Wendrow et al v. Michigan Department of Human Services et al

Filing 313

OPINION AND ORDER denying 289 Motion for Reconsideration; granting in part and denying in part 290 Motion for Reconsideration; granting in part and denying in part 291 Motion for Reconsideration; granting in part and denying in part 292 Motion for Reconsideration. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THAL FLAM WENDROW, et al,
Plaintiffs,
Case No. 08-14324
v.
Hon. John Corbett O’Meara
MICHIGAN DEPARTMENT OF
HUMAN SERVICES, et al.,
Defendants.
______________________________/

OPINION AND ORDER REGARDING
MOTIONS FOR RECONSIDERATION
Before the court are four motions for reconsideration filed by Plaintiffs, the Walled Lake
School District Defendants, Oakland County Defendants, and Michigan Department of Human
Services Defendants. All parties seek reconsideration of the court’s March 30, 2011 opinion and
order granting in part and denying in part Defendants’ motions for summary judgment. With
leave of the court, these motions have been fully briefed. Pursuant to L.R. 7.1, the court did not
hear oral argument.
I.

Standard of Review
The standard for granting a motion for reconsideration is as follows:
Generally, and without restricting the court’s discretion, the court
will not grant motions for rehearing or reconsideration which
merely present the same issues ruled upon by the court, either
expressly or by reasonable implication. The movant shall not only
demonstrate a palpable defect by which the court and the parties
have been misled but also show that correcting the defect will
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result in a different disposition of the case.
LR 7.1(h)(3). A motion for reconsideration “is not properly used as a vehicle to re-hash old
arguments or to advance positions that could have been argued earlier but were not.” Smith v.
Mount Pleasant Schools, 298 F. Supp.2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 357, 374 (6th Cir. 1998). See also Scottsdale Ins.
Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“We have found issues to be waived when
they are raised for the first time in motions for reconsideration.”).
II.

Oakland County Defendants
The Oakland County Defendants seek reconsideration on two grounds: (1) that the court

should have dismissed Plaintiffs’ ADA and PWDCRA claims as a matter of law; and (2) the
court should determine that statements made by David Gorcyca were not defamatory as a matter
of law and dismiss Plaintiffs’ defamation claim.
A.

Defamation Claim

Plaintiffs’ defamation claim against Gorcyca is based on statements he made in a July
2009 National Law Journal article. These statements include Gorcyca “saying that [AW] had
disclosed to six different people that she was being abused at home” and that “[w]hen all the
facts come to light through the course of the civil litigation . . . [t]he decision [to prosecute] will
not only be justified, but will be legitimized.” Gorcyca also said, “The girl was petrified to go
into court and testify . . . . Without her testimony, we could not prove our case.” Oakland Defs.’
Ex. B (Docket No. 291).
Defendants contend that these statements and others in the article are true or statements
of opinion and, therefore, not defamatory as a matter of law. The court is not inclined to address

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Defendants’ new arguments in this regard. Moreover, the court finds that the statements are
“reasonably capable of defamatory meaning,” and therefore summary judgment is not
appropriate. See Falls v. Sporting News Pub. Co., 834 F.2d 611, 615 (6th Cir. 1987) (“A
defamation claim may be disposed of by summary judgment if the statement in issue is not
reasonably capable of a defamatory meaning.”).
B.

ADA and PWDCRA Claims

Each of the Plaintiffs has asserted a claim under Title II of the ADA and the PWDCRA
against Oakland County. Defendants contend that Julian Wendrow, Thal Wendrow, and IW lack
standing to sue under Title II of the ADA because they are not disabled and were not denied
services by the county as a result of their association with a disabled individual (AW). Again,
the court is generally not inclined to address arguments raised for the first time on a motion for
reconsideration. The issue of standing, however, may not be waived by the parties and
implicates the court’s jurisdiction, such that the court has an obligation to address it sua sponte.
“Standing is not an affirmative defense that must be raised at risk of forfeiture. Instead, it is a
qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court. We find no
authority for the plaintiffs’ argument that prudential standing requirements may be waived by the
parties.” Community First Bank v. The Nat’l Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir.
1995).
Title II of the ADA states that “no qualified individual with a disability shall, by reasons
of such disability, be excluded from participation in or be denied the benefits of the services,
programs or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. Plaintiffs contend that they have standing to sue under Title II of the ADA

