Censke #10929-040 (Formerly MDOC #484602) v. Marquette, County of, et al

Filing 72

ORDER ADOPTING REPORT AND RECOMMENDATION 68 re 40 : Defendants' Motion 40 for Summary Judgment is GRANTED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
_______________________
THOMAS CENSKE,
Plaintiff,
Case No. 2:11-CV-119
v.
HON. GORDON J. QUIST
COUNTY OF MARQUETTE, et al.,
Defendants.
_____________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
On April 25, 2013, Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (R & R) (docket no. 68) recommending that this Court grant Defendant Gregg
Gustafson’s motion for summary judgment. Both Censke and Gustafson have filed timely
Objections to the R & R (docket nos. 69 & 70). When a party properly objects to any part of a
magistrate judge’s proposed disposition, this Court must review the disposition de novo. Fed. R.
Civ. P. 72(b)(3). After conducting a de novo review of the R & R, the Objections, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted.
I. Censke’s Objections
Censke makes three objections to the R & R. First, he objects that qualified immunity is not
an available defense to Americans with Disabilities Act (ADA) or Rehabilitation Act (RA) claims.
Second, he argues that the R & R failed to address his failure to accommodate claim. Third, he
argues that the R & R failed to toll the statute of limitations on the basis of his mental illness.
In the R & R, the magistrate judge concluded that because Gustafson did not violate the
ADA or RA, Gustafson is entitled to qualified immunity. Censke first objects that qualified
immunity is not available to Gustafson as a defense. “However, [the Sixth Circuit], as well as a
number of [its] sister Circuits, have granted state employees qualified immunity against ADA and

Rehabilitation Act claims.” Bartell v. Lohiser, 215 F.3d 550, 555 & n.1 (6th Cir. 2000) (citing, for
example, Stigall v. Lewis, No. 97-5301, 1999 WL 183392, at *2 (6th Cir. Mar. 16, 1999)).
“Accordingly, [a plaintiff’s] claim that qualified immunity is not available for ADA and
Rehabilitation Act claims is without merit.” Id. Therefore, the Court will overrule Censke’s first
objection.
Second, Censke objects that the R & R failed to address his failure to accommodate claim.
This argument also lacks merit. The magistrate judge decided the case on the basis of qualified
immunity, so Censke’s objection, standing alone, would not warrant denial of the summary
judgment motion unless Censke can otherwise show that Gustafson violated the ADA or RA. The
basis of Censke’s claim is that he was “regarded as” disabled (R & R, docket no. 68, Page ID 530).
See 42 U.S.C. § 12102(3)(A). An entity covered by the ADA is “not required to provide a
reasonable accommodation to an individual who meets the definition of disability solely under the
‘regarded as’ prong” of the definition of a disability. 29 C.F.R. § 1630.2(o)(4). Thus, Gustafson
was not required to accommodate Censke. The Court will overrule Censke’s objection.
Finally, Censke argues that the R & R erred because it did not toll the statute of limitations
on the basis of his “mental illness” (docket no. 70, Page ID 553). Censke’s ADA claim is subject
to the three-year statute of limitations for general personal injury actions in Michigan. See, e.g.,
Fox v. Mich. Dep’t of Corrs., No. 08-CV-14410, 2010 WL 726517, at *3 (E.D. Mich. Feb. 24, 2010)
(citing Carroll v. Wilkerson, 782 F.2d 44 (6th Cir. 1986) (per curiam)); Lewis v. Fayette Cnty. Det.
Ctr., No. 99-5538, 2000 WL 556132, at *2 (6th Cir. Apr. 28, 2000) (“[C]ourts faced with ADA or
Rehabilitation Act claims have also looked to the state’s statute of limitations for personal injury
actions.”). Where, as here, a federal court “borrows” a state statute of limitations, state law also
governs questions of tolling. Bd. of Regents v. Tomanio, 446 U.S. 478, 484, 100 S. Ct. 1790, 1795
(1980); see also Wosniak v. Henderson, No. 99-1916, 2000 WL 1434698, at *3 (6th Cir. Sept. 19,
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2000) (per curiam). Michigan Compiled Laws § 600.5851 governs tolling due to incapacity. It
states in pertinent part,
[I]f the person first entitled to ... bring an action under this act is under 18 years of age
or insane at the time the claim accrues, the person or those claiming under the person
shall have 1 year after the disability is removed through death or otherwise, to ... bring
the action although the period of limitations has run.
Mich. Comp. Laws § 600.5851(1). The statute defines “insane” as “a condition of mental
derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound
to know and is not dependent on whether or not the person has been judicially declared to be
insane.” Id. § 600.5851(2). “To be considered a disability, the infancy or insanity must exist at the
time the claim accrues. If the disability comes into existence after the claim has accrued, a court
shall not recognize a disability under this section for the purpose of modifying the period of
limitations.” Id. § 600.5851(3).
In this case, Censke alleges that the magistrate judge should not have applied the statute of
limitations to limit Censke’s claims to those that arose in Marquette County Jail in 2008 and 2009.
To the extent that Censke’s claims accrued prior to 2008, Censke’s own pattern of filing and actively
litigating lawsuits in this district belies his argument that he was mentally incompetent for purposes
of the statute of limitations. The definition of “insane” under Michigan law turns on whether a
mental condition “prevent[s] the sufferer from comprehending rights he or she is otherwise bound
to know.” Here, Censke’s active litigation before this district shows that Censke was not unable to
file a claim within the applicable three-year statute of limitations period.1 Thus, there is no
indication that Censke was unable to effectively pursue his legal remedies, and he has not made the
required showing for equitable tolling. The Court will overrule his objection.

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See, e.g., Censke v. Mich. Dep’t Corrs., 1:04-cv-751 (2004); Censke v. United States Dep’t of Justice, 1:04-cv804 (2004); Censke v. McKee, 1:05-cv-141 (2005); Censke v. United States Dep’t of Justice, 1:06-cv-23 (2006); Censke
v. Mich. Dep’t Corrs., 1:07-cv-201 (2007); Censke v. Smith, 1:07-cv-691 (2007).

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II. Gustafson’s Objection
Defendant Gustafson also objects to the R & R. His sole argument is that the R & R should
have addressed the question of whether the ADA applies to claims by inmates in state correctional
facilities. In support of his motion for summary judgment, Gustafson argued that the ADA does not
apply to inmates in state prisons. Recommending that Gustafson’s motion for summary judgment
be granted on the issue of qualified immunity, the magistrate judge did not address the issue of the
ADA’s application. Gustafson now requests that this Court address the issue. Because the Court
need not reach the issue to decide the instant motion—Gustafson’s motion for summary
judgment—the Court declines to address the issue. See, e.g., Kalitta Air, LLC v. GSBD & Assocs.,
LLC, No. 12-cv-12554, 2013 WL 3271820, at *3 (E.D. Mich. June 27, 2013) (“The Court need not
address all of Cree’s arguments because the first . . . persuasively disposes of the RICO claim.”).
Seeing no other objections, the Court will adopt the R & R. Therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and Recommendation
(docket no. 68) is ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (docket no.
40) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Objection to the Report and Recommendation
(docket no. 70) is OVERRULED.
IT IS FURTHER ORDERED that Defendant’s Objection to the Report and
Recommendation (docket no. 69) is OVERRULED.
This case is concluded. A separate judgment shall issue.

Dated: August 20, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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