Ward #240660 v. Dunklow et al

Filing 14

OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NATHANIEL WARD,
Plaintiff,

Case No. 1:13-cv-304

v.

Honorable Janet T. Neff

UNKNOWN DUNKLOW et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, 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. 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, Plaintiff’s action will be dismissed as frivolous and for failure
to state a claim.

Factual Allegations
Plaintiff Nathaniel Ward presently is incarcerated at the West Shoreline Correctional
facility. He sues the following Defendants: Patrolman (unknown) Dunklow; Detective Jason Otting;
K-9 Officer (unknown) Perosky; Detective (unknown) O’Rourke; Trooper (unknown) Mihalic;
Officer Karen E. Perrin; Monica Bradford; Officer Allan S. Brow; Detective (unknown) Dankers
and (unknown) Metdepennigen; and attorney Craig W. Elhart.
According to the complaint, on April 16, 2007, Plaintiff was riding as a passenger
in a vehicle traveling in or near Traverse City. The vehicle was stopped by Defendant Dunklow for
having an expired registration ticket. After stopping the car and obtaining the driver’s identification,
Dunklow asked Plaintiff for identification. He then ordered Plaintiff to get out of the car, sit on the
ground, and turn over the $1,108.00 he had in his possession. Dunklow searched the vehicle without
consent or probable cause. The driver was charged with traffic misdemeanors, but Plaintiff was not
charged with anything. Plaintiff’s money was not returned.
On April 23, 2007, Plaintiff met with Defendant Attorney Elhart seeking
representation in a lawsuit he wished to file against the Traverse City Police Department. Elhart
agreed to represent Plaintiff. After Plaintiff signed a representation agreement, Elhart sent a demand
letter to the police department, and it identified the badge numbers of three officers. On May 17,
2007, Plaintiff received a phone call from Defendant Otting, asking him to come in to the Michigan
State Police post to talk about the seizure of his money. When he walked in, Plaintiff was arrested
and charged with public drunkenness. When Plaintiff resisted, he was charged with resisting arrest.
Plaintiff alleges that he was improperly searched and arrested without probable cause
and without a warrant, in violation of the Fourth Amendment. He also alleges that he was subjected

-2-

to malicious prosecution. In addition, he alleges that his property was taken without probable cause.
Finally, he appears to complain that Defendant Elhart committed malpractice and violated his trust.
He seeks class certification for a class of all individuals who have been subjected to arrests without
warrant and malicious prosecution.
Discussion
I.

Frivolousness

State statutes of limitations and tolling principles apply to determine the timeliness
of claims asserted under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 268-69 (1985). For
civil rights suits filed in Michigan under § 1983, the statute of limitations is three years. See MICH.
COMP. LAWS § 600.5805(10); Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986) (per curiam);
Stafford v. Vaughn, No. 97-2239, 1999 WL 96990, at *1 (6th Cir. Feb. 2, 1999). Accrual of the
claim for relief, however, is a question of federal law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir.
1996); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). The statute of limitations begins to run
when the aggrieved party knows or has reason to know of the injury that is the basis of his action.
Collyer, 98 F.3d at 220.1
Plaintiff’s complaint is untimely. He asserts claims arising in April and May of 2007.
Plaintiff had reason to know of the “harms” done to him at the time they occurred. Hence, his
claims accrued in 2007. However, he did not file his complaint until March 2013, well past
Michigan’s three-year limit. Moreover, Michigan law no longer tolls the running of the statute of

1

28 U.S.C. § 1658 created a “catch-all” limitations period of four years for civil actions arising under federal
statutes enacted after December 1, 1990. The Supreme Court’s decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369 (2004), which applied this federal four-year limitations period to a suit alleging racial discrimination under § 1981
does not apply to prisoner claims under 28 U.S.C. § 1983 because, while § 1983 was amended in 1996, prisoner civil
rights actions under § 1983 were not “made possible” by the amended statute. Id. at 382.

