Wentzel v. Bakker et al
Filing
16
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
Wentzel v. Bakker et al
Doc. 16
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JUSTIN MICHAEL WENTZEL,
Plaintiff,
v.
Case No. 1:12-cv-1397
Honorable Gordon J. Quist
MARGARET BAKKER et al.,
Defendants.
___________________________/
OPINION
This is a prisoner civil rights action pursuant to 42 U.S.C. § 1983. The Court has
granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act
(PLRA), PUB. L. NO . 104-134, 110 STAT . 1321 (1996), the Court is required to dismiss any prisoner
action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se
complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against all Defendants. With respect to Defendant Koster, the Court will allow
Plaintiff to amend his complaint with regard to Plaintiff’s claim that Plaintiff did not receive a
probable cause hearing for eleven months following his warrantless arrest.
Also before the Court is a motion for the Court to appoint counsel to Plaintiff in this
matter, and to have Plaintiff’s sentence stayed while this matter is pending (docket #8). Plaintiff’s
motion will be denied.
Dockets.Justia.com
Background
Plaintiff Justin Michael Wentzel was incarcerated at the Allegan County Jail when
he filed this action. He is now on probation following a conviction in Allegan County Circuit Court
for stalking a minor, Mich. Comp. Laws § 750.477h(2)(b).1 He received his sentence of probation
on June 11, 2012, and he has since appealed his conviction and sentence to the Michigan Court of
Appeals. He sues the following employees of Allegan County: Circuit Court Judge Margaret
Bakker, Magistrate Judge Kirby J. Goodwin, Detective Chris Koster, Chief Prosecuting Attorney
Frederick Anderson, Assistant Prosecuting Attorney Myrene Koch, Court Reporter Anne Lang,
Child Protective Services (CPS) Caseworker Amanda Cherian, and Sergeant Christopher Kuhn, as
well as the Allegan County Sheriff’s Department and unknown officers of the Allegan County
Sheriff’s Department who conducted a search and seizure on Plaintiff’s premises. He also sues the
Allegan County Jail.2
According to the amended complaint,3 Plaintiff claims that Defendants have violated
his right to a speedy trial and his rights under the Fourth and Sixth Amendments. The specific
allegations against each Defendant are set forth infra, in Section II. As relief, Plaintiff seeks an
investigation into the conduct of the Allegan County Courts and its officers, reversal of his criminal
charges, and damages from each Defendant.
1
Information regarding Plaintiff’s conviction and sentence are available on his profile on the Michigan
D ep artm ent o f C o rrectio ns O ffender T racking Information System (O T IS ). S ee
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=840704 (visited Apr. 27, 2013).
2
Plaintiff’s complaint does not formally name the Allegan County Jail as a Defendant, but Plaintiff indicates
in his motion to stay that he intends to sue the Allegan County Jail. (See Mot. to Stay, docket #8, Page ID#25.)
3
After filing his original complaint in this action (docket #1), Plaintiff filed an amended complaint (docket #13)
on the prescribed form pursuant to the Court’s order. Although an amended complaint typically replaces the original,
Plaintiff asserts different allegations in the two versions of his complaint. Because he is proceeding pro se, the Court
generously construes the allegations in both versions to be part of Plaintiff’s complaint.
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Discussion
I. Available relief
Plaintiff seeks to have the criminal charges against him reversed, and he moves for
an injunction to stay his sentence. Neither form of relief is available in this action. Any challenge
to Plaintiff’s criminal conviction or sentence should be brought as a petition for habeas corpus and
is not the proper subject of a civil rights action pursuant to § 1983. See Preiser v. Rodriguez, 411
U.S. 475, 484 (1973) (the essence of habeas corpus is an attack by a person in custody upon the
legality of that custody and the traditional function of the writ is to secure release from illegal
custody). The Court does not have authority in this action to overturn Plaintiff’s conviction or to
grant him relief from his sentence. To the extent that Plaintiff seeks damages or another form of
injunctive relief, however, such relief may be available under § 1983, if his claim is not barred by
the doctrine in Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck, the Supreme Court held that a state prisoner cannot make a cognizable claim
for damages under § 1983 for an allegedly unconstitutional conviction, or for “harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,” unless a prisoner shows
that the conviction or sentence has been “reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into question
by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87 (footnote omitted). In other
words, “unless a prisoner’s conviction or sentence were previously set aside by a separate legal or
administrative action, § 1983 would not countenance claims for damages if a finding for the plaintiff
would necessarily invalidate a conviction or sentence.” Thomas v. Eby, 481 F.3d 434, 438 (6th Cir.