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because plaintiffs who are not themselves disabled nevertheless enjoy “a right of action because
of their association or dealings with disabled persons.” MX Group, Inc. v. City of Covington,
293 F.3d 326, 334 (6th Cir. 2002). This type of standing does not apply in this case, however.
In MX Group, the plaintiff was a drug treatment provider who was denied a zoning
permit because of its association with its clients, who were drug addicts. The court found that
the plaintiff had standing under the ADA to assert a discrimination claim because it suffered an
injury – denial of the permit – as a result of its association with persons who are disabled. Id. at
335. In this case, Julian Wendrow, Thal Wendrow, and IW were not discriminated against or
denied access to a public service because of their own disabilities or because of their association
with AW. Rather, it is only AW who was arguably denied access to a public service when
Oakland County allegedly failed to accommodate her disability in its communications with her.
Although the other Wendrow family members may have suffered an injury as a result of
Oakland County’s alleged failure to accommodate AW, they have not suffered an “ADA injury”
conferring standing to sue under that statute. See Popovich v. Cuyahoga Cty. Ct. of Common
Pleas, 2005 WL 2374236 (6th Cir. Sept. 27, 2005). In Popovich, the plaintiff claimed that she
was injured by delays in custody litigation because the domestic relations court failed to
accommodate her father’s hearing disability. These delays deprived the plaintiff of her father’s
companionship for five years. The court dismissed the plaintiff’s Title II ADA claim for lack of
standing. The Sixth Circuit reasoned that MX Group did not apply, because the plaintiff herself
was not “denied access to or participation in any of the public services covered by Title II.” Id. at
*3. “In other words, Lauren Popovich – although allegedly deprived of her father’s
companionship because of delays in her custody case – has not suffered an ‘ADA injury.’ It was

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for this reason that the district court held that the plaintiff had failed to establish standing under
Title II, given the fact that her association with her father did not result in her exclusion from the
custody proceedings.” Id.
Popovich controls here. Julian Wendrow, Thal Wendrow, and IW were not denied
access or participation in any services or activities offered by Oakland County as a result of their
association with AW. Therefore, they lack standing to assert an ADA claim.
The only Plaintiffs asserting a PWDCRA claim are IW and AW. In relevant part, the
PWDCRA provides:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of
a place of public accommodation or public service because of a
disability that is unrelated to the individual’s ability to utilize and
benefit from the goods, services, facilities, privileges, advantages,
or accommodations or because of the use by an individual of
adaptive devices or aids.
M.C.L. 37.1302(a). See also Bachman v. Swan Harbour Ass’n, 252 Mich. App. 400, 426 (2002)
(elements of refusal to accommodate claim). Although Plaintiffs argue that Oakland County
failed to accommodate AW’s disability, they do not make the same argument with respect to IW.
The court finds that IW cannot state a PWDCRA claim.
III.

Department of Human Services Defendants
The DHS Defendants seek reconsideration on several grounds. The DHS Defendants

