Brewer v. Detroit Public Schools Community District et al

Filing 34

OPINION AND ORDER Overruling 33 Objections; Adopting in Part Report and Recommendation; Granting 19 Motion to Dismiss filed by State of Michigan and Denying without prejudice 10 Motion for TRO filed by Verlina Brewer and 9 Motion to Challenge Michigan State Statute filed by Verlina Brewer Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VERLINA BREWER,
Plaintiff,
v.

Case No. 17-11364

DETROIT PUBLIC SCHOOLS COMMUNITY
DISTRICT, et al.,
Defendants.
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OPINION AND ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS, (2)
ADOPTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, (3) GRANTING DEFENDANT STATE OF MICHIGAN’S
MOTION TO DISMISS, AND (4) DENYING PLAINTIFF’S PENDING MOTIONS
Plaintiff Verlina Brewer, a former teacher with the Detroit Public School District
(“DPS”), brings various claims related to her employment with DPS and her allegedly
unlawful discharge. (Dkt. #1.) The Magistrate Judge issued a Report and
Recommendation (“R&R”) advising that the court should: grant Defendant State of
Michigan’s Motion to Dismiss (Dkt. #19), dismiss the claims against the individual
Defendants for failure to serve, and deny Plaintiff’s pending motions to “challenge” a
state statute (Dkt. #9) and for injunctive relief (Dkt. #10). (Dkt. #31.) Plaintiff filed two
objections to the R&R. (Dkt. #33.) The court has determined that a hearing is
unnecessary. E.D. Mich. L.R. 7.1(f)(2). For the reasons stated below and in the R&R,
the court will overrule Plaintiff’s objections and adopt in part the R&R.

I. STANDARD
The timely filing of objections to an R&R 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); Gant v. Genco I, Inc., 274 F. App’x 429, 431–32 (6th Cir. 2008).
The court must then re-examine all evidence relevant to the objected-to portion of the
R&R and 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,” United
States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981), 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.’” Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir.
2011) (quoting Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991)).
II. DISCUSSION
Because the state of Michigan has not consented to civil rights suits in federal
court, see Johnson v. Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004), the Magistrate Judge
recommends that Defendant State of Michigan’s motion should be granted and the
State should be dismissed under the doctrine of sovereign immunity. (See Dkt. #31 Pg.
ID 172–73.) The Magistrate Judge further recommends that the individual Defendants

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be dismissed under Federal Rule of Civil Procedure 4(m) because Plaintiff has not
properly served them. (Id. at Pg. ID 175.) Finally, the Magistrate Judge recommends
that Plaintiff’s motion to challenge the constitutionality of Mich. Comp. Laws
423.215(3)(m) (Dkt. #9) be denied because the State is not a proper party, and that her
motion for injunctive relief (Dkt. #10) be denied because Plaintiff has made no showing
of a strong likelihood of success on the merits.
A. Service of the Individual Defendants
Plaintiffs first objection to the R&R is that she properly served the individual
Defendants through service to the “Chief Operating Officer for Detroit Public Schools
Community District.” Confusingly, Plaintiff also says that service was made by delivering
a copy of the complaint to “the attorney of record in June of 2017 and now by January 2,
2017.” (Dkt. #33 Pg. ID 182.) The court is uncertain whether Plaintiff means to suggest
that she served the individual Defendants through service on the Chief Operating
Officer for Detroit Public Schools Community District, through service on the individual
Defendants’ attorney, or both. Further complicating matters is that Plaintiff’s complaint
does not state whether the individual Defendants are sued in their official or individual
capacity. In any event, the required evidence of service is lacking, and the individual
Defendants must be dismissed.
Where a plaintiff fails to designate an individual defendant as being sued in his
official or individual capacity, “by operation of law, defendants are deemed sued in their
official capacities.” Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999). A suit against an
individual in his official capacity is tantamount to a suit against the governmental entity.
Id. Thus, Plaintiffs’ suit—which does not specify whether the individual Defendants are

