Smith v. Davidson et al

Filing 43

OPINION AND ORDER Accepting the 37 Report and Recommendation of the Magistrate Judge Dated March 6, 2013, Overruling Plaintiff's 39 Objections and Granting 25 Motion to Dismiss filed by Janice M. Williams and Granting 29 Motion to Dismiss filed by Lynn M. Davidson. Signed by District Judge Mark A.Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAM SMITH III,
Plaintiff,

Case No. 10-13898

vs.

HON. MARK A. GOLDSMITH

LYNN M. DAVIDSON, et al.,
Defendants.
__________________________________/
OPINION AND ORDER
(1) ACCEPTING THE REPORT AND RECOMMNEDATION OF THE MAGISTRATE
JUDGE DATED MARCH 6, 2013 (DKT. 37), (2) OVERRULING PLAINTIFF’S
OBJECTIONS (DKT. 39),
and (3) GRANTING DEFENDANTS’ MOTIONS TO DISMISS (DKTS. 25, 29)
I. INTRODUCTION
Plaintiff Sam Smith III, a state prisoner at Alger Correctional Facility in Munising,
Michigan, filed a pro se complaint, alleging violations of his federal civil rights and state law
claims. Defendants are various employees of the State of Michigan. Plaintiff claims that the
“intentional and grossly negligent acts and omissions of state officials . . . prevented Plaintiff
from asserting his parental rights.” Compl. ¶ 14 (Dkt. 1). Plaintiff’s claims emanate from his
efforts to locate a child that he fathered, whose birth mother, Christa Brinkmeirer, broke off
contact after Plaintiff was returned to prison as a parole violator. Id. ¶¶ 15-21. Plaintiff
contacted a number of government agencies, seeking their assistance in establishing paternity,
but ultimately his rights were terminated in a child-protective proceeding in St. Clair County, of
which he claims not to have had notice. Id. ¶¶ 23-40. The instant lawsuit asserts claims against
various governmental officials whom Plaintiff claims caused him to lose his parental rights.

1 

Before the Court is a Report and Recommendation (R&R) issued by Magistrate Judge R.
Steven Whalen (Dkt. 37) on March 6, 2013. The factual and procedural background of this case,
along with the standard of review and legal principles governing motions to dismiss under
Federal Rule of Civil Procedure Rule 12(b)(6), have been adequately set forth by the Magistrate
Judge in his R&R and need not be repeated here. The R&R recommends granting two pending
motions to dismiss made under Rule 12(b)(6) for a failure to state a claim for which relief can be
granted. One motion was filed by Defendant Lynn. M. Davidson (Dkt. 29); the other motion was
filed by Defendant Janice M. Williams (Dkt. 25).1 Plaintiff objects to the Magistrate Judge’s
recommendations to dismiss all claims asserted against both Defendants Davidson and Williams.
Davidson and Williams filed responses to Plaintiff’s objections (Dkts. 40 and 42). The Court
reviews de novo those portions of the R&R to which a specific objection has been made. Fed. R.
Civ. P. 72(b)(3). For the reasons that follow, the Court will accept the recommendations in the
R&R, overrule Plaintiff’s objections, and grant the motions to dismiss.
II. ANALYSIS
In his objections, Plaintiff contends that the Magistrate Judge erred in his analysis of each
of Plaintiff’s claims against both Defendants.

The Court addresses each of Plaintiff’s ten

objections in turn.
A. Objections regarding only Defendant Davidson
In his complaint, Plaintiff alleges that
On March 16, 2008, still without knowledge of the case, Plaintiff wrote
the Mt. Clemens Friend of the Court, seeking information on his child. He
provided Christa Brinkmeier’s name and he said he would like custody of
his child and that he was willing to pay child support and take a DNA test
to prove paternity.

1

Williams also seeks dismissal of the claims against her under Rule 12(b)(1) for lack of subjectmatter jurisdiction.
2 

