Landon v. Flint, City of
OPINION and ORDER Rejecting Defendant's 60 and 64 Objections to Magistrate Judge's 58 and 63 Reports and Recommendations; and Granting In Part and Denying In Part the Parties' 43 Motion for Summary Judgment and 55 Motion for Partial Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Case No. 16-11061
Honorable Linda V. Parker
CITY OF FLINT,
OPINION AND ORDER REJECTING DEFENDANT’S OBJECTIONS TO
MAGISTRATE JUDGE’S REPORTS AND RECOMMENDATIONS AND
GRANTING IN PART AND DENYING IN PART THE PARTIES’
MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Karter Landon (“Plaintiff”) filed this action against Defendant City
of Flint (“City” or “Flint”) on March 23, 2016, challenging the City’s enforcement
of its Comprehensive Rental Inspection Code in a manner Plaintiff claims violates
his right to be free from warrantless searches, arbitrary and retaliatory fines, and
civil and criminal charges. In an Amended Complaint filed June 22, 2016,
Plaintiff seeks a declaratory judgment regarding the lawfulness of the City’s
policies, practices, and conduct. He also asserts claims pursuant to 42 U.S.C.
§ 1983 for violations of his Fourth, Fifth, and Fourteenth Amendment rights under
the United States Constitution (Counts I and II), and a state law unjust enrichment
claim (Count III). The matter has been assigned to Magistrate Judge Elizabeth A.
Stafford for all pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B).
(ECF No. 6.)
On July 18, 2016, Plaintiff filed a motion for temporary restraining order
and preliminary injunction, which this Court granted upon Magistrate Judge
Stafford’s recommendation in an Opinion and Order issued January 24, 2017.
(ECF Nos. 37, 53.) The Court found that a property owner in Flint who refuses
inspection of his or her rental property is unlawfully subject to civil infractions and
denial of a certificate of compliance without enforcing officials obtaining a warrant
or pursuing a pre-compliance review process. Flint’s Comprehensive Rental
Inspection Code (“Rental Inspection Code”) did not provide a warrant requirement
or offer property owners pre-compliance review. The Court’s order enjoined Flint
from “conducting inspections of the City’s rental properties or penalizing any
person for refusing to allow an inspection of any rental property in the absence of a
warrant, other pre-compliance review process, or the existence of exigent
circumstances.” (ECF No. 53.)
The City subsequently moved to dissolve the injunction, arguing that
amendments to the Rental Inspection Code rendered the injunction moot. (ECF
No. 56.) Specifically, Flint indicated that its City Council enacted a new ordinance
regarding inspections of rental properties affording an opportunity for pre2
compliance review, which the Receivership Transition Advisory Board (“RTAB”)
approved. The amended ordinance, enacted on December 12, 2016, provides that
“[i]n non-emergency situations, if permission to enter the rental property is denied,
the enforcing agency shall seek an administrative search warrant before conducting
the inspection.” (Id., Ex. G; ECF No. 56-8.)
On February 28, 2017, Magistrate Judge Stafford issued a Report and
Recommendation (“R&R”) in which she recommends that this Court deny Flint’s
motion to dissolve the injunction. (ECF No. 58.) Magistrate Judge Stafford
reasons that the ordinance allows for warrantless searches in emergencies and that
an emergency ordinance, also passed by the Flint City Council on December 12,
2016, provides that there is an emergency with respect to the City’s rental
properties. (See Obj. to R&R, Ex. A; ECF No. 41-2.) Magistrate Judge Stafford
further reasons that while the amended ordinance requires the enforcing agency to
seek an administrative warrant if permission to conduct the inspection is denied, it
contradictorily states that access to the property must be provided upon notification
by the enforcing agency that an inspection is required.
In the meantime, the parties filed cross-motions for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF Nos. 43, 55.)
On April 21, 2017, Magistrate Judge Stafford issued an R&R recommending that
the Court grant in part and deny in part both motions. (ECF No. 63.) Specifically,
Magistrate Judge Stafford recommends that the Court: (1) grant Plaintiff’s request
for a declaration that the version of Flint’s Rental Inspection Code in effect when
this lawsuit was filed violated the Fourth Amendment; (2) grant the City’s request
for summary judgment with respect to Plaintiff’s equal protection claim; and (3)
deny summary judgment to the City and Plaintiff with respect to Plaintiff’s claims
alleging unjust enrichment and violations of the “unconstitutional conditions”
doctrine and Fourth Amendment.