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sued in their individual or official capacities—is presumptively against the individuals in
their official capacity. As such, service would generally be required under Federal Rule
of Civil Procedure 4(j), which provides for service on a state or local government. Even
assuming that Plaintiff had designated the individual Defendants as sued in their
individual capacity, however, service was still not appropriately made.
Federal Rule of Civil Procedure 4(j) provides two methods for service on a state
or local government: “(A) delivering a copy of the summons and of the complaint to its
chief executive officer; or (B) serving a copy of each in the manner prescribed by that
state’s law for serving a summons or like process on such a defendant.” Federal Rule of
Civil Procedure 4(e) provides for several methods of service on an individual defendant:
(A) “delivering a copy of the summons and of the complaint to the individual personally,”
(B) “leaving a copy of each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there,” or (C) “delivering a copy of
each to an agent authorized by appointment or by law to receive service of process.” In
addition, the Rule permits service on an individual by following state law for serving a
summons in the state in which the district court sits. Fed. R. Civ. P. 4(e)(1).
Plaintiff has indisputably not served any of the individual Defendants through the
methods authorized by the federal rules. Plaintiff’s apparent method of service has been
certified mail. (See Dkt. #28.) The federal rules do not permit service on either an
individual or a state or local government through certified mail.
What remains, then, is whether Plaintiff properly served the individual defendants
as authorized by Michigan rules for service of process. Mich. Ct. R. 2.105(G) permits
service on “public corporations” via service on various persons irrelevant here. It also

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provides for service by “serving a summons and a copy of the complaint on a person in
charge of the office of an officer on whom service may be made and sending a
summons and a copy of the complaint by registered mail addressed to the officer at his
or her office.” Plaintiff has made no argument that she personally served a copy of the
summons and complaint on a person in charge of the individual Defendants’ office, and
the court has found nothing in the record to suggest she has. Thus, Plaintiff has not
served the individual Defendants via service on their respective governmental entities.
Mich. Ct. R. 2.105(A) permits service on an individual by “(1) delivering a
summons and a copy of the complaint to the defendant personally; or
(2) sending a summons and a copy of the complaint by registered or certified mail,
return receipt requested, and delivery restricted to the addressee.” Service is effective
under this latter method when “the defendant acknowledges receipt of the mail.” Mich.
Ct. R. 2.105(A)(2). Here, there is no evidence on the record that Plaintiff personally
served any of the individual Defendants. Nor is there any evidence that she sent each
individual Defendant a copy of the summons and complaint, let alone that any of the
individual Defendants acknowledged such a mailing. Plaintiff has therefore failed to
serve the individual Defendants.
Plaintiff filed her complaint on April 28, 2017, and had 90 days from that time to
serve the individual Defendants. The Magistrate Judge extended that deadline, giving
Plaintiff until January 3, 2018 to properly serve. (Dkt. #30.) Plaintiff has still not properly
served. Thus, the court “must dismiss the action without prejudice against [those]
defendant[s].” Fed. R. Civ. P. 4(m).

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B. Dismissal of Defendant State of Michigan
Plaintiff’s second objection is to the “decision to allow the State of Michigan to be
removed from the case[,] generally stating that the State of Michigan has no interest in
the case.” (Dkt. #33 Pg. ID 182.) Plaintiff goes on to quote the “Public Employee
Relations Act” and a number of other sources the court cannot identify. (Id. at Pg. ID
183–84.)
i. Sovereign Immunity
The Magistrate Judge recommends granting the State of Michigan’s motion to
dismiss because the State is protected by Eleventh Amendment sovereign immunity.
Citing Johnson v. Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004), she notes that Michigan
has not consented to civil rights suits in federal court.
A suit against a State is “barred by the Eleventh Amendment, unless [the State]
has consented to the filing of such a suit,” or Congress has abrogated the State’s
Eleventh Amendment immunity. Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013)
(alteration original) (quoting Alabama v. Pugh, 438 U.S. 781, 782 (1978)). The
Magistrate Judge is correct that, as to civil rights suits brought under § 1983, Michigan
has not consented to be subject to suit. Harrison, 722 F.3d at 771. Thus, to the extent
that Plaintiff has stated a cause of action seeking money damages and arising under
the Fourteenth or Fifteenth Amendments against the State of Michigan, those claims
are properly foreclosed by the State’s sovereign immunity.
But Plaintiff has also alleged violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, and of the Rehabilitation Act (“RA”), 29 U.S.C. § 701. (See
Dkt. #1 Pg. ID 1 (“This is an action under the American[s] with Disabilities Act of 1990