2007) (emphasis in original). The holding in Heck has been extended to actions seeking injunctive
or declaratory relief. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997) (declaratory relief);
Clarke v. Stalder, 154 F.3d 186, 189-90 (5th Cir. 1998) (claim for injunctive relief intertwined with
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request for damages); Wilson v. Kinkela, No. 97-4035, 1998 WL 246401, at *1 (6th Cir. May 5,
1998) (injunctive relief). Thus, to the extent that any of Plaintiff’s claims necessarily call into
question his conviction or sentence, such claims are barred unless Plaintiff can show that the
conviction has been overturned or called into question by a state court. Clearly, Plaintiff’s
conviction has not been overturned or called into question, because the appeal from his conviction
is still pending in state court. Consequently, if any of Plaintiff’s claims are not otherwise subject
to dismissal for reasons stated herein, the Court will examine whether Heck would pose a bar to such
claims.
II. Immunity / failure to state a claim
A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[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 ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED . R. CIV . P. 8(a)(2)); see also Hill
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v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A. Judge Bakker
Judge Bakker presided over Plaintiff’s criminal proceedings, including the probable
cause hearing, the trial, and the sentencing phase. Plaintiff alleges that she: (1) did not “run”
motions to dismiss; (2) conducted a probable cause hearing almost a year late; (3) did not examine
evidence to justify probable cause; (4) allowed Plaintiff’s trial to be adjourned from February 28,
2012, to May 1, 2012, so that it was held over a year after Plaintiff was arrested; (5) agreed with the
prosecutor to release Plaintiff’s property and evidence, but did not enforce that agreement;
(6) improperly admitted some evidence at trial; (7) improperly excluded or failed to admit other
evidence that should have been admitted, including testimony by one of Plaintiff’s expert witnesses;
(8) gave misleading instructions to the jury; and (9) improperly added points to Plaintiff’s
sentencing guidelines score when determining the appropriate sentence. (Am. Compl., docket #13,
Page ID##51, 54.)
Judge Bakker is absolutely immune from suit for the foregoing conduct. Generally,
a judge is absolutely immune from a suit for monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10
(1991) (“[I]t is a general principle of the highest importance to the proper administration of justice
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that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own
convictions, without apprehension of personal consequences to himself.”) (internal quotations
omitted); Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997); Barnes v. Winchell, 105 F.3d
1111, 1115 (6th Cir. 1997). Absolute judicial immunity may be overcome in only two instances.
First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in the
judge’s judicial capacity. Mireles, 502 U.S. at 11; see Forrester v. White, 484 U.S. 219, 229 (1988)
(noting that immunity is grounded in “the nature of the function performed, not the identity of the
actor who performed it”). Second, a judge is not immune for actions, though judicial in nature,
taken in the complete absence of all jurisdiction. Mireles, 502 U.S. at 12. Plaintiff’s allegations
clearly fail to implicate either of the exceptions to judicial immunity. There is no doubt that the
aforementioned actions by Bakker were judicial acts and that they were within her jurisdiction.
Thus, Judge Bakker is absolutely immune from liability for them.
Plaintiff also alleges that Judge Bakker failed to have her court reporter prepare
hearing transcripts in a timely fashion, and then tried to hide the fact that the transcripts were false.
Plaintiff does not state a claim against Bakker for conduct by the court reporter because government
officials may not be held liable for the unconstitutional conduct of others under a theory of
respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A
claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v.
Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002).
The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere
failure to act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881,
888 (6th Cir. 2004). Thus, Defendant Bakker’s failure to supervise or control the actions of a court
reporter does not give rise to a constitutional claim.
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Moreover, Plaintiff’s contention that Defendant Bakker tried to hide errors in the
transcripts is unsupported by any allegations of fact. Cf. Iqbal, 556 U.S. at 679 (noting that a
complaint must state enough facts from which to infer more than the mere possibility of
misconduct). Also, Plaintiff alleges no harm as a result of Bakker’s actions. Therefore, Defendant
Bakker will be dismissed on grounds of immunity and failure to state a claim.