On March 24, 2008, Defendant LYNN DAVIDSON, Macomb County
Friend of the Court, responded to Plaintiff’s letter, saying that the
“Macomb County Friend of the Court does not have your case at this time.
However, a support referral on behalf of your child has been initiated by
the Michigan Office of Child Support.
I am forwarding your
correspondence to the attention of Support Specialist DEBORAH ELLIS.”
LYNN DAVIDSON did not mention the child-protective proceeding then
pending in the St. Clair Circuit Court.
LYNN DAVIDSON sent a copy of her letter to the St. Clair Prosecuting
Attorney’s Office.
Compl. ¶¶ 27-30 (Dkt. 1) (original capitalization). The complaint refers to Davidson four more
times, as she is listed with other defendants in four counts: Count I (first amendment violation),
Count III (gross negligence – failure to inform Plaintiff), Count IV (failure to inform court); and
Count VI (intentional infliction of emotional distress).
1. Plaintiff’s first objection
In his first objection, Plaintiff argues that the R&R incorrectly concluded that he failed to
state a claim against Davidson. Pl.’s Objections at 3 (Dkt. 39). Plaintiff contends that Davidson
“assumed a common-law duty of reasonable care when she chose to respond to Plaintiff’s letter
and that she violated his federal rights.” Id. Plaintiff relies on Fultz v. Union Commerce
Associates, 683 N.W.2d 587 (Mich. 2004) and Davis v. Venture One Construction, Inc., 568
F.3d 570 (6th Cir. 2009). In response, Davidson distinguishes Fultz and Davis, arguing that the
issue in those cases “was whether a contractor had a duty to a third party pursuant to the
Restatement Torts, 2d, § 324A.” Def.’s Resp. at 2 (Dkt. 40).
As the R&R noted, the complaint does not provide a plausible basis to find that a duty
attached to Davidson’s actions, “statutory or otherwise.” R&R at 5. According to the complaint,
Davidson responded to Plaintiff’s inquiry and forwarded his letter in her role as the Macomb
County Friend of the Court, but failed to mention to Plaintiff that there was a child-protective
3 

proceeding in St Clair County Circuit Court. Notably, the complaint does not allege that
Davidson knew of that proceeding.
The office of Friend of the Court was established by the Michigan Legislature in the
Friend of the Court Act. Mich. Comp. Laws § 552.501. By statute, there is an office of Friend
of the Court in each judicial circuit, and the Friend of the Court is an employee of the circuit
court, operating under the supervision and direction of the chief circuit judge. Mich. Comp.
Laws § 552.503(4), (5). A Friend of the Court has many statutorily defined duties, such as
informing parties to divorce or custody proceedings of their rights. See Mich. Comp. Laws §
552.505(a)-(h). But a Friend of the Court does not participate in proceedings for the termination
of parental rights.

See Mich. Comp. Laws § 712A.19(5) (listing parties to be served in

termination proceeding). Plaintiff does not allege that he was a party to a case before the
Macomb County circuit court concerning a divorce or custody proceeding. Thus, Davidson had
no statutory duty to Plaintiff.
Plaintiff argues that Davidson had a common law duty of care simply because she
responded to his letter. But his argument is based on two non-analogous cases, Fultz and Davis,
which address whether a duty was owed and breached by creation of a physical hazard by a
contractor that resulted in injury to a third party. In Fultz, the plaintiff sued a parking lot owner
and its snow removal company for her slip-and-fall injuries. The Michigan Supreme Court
found no duty because the snow removal company had created no physical hazard; it had simply
failed to perform its contract, giving rise to a potential breach of contract claim assertable by the
property owner with whom it had contracted, but no negligence claim assertable by the plaintiff.
Fultz, 683 N.W.2d at 468-469. In Davis, an employer had hired a contractor to remodel its
facilities, and the plaintiff was injured by an unhinged door that the contractor had leaned against

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a wall outside the construction zone; the court of appeals found a duty to the injured plaintiff
because the defendant’s placement of the unhinged door did create a hazard. Davis, 568 F.3d at
577.
The physical injury context of those cases is not remotely similar to the context of the
present case. Nor can Davidson’s failure to inform Plaintiff of the pendency of the childprotective proceeding be deemed the creation of a “hazard” of a non-physical nature. Plaintiff
has not furnished any authority recognizing a duty to speak in circumstances analogous to those
in the present case.
To impose a common-law duty of reasonable care, under Michigan law, a court considers
(i) the relationship of the parties, (ii) the foreseeability of the harm, (iii) the degree of certainty of
injury, (iv) the closeness of connection between the conduct and injury, (v) the moral blame
attached to the conduct, (vi) the policy of preventing future harm, and, and (vii) the burdens and
consequences of imposing a duty and the resulting liability for breach. Rakowski v. Sarb, 713
N.W.2d 787, 795 (Mich. Ct. App. 2006). “The inquiry is ultimately a question of fairness
involving a weighing of the relationship of the parties, the nature of the risk, and the public
interest in the proposed solution.” Id. (internal quotations omitted).2
Under the forgoing Rakowski factors, the Court concludes that Michigan common law
imposed no duty on Davidson for her answering an inquiry from Plaintiff. The relationship
between the parties, the foreseeability of any harm, the degree of certainty, and the connection of
the conduct, are tenuous and threadbare. Davidson is blameless, as it appears to the Court that
she merely attempted to assist Plaintiff by forwarding his letter. Further, Plaintiff fails to allege