As to Plaintiff’s request for declaratory relief with respect to Flint’s Rental
Inspection Code in effect when this lawsuit was filed, Magistrate Judge Stafford
relies on her reasoning in granting Plaintiff’s request for preliminary injunction to
conclude that he is entitled to declaratory relief. (Id. at 5-9.) Magistrate Judge
Stafford rejects Flint’s argument that Plaintiff’s claims are moot based on its
amendments to the Rental Inspection Code because the amendments only require
that the enforcing agency “seek” an administrative search warrant if permission to
inspect is denied, while also stating that a landlord or owner “must” provide access
to the property if notified of the need for an inspection. (Id. at 10-11.) Magistrate
Judge Stafford points out that the code does not grant a property owner the right to
deny permission or seek pre-compliance review. (Id.)
Nevertheless, Magistrate Judge Stafford recommends that the Court deny
Plaintiff’s request for summary judgment on his Fourth Amendment claim because
he failed to demonstrate that he had a reasonable expectation of privacy in a
structure entered by the enforcing agents without a warrant. (Id. at 12-13.) With
respect to Plaintiff’s claim under the unconstitutional conditions doctrine,
Magistrate Judge Stafford rejects the City’s argument that it is entitled to summary
judgment because a four-part test applies to the claim and Plaintiff cannot satisfy
the test. (Id. at 13-15.) Yet, Magistrate Judge Stafford concludes that Plaintiff is
not entitled to summary judgment with respect to the claim because he has not
established his standing with respect to the houses for which the City turned off the
water as a penalty or that any late fees he was charged resulted from the lack of a
pre-compliance review process. (Id. at 15.)
Lastly, with respect to Plaintiff’s unjust enrichment claim, Magistrate Judge
Stafford finds that the City’s argument in support of summary judgment is not
sufficiently developed as it rests on its assertion that the Rental Inspection Code is
valid and therefore there could be no inequity.
At the conclusion of her R&Rs, Magistrate Judge Stafford alerts the parties
of their right to file objections. Flint filed objections to both R&Rs. (ECF No. 60,
64.) Flint’s objections to Magistrate Judge Stafford’s R&R on its motion to
dissolve the injunction overlap its objections to the magistrate judge’s analysis of
its mootness argument in support of its motion for summary judgment. Thus, this
Court will address those objections together, below.
Standard of Review
When objections are filed to a magistrate judge’s R&R on a dispositive
matter, the Court “make[s] a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). The Court, however, “is not required to articulate all of the
reasons it rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d 942,
944 (E.D. Mich. 2001) (citations omitted). A party’s failure to file objections to
certain conclusions of the R&R waives any further right to appeal on those issues.
See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987). Likewise, the failure to object to certain conclusions in the magistrate
judge’s R&R releases the Court from its duty to review independently those issues.
See Thomas v. Arn, 474 U.S. 140, 149 (1985).
Unconstitutional Conditions Doctrine Claim
Relying on the Supreme Court’s decision in Dolan v. City of Tigard, 512
U.S. 374, 385 (1994), Flint argues that it was entitled to summary judgment on
Plaintiff’s unconstitutional conditions doctrine claim because Plaintiff fails to show
that he received or would have received a discretionary benefit and because the
benefit sought has a relationship to the property.
As the Supreme Court recently stated, the unconstitutional conditions
doctrine “vindicates the Constitution’s enumerated rights by preventing the
government from coercing people into giving them up.” Koontz v. St. Johns River
Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013) (internal citations omitted).
Simply put, the doctrine “declares that whatever an express constitutional
provision forbids government to do directly it equally forbids government to do
indirectly.” William W. Van Alstyne, The Demise of the Right-privilege
Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1445-46 (1968). In
Dolan, the Supreme Court provided that “[u]nder the well-settled doctrine of
‘unconstitutional conditions,’ the government may not require a person to give up a
constitutional right … in exchange for a discretionary benefit conferred by the
government where the benefit sought has little or no relationship to the property.”
512 U.S. at 385 (citations omitted).
Relying on Dolan, Flint argues that an unconstitutional conditions doctrine
claim survives only if: (1) the plaintiff waived a constitutional right, (2) a
discretionary benefit was conferred, and (3) the benefit “had little or no
relationship to the property/right.” (Flint’s Obj. at 3, ECF No. 63 at Pg ID 1224.)
Magistrate Judge Stafford concludes that the case law does not support the use of
such a test, pointing out that the Supreme Court did not rely on such a test in Perry
v. Sindermann, 408 U.S. 593 (1972). (R&R at 15, ECF No. 63 at Pg ID 1216.)
Instead, the Perry Court framed the issue “only on whether the government could
deny a benefit to a person because he had exercised a constitutional right.” (R&R
at 15; ECF No. 63 at Pg ID 1216.) In fact, as Justice Stevens noted in his dissent
in Dolan, and as many scholars have remarked, “[a]lthough it has a long history …
the unconstitutional conditions doctrine has for just as long suffered from
notoriously inconsistent application” and the doctrine is “riven with
inconsistencies.” 512 U.S. at 407 n.12 (citations omitted).