B. Magistrate Judge Goodwin
Plaintiff alleges that Magistrate Judge Goodwin abused his power by issuing an arrest
warrant after Plaintiff was “arrested on probable cause,” and by granting a warrant to seize
Plaintiff’s car after the car was seized. (Am. Compl., docket #13, Page ID#56.) Like Judge Bakker,
Magistrate Judge Goodwin is also entitled to absolute immunity. Issuing a warrant is clearly a
judicial act. Plaintiff has not alleged that Goodwin acted in the complete absence of all jurisdiction.
Consequently, Defendant Goodwin also will be dismissed on the basis of immunity.
C. Detective Koster
Detective Koster allegedly arrested Plaintiff “on probable cause” in April 2011 and
had Plaintiff’s car seized, in each case, without a warrant. (Am. Compl., docket #13, Page ID#54.)
Plaintiff asserts that Koster did not have “evidence” to justify the warrantless arrest, and that he
interrogated Plaintiff before explaining why Plaintiff was under arrest. (Id.) Plaintiff also contends
that he did not receive a probable cause hearing until approximately eleven months after his arrest.
At the probable causing hearing, Koster allegedly committed “perjury,” stating: (1) that he had
accepted Plaintiff’s case only a day or two prior to the arrest, rather than five or six; (2) that he
arrested Plaintiff for “CSC” and child abduction, but at the time of arrest he stated that Plaintiff was
being arrested for CSC and stalking; and (3) that he did not call Plaintiff prior to the arrest, though
in fact he had done so. (Id., Page ID#55.)
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First, to the extent that Plaintiff complains about the warrantless arrest by Koster, he
does not state a violation of the Fourth Amendment, because he expressly asserts that Koster acted
on probable cause. The Fourth Amendment protects against “unreasonable searches and seizures.”
U.S. Const. amend IV. “A warrantless arrest by a law officer is reasonable under the Fourth
Amendment where there is probable cause to believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Plaintiff contends that Koster did not
have evidence to justify the arrest, but probable cause is adequate to satisfy Fourth Amendment
standards. See id. Thus, if Koster’s actions were supported by probable cause, the fact that he did
not have a warrant does not render his actions unreasonable for purposes of the Fourth Amendment.
Similarly, if the arrest was supported by probable cause, Koster’s allegedly false statements at the
probable cause hearing do not undermine the validity of the arrest and subsequent detention.
Moreover, Koster’s false statements do not give rise to a constitutional claim because
Plaintiff does not allege that the statements were material to the probable cause determination.
Indeed, Koster’s asserted reasons for the arrest is not relevant to that issue. See Devenpeck, 543 U.S.
at 153 (“Our cases make clear that an arresting officer’s state of mind (except for the facts that he
knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for
making the arrest need not be the criminal offense as to which the known facts provide probable
cause.”) (citations omitted). Likewise, neither the amount of time that Koster was aware of
Plaintiff’s case prior to the arrest, nor the fact that Koster called Plaintiff prior to the arrest, has any
plausible bearing on the issue of probable cause or the reasonableness of the arrest.
In addition, Koster’s failure to notify Plaintiff of the reason for the arrest when it
occurred does not give rise to a § 1983 claim. Plaintiff did not have a constitutional right to know
the reason for his arrest at the time that it occurred. See United States v. McGavic, 337 F.2d 317,
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321 (6th Cir. 1964) (noting that “there is no federal constitutional requirement that the arresting
officer inform the person arrested of the reason for the arrest”) (Edwards, J., concurring).
Plaintiff also complains that he did not receive a probable cause hearing for eleven
months following his warrantless arrest. The Supreme Court has held that “the Fourth Amendment
requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty
following [a warrantless] arrest.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975). That determination
must be made “promptly” after the arrest. Id. at 125. If no determination is made within forty-eight
hours, the burden shifts to the government to demonstrate that the delay was justified by the
existence of an emergency or other extraordinary circumstance. Cnty. of Riverside v. McLaughlin,
500 U.S. 44, 56 (1991). However, Gerstein and McLaughlin only apply where an individual is taken
into custody and detained following an arrest. See Harris v. Cnty. of Calhoun, 127 F. Supp. 2d 871,
875 (W.D. Mich. 2001). Plaintiff does not expressly allege that he was detained for eleven months,
or for any meaningful period of time, following his arrest by Koster. Thus, the Court concludes that
Plaintiff has not stated a Fourth Amendment claim based on the facts alleged. Therefore, the Court
will dismiss Plaintiff’s claim against Koster but will give Plaintiff an opportunity to amend his
complaint to expand on his allegations and to clarify the nature of the claims against Koster.