2

Plaintiff argues that the question of duty is for a jury to decide; but the law is to the contrary.
Harts v. Farmers Ins. Exchange, 597 N.W.2d 47, 50 (Mich. 1999) (“Whether a duty exists is a
question of law that is solely for the court to decide.”). 
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in his complaint that Davidson, an employee of the Macomb County Friend of the Court, even
knew about the child-protective proceeding in St. Clair County. Regardless of her knowledge,
nothing in the law would create a duty on the part of an employee in one county’s court system
to search out information regarding the pending matters in another county’s court system for
which they have no responsibility and report it to an inquiring member of the public. Indeed,
public policy would counsel against imposing such a duty on Friends of the Court because this
would expose these agencies to time-consuming and expensive litigation, draining already
exhausted agency personnel and budgets, regarding matters not statutorily assigned to them.
Accordingly, the Court overrules Plaintiff’s objection.3
2. Plaintiff’s second objection
In his second objection, Plaintiff argues that the R&R improperly concluded that
Davidson enjoys qualified immunity on the constitutional claims. Pl.’s Objections at 5. Plaintiff
argues that he had a clearly established right to obtain information about his alleged child’s
termination proceedings and that the R&R misapplied Holloway v. Brush, 220 F.3d 767 (6th Cir.
2000). Additionally, Plaintiff argues that, as Davidson was familiar with domestic relations
matters because she was a Friend of the Court and had knowledge of “the pending parental-rights
termination proceeding,” she would have known that it was unlawful to withhold information
about the proceeding from Plaintiff. Id. at 7.4 In response, Davidson argues that the Sixth
Circuit decided Holloway on absolute immunity grounds and that the court did not address

3

The title of Plaintiff’s first objection referenced that Davidson also owed Plaintiff a
“constitutional duty of non-interference with his family relations,” in addition to a common-law
duty. However, Plaintiff never developed this argument in this objection or cited appropriate
authority. Accordingly, this argument is deemed waived. See Rivet v. State Farm Mut. Auto.
Ins. Co., 316 F. App’x 440, 449 (6th Cir. 2009) (refusing to address “arguments that . . . are
unsupported or undeveloped.”).
4

Although Plaintiff claims in his objections that Davidson knew of the St. Clair County parentalrights termination proceeding, no such allegation appears in the complaint.
6 

qualified immunity because it was never raised by the defendant. Def.’s Resp. at 3 (Dkt. 40).
The Court disagrees with Plaintiff and overrules Plaintiff’s objection.
As the R&R explained, to overcome qualified immunity for a state official, a plaintiff
must show that the right was clearly established, and that the defendant violated that right.
Danese v. Asman, 875 F.2d 1239, 1242 (6th Cir. 1989). The Sixth Circuit has ruled that “to find
a clearly established constitutional right, a district court must find binding precedent by the
Supreme Court, its court of appeals or itself.” Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d
1171, 1177 (6th Cir. 1988). But “a few admittedly novel opinions from other circuit or district
courts are not enough to form the basis for a clearly established constitutional right in the Sixth
Circuit.” Id. Moreover, “if the test of ‘clearly established law’ were to be applied” with
generality, plaintiffs “would be able to convert the rule of qualified immunity that our cases
plainly establish into a rule of virtually unqualified liability simply by alleging violation of
extremely abstract rights.” Id. at 1177 (citing Anderson v. Creighton, 483 U.S. 635 (1987)).
The case relied upon by Plaintiff, Holloway, did not clearly establish the “right to truthful
information from state employees regarding the status of pending parental-rights termination
proceedings regarding a parent’s child,” as Plaintiff contends.

Pl.’s Objections at 5.