As such, the Court rejects Flint’s objection to Magistrate Judge Stafford’s
analysis of Plaintiff’s unconstitutional conditions claim.1 Plaintiff presents
sufficient evidence to survive summary judgment with respect to this claim. He
shows that Flint conditions the right to rent one’s property on the surrendering of
one’s right to be free from warrantless searches.
Fourth Amendment Claim as to Flint’s Initial Rental Inspection Code Policies
In its second objection, Flint argues that Magistrate Judge Stafford
improperly relied on the “law of the case” doctrine to find Plaintiff entitled to
partial summary judgment on his claim that the City’s Rental Inspection Code
policies, in effect when he filed this lawsuit, violated the Fourth Amendment. Flint
In any event, the Court disagrees with the City that Plaintiff fails to set forth a
discretionary benefit. There is much discretion granted to City officials when
executing the Rental Inspection Code and deciding whether to grant a permit to
rent the property.
also argues that Magistrate Judge Stafford failed to fairly consider its arguments
with respect to this claim.
“Because of the lesser burden of proof required to support a motion for
preliminary injunction as contrasted with a motion for summary judgment, a trial
court’s disposition of the substantive issues joined on a motion for extraordinary
relief is not dispositive of those substantive issues on the merits.” Wilcox v. United
States, 888 F.2d 1111, 1114 (6th Cir. 1989). Thus, “[a]s a general rule, decisions
on preliminary injunction do not constitute law of the case and parties are free to
litigate the merits.” Id. (internal quotation marks and citations omitted).
Nevertheless, this Court believes that Magistrate Judge Stafford’s reference to the
“law of the case” simply was an unfortunate misuse of the term to express that her
previous analysis of the issue applied with equal force to reject Flint’s request for
summary judgment on this claim, particularly as Flint began “by repeating
verbatim the arguments it made in opposition to the motion for preliminary
injunction.” (R&R at 8, ECF No. 63 at Pg ID 1209.) In fact, before referring to
this term, Magistrate Judge Stafford explained her reasoning for declaring Flint’s
inspection code policies in effect when the lawsuit was filed violative of the Fourth
Amendment. (Id. at 6-8, Pg ID 1206-09.) Her reasoning and conclusion is not
impacted by the difference in the burden of proof between a motion for preliminary
injunction and a motion for summary judgment. Flint nevertheless argues that
Magistrate Judge Stafford ignored arguments it raised with regard to Plaintiff’s
Fourth Amendment claim.
Specifically, Flint argues that, in practice, initial inspections are scheduled in
advance, the property owner is afforded the opportunity to reschedule, and
inspections are conducted with the consent of the tenant. (Flint’s Mot. at 7, ECF
No. 43 at Pg ID 770.) Flint also pointed out that when it adopted the 2003
International Property Maintenance Code (“IPMC”), section 1403 stated: “If entry
is refused, the code official shall have recourse to the remedies provided by law to
secure entry.” However, neither argument negates that Flint’s previous inspection
code did not, on its face, afford property owners an opportunity for pre-compliance
review or suggest that they had the right to resist warrantless entries for
Thus, the Court rejects Flint’s objections to Magistrate Judge Stafford’s
analysis. For the reasons Magistrate Judge Stafford provides in her R&R and her
earlier R&Rs, the Court agrees with her conclusion that Flint’s previous inspection
code violated the Fourth Amendment.
Flint next objects to Magistrate Judge Stafford’s recommendation that the
Court deny its request for summary judgment as to Plaintiff’s unjust enrichment
claim. Flint argues that Magistrate Judge Stafford erred in not accepting its
argument that an unjust enrichment claim under Michigan law cannot arise in the
context of a government service. In support of its argument, Flint relies on the
Michigan Supreme Court’s decision in Borg-Warner Acceptance Corporation v.
Department of State, 444 N.W.2d 786 (1989).
As an initial matter, Flint did not assert this argument or cite Borg-Warner in
support of its request for summary judgment. Flint only raised the argument in
response to Plaintiff’s motion. In any event, Flint misconstrues the Supreme
Court’s holding and fails to show that the holding bars Plaintiff’s claim
The plaintiff in Borg-Warner brought a breach of contract claim against the
Michigan Secretary of State based on the plaintiff’s payment for a Uniform
Commercial Code filing search, which neglected to include a prior indebtedness.
Id. at 787. The Michigan Supreme Court found no express or implied contract
between the plaintiff and the Secretary of State, reasoning that the plaintiff’s
payment of the fee did not induce performance of the filing search. Id. at 788.
Instead, Michigan law compelled the state official to conduct the search. Id.
As the Court explained:
If a promisee is already bound by official duty to render a
service, it is no detriment to him, and no benefit to the
promisor beyond what the law requires the promisee to
suffer or to give, for him to do or agree to do the service
on request. Though the previous legal duty does not run
to the promisor under the later agreement, it runs to the
public of which the promisor is a member, and as such he
has a right, even if not one enforceable at law, to the
performance in question. Therefore, no contract can be
based on such consideration.
