Jenkins #172475 v. Nationwide Mutual Insurance Company et al

Filing 8

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______

VAN JENKINS,
Plaintiff,

Case No. 1:21-cv-85

v.

Honorable Paul L. Maloney

NATIONWIDE MUTUAL INSURANCE
COMPANY et al.,
Defendants.

____________________________/
OPINION
This is a civil action brought by a state prisoner. Previously, the Court granted
Plaintiff leave to proceed in forma pauperis under 28 U.S.C. § 1915. Under the Prison Litigation
Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court is required to dismiss
any action brought by a Plaintiff proceeding in forma pauperis 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). 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
because it both fails to state a claim and is frivolous.
Discussion
Factual allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Gus Harrison Correctional Facility (ARF) in Adrian, Lenawee County, Michigan.

Plaintiff sues Nationwide Mutual Insurance Company (Nationwide) and its employees Scott W.
Boyer, Blake Staake, and Patrick Reynolds; University of Michigan Credit Union (UMCU) and
its employees Elgin Batie, Nolan James, and Andrea Smith; Rightway Automotive Credit
Company (Rightway) and its employee Eric Pennington; Livonia Police Department and its
employees Detective Daniel Tar and Police Officers Kristen Crawford and Katy Ann Perkins; and
Michigan Department of Insurance and Financial Services (DIFS) and its employees Insurance
Analyst Tracy Lord Bishop and Finance Analyst Stanley Pollitt.
Plaintiff’s complaint is a morass of allegations lacking any coherence sufficient to
clearly identify what he intends to claim. In 2012, while on parole, Plaintiff purchased a 2011
Ford Escape with financing provided by UMCU. On May 6, 2013, Plaintiff and his vehicle were
involved in a two-car collision on private property in Woodhaven, Michigan. His vehicle suffered
damage in the collision.
A little more than a week after that collision, on May 13, 2013, Defendants
Crawford and Perkins pulled over Plaintiff after observing him driving the wrong way down a oneway street. Plaintiff first provided an invalid international driving permit, and although Defendants
Crawford and Perkins could see Plaintiff’s State identification card, he refused to provide it. After
exiting the vehicle, Plaintiff was uncooperative and reached for his pocket. At that point,
Defendants Crawford and Perkins handcuffed Plaintiff. Defendants Crawford and Perkins found
several burglary tools in Plaintiff’s vehicle as well as ski masks, gloves, and flashlights. They also
found a driver’s license and ring belonging to a woman who had reported the items stolen. Plaintiff
was arrested, and his vehicle was impounded. Several more items were later found in Plaintiff’s
vehicle including debit cards that had been reported stolen and several pawn shop business cards.
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Apparently, Plaintiff left his vehicle impounded, and Oakland County declared it
abandoned on July 17, 2013. (See ECF No. 1-12, PageID.41.) On August 23, 2013, however, the
vehicle was reported as “[r]eleased to [o]wner.” (ECF No. 1-12, PageID.44.) On March 26, 2014,
UMCU reported that Plaintiff’s former vehicle sold for $10,128.00. (ECF No. 1-9, PageID.37.)
Because Plaintiff still owed UMCU $29,266.67 between the loan and other fees, his account
remained deficient in the amount of $19,133.67 after accounting for the sale. (Id.)
Attached to his complaint, Plaintiff has included his DIFS filings from
December 30, 2020, and January 7, 2021; the sales contract for the Ford Escape; information on
his insurance policy and UMCU’s requirement that he insure the secured interest; several letters
from UMCU explaining what Plaintiff owed on his loan; a facsimile of a book page highlighted to
show a Michigan state statute pertaining to acceleration clauses in installment sales contracts; case
reports from the collision and from his arrest; and one page of 24 from an August 17, 2013, hospital
admission report.
For relief, Plaintiff seeks damages, costs, and fees.
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
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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)).
42 U.S.C. § 1983
Reading Plaintiff’s complaint with all due liberality, Haines, 404 U.S. at 520,
Plaintiff intends to bring a civil rights action under 42 U.S.C. § 1983 against the Defendants who
are government agencies and government agency employees.
A.

State Actors
Plaintiff has named as Defendants (1) government agencies, (2) employees of

government agencies, (3) private entities, and (4) employees of private entities. To be clear, the
Court does construe Plaintiff’s complaint as intending a § 1983 action against the private entities
and their employees.
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
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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); Street v. Corr. Corp. of Am., 102 F.3d 810,
814 (6th Cir. 1996). 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)).
Where the defendants are not state officials, their conduct will be deemed to
constitute state action only if it meets one of three narrow tests. The first is the symbiotic
relationship test, or nexus test, in which the inquiry focuses on whether “the State had so far
insinuated itself into a position of interdependence with the [private party] that it was a joint
participant in the enterprise.” Jackson, 419 U.S. at 357–58. Second, the state compulsion test
describes situations “in which the government has coerced or at least significantly encouraged the
action alleged to violate the Constitution.” NBC v. Commc’ns Workers of Am., 860 F.2d 1022,
1026 (11th Cir. 1988); accord Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Adickes v. S.H. Kress
& Co., 398 U.S. 144, 170 (1970). Finally, the public function test covers private actors performing
functions “traditionally the exclusive prerogative of the State.” Jackson, 419 U.S. at 353; accord
West, 487 U.S. at 49–50. See generally, Lugar, 457 U.S. at 936–39 (discussing three tests).
Plaintiff has not presented any allegations by which the conduct of Defendants
Nationwide, UMCU, Rightway, and their respective Defendant-employees could be fairly
attributed to the State. Accordingly, he cannot state a § 1983 claim against them.
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B.