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(ADA) and the Rehabilitation Act of 1973, Section 504 . . . .”).) Congress has
purportedly abrogated the states’ sovereign immunity as to violations of both of these
laws. See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh
amendment to the Constitution of the United States from an action in Federal or State
court of competent jurisdiction for a violation of this chapter.”); 42 U.S.C. § 2000d–
7(a)(1) (“A State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation of section 504
of the Rehabilitation Act of 1973.”). As to the ADA, the Supreme Court has held that a
state is immune from suits brought under Title I. See Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 374 (2001). Determining whether the state has sovereign
immunity as to a claim brought under Title II, however, requires a three-pronged
analysis: the court must examine “on a claim-by-claim basis, (1) which aspects of the
State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated
the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did
not violate the Fourteenth Amendment, whether Congress’s purported abrogation . . . is
nevertheless valid.” United States v. Georgia, 546 U.S. 151, 160 (2006); Babcock v.
Michigan, 812 F.3d 531, 534 (6th Cir. 2016). As to the RA, a state waives its Eleventh
Amendment immunity from suit under the Act by accepting federal funds. Nihiser v.
Ohio Envtl. Prot. Agency, 269 F.3d 626, 628 (6th Cir. 2001).
Plaintiff’s complaint does not specify whether her claim under the ADA is brought
as a Title I claim or a Title II claim. The State is immune from a claim under Title I. But it
may not be immune from suit under Title II; the Magistrate Judge did not undertake the
analysis. The State is not entitled to qualified immunity to a claim under the RA.

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So, too, does Plaintiff claim that her action is brought under Mich. Comp. Laws
§ 38.101. The Magistrate Judge did not examine whether the State has consented to
waive its sovereign immunity for a suit under that provision.
The court need not undertake a further sovereign immunity analysis, however,
because the State of Michigan is entitled to dismissal on other grounds.
ii. 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not shown—
that the pleader is entitled to relief.” Id. at 679. The court views the complaint in the light
most favorable to the plaintiff and accepts all well-pleaded factual allegations as true.
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009). The court,
however, “need not accept as true legal conclusions or unwarranted factual inferences.”
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
Mindful of its responsibility to liberally construe the complaints of pro se litigants,
see Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the court assumes at this stage
that Plaintiff is attempting to plead a cause of action for Title II employment
discrimination against the State of Michigan, a claim for which the State would not
necessarily have sovereign immunity.1 “To establish a claim of discrimination under Title

1

The court does note that the Sixth Circuit has never reached the issue of
whether Title II claims may be brought in employment cases. Whitfield v. Tennessee,
639 F.3d 253 (6th Cir. 2011) (“Significantly, whereas Title I specifically addresses
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II, a plaintiff must prove that: (1) she has a disability; (2) she is otherwise qualified; and
(3) she is being excluded from participation in, being denied the benefits of, or being
subjected to discrimination under the program solely because of her disability.” Everson
v. Leis, 412 F. App’x 771, 774 (6th Cir. 2011). A claim under the Rehabilitation Act
requires proof of the same elements, as the two claims “in this circuit share the same
substantive standard.” Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007).
Even read liberally, Plaintiff’s complaint does not sufficiently set forth a claim for
violations of the ADA or RA. Though Plaintiff claims she had “health difficulties” due to
her “established disability,” (Dkt. #1 Pg. ID 3; see also id. at Pg. ID 6), she does not set
forth facts demonstrating what that disability is or whether it qualifies as a “disability”
under the ADA or RA. More importantly, Plaintiff has set forth no facts demonstrating
that she was terminated or forced to transfer schools “solely because of her disability.”
Everson, 412 F. App’x at 774. To the contrary, Plaintiff’s complaint indicates that she
transferred schools and was eventually terminated after multiple principals wanted her
out of their schools. (Dkt. #1 Pg. ID 4 (“Plaintiff was continuously harassed by the
principal of Mann Elementary and was told to go back downtown because she did not
want me but wanted a math teacher.”); Id. at Pg. ID (“. . . Defendant principal Myrina
Scott told union representative Lawson that she was going to do all she could to get me
out of her building.”).) Nor does Plaintiff set forth any facts demonstrating how the State
of Michigan was involved in the alleged discrimination. Defendant State of Michigan

