Dentry v. Michigan, State of et al

Filing 47

OPINION AND ORDER adopting in part 45 Report and Recommendation, sustaining State of Michigan's objections, granting motions to dismiss and granting leave to file amended complaint. Signed by District Judge David M. Lawson. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER GEORGE DENTRY,
Plaintiff,
Case Number 17-10643
Honorable David M. Lawson
Magistrate Judge R. Steven Whalen

v.
STATE OF MICHIGAN, OAKLAND
COUNTY 6TH CIRCUIT COURT,
CITY OF MADISON HEIGHTS, and
CITY OF WARREN,
Defendants.
____________________________________/

OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION,
SUSTAINING STATE OF MICHIGAN’S OBJECTIONS, GRANTING MOTIONS TO
DISMISS, AND GRANTING LEAVE TO FILE AMENDED COMPLAINT
Plaintiff Christopher George Dentry filed a pro se complaint against the State of Michigan,
a state circuit court, and two municipalities alleging that his constitutional rights were violated when
he was arrested, prosecuted, and sentenced for an assault crime committed against his wife in 1994,
whom he was divorcing. Part of the consequences of the plaintiff’s conviction was a requirement
that he register as a sex offender. The Court referred this case to Magistrate Judge R. Steven
Whalen for pretrial management. Thereafter, all the defendants filed motions to dismiss the
complaint, except for the City of Warren, which filed a motion for summary judgment. Judge
Whalen filed a report on February 9, 2018 recommending that the motions by the Cities of Warren
and Madison Heights and the Sixth Circuit Court be granted, and the motion by the State of
Michigan be granted in part. Judge Whalen agreed that the claim for money damages against the
State was barred by the Eleventh Amendment, but he suggested that the claim for prospective
injunctive relief could proceed, because the plaintiff’s sex offender registry obligation violates the

Constitution’s Ex Post Facto Clause. The plaintiff did not file objections to the report and
recommendation, and the time for objecting has lapsed. The State filed timely objections to that part
of the report recommending that the plaintiff’s claim for prospective relief survives, and the matter
is before the Court for de novo review.
The Court agrees with the State that the Eleventh Amendment bars suits of all stripes against
the State itself. But the magistrate judge found merit in the plaintiff’s Ex Post Facto Clause claim,
a finding to which the State did not object, and a claim for prospective relief based on that theory
against a state official would not be barred by the Eleventh Amendment. The Court will sustain the
State’s objection, but will allow the plaintiff to amend his complaint to substitute the appropriate
state official as the defendant, if he chooses. The Court will grant the motions as to the other
defendants and dismiss the complaint as to them.
I.
The plaintiff’s complaint consists mainly of documents relating to his underlying 1994
conviction for assault with intent to commit criminal sexual penetration. He presents several police
reports interspersed with a “Statement of Facts,” a document that generally attempts to refute the
allegations in the contemporaneous police reports. Plaintiff Christopher Dentry is a former
employee of the Madison Heights Department of Public Works. Dentry married Ann Whitehorn in
the fall of 1982, sharing a home in Madison Heights. Dentry and Whitehorn had two children and
struggled financially, fighting frequently over money. In June of 1993, Whitehorn filed for divorce
and Dentry began living in Warren with Karen Collett, his new girlfriend.
At the end of June 1993, Dentry alleges, he came home to the apartment he shared with
Collett to find that his front door and bathroom had been “kicked in,” and that $850 in cash was

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missing from his bedroom. Dentry alleges that he called the Warren police, who informed him that
“they had to kick down [his] door to apprehend Karen and take her to get a psychiatric evaluation.”
Dentry also alleges that police officers entered his home without a warrant.