argue that the court did not address Plaintiffs’ official capacity claims in Counts 19, 20, 24, and
28 against Defendants Ahmed and Robydek. The court intended to dismiss those claims in its
order (see Order at 20-21) and, to the extent clarification is needed, considers them dismissed for
the reasons set forth therein.
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The DHS Defendants also contend that the court failed to address Count 36; however, as
the court noted in its order, Plaintiffs did not dispute the defendants’ motion on that count.
Accordingly, the court granted summary judgment on Count 36 in favor of the DHS Defendants.
See Order at 21 n.6.
The DHS Defendants contend that the court did not address whether Plaintiffs’
substantive due process claim should be barred by qualified immunity. Plaintiffs’ claim in this
regard is based upon Robydek’s production of IW for an interrogation and of AW for a
gynecological examination, allegedly without authorization or parental consent. The court did
not address qualified immunity in this context because Defendants did not raise the issue as to
this specific conduct in their summary judgment motion. Accordingly, Defendants did not
sustain their burden of demonstrating that summary judgment was appropriate. The court will
not address Defendants’ new arguments in this regard on a motion for reconsideration. Of
course, Defendants may raise their qualified immunity argument at trial.
The DHS Defendants also argue that the court should have dismissed Plaintiffs’ claims
against DHS based upon the Michigan Constitution. The court noted that the parties did not
adequately brief whether it is appropriate to infer a damages remedy under the Michigan
Constitution and, therefore, DHS did not meet its burden of demonstrating that summary
judgment in its favor was appropriate. Defendants’ argument in their original brief was skeletal,
essentially leaving it to the court to fashion an analysis. A party does not sustain his burden on
summary judgment by asserting the legal standard and baldly proclaiming that the plaintiff’s
claim fails. See, e.g., United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not
like pigs, hunting for truffles buried in briefs.”).

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The DHS Defendants contend that the court should have dismissed Plaintiffs’ ADA and
PWDCRA claims. As stated in the court’s order, however, Defendants did not provide the court
with a basis to do so. Nonetheless, the court will dismiss Thal Wendrow, Julian Wendrow, and
IW’s ADA claim and IW’s PWDCRA claim against the DHS Defendants based upon a lack of
standing, consistent with the analysis above. The court otherwise declines to consider new
arguments raised here regarding AW’s ADA and PWDCRA claims.
IV.

Walled Lake School District Defendants
Consistent with its treatment of these claims against the other Defendants, the court will

also dismiss Thal Wendrow, Julian Wendrow, and IW’s ADA claim and IW’s PWDCRA claim
against the Walled Lake School District Defendants, based upon a lack of standing. In their
original motion, the Walled Lake School District Defendants did not address the merits of AW’s
ADA claim and provided only skeletal argument regarding her PWDCRA claim. Accordingly,
the court will not consider new argument on these issues now.
The Walled Lake School District Defendants also contend that the court failed to address
Count 59, AW’s battery claim. As the court noted in its order, however, it “is the court’s
understanding Plaintiffs have agreed to the dismissal of Count 59 (battery), except as against
Rebecca Robydek.” Order at 9 n.2. To the extent clarification is needed, Count 59 has been
dismissed, except as to Robydek. See Order at 27-28.
The Walled Lake School District Defendants’ remaining contentions of error are either
based upon new argument or a reiteration of arguments previously considered and rejected by
the court. Therefore, these Defendants have failed to demonstrate a “palpable defect” supporting
reconsideration.

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V.

Plaintiffs’ Motion for Reconsideration
Plaintiffs also seek reconsideration on several issues involving the dismissal of some of

their claims against the individual prosecutors (Defendants Dean and Carley) and Oakland
County. Plaintiffs contend that the court erred in finding their § 1983 claims against Dean and
Carley to be barred by absolute immunity. As the court noted: “Whether Dean and Carley are
entitled to absolute immunity here turns on whether the interviews of IW and AW should be
characterized as the evaluation and marshaling of evidence, and the preparation of witness
testimony, or whether Dean and Carley instead engaged in investigative or ‘police work.’ The
court finds that Dean and Carley’s interviews of IW and AW fit squarely within their roles as
advocates.” Order at 10.
Plaintiffs suggests that a question of fact exists whether the prosecutors’ questioning of
IW was done in their role as advocates, given that they were not imminently preparing for trial
and did not plan on calling IW as a witness. The court finds, however, that Plaintiffs urge an
unduly cramped view of the advocate’s role. It would be a very poor prosecutor indeed who did
not explore if a potential witness had more to say than what was included in a statement to
police. Simply because additional information may be elicited at a witness interview by a
prosecutor does not transform the interview into “police work” akin to a “detective’s role in
searching for the clues and corroboration that might give him probable cause to recommend that
a suspect be arrested,” for example. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
The court finds that Plaintiffs have not demonstrated a “palpable defect” in its grant of absolute
immunity to the individual prosecutors with respect to Plaintiffs’ § 1983 claims.
Plaintiffs also contend that the court should not have dismissed their Fourth Amendment