employment, Title II address[es] ‘public services,’ and this court has never decided
whether Title II applies to employment cases.”); Dean v. City of Bay City, 239 F. App’x
107, 112 (6th Cir. 2007) (“[T]his Court declines to reach the novel issue of whether Title
II of the ADA applies to employment cases.”).
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notes that “[Plaintiff] appears to be employed by the Detroit Public School System and
not the State of Michigan.” (Dkt. #19 Pg. ID 110.) As pled, Plaintiff’s complaint—even
read liberally—does not state a cause of action against Defendant State of Michigan for
violations of the ADA or RA.
Nor has Plaintiff sufficiently pleaded any involvement by the State of Michigan in
her termination, allegedly in violation of Mich. Comp. Laws § 38.101. While the court
gives wide latitude to the presentations of pro se litigants, it is not required to supply the
litigant with legal theories or to furnish additional factual allegations—to do so would
inappropriately make the court an advocate for the plaintiff. See Thompson v. A.J. Rose
Mfg. Co., No. 99-3728, 2000 WL 302998, at *1 (6th Cir. 2000). Currently there are no
factual allegations presented under which the state could be liable. The court will not
fashion such and thus become Plaintiff’s advocate. Because Plaintiff’s complaint does
not tie the claim for violation of Mich. Comp. Laws § 38.101 to Defendant State of
Michigan, it is properly dismissed.
C. Plaintiff’s Remaining Motions
The Magistrate Judge has also recommended that the court deny Plaintiff’s
pending motions to challenge the constitutionality of Mich. Comp. Laws § 423.215(3)(m)
(Dkt. #9) and for emergency temporary injunctive relief (Dkt. #10). The Magistrate
Judge based her recommendation as to the first motion on her conclusion that the State
of Michigan is not a proper party to this action because it has sovereign immunity. As to
the second motion, the Magistrate Judge noted that Plaintiff had not demonstrated that
Plaintiff was likely to succeed on the merits of her claim. (Dkt. #31 Pg. ID 176–77.)

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Plaintiff did not enter objections to these findings. However, both motions should
be denied without prejudice. As noted above, the State of Michigan is not necessarily
entitled to sovereign immunity for all Plaintiffs’ claims, and therefore denying her motion
to challenge Mich. Comp. Laws § 423.215(3)(m) on that basis alone would be improper.
Also, there are additional Defendants in this case, including DPS. And Plaintiff could
conceivably, at some point, demonstrate a likelihood of success on the merits.
III. CONCLUSION
Because Plaintiff has yet to properly serve them, the individual Defendants are
entitled to dismissal. So, too, should Defendant State of Michigan be dismissed, as
Plaintiff has not properly set forth a claim against the State. Plaintiff’s remaining motions
should be denied without prejudice. Accordingly,
IT IS ORDERED that Plaintiff’s objections (Dkt. #33) are OVERRULED and the
Magistrate Judge’s Report and Recommendation (Dkt. #31) is ADOPTED IN PART
AND INCORPORATED BY REFERENCE except as to Sections II.A and II.C.
IT IS FURTHER ORDERED that Defendant State of Michigan’s Motion to
Dismiss (Dkt. #19) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Challenge Michigan State
Statute (Dkt. #9) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Emergency and Temporary
Injunction (Dkt. #10) is DENIED WITHOUT PREJUDICE.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: March 2, 2018

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, March 2, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\KNP\Civil\17-11364.BREWER.adopt.in.part.report.recommendation.KNP.RHC.docx

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