D. Prosecutor Koch
Defendant Koch was an attorney representing the government in Plaintiff’s criminal
proceedings. Plaintiff alleges that she: (1) refused to drop Plaintiff’s case because it would “look
bad” if she did; (2) attempted to coerce Plaintiff into taking a plea; (3) offered Plaintiff a plea
without putting it in writing, because it would “look bad” if she did; (4) refused to allow or
relinquish evidence that would prove Plaintiff’s innocence; and (5) told Plaintiff’s attorney that, if
there was a conviction, she would attempt to do everything in her power to ensure that Plaintiff
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received the maximum sentence. (Compl., docket #1, Page ID#2; Am. Compl., docket #13,
Page ID#55.)
Koch is entitled to absolute immunity for her actions in prosecuting the criminal
action against Plaintiff.
The Supreme Court embraces a functional approach to determining
whether a prosecutor is entitled to absolute immunity. Kalina v. Fletcher, 522 U.S. 118, 127 (1997);
Burns v. Reed, 500 U.S. 478, 486 (1991); Forrester v. White, 484 U.S. 219, 229 (1988); accord
Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010); Lomaz v. Hennosy, 151 F.3d 493, 497
(6th Cir. 1998). Under a functional analysis, a prosecutor is absolutely immune when performing
the traditional functions of an advocate. Kalina, 522 U.S. at 130; Spurlock v. Thompson, 330 F.3d
791, 797 (6th Cir. 2003); Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir. 1989). Acts which
occur in the course of the prosecutor’s role as advocate are entitled to protection of absolute
immunity, in contrast to investigatory or administrative functions that are normally performed by
a detective or police officer. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 276-78 (1993); Grant, 870
F.2d at 1137. The focus of the inquiry is how closely related the prosecutor’s conduct is to his role
as an advocate intimately associated with the judicial phase of the criminal process. Spurlock, 330
F.3d at 797; Ireland v. Tunis, 113 F.3d 1435, 1443 (6th Cir. 1997).
Koch’s decision to prosecute, her refusal to drop the case against Plaintiff, her
attempts to obtain a plea bargain, and her alleged refusal to release exculpatory evidence are all
closely related to the prosecutor’s role as an advocate; as such, she is entitled to immunity for those
actions. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that initiation of a prosecution
and the presentation of the state’s case, including the deliberate suppression of evidence, is entitled
to immunity); Cady v. Arenac Cnty., 574 F.3d 334, 341 (6th Cir. 2009) (“Conduct associated with
plea bargains has long been held by this court to be ‘so intimately associated with the prosecutor’s
role as an advocate of the State in the judicial process’ as to warrant absolute immunity.”); Jones
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v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986) (holding that the non-disclosure of exculpatory
information is “clearly” within the scope of prosecutorial immunity). Thus, she will be dismissed
on grounds of immunity.
E. Defendant Anderson
Chief Prosecutor Anderson allegedly conspired to conceal civil rights violations,
stating that he would hold Plaintiff’s property until after an appeal. Plaintiff contends that he sent
Anderson a letter about Koch’s “unethical” conduct, but Anderson did not respond. (Am. Compl.,
docket #13, Page ID#57.) Plaintiff’s allegations of conspiracy involving Anderson are too vague
and conclusory to state a plausible claim. To state a claim for conspiracy, a plaintiff must plead with
particularity; vague and conclusory allegations unsupported by material facts are insufficient.
Twombly, 550 U.S. at 565 (recognizing that allegations of conspiracy must be supported by
allegations of fact that support a “plausible suggestion of conspiracy,” not merely a “possible” one);
Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir.
2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106
(6th Cir. 1985); Pukyrys v. Olson, No. 95-1778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996).
A plaintiff’s allegations must show (1) the existence or execution of the claimed conspiracy, (2)
overt acts relating to the promotion of the conspiracy, (3) a link between the alleged conspirators,
and (4) an agreement by the conspirators to commit an act depriving plaintiff of a federal right.
Lepley v. Dresser, 681 F. Supp. 418, 422 (W.D. Mich. 1988). “[V]ague allegations of a
wide-ranging conspiracy are wholly conclusory and are, therefore, insufficient to state a claim.”