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claim against Oakland County, making the point that even if the individual prosecutors are
immune, Oakland County could nonetheless be liable on a failure to train theory. Plaintiffs have
not, however, demonstrated a “palpable defect” in the court’s determination that they have not
met the “deliberate indifference” standard for imposing municipal liability under § 1983. See
City of Canton v. Harris, 489 U.S. 378, 388 (1989). To show deliberate indifference based upon
a failure to train, Plaintiffs must show: (1) that the prosecutors’ training was inadequate to
prepare them for the tasks that prosecutors must perform; (2) that the inadequacy persisted due to
the County’s deliberate indifference; and (3) that the inadequacy is closely related or actually
caused the plaintiff’s injury. Pinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008).
Plaintiffs may demonstrate the second element – deliberate indifference – two ways. Plaintiff
may “show prior instances of unconstitutional conduct demonstrating that the County has
ignored a history of abuse and was clearly on notice that the training in this particular area was
deficient and likely to cause injury. In the alternative, ‘a single violation of federal rights,
accompanied by a showing that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation, could trigger municipal
liability.’” Id. (citations omitted).
Plaintiffs argue that Oakland County has failed to train its prosecutors to handle recurring
situations, such as interviewing child witnesses.1 “A pattern of similar constitutional violations
by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for
purposes of failure to train.” Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011). Lacking

1

The prosecutors did receive some training (see Docket No. 293-3 at 7), although the
specific topics are not detailed in the record.
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evidence of a pattern of constitutional violations, Plaintiffs attempt to proceed on a “singleincident” liability theory. See id. at 1361. Under similar circumstances, however, the Supreme
Court rejected municipal liability for a prosecutor’s single Brady violation. “Failure to train
prosecutors in their Brady obligations does not fall within the narrow range of Canton's
hypothesized single-incident liability.” Id. The Court explained that attorneys receive training,
beginning in law school, that differentiates them from the average municipal employee.
In light of this regime of legal training and professional
responsibility, recurring constitutional violations are not the
“obvious consequence” of failing to provide prosecutors with
formal in-house training about how to obey the law. Prosecutors
are not only equipped but are also ethically bound to know what
Brady entails and to perform legal research when they are
uncertain. A district attorney is entitled to rely on prosecutors’
professional training and ethical obligations in the absence of
specific reason, such as a pattern of violations, to believe that those
tools are insufficient to prevent future constitutional violations in
“the usual and recurring situations with which [the prosecutors]
must deal.” A licensed attorney making legal judgments, in his
capacity as a prosecutor, about Brady material simply does not
present the same “highly predictable” constitutional danger as
Canton’s untrained officer.

Connick, 113 S.Ct. at 1363, 1364 (“The possibility of single-incident liability that the Court left
open in Canton is not this case.”) (citations omitted).
The reasoning in Connick forecloses a showing of municipal liability here. Plaintiffs
have not demonstrated a pattern of constitutional violations or have otherwise shown that
Oakland County acted with deliberate indifference. Accordingly, Plaintiffs have not
demonstrated a “palpable defect” with respect to the court’s dismissal of their § 1983 claim
against Oakland County.
Plaintiffs also seek reconsideration of the court’s dismissal of their state tort claims
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against the individual prosecutors. In this regard, Plaintiffs present arguments already ruled
upon by the court, expressly or by reasonable implication. Plaintiffs have not demonstrated a
palpable defect warranting reconsideration of these claims.
ORDER
IT IS HEREBY ORDERED that Plaintiffs’ motion for reconsideration [docket no. 289] is
DENIED.
IT IS FURTHER ORDERED that the DHS Defendants’ motion for reconsideration
[docket no. 290], the Oakland County Defendants’ motion for reconsideration [docket no. 291],
and the Walled Lake Schools Defendants’ motion for reconsideration [docket no. 292] are
GRANTED IN PART and DENIED IN PART, consistent with this opinion and order.

s/John Corbett O’Meara
United States District Judge

Date: March 27, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, March 27, 2012, using the ECF system.

s/William Barkholz
Case Manager

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