The Police

Commissioner for the City of Warren testified that the responding officers in this incident, James
Wise and D. Stefani, “received training as to proper searches and seizures,” and that the Warren
Police Department has never “had a custom, policy, or practice of unreasonable searches and
seizures.” According to Dentry, this incident forced him to move back into his mother’s home, pay
for repairs of his damaged front and bathroom doors, and lose the missing $850.
Over the next few months, Dentry was involved in several altercations with Whitehorn as
their divorce proceedings continued. On September 27, 1993 Madison Heights police responded
to Whitehorn’s home, finding Dentry “at the front door . . . yelling at Ann.” Whitehorn told the
responding officers that Dentry had been harassing and threatening her since she filed for divorce
in June, and had let the air out of her car tires that morning. Dentry alleges that Whitehorn invited
him to her home to help check her tire pressure, but arrived to find Whitehorn accusing him of
tampering with her car. Whitehorn also identified to police a number of instances in which Dentry
had hit, pushed, or otherwise assaulted her.
On December 7, 1993, Whitehorn filed a police report in which she accused Dentry of
slapping her and pulling out her hair during an argument. Dentry alleges that Whitehorn fabricated
this incident to bolster her case in their ongoing divorce. On January 18, 1994, Whitehorn filed
another police report alleging that Dentry had beaten her, burned her face with a cigarette, and
attempted to penetrate her sexually. Dentry denies attacking Whitehorn, alleging instead that she

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was the aggressor and that he slapped her only after she began punching, scratching, and kicking
him.
After the January 18 incident, Dentry was arrested and charged with assault with intent to
commit criminal sexual penetration. Dentry’s initial appearance in the Oakland County court was
on June 9, 1994. He pleaded no contest to the charge on December 15, 1994. Dentry’s sentencing
was ordered delayed for a year. He ultimately was sentenced to one year of probation on December
14, 1995. Thereafter, he was placed on the sex offender registry. Dentry’s probation was terminated
on July 17, 1996. Dentry alleges that the Oakland County circuit court “dragged its feet” while
handling his case. Dentry alleges that he has been unable to find work due to his sex offender status
and that threats have been made against him due to his listing on the sex offender registry.
The plaintiff filed his pro se complaint on March 1, 2017, alleging violations of the Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments, which he asserts via 42 U.S.C. § 1983. Following
the full case reference to Judge Whalen, the defendants’ motions followed.
Magistrate Judge Whalen concluded that the complaint ought to be dismissed as to
defendants City of Madison Heights, Oakland County Sixth Circuit Court, and the City of Warren.
He found that the plaintiff’s allegations against the City of Madison Heights consisted of “threadbare
recitals” of elements, unsupported by facts. He also concluded that even if the plaintiff stated a
plausible claim against the Madison Heights, his claim would be barred by section 1983’s statute
of limitations. Similarly, the magistrate judge determined that the plaintiff failed to allege facts that
plausibly support a claim of municipal liability against the City of Warren. He was satisfied that the
plaintiff set forth a sufficient factual basis for a Fourth Amendment claim, but found that there was
no evidence of a custom, policy, or practice of warrantless searches and seizures or evidence of a

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lack of training in the City’s police departments. The magistrate judge determined that the
plaintiff’s claim also was time-barred under section 1983. The magistrate judge also found that
Eleventh Amendment immunity applied to the claims against the Oakland County Circuit Court, the
plaintiff’s allegations against that defendant did not meet the pleading standard under Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and any claim arising from the plaintiff’s proceedings in that court is
time-barred.
The magistrate judge concentrated much of his report on the State of Michigan’s motion,
initially determining that the plaintiff’s claim against the State — the validity of Michigan’s Sex
Offender Registration Act — was based on the Constitution’s prohibition against Ex Post Facto
laws. He found that the complaint could be construed as alleging a continuing violation, entitling
the plaintiff to both monetary and injunctive relief. The magistrate judge agreed that Eleventh
Amendment immunity barred claims for monetary damages, but concluded that immunity does not
extend to claims for prospective relief (citing Ex Parte Young, 209 U.S. 123 (1908)). The magistrate
judge determined that the plaintiff alleged enough facts that support a plausible Ex Post Facto claim.
As noted, the plaintiff filed no objections, and the State objected to the part of the report
suggesting that the claim for prospective relief could proceed.
II.
The filing of timely objections to a report and recommendation requires the court to “make
a de novo determination of those portions of the report or specified findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order