Hartsfield v. Mayer, No. 95-1411, 1996 WL 43541, at *3 (6th Cir. Feb. 1, 1996). A simple
allegation that defendants conspired to cover up wrongful actions is too conclusory and too
speculative to state a claim of conspiracy. Birrell v. Michigan, No. 94-2456, 1995 WL 355662, at
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*2 (6th Cir. June 13, 1995). Plaintiff has not alleged a violation of his constitutional rights, much
less an agreement by Anderson to do so.
In addition, Plaintiff does not allege that the property in question was seized or
retained in violation of the Fourth Amendment, and there are no allegations to support such a claim.
To the extent Plaintiff contends that Anderson has unlawfully retained his property in violation of
due process, his claim is barred by the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981), overruled
in part by Daniels v. Williams, 474 U.S. 327 (1986). Under Parratt, a person deprived of property
by a “random and unauthorized act” of a state employee has no federal due process claim unless the
state fails to afford an adequate post-deprivation remedy. If an adequate post-deprivation remedy
exists, the deprivation, although real, is not “without due process of law.” Parratt, 451 U.S. at 537.
This rule applies to both negligent and intentional deprivation of property, as long as the deprivation
was not done pursuant to an established state procedure. See Hudson v. Palmer, 468 U.S. 517, 53036 (1984).
Because Plaintiff’s claim is premised upon allegedly unauthorized acts of a state
official, he must plead and prove the inadequacy of state post-deprivation remedies. See Copeland
v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995); Gibbs v. Hopkins, 10 F.3d 373, 378 (6th Cir.
1993). Under settled Sixth Circuit authority, a prisoner’s failure to sustain this burden requires
dismissal of his § 1983 due-process action. See Brooks v. Dutton, 751 F.2d 197 (6th Cir. 1985).
Plaintiff does not allege that state post-deprivation remedies are inadequate to remedy his loss.
Indeed, several post-deprivation remedies may be available to him. The proper remedy for recovery
of property seized as evidence in a criminal case is to file a motion in the trial court for return of
property. See People v. Washington, 351 N.W.2d 577 (Mich. 1984). In addition, Plaintiff may be
able to bring a civil action in state court for “claim and delivery” under Mich. Comp. Laws
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§ 600.2920, to recover possession of, and recover damages for, goods or chattels that have been
unlawfully taken or detained. Id. Michigan law also authorizes actions in the court of claims
asserting tort or contract claims for money damages “against the state and any of its departments,
commissions, boards, institutions, arms, or agencies.” Mich. Comp. Laws § 600.6419(1)(a).
Plaintiff does not allege any reason why a post-judgment motion in his criminal case or an
independent state action would be inadequate to afford him relief for the deprivation of his personal
property; thus, he does not state a due process claim.
Furthermore, to the extent that Plaintiff claims Anderson failed to properly supervise
Koch, or failed to respond to complaints about Koch, Plaintiff does not state a claim. As indicated
supra with respect to Defendant Bakker, government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious
liability. Iqbal, 556 U.S. at 676; Monell, 436 U.S. at 691. Furthermore, liability may not be
imposed simply because a supervisor failed to act based upon information contained in a grievance.
See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has not alleged that Anderson engaged in any active
unconstitutional conduct. Thus, Anderson will be dismissed for failure to state a claim.
F. CPS Caseworker Cherian
Caseworker Cherian allegedly: (1) “[c]ommitted perjury when she placed an alleged
text message in quotations, indicating a direct quote, and then altered what was said in text”;
(2) failed to conduct an investigation on statements against the mother of the victim; (3) made
contradictory statements in a report; and (4) did not allow Plaintiff to see “family trends.” (Am.
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Compl., docket #13, Page ID#56.) None of Plaintiff’s allegations against Cherian plausibly suggest
a violation of his constitutional rights. Thus, Cherian will be dismissed for failure to state a claim.
G. Detective Kuhn
Defendant Kuhn allegedly conducted a forensic evaluation of Plaintiff’s computers
and phones after they were seized by the police. When the police returned Plaintiff’s laptop
computer, he discovered that it had “spyware” on it, and that it had been used to store personal
information and pictures. (Am. Compl., docket #13, Page ID#56.) In addition, Kuhn has refused
to return all of Plaintiff’s property, even though Judge Bakker and the prosecuting attorney agreed
to release it. (Id.)