In

Holloway, a mother lost track of her two children, after being thrown out of her Oklahoma home
by her husband, who then absconded with the children to Ohio in 1988. Holloway, 220 F.3d at
770. After a few years, the children, now in Clermont County, Ohio, were living in squalor. Id.
The father could not support the children and Clermont County Department of Human Services
(CCDHS) initiated proceedings to terminate his custody rights, to award permanent custody to
CCDHS, and to place the children for adoption. Id. During this process, CCDHS assigned the
children a social worker, who was responsible for administering the children’s case plan. Id. In

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late 1992, the social worker provided an affidavit and testimony for the case plan, including that
the children’s mother’s location was unknown. Id. By January 1993, an Ohio state court was
considering whether to award permanent custody to CCDHS, which had temporary custody.
Then, in May 1993, the social worker became aware of the mother’s existence and that she was
seeking her children. Id. Although CCDHS only had temporary custody, the social worker told
the mother that the agency had permanent custody. Id. at 771. The social worker also did not
bring to the Ohio state court’s attention the existence of the mother. Id. The Ohio state court
then awarded CCDHS permanent custody. Id.
After failing in the state courts to have the custody order overturned, the mother filed suit
against the State of Ohio, the Ohio Department of Human Services, and the social worker. Id. at
772. The district court granted summary judgment to the defendants, but the Sixth Circuit
reversed the grant for the social worker, holding that she did not enjoy absolute immunity for her
conduct in the case. Id. at 770. The court explained that the conduct at issue was beyond the
scope of absolute immunity:
Once again, absolute immunity extends to social workers only when they
are acting in the capacity of legal advocates. It is apparent that Ohio law
does not envision a caseworker’s principal function as that of an advocate,
although at a certain stage in custody proceedings a caseworker might be
called by the prosecutor to present reports or make recommendations that,
functionally, constitute advocacy. But the acts for which [the social
worker] is being sued – failing to notify the trial court that Plaintiff had
made contact and wished to assert her parental rights, telling Plaintiff that
her rights had been severed when they had not yet been, and withholding
information that would have enabled Plaintiff to raise her rights in court
before her rights were severed – do not come within that description.
Holloway, 220 F.3d at 776 (emphasis added). Notably, the issue of qualified immunity was not
before the court because the social worker had “not claimed qualified immunity.” Id. at 777.

8 

Thus, Holloway addressed the doctrine of absolute immunity as applied to a social
worker who participated in termination proceedings under Ohio law.

Plaintiff’s complaint

implicates the doctrine of qualified immunity as it applies to a Friend of the Court, who had no
participation in termination proceedings under Michigan law. The cases are factually and legally
distinct; Holloway does not control the outcome of Plaintiff’s case.
Instead, in this case, Plaintiff is attempting to convert the rule of qualified immunity into
a rule of unqualified liability by alleging the violation of an extremely abstract right – namely,
the right of family integrity. But Plaintiff is attempting to avoid immunity by refashioning that
right into a right to demand information from a court employee regarding a case from another
court for which she has no responsibilities. No such right has been recognized, and certainly no
such a right has been clearly established in the law.5
Therefore, Plaintiff’s second objection is overruled.
3. Plaintiff’s third objection
In his third objection, Plaintiff argues that the R&R improperly concluded that Plaintiff
has not stated a claim for gross negligence.

Pl.’s Objections at 7.

Plaintiff argues that

Davidson’s conduct meets the standard for gross negligence under Tarlea v. Crabtree, 687
N.W.2d 333 (Mich. Ct. App. 2004), and that the R&R erred in reasoning that “‘no rational juror
could find David’s conduct to be grossly negligent.’” Id. at 8 (quoting R&R at 7). In response,
Davidson argues that authority relied upon by Plaintiff is distinguishable because the case turned

5

Furthermore, given that his complaint does not allege that Davidson knew of the St. Clair
County child-protective proceeding, Plaintiff appears to be asserting such a right even if the
employee lacks the information to which Plaintiff claims to be entitled. Plaintiff has offered no
case recognizing such an untenable theory. By contrast, in Holloway, the social worker clearly
possessed information about a proceeding in which she was personally involved – a
circumstance far different from the context of our case. 
9 

upon an analysis of proximate cause, and that the R&R applied the proper standard for gross
negligence. Def.’s Resp. at 3-4 (Dkt. 40).
The Court rejects Plaintiff’s argument. As explained above, Davidson had no duty of
care owed to Plaintiff.