Id. (quoting 1 Williston, Contracts, § 132 at p. 557 (3d ed.)). In other words, a
state employee’s performance of a statutory duty to provide a government service
does not constitute consideration or assent for purposes of creating a contract. In
Borg-Warner, however, the Michigan Supreme Court did not go so far as to hold
that an implied contract cannot arise in the context of the performance of any
government service. (See Flint’s Obj. at 6, ECF No. 64 at Pg ID 1227.)
To the extent any of the fees Plaintiff is seeking to recover in his unjust
enrichment claim were for the performance of a statutory duty, the City would be
entitled to summary judgment. However, the City has not demonstrated that any of
the $12,000 in fees Plaintiff has paid since 2013 were for a service a Flint official
was statutorily bound to perform, as opposed to penalties imposed on Plaintiff for
resisting the warrantless inspection searches of his properties. But again, this was
not even an argument asserted by the City in support of its motion for summary
In short, the Court rejects Flint’s objection to Magistrate Judge Stafford’s
analysis of its request for summary judgment as to Plaintiff’s unjust enrichment
In its fourth objection, Flint argues that the magistrate judge failed to
interpret the City’s amended Rental Inspection Code “in a manner that was
constitutional when a constitutional interpretation was possible[,]” and that a
proper interpretation compels the finding that Plaintiff’s claims are moot.
First, as Flint acknowledges in its objections, Plaintiff is seeking
compensatory and nominal damages in addition to prospective relief.
Amendments to the City’s Rental Inspection Code after the lawsuit was filed do
not render his damages claims moot. See Gottfried v. Medical Planning Servs.,
280 F.3d 684, 691 (6th Cir. 2002). Thus, while the City’s amendment to the
inspection code might moot Plaintiff’s claim for injunctive and other prospective
relief, it does not moot his claims entirely.
Turning to those amendments, “ [a]lthough voluntary cessation of wrongful
conduct does not automatically render a case moot, ‘the case may nevertheless be
moot if the defendant can demonstrate that there is no reasonable expectation that
the wrong will be repeated.’ ” Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir.
1990) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953))
(brackets and additional quotation marks and citation omitted). As the Sixth
Circuit observed in Mosley, however, “there appears to be a difference in the way
voluntary cessation of illegal activities is treated when the offending parties are
government officials rather than private parties[.]” 920 F.2d at 415. Specifically,
“cessation of the allegedly illegal conduct by government officials has been treated
with more solicitude by the courts than similar action by private parties” and “such
self-correction provides a secure foundation for a dismissal based on mootness so
long as it appears genuine.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d
974, 981 (6th Cir. 2012) (quoting Mosley, 920 F.2d at 415). Nevertheless, the
City’s amendments to its Rental Inspection Code do not remove all reasonable
expectation that the alleged violations will recur.
First, as Magistrate Judge Stafford points out, the amendments do not
require the enforcing agency to obtain a warrant if permission is denied prior to
conducting an inspection. Section 902.5(b) only states that the enforcing agency
must “seek” a warrant. Flint argues:
The Code provides no other alternative for the enforcing
agency in that situation. As a result, the correct
construction of that Code provision is that the enforcing
agency’s only allowable course of action is to seek a
warrant, and absent such a warrant directing them to
search the property, no search can occur.
(Flint’s Obj. at 8, ECF No. 64 at Pg ID 1229.) Yet, this Court is not convinced that
this is the only result. Inspectors could deem their duty complete by seeking the
warrant and that they have the right to demand entry once that step is taken, even if
a warrant is not obtained. Moreover, the amendment does not address Plaintiff’s
claim that property owners, landlords, and tenants are not told that they have the
right to refuse warrantless entries, that they are not provided a mechanism for precompliance review, and that the City imposes fines and penalties when a
warrantless entry is refused.
This Court therefore concludes that Flint’s amendments to its Rental
Inspection Code have not mooted Plaintiff’s claims.
For these reasons, the Court rejects Flint’s objections to Magistrate Judge
Staffords’ February 28 and April 21, 2017 R&Rs. The Court adopts the magistrate
judge’s recommendations in those R&Rs.
IT IS ORDERED that the City of Flint’s motion to dissolve the preliminary
injunction (ECF No. 56) is DENIED;
IT IS FURTHER ORDERED that the City of Flint’s motion for summary
judgment is GRANTED IN PART in that Plaintiff’s equal protection claim
(Count II) is DISMISSED, but is otherwise DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for partial summary
judgment is GRANTED IN PART to the extent he seeks a declaration that the
version of Flint’s Rental Inspection Code in effect when this lawsuit was filed
violates the Fourth Amendment, but is otherwise DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 27, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, June 27, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?