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to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues — factual and legal — that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Court has reviewed the pleadings, the report and recommendation, and the State’s
objection, and has made a de novo review of the record in light of the parties’ submissions.
The State argues that the magistrate judge erred in allowing Dentry’s claim for prospective
relief to survive the State’s motion to dismiss. The State insists that claims for both monetary and
prospective relief under 42 U.S.C. § 1983 are barred by Eleventh Amendment sovereign immunity,
and that none of the exceptions to that jurisdictional bar apply here. The State notes that Congress
did not abrogate sovereign immunity in section 1983, and the State of Michigan has not consented
to suits filed against it in federal court.
The Court agrees. Under the Eleventh Amendment, “an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman
v. Jordan, 415 U.S. 651, 663 (1974). There are only three exceptions to Eleventh Amendment
immunity: (1) when the state has waived its immunity by consenting to the lawsuit; (2) when

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Congress has abrogated the state’s sovereign immunity; and (3) when the plaintiff seeks only
prospective injunctive relief against a state official from violating federal law. Boler v. Earley, 865
F.3d 391, 410 (6th Cir. 2017) (citing cases).
It is well-settled that “Michigan has not consented to the filing of civil rights suits against
it in federal court,” Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013) (citing Abick v.
Michigan, 803 F.2d 874, 877 (6th Cir. 1986)), and section 1983 does not abrogate Eleventh
Amendment immunity, Quern v. Jordan, 440 U.S. 332, 341 (1979).
The third exception, as set forth in Ex Parte Young, 209 U.S. 123 (1908), “allows plaintiffs
to bring claims for prospective relief against state officials sued in their official capacity to prevent
future federal constitutional or statutory violations, ‘regardless of whether compliance might have
an ancillary effect on the state treasury.’” Boler, 865 F.3d at 412 (quoting S & M Brands, Inc. v.
Cooper, 527 F.3d 500, 507 (6th Cir. 2008)). However, “[i]njunctive relief is available under the
Young exception only against state officers — not the state itself — who violate federal law.”
Lawson v. Shelby Cty., TN, 211 F.3d 331 (6th Cir. 2000) (citing Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89 (1984)).
The magistrate judge concluded, however, that the plaintiff may have a legitimate grievance
over his continued placement on Michigan’s sex offender registry. The Sixth Circuit has held that
Michigan’s Sex Offender Registration Act (SORA) imposes a criminal penalty, and it therefore can
constitute an ex post facto law, which is repugnant to the Constitution. Does #1-5 v. Snyder, 834
F.3d 696, 705-06 (6th Cir. 2016) (citing U.S. Const. art. 1 § 10, cl. 1). The State did not object to
that conclusion.

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Although the plaintiff cannot proceed against the State itself on that claim, he can maintain
his claim against the appropriate state official who enforces the registration obligation under SORA.
Because pleadings by pro se litigants are viewed with indulgence, Erickson v. Pardus, 551 U.S. 89,
94 (2007) (“‘[A] pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.’”) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)), the Court will allow the plaintiff to amend his complaint to substitute the appropriate state
official as a defendant, so that he can pursue his claim for prospective relief, only.
III.
The magistrate judge properly concluded that the plaintiff has not stated viable claims against
the Cities of Warren or Madison Heights or the Oakland County Sixth Circuit Court. He also
correctly concluded that the plaintiff cannot proceed against the State of Michigan for money
damages. The plaintiff cannot sue the State for prospective relief, but he should be able to proceed
on his theory against a state official.
Accordingly, it is ORDERED that the State’s objections to the report and recommendation
[dkt. #46] are SUSTAINED IN PART, and the magistrate judge’s report and recommendation [dkt.
#45] is ADOPTED IN PART AND REJECTED IN PART.
It is further ORDERED that the motion to dismiss by defendants City of Madison Heights
[dkt. #20], and Oakland County Sixth Circuit Court [dkt. #21], and the motion for summary
judgment by defendant City of Warren [dkt. #36] are GRANTED, and the complaint is
DISMISSED WITH PREJUDICE against those defendants.

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It is further ORDERED that the motion to dismiss by defendant State of Michigan [dkt. #34]
is GRANTED IN PART, and the plaintiff’s claim against the State for money damages is
DISMISSED WITH PREJUDICE.
It is further ORDERED that the plaintiff may file an amended complaint substituting the
appropriate state official as a defendant for his claim based on the Ex Post Facto Clause on or
before March 28, 2018. If the plaintiff fails to file an amended complaint by that date, the case will
be dismissed against the State of Michigan in its entirety.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 7, 2018

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 7, 2018.
s/Susan Pinkowski
SUSAN PINKOWSKI

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