In the absence of a duty, Plaintiff cannot state a claim for gross

negligence. Rakowski, 713 N.W.2d at 627 (in a claim for gross negligence under Mich. Comp.
Laws § 691.1407, “a plaintiff must first establish that the governmental employee defendant
owed a common-law duty to the plaintiff”).
Accordingly, the Court overrules Plaintiff’s third objection.
4. Plaintiff’s fourth objection
In his fourth objection, Plaintiff argues that the R&R erred in concluding that Plaintiff
failed to state a claim for intentional infliction of emotional distress (IIED). Pl.’s Objections at
9-11. Plaintiff contends that the R&R misapplied Rule 12(b)(6), and that Davidson’s conduct
was “shocking” and “blatantly unconstitutional.” Id. at 9-10. In response, Davidson argues that
Plaintiff has failed to allege outrageous conduct. Def.’s Resp. at 4. (Dkt. 40). Davidson also
argues that “all state law or common law claims against her are barred due to the state
legislature’s granting of an exclusive administrative remedy for claims against a Friend of the
Court.” Id. (citing Dryden v. Coulon, 378 N.W.2d 767 (Mich. Ct. App. 1985)).6 The Court
rejects Plaintiff’s argument.

6

Dryden involved a claim by a child-plaintiff that the Macomb County Friend of Court
abdicated his duty to investigate the child-plaintiff’s home life during a contested custody
proceeding. Dryden, 378 N.W.2d at 767-768. The child-plaintiff alleged that she sustained
injuries that should have been discovered by the Friend of Court. Id. at 768. The Michigan
Court of Appeal affirmed the trial court’s grant of summary judgment to the Friend of Court,
holding that claims for the failure to perform the investigative and reporting duties imposed by
the Friend of the Court Act were restricted to the administrative grievance procedures under
Mich. Comp. Laws § 552.526. Id. at 769. As regards Plaintiff’s claim, Dryden is not applicable
10 

As explained by the Supreme Court, a complaint must “state a claim that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim for IIED requires
“extreme and outrageous conduct.” Graham v. Ford, 604 N.W.2d 713 (Mich. 1999). Liability
for an IIED claim “has been found only where the conduct complained of has been so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.” Jones v. Muskegon
Cnty., 625 F.3d 935, 948 (6th Cir. 2010). As noted in the Court’s discussion of Plaintiff’s
second objection, Plaintiff never alleged that Davidson knew of the St. Clair County proceeding,
and there are no facts he has asserted in his filings which make such an allegation plausible.
Here, Davidson merely forwarded a letter and wrote back to Plaintiff. She did not act in an
extreme or outrageous fashion.
Accordingly, Plaintiff’s fourth objection is overruled.
B. Objections regarding only Defendant Williams
In his complaint, Plaintiff alleges that
On September 7, 2008, Defendant JANICE M. WILLIAMS, Legal Affairs
Liason [sic] of DHS, wrote Plaintiff, saying that the DHS had received his
request for information regarding his child and his desire to establish
paternity but that his parental rights had been terminated on July 16, 2008,
and that DHS could not release any additional information to him about
the child.
Neither JANICE WILLIAMS, the other defendants, nor anyone else who
Plaintiff contacted or who knew of Plaintiff's efforts to assert his parental
rights, informed the court that Plaintiff was attempting to seek custody and
assert his parental rights.
Contrary to JANICE WILLIAMS’S assertion, Plaintiff’s parental rights
were not terminated on July 16, 2008; rather, they were terminated on
September 25, 2008, two weeks after JANICE WILLIAMS told Plaintiff
that his rights had been terminated.

because Plaintiff has not alleged that Davidson failed her duties to investigate or report regarding
a child in a proceeding with the Friend of the Court.
11 

Compl. ¶¶ 38-40 (original capitalization). The complaint refers to Williams five more times, as
she is listed with other defendants in five counts: Count I (first amendment violation), Count III
(gross negligence – failure to inform Plaintiff), Count IV (failure to inform court); Count V
(fraud), and Count VI (intentional infliction of emotional distress).
1. Plaintiff’s fifth objection
In Plaintiff’s fifth objection, he re-asserts the argument he made regarding his objection
to the R&R’s analysis of common-law duty for Defendant Davidson. Pl.’s Objections at 11. In
response, Williams argues that there is no support for Plaintiff’s theory that “simple negligence
creates a cause of action for violation of his constitutional rights.” Def.’s Resp. at 3 (Dkt. 42).
Additionally, Williams argues that Plaintiff does not have a constitutional right to a correct
Freedom of Information Act (FOIA) response and that, upon receipt of Williams’ response,
Plaintiff was not dissuaded from attempting to assert his alleged parental rights. Id. at 3-4. The
Court rejects Plaintiff’s argument because Williams, a Legal Affairs Liaison for the Michigan
Department of Human Services, did not owe a duty to Plaintiff.
The R&R points out that Williams was a Legal Affairs Liaison who had the duty to
respond to FOIA inquiries. R&R at 9. According to the complaint, Plaintiff wrote to the Central
Paternity Registry of the Michigan Department of Community Health on June 11, 2008. Compl.
¶ 37. This, it appears, triggered Williams’ response some three months later. As alleged in the
complaint, Williams provided the wrong date that Plaintiff’s parental rights were terminated –
July 16, 2008 instead of September 25, 2008.
In weighing the Rakowski common-law duty factors, the Court finds that a common-law
duty did not attach to Williams’ actions. Like with Davidson, the factors do not come close to
supporting Plaintiff’s theory. Rakowski, 713 N.W.2d at 795. Assuming that the facts in the
12 