A due process claim against Kuhn is barred by the rule in Parratt, for the reasons
stated supra with respect to Defendant Anderson; Plaintiff does not allege that state remedies are
inadequate to allow him to recover his property. Moreover, Plaintiff’s allegations do not state a
violation of the Fourth Amendment, or any other type of constitutional claim, against Kuhn. Thus,
Kuhn will be dismissed for failure to state a claim.
H. Unidentified Officers
Plaintiff further alleges that unidentified officers of the Allegan County Police
Department seized unidentified evidence from his residence pursuant to search and seizure warrants,
but failed to return to the courthouse immediately thereafter to inventory the evidence. The
foregoing does not state a violation of Plaintiff’s constitutional rights.
Plaintiff also alleges that some of the evidence seized from his residence is missing,
particularly three letters by a person named Caleb Fink. (Compl., docket #1, Page ID#2.) While
the loss or destruction of property by a government official may violate Plaintiff’s right to due
process, a due process claim would be subject to the rule in Parratt. Plaintiff does not allege that
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state post-deprivation remedies are inadequate to remedy the loss of his property. Thus, he does not
state a claim against the unidentified officers who seized evidence from his residence.
I. Court Reporter Lang
Defendant Lang allegedly prepared false transcripts and failed to prepare correct
transcripts within 91 days after they were requested by Plaintiff’s lawyer. Plaintiff asserts that the
91-day deadline is found in Rule 7.210(B) of the Michigan Court Rules. (See Supp. to Mot., docket
#11, Page ID#29.) Plaintiff’s claim against Lang fails because he does not allege any injury as a
result of her actions. Furthermore, even if Lang did not comply with the requirements of the
Michigan Court Rules, § 1983 does not provide redress for a violation of the Michigan Court Rules
or state law. See Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d
1162, 1166 (6th Cir. 1994). Consequently, Lang will be dismissed for failure to state a claim.
J. Allegan County Defendants
Plaintiff complains that Allegan County: (1) refused to provide Plaintiff with
“detailed descriptions of what was found on [his] computers, hard drives, and phones”; (2) neglected
to send unidentified evidence to a crime lab in Grand Rapids to be evaluated by a “licensed
forensic”; (3) failed to have a CPS caseworker appear for Plaintiff’s trial; and (4) failed to have one
of Plaintiff’s expert witnesses appear for trial. (Compl., docket #1, Page ID#2.) Plaintiff also
contends that the Allegan County Jail refused to provide assistance for writing a “Stand[a]rd 4” brief
for filing on appeal in his criminal case. (Id., Page ID#3.) In addition, the Allegan County Sheriff’s
Department is named as a Defendant, ostensibly because of the actions of its officers.
As an initial matter, the Allegan County Jail is a building, not a “person” subject to
suit under § 1983. Thus, the Court construes the complaint to assert a claim against Allegan County.
Allegan County and the Allegan County Sheriff’s Department (to the extent that the latter is an
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independent entity) are municipal entities. A municipal entity is only liable under § 1983 when its
policy or custom causes the injury, regardless of the form of relief sought by the plaintiff. Los
Angeles Cnty. v. Humphries, 131 S. Ct. 447, 453-54 (2010) (citing Monell, 436 U.S. at 694). It is
not liable for the conduct of its employees or agents under a theory of respondeat superior. Monell,
436 U.S. at 694. In a municipal-liability claim, the finding of a policy or custom is the initial
determination to be made. Doe v. Claiborne Cnty., 103 F.3d 495, 509 (6th Cir. 1996). The policy
or custom must be the moving force behind the constitutional injury, and a plaintiff must identify
the policy, connect the policy to the governmental entity and show that the particular injury was
incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d 629, 639 (6th
Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003); Claiborne Cnty., 103 F.3d at 508-09.
Plaintiff’s claim fails at the first step because he does not identify a policy or custom that is the
source of his injuries.
A “policy” includes a “policy statement, ordinance, regulation, or decision officially
adopted and promulgated” by the county. Monell, 436 U.S. at 690. Plaintiff has not identified an
official policy of the county or the county sheriff’s department.
A “custom”
. . . for the purposes of Monell liability must be so permanent and well settled as to
constitute a custom or usage with the force of law. In turn, the notion of “law”
includes deeply embedded traditional ways of carrying out state policy. It must
reflect a course of action deliberately chosen from among various alternatives. In
short, a “custom” is a “legal institution” not memorialized by written law.
