants' Motion for Judgment on the Pleadings [21] as to monetary damages but
DENIES them as to Plaintiff's request for declaratory and injunctive relief.
II.

Analysis
This Court performs a de novo review of those portions of Magistrate Judge Whalen's

Report and Recommendation [32] to which Defendants have objected. 28 U.S.C. § 636(b).
The Court need not and does not perform a de novo review of the report's unobjected-to
findings. Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, an objection that "does
nothing more than state a disagreement with a magistrate [judge]'s suggested resolution,
or simply summarizes what has been presented before, is not an 'objection' as that term
is used in this context." Aldrich v. Bock, 327 F. Supp. 2d. 743, 747 (E.D. Mich. 2004).
Indeed, the purpose of an objection to a report and recommendation is to provide the Court
"with the opportunity to consider the specific contentions of the parties and to correct any
errors immediately." Id. (quoting United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981)).

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Plaintiff is a Michigan resident, a convicted sex offender, and required to comply with
the Sex Offender Registration Act ("SORA") . Plaintiff asserts that in December 2014, he
registered with the Michigan State Police ("MSP") in Gaylor, MI, informing them of his
updated address in St. Lewiston, Michigan. The forms the MSP returned to him indicated
a successful and compliant SORA registration. The MSP did not state then, that the
address Plaintiff provided them was too close to a school zone. A few months later, on
March 4, 2015, the Montmorency County Sheriff's Department arrested Plaintiff for a
"residency violation" of SORA's "Student Safety Zone" provision on the basis that his home
was within 1,000 feet of a school "as the crow flies." (R&R, Dkt. 32, at 3; PgID 368.) Prior
to this arrest, Plaintiff was never informed that he had violated the School Safety Zone, nor
that "as the crow flies" was the now used standard of measurement.
On February 24, 2017, Plaintiff filed a complaint, claiming the arrest violated his
constitutional due process and liberty interest rights. Specifically, Plaintiff alleges that
SORA's "vague" terms were "used in a way not intended by [the] law." (Pl. Amended
Compl., Dkt. 8, at 3; PgID 34.) Plaintiff states, Defendant Edwards "acted outside the laws
of SORA by using [his] own terms and measurements to obtain a warrant, arrest, and
incarcerate this Plaintiff." (Id.)
In addition to Plaintiff's request for monetary damages, his request for relief includes
in part:
(a) Issue a judgment against Montmorency Co. et. al., pursuant to 28
U.S.C. § 1331 declaring Plaintiff's right to Due Process and Liberty interest
as guaranteed to him under the US Constitution Fifth and Fourteenth
Amendments were violated.
(c) Issue a judgment, pursuant to 28 U.S.C. § 1331 declaring Plaintiff's
rights to Due Process and Liberty interest as guaranteed to him under the US
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Constitution Fifth and Fourteenth Amendments were violated by Governor
Rick Snyder.
(e) Issue a judgment, pursuant to 28 U.S.C. § 1331 declaring Plaintiff's
rights to Due Process and Liberty interest as guaranteed to him under the US
Constitution Fifth and Fourteenth Amendments were violated by Col. Kristie
Etue.
(Pl. Amended Compl., Dkt. 8, at 9; PgID 40.)
The Sixth Circuit liberally construes pleadings of a pro se litigant. Martiv v. Overton,
391 F.3d 710, 712 (6th Cir. 2004) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972));
Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000) (pro se pleadings are held to "an
especially liberal standard"); Fed. R. Civ. P. 8(f) ("All pleadings shall be so construed as
to do substantial justice"). Magistrate Judge Whalen interprets Plaintiff's complaint to be
a claim against Defendants in their official capacities for an alleged constitutional violation
seeking prospective injunctive and declaratory relief. "Because Plaintiff claims that SORA
(on its face or as applied by Defendants) amounts to a continuing constitutional violation,
I construe the claim to include a request for prospective injunctive relief as well as
declaratory relief." (R&R, Dkt. 32, at 9; PgID 374.)
Under this interpretation, Plaintiff describes Defendants' application and interpretation
of SORA, an unconstitutionally vague law, as an ongoing constitutional violation. Plaintiff
asserts the MSP continue to provide arbitrary and discriminatory enforcement of SORA
laws. The 2015 case, Doe v. Snyder, 101 F. Supp.3d 672 (E.D. Mich. 2015)(J. Cleland)
supports Plaintiff's claim that SORA's ban on living within 1,000 feet of a school is
unconstitutionally vague. In Doe, sex offenders brought an action against the Governor of
Michigan and the Director of the MSP, in their official capacities, to challenge SORA. Judge
Cleland determined "that SORA [did] not clarify how to measure the 1,000 feet" from a
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school zone and that geographic exclusion zones were unconstitutionally vague. Id. at 683.
This mirrors Plaintiff's complaint here.
Plaintiff alleges, in effect, that the distance between his home and the school was
improperly measured based on Defendants' erroneous interpretation and application of the
vaguely written law. Plaintiff's complaint challenges the decision to measure the Student
Safety Zone "as the crow flies," and claims that the policy and enforcement amounts to a
continuing constitutional violation. Magistrate Judge Whalen found Plaintiff's suit seeks to
stop Defendants from continuing this unconstitutional practice through equitable relief.
Defendant's objection, is that Magistrate Judge Whalen has exceeded the liberally
construed complaint standard, reading into Plaintiff's complaint, a request for prospective
injunctive relief. "[E]ven though pro se litigants are held to a lower standard, the Sixth
Circuit has held that the combined effect of Twombly and Iqbal is 'to require [a] plaintiff to
have a greater knowledge. . . .of factual details in order to draft a plausible complaint.' "
(D. Obj., Dkt. 35, at 4 (quoting New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d
1046, 1051 (6th Cir. 2011)); PgID 389.) Defendants assert "even liberally construing
[Plaintiff's] pleadings, the complaint fails to make a rational statement of either fact or law
to support a claim for relief against the State Defendants. (Id. at 5; PgID 390.)
Having examined Plaintiff's Amended Complaint, this Court agrees with Magistrate
Judge Whalen, that, liberally construed, Plaintiff seeks injunctive relief. Plaintiff requests
declaratory judgment that Defendants's actions violated his Fifth and Fourteenth
Amendment rights and that those rights are guaranteed to him. Plaintiff's request for relief
asks to guarantee his rights, in this regard, and implies a wish that they will be guaranteed
going forward. This Court, using the liberal standard for interpreting the pleadings of pro
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se plaintiffs, finds these requests for declaratory judgment regarding what has already
occurred and what is guaranteed to him in the future as tantamount to asking for injunctive
relief.

Haines, 404 U.S. at 520-21.

The Magistrate Judge gave an appropriate

interpretation of Plaintiff's complaint, finding that Plaintiff is claiming a continuing
constitutional violation for which he is seeking prospective injunctive relief.
III.

Conclusion
For the reasons thus stated, the Court OVERRULES Defendants' objection, ADOPTS

the Magistrate Judge's Report and Recommendation, and DISMISSES the complaint in as
much it requests any monetary relief, but DENIES Defendants' motions to dismiss the
complaint as to any declaratory and injunctive relief.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: March 14, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 14, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager

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