complaint are true, as the Court must, Williams’ merely made a mistake in writing to Plaintiff
about the termination date of his parental rights. There are no allegations that she was involved
in the proceedings or had some knowledge or relationship with Plaintiff. Her duties related to
FOIA requests, and no court has held that a mistaken statement in response to a FOIA request is
actionable. Consequently, the Court declines to impose a common-law duty, and Plaintiff’s fifth
objection is overruled.
2. Plaintiff’s sixth objection
In Plaintiff’s sixth objection, he argues that the R&R incorrectly found that Williams had
qualified immunity for his federal civil rights claims. Plaintiff contends that “a state official’s
provision of false information about a pending child-custody proceeding to a parent seeking to
assert his parental rights, resulting in the parent losing his parental rights, violates the
Constitution.” Pl.’s Objections at 12. In response, Williams argues that Plaintiff has changed his
argument from his response to Williams’ motion to dismiss, where he asserted that Williams
interfered with his right to raise his family, to the argument he presents in his objections –
essentially, a right to information. Def.’s Resp. at 4 (Dkt. 42). The effect of changing arguments
is an improper attempt to amend his complaint. Id. Williams also argues that the right alleged
by Plaintiff is not clearly established and that Plaintiff’s reliance upon Holloway is misplaced.
Id. at 4-5.
The Court disagrees with Plaintiff because no right exists regarding “a state official’s
provision of false information about a pending child-custody proceeding to a parent seeking to
assert his parental rights, resulting in the parent losing his parental rights”
As discussed above in regards to Davidson’s qualified immunity, a right must be “clearly
established.” This Court must locate such a right in a “binding precedent by the Supreme Court,
its court of appeals or itself.” Ohio Civil Serv. Emps. Ass’n, 858 F.2d at 1177. The Court is
13 

unaware of any court decision recognizing such a right. Furthermore, as discussed above,
Williams did not have a role in any way analogous to the social worker in Holloway, who was
intimately involved with the parental-rights termination proceedings by providing testimony and
submitting an affidavit.
Therefore, Plaintiff’s sixth objection is overruled.
3. Plaintiff’s seventh objection
In his seventh objection, Plaintiff argues that he has stated a gross negligence and IIED
claims against Williams. Pl.’s Objections at 14. Plaintiff relies upon his arguments made against
Davidson for both claims. Id. In response, Williams argues that her FOIA response was not
outrageous conduct and did not amount to reckless conduct. Def’s Resp. at 5-6, 8-9 (Dkt. 42).
The Court rejects Plaintiff’s argument because Williams’ conduct was not outrageous, so
as to support an IIED claim, nor did Williams owe Plaintiff any duty that would support a claim
for gross negligence. While Williams issued a FOIA response that may have contained incorrect
information, she had no role in the termination proceeding.
Therefore, the Court overrules Plaintiff’s seventh objection.
4. Plaintiff’s eighth objection
In his eighth objection, Plaintiff argues that the R&R erred in finding that he failed to
state a fraud claim. Pl.’s Objections 14-17. Plaintiff asserts that “judicial experience and
common sense teach” that whether Williams’ had intent to mislead Plaintiff is “quite
‘plausible.’” Id. at 15. In response, Williams argues that Plaintiff “has not pleaded any nonspeculative facts that Williams had any reason to believe that the information she provided was
incorrect, or that she misled the Plaintiff with the intent that he would rely on false information
to his detriment.” Def.’s Resp. at 6 (Dkt. 42).
Under Michigan law, fraud requires the following elements:
14 