Claiborne Cnty., 103 F.3d at 507 (citations and quotations omitted). Plaintiff has not identified a
custom. Instead, Plaintiff alleges discrete instances in which the county or its officials allegedly
failed or neglected to act.
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Furthermore, even if Plaintiff had sufficiently alleged a policy or custom, his
allegations do not state a viable constitutional claim. Plaintiff does not have a freestanding
constitutional right to receive a description of property seized from him, or to have evidence against
him evaluated by licensed forensic experts.
Regarding the county’s failure to secure the appearance of witnesses, Plaintiff claims
that this failure violated his rights under the Confrontation Clause and the Compulsory Process
Clause. These Sixth Amendment clauses apply to the States through the Fourteenth Amendment.
Pennsylvania v. Ritchie, 480 U.S. 39, 45 n.5 (1987). The Compulsory Process Clause provides that
in all criminal prosecutions the accused shall enjoy the right to have compulsory process for
obtaining witnesses in his favor. U.S. Const. amend VI. The Confrontation Clause provides that
a person accused of a crime has the right “to be confronted with the witnesses against him” at trial.
Id. at 52-53 & n.5. Plaintiff’s allegations regarding these claims are wholly conclusory; they are not
supported by any material facts regarding his trial proceedings. Furthermore, the only injury alleged
is Plaintiff’s conviction. Consequently, his Sixth Amendment claims are barred by Heck, because
success would necessarily imply the invalidity of his conviction.
To the extent Plaintiff claims that the jail denied him his right of access to the courts
by failing to provide legal assistance, see Bounds v. Smith, 430 U.S. 817 (1977), he does not state
a claim because he acknowledges that he had counsel to assist him. Appointment of counsel fulfills
the state’s constitutional obligation to provide inmates with full access to the courts. Holt v. Pitts,
702 F.2d 639, 640 (6th Cir. 1983). Also, Plaintiff does not allege any injury to a claim in his
criminal proceedings, as is necessary to state an access-to-the-courts claim. See Lewis v. Casey, 518
U.S. 343, 349, 351-53 (1996) (holding that a plaintiff must show that the shortcomings in the prison
legal assistance program or lack of legal materials have hindered, or are presently hindering, his
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efforts to pursue a nonfrivolous legal claim); see also Christopher v. Harbury, 536 U.S. 403, 415
(2002) (holding that the underlying legal claim must be described in the complaint).
For the foregoing reasons, therefore, Plaintiff does not state a claim against the
Allegan County defendants, including the county itself, the Allegan County Sheriff’s Department,
and the Allegan County Jail.
III. Motion for stay / appointment of counsel
Plaintiff’s motion seeks a stay of his sentence and appointment of counsel. As
indicated, the Court does not have authority in this action to grant Plaintiff relief from his criminal
sentence. Regarding Plaintiff’s request for counsel, indigent parties in civil cases have no
constitutional right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d
489, 492 (6th Cir. 1995); Lavado v. Keohane, 992 F.2d 601, 604-05 (6th Cir. 1993). The Court may,
however, request an attorney to serve as counsel, in the Court’s discretion. Abdur-Rahman, 65 F.3d
at 492; Lavado, 992 F.2d at 604-05; see Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S.
296 (1989).
Appointment of counsel is a privilege that is justified only in exceptional
circumstances. In determining whether to exercise its discretion, the Court should consider the
complexity of the issues, the procedural posture of the case, and Plaintiff’s apparent ability to
prosecute the action without the help of counsel. See Lavado, 992 F.2d at 606. The Court has
carefully considered these factors and determines that, at this stage of the case, the assistance of
counsel does not appear necessary to the proper presentation of Plaintiff’s position. Thus, Plaintiff’s
motion for a stay and for appointment of counsel will be denied.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendants Bakker, Goodwin, Koch, Koster, Anderson, Cherian, Kuhn, Lang, the
Allegan County Sheriff’s Department, unidentified officers of the Allegan County Sheriff’s
Department, and the Allegan County Jail will be dismissed for failure to state a claim and/or on
grounds of immunity pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
With respect to Defendant Koster, the Court will provide Plaintiff an opportunity to amend the
complaint with regard to Plaintiff’s claim against Defendant Koster that Plaintiff did not receive a
probable cause hearing for eleven months following his warrantless arrest. Plaintiff’s motion for
appointment of counsel and for a stay (docket #8) will be denied.
An Order consistent with this Opinion will be entered.
Dated: August 12, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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