-3-

limitations when a plaintiff is incarcerated. See MICH. COMP. LAWS § 600.5851(9). Further, it is
well established that ignorance of the law does not warrant equitable tolling of a statute of
limitations. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); Jones v. Gen. Motors Corp.,
939 F.2d 380, 385 (6th Cir. 1991); Mason v. Dep’t of Justice, No. 01-5701, 2002 WL 1334756, at
*2 (6th Cir. June 17, 2002).
A complaint “is frivolous where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint may be dismissed as frivolous if it is
time-barred by the appropriate statute of limitations. See Dellis v. Corr. Corp. of Am., 257 F.3d 508,
511 (6th Cir. 2001). The Sixth Circuit has repeatedly held that when a meritorious affirmative
defense based upon the applicable statute of limitations is obvious from the face of the complaint,
sua sponte dismissal of the complaint is appropriate. See Dellis, 257 F.3d at 511; Beach v. Ohio,
No. 03-3187, 2003 WL 22416912, at *1 (6th Cir. Oct. 21, 2003); Castillo v. Grogan, No. 02-5294,
2002 WL 31780936, at *1 (6th Cir. Dec. 11, 2002); Duff v. Yount, No. 02-5250, 2002 WL
31388756, at **1-2 (6th Cir. Oct. 22, 2002); Paige v. Pandya, No. 00-1325, 2000 WL 1828653 (6th
Cir. Dec. 5, 2000). Accordingly, Plaintiff’s action must be dismissed as frivolous.
II.

Failure to State a Claim

Even if his complaint were not time-barred, it would fail to state a claim against
Defendants Perosky, Mihalic, O’Rourke, Perrin, Bradford, Brow, Dankers, Metdepennigen and
Elhart.
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

-4-

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
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); Dominguez v.
Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). 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).

-5-

Plaintiff alleges that he hired Defendant Elhart to file a civil action against the
Traverse City Police Department, and that Elhart should have filed suit rather than sending a demand
letter. In order for a private party’s conduct to be under color of state law, it must be “fairly
attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street, 102 F.3d
at 814. There must be “a sufficiently close nexus between the State and the challenged action of [the
defendant] so that the action of the latter may be fairly treated as that of the State itself.” Skelton
v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison Co., 419 U.S.
345, 351 (1974)). Plaintiff has not presented any allegations by which his private attorney’s conduct
could be fairly attributed to the State. In Polk County v. Dodson, 454 U.S. 312 (1981), the Supreme
Court held that even criminal defense counsel performs a private, not an official, function and is not
a state actor. Nothing about Plaintiff’s allegations suggests that Plaintiff’s private defense counsel
was acting under color of state law. Accordingly, Plaintiff fails to state a § 1983 claim against
Defendant Elhart.
In addition, Plaintiff fails even to mention Defendants Perosky, Mihalic, O’Rourke,
Perrin, Bradford, Brow, Dankers or Metdepennigen in the body of his complaint. It is a basic
pleading essential that a plaintiff attribute factual allegations to particular defendants. See Twombly,
550 U.S. at 544 (holding that, in order to state a claim, Plaintiff must make sufficient allegations to
give a defendant fair notice of the claim). Where a person is named as a defendant without an
allegation of specific conduct, the complaint is subject to dismissal, even under the liberal
construction afforded to pro se complaints. See Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir.
2002) (dismissing the plaintiff’s claims where the complaint did not allege with any degree of
specificity which of the named defendants were personally involved in or responsible for each

-6-

alleged violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir.
Nov. 30, 2000) (requiring allegations of personal involvement against each defendant)); Rodriguez
v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against
those individuals are without a basis in law as the complaint is totally devoid of allegations as to
them which would suggest their involvement in the events leading to his injuries.”); see also Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir. 2003);
Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); Williams v. Hopkins, No. 06-14064, 2007 WL
2572406, at *4 (E.D. Mich. Sept. 6, 2007); McCoy v. McBride, No. 3:96-cv-227RP, 1996 WL
697937, at *2 (N.D. Ind. Nov. 5, 1996); Eckford-El v. Toombs, 760 F. Supp. 1267, 1272-73 (W.D.
Mich. 1991). Because he fails to even mention Defendants Perosky, Mihalic, O’Rourke, Perrin,
Bradford, Brow, Dankers or Metdepennigen in his complaint, Plaintiff’s allegations fall far short of
the minimal pleading standards under FED. R. CIV. P. 8 (requiring “a short and plain statement of
the claim showing that the pleader is entitled to relief”).
III.

Class Certification

Because Plaintiff’s individual claims are time-barred, Plaintiff’s motion for class
certification is moot. See Moniz v. Cox, No. 11-1790, 2013 WL 216070, at *5 (6th Cir. Jan. 22,
2013) (affirming dismissal of a motion for class certification on the ground that it was moot in light
of the prisoner’s failure to state a claim).
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed as frivolous and for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b).

-7-

The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$455.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $455.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: July 2, 2013

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

-8-