(1) the defendant made a material representation; (2) the representation
was false; (3) when the defendant made the representation, the defendant
knew that it was false, or made it recklessly, without knowledge of its
truth as a positive assertion; (4) the defendant made the representation
with the intention that the plaintiff would act upon it; (5) the plaintiff acted
in reliance upon it; and (6) the plaintiff suffered damage. . . . Further, to
establish a claim of fraudulent misrepresentation, the plaintiff must have
reasonably relied on the false representation. There can be no fraud where
a person has the means to determine that a representation is not true.
Cummins v. Robinson, 770 N.W.2d 421, 435 (Mich. Ct. App. 2009) (internal citations and
quotations omitted).
The R&R correctly recited the elements for fraud and found that two elements were
lacking – (i) that Williams knew the information she provided was false, or made it recklessly,
without knowledge of its truth as a positive assertion and (ii) Williams made the representation
with the intention that Plaintiff would act upon it. R&R at 11. The R&R then recommended that
Plaintiff’s fraud claim was not plausible under the facts alleged in the complaint. Id.
The Court agrees. The gist of the complaint is that Plaintiff sent a letter to a Michigan
state agency requesting information and a FOIA officer sent him a response, albeit one with
incorrect information. The complaint is devoid of allegations of Williams’ knowledge that the
date was incorrect or plausible facts demonstrating an otherwise wrongful intent. Additionally,
the complaint is devoid of facts indicating that Plaintiff relied upon the letter. Plaintiff does not
allege facts showing that Williams’ letter somehow dissuaded him or prevented him from
asserting his rights. Rather, in the complaint, Plaintiff explains that after receipt of Williams’
letter, he kept investigating about the child he alleges is his. Compl. ¶¶ 42, 44, 45, 47, 49, 54,
57, 59, 60. See Cummins, 770 N.W. 2d at 437 (holding that fraud claim failed because plaintiffs

15 

could not establish reasonable reliance upon alleged fraudulent statements). Therefore, Plaintiff
has failed to assert a plausible claim for fraud.7
Consequently, the Court overrules Plaintiff’s eighth objection.
C. Objection regarding official capacity claims
In his ninth objection, Plaintiff argues that the R&R’s conclusion that the Eleventh
Amendment bars his claims for monetary and injunctive relief against Davidson and Williams is
erroneous. Pl.’s Objections at 17. In response, Davidson and Williams both argue that the relief
requested by Plaintiff is improper because it targets past acts and not continuing conduct. Def.’s
Resp. at 4-5 (Dkt. 40); Def.’s Resp. at 9-10 (Dkt. 42). The Court rejects Plaintiff’s argument.
Plaintiff sued Davidson and Williams in both their personal and official capacities.
Compl. ¶¶ 2, 9. To the extent that Plaintiff sued the Defendants in their official capacities for
monetary damages, the R&R properly concluded that the Eleventh Amendment bars his claims.
Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005).
The R&R was also correct in holding that Eleventh Amendment “immunity does not
apply if the lawsuit is filed against a state official for purely injunctive relief enjoining the
official from violating federal law.” Id. at 358. Permissible injunctive relief “serves directly to
bring an end to a present violation of federal law,” even though it may cause a “substantial
ancillary effect on the state treasury.” Id. However, as explained above, Defendants have not
violated Plaintiff’s federal civil rights. Without a violation of such federal rights, injunctive
relief is unavailable.

7

While Plaintiff urges the Court to consider a number of facts, such as Williams’ interest in
keeping her agency’s costs down and that her agency has a history of preventing fathers from
participating in termination proceedings, none of these facts is set forth in the complaint. See
Pl.’s Objections at 16. Even if they were, none of these facts pertains specifically to Williams.
16 

Injunctive relief is barred under the Eleventh Amendment for the additional reason that
Plaintiff effectively seeks to adjudicate the propriety of a past action, rather than to prevent
future harm.