Statute of Limitations
To the extent that Plaintiff intends to allege a claim under 42 U.S.C. § 1983 against

DIFS, Livonia Police Department, and their respective Defendant-employees, his complaint is
barred by the statute of limitations. 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(2); 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 § 1983 claims against these Defendants are untimely. Plaintiff asserts
claims arising no later than March 2014. Plaintiff had reason to know of the “harms” done to him
at the time they occurred. Hence, his claims accrued by 2014. However, he did not file his
complaint until January 2021, well past Michigan’s three-year limit. Moreover, Michigan law no
longer tolls the running of the statute of 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

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 42 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.

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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 claim barred by the statute of limitations is subject to dismissal for failure to state
a claim. See Jones v. Bock, 549 U.S. 199, 215 (2007) (“If the allegations, for example, show that
relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for
failure to state a claim . . . .”); see also Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017)
(holding that if, on the face of a complaint, the allegations show that relief is barred by an
affirmative defense (lack of exhaustion), the complaint is subject to dismissal for failure to state a
claim) (citing Jones, 549 U.S. at 215); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547
(6th Cir. 2012) (when a complaint on its face is barred by the statute of limitations, it fails to state
a claim). Accordingly, the Court will dismiss, for failure to state a claim, the complaint against
Defendants DIFS, Livonia Police Department, and their respective Defendant-employees.
Remaining Claims
To the extent Plaintiff intends to bring a breach of contract or other state law claim
against Defendants Nationwide, UMCU, Rightway, and their respective Defendant-employees,
this Court lacks jurisdiction.
As the party seeking to bring this action into the federal courts, Plaintiff bears the
burden of establishing the Court’s subject matter jurisdiction over his claim. See Whittle v. United
States, 7 F.3d 1259, 1262 (6th Cir. 1993) (citing Welsch v. Gibbs, 631 F.2d 436, 438 (6th Cir.
1980)). Under 28 U.S.C. § 1332, a Plaintiff may bring a state law claim in a federal court based
on diversity of citizenship if the amount “in controversy exceeds . . . $75,000, . . . and is
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between . . . citizens of different States.”

§ 1332.

Courts have interpreted the language

“between . . . citizens of different States” to require that no defendant may be a citizen of the same
state as any plaintiff. See Caudill v. North Am. Media Corp., 200 F.3d 914, 916 (6th Cir. 2000).
Here, Plaintiff and several Defendants appear to be citizens of the State of
Michigan. Plaintiff alleges that Defendants UMCU, Rightway, Batie, James, Smith, Pennington,
Boyer, Staake, and Reynolds are all located in Michigan. Plaintiff was working in Michigan at
the time his 2013 arrest, and he remained incarcerated at ARF in Michigan at the time he filed his
complaint. He has not alleged any facts, nor has he offered any documentation, leading the Court
to believe that complete diversity existed between the parties at the time he filed the complaint.
Therefore, Plaintiff has failed to meet his burden to establish that the Court has subject matter
jurisdiction over the claim. See Shea v. State Farm Ins. Co., 2 F. App’x 478, 479 (6th Cir. 2001).
Accordingly, the Court must dismiss the complaint against Defendants Nationwide, UMCU,
Rightway, and their respective Defendant-employees.
Frivolity
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). Plaintiff’s complaint presents a variety of
ramblings and is otherwise incoherent, in violation of the short and plain statement requirement of
Fed. R. Civ. P. 8. Even giving the most liberal construction to Plaintiff’s complaint, see Haines,
404 U.S. at 520, the Court is unable to clearly find that a cause of action has been alleged—much
less alleged against any named Defendant. Because the Court is unable to discern any identifiable
claim, Plaintiff’s complaint necessarily lacks an arguable basis either in law or fact. See Neitzke,
490 U.S. at 395; see also Parker v. Parker Int’l/Parker Tobacco Co., No. 89-6078, 1990 WL
63523, at *1 (6th Cir. May 11, 1990). Accordingly, Plaintiff’s action is also subject to dismissal
because it is frivolous.
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Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Plaintiff’s complaint will be dismissed because it fails to state a claim and
is frivolous, under 28 U.S.C. § 1915(e)(2). 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 the Court concludes that
Plaintiff’s claims are properly dismissed, the Court also concludes that any issue Plaintiff might
raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Accordingly, the Court certifies that an appeal would not be taken in good faith.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A judgment consistent with this opinion will be entered.

Dated:

March 31, 2021

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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