The Eleventh Amendment bars injunctive relief “that in essence serves to

compensate a party injured in the past by an action of a state official in his official capacity that
was illegal under federal law, . . .” Id. at 367. Here, Plaintiff requests a “temporary and
permanent injunction requiring defendants to take appropriate actions consistent with a finding
that they violated Plaintiff’s rights,” no present actions are threatened against Plaintiff; thus the
injunction he requests appears nothing more than an attempt to adjudicate the alleged
impropriety of past actions. Under the Eleventh Amendment, injunctive relief of that nature is
not appropriate.
Accordingly, the Court overrules Plaintiff’s ninth objection.
D. Objection regarding access to courts and due process claims
In Plaintiff’s tenth objection, Plaintiff argues that, given the allegations in the complaint,
his arguments in his response to Williams’ motion to dismiss, and construing his complaint
liberally, he has asserted access-to-courts and due process claims against Davidson and
Williams, which the R&R did not address. Pl’s Objections at 20-21. In a footnote, the R&R
stated that it construed the complaint liberally to include substantive claims under 42 U.S.C. §
1983, which would include access-to courts and due process claims. R&R at 1 n.1.
The Court agrees with the R&R’s conclusion regarding claims under § 1983 and will
dismiss any such claims against Davidson and Williams. First, regarding the access-to-court
claim, “a prisoner’s constitutionally-guaranteed right of access to the courts has been protected
when a state provides that prisoner with either the legal tools necessary to defend himself, e.g., a
state-provided law library, or the assistance of legally-trained personnel.” Holt v. Pitts, 702 F.2d
639, 640 (6th Cir. 1983). A plain reading of the complaint shows that Plaintiff has not alleged
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that the state has failed to provide him with the legal tools to assert his access to the courts. Nor
have any of the actions or non-actions alleged against Davidson and Williams ever been
recognized as denying a plaintiff of access to the courts. No plausible facts are alleged that
either Defendant intended or understood that their actions would bar Plaintiff from access to the
courts.8 Nor are there any plausible facts alleged that their actions actually caused Plaintiff to be
barred from access to the courts. Clark v. Johnston, 413 F. App’x 804, 817 (6th Cir. 2011)
(explaining that a prisoner “must make specific allegations as to the prejudice suffered because
of the defendants’ alleged conduct”).
Plaintiff also fails to state a due process claim. Plaintiff argues that Defendants told him
his rights were severed and withheld information from him. Pl.’s Objections at 20. Plaintiff’s
allegations do not make it clear whether he is alleging a procedural due process or a substantive
due process violation. Regardless, as discussed below, either claim would fail.
Procedural due process claims are concerned with deprivations life, liberty, or property
without due process of law. Handy-Clay v. City of Memphis, 695 F.3d 531, 546 (6th Cir. 2012).
“When reviewing a procedural due process claim, we must determine whether a protected liberty
or property right is at stake and, if so, what process is due.” Id. Without reaching whether
Plaintiff had a constitutionally protected liberty or property interest, the Court is at a loss to
understand what process would be due. Davidson forwarded Plaintiff’s inquiry, and owed him
no process to begin with. Williams responded to his FOIA request and, to the extent that
Plaintiff should have more process, Michigan’s FOIA statute provides for appeals for FOIA

8

 Some courts require a showing of intent where a prisoner has asserted an access to courts claim
against a prison official who has allegedly tampered with the prisoner’s legal mail. See Davis v.
Goord, 320 F.3d 346, 351-352 (2nd Cir. 2003) (explaining that “district courts have generally
required specific allegations of invidious intent or of actual harm where the incidents of
tampering are few and thus the implication of an actionable violation is not obvious on its
face.”).  

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responses. Mich. Comp. Laws § 15.240. There is no other process due Plaintiff, and no process
of which he has been deprived.
Substantive due process claims are “a vehicle to limit various aspects of potentially
oppressive government action.”

Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996).

Generally, they are either (i) claims that an individual has been deprived of a particular
constitutional guarantee, or (ii) claims that the government has acted in a way that shocks the
conscience.

Handy-Clay, 695 F.3d at 547 (citations omitted).

Conduct that shocks the

conscience must be “so ‘brutal’ and ‘offensive’ that it does not comport with traditional ideas of
fair play and decency.” Id. at 547-548 (internal citations and quotations omitted). For Plaintiff,
he has not been deprived a particular constitutional guarantee; as explained above, neither
Davidson nor Williams violated his federal civil rights. Also, in a manner analogous to the
analysis of IIED, the conduct at issue was not brutal or offensive, but rather adhered to
traditional ideas of fair play and decency. According to Plaintiff’s allegations, Davidson merely
forwarded a letter, as a matter of courtesy, and Williams mechanically responded to a FOIA
request, in conformity with her duties.

No conduct alleged in the complaint shocks the

conscience.
III. CONCLUSION
For the reasons stated above, the Court overrules Plaintiff’s objections and grants
Defendants’ motions to dismiss (Dkts. 25 and 29).
SO ORDERED.

Dated: March 29, 2013
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on March 29, 2013.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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