Opinion
Case No. 1:01-cv-672
March 6, 2003
OPINION
This is an action brought pro se by a former employee of the Zeeland Public Schools. Plaintiff last worked as a teacher for the Zeeland Public School District in 1993. During the decade which followed, plaintiff initiated numerous unsuccessful lawsuits against the school district, its employees, and affiliated individuals. On October 18, 2002, plaintiff began this lawsuit by filing a two-page complaint. On February 15, 2002, plaintiff filed his First Amended Complaint. (docket # 3). Plaintiff's First Amended Complaint names four defendants: the Zeeland Board of Education, Superintendent Gary Feenstra, and School Board members Tom Brock and Don Lake.
The caption of the First Amended Complaint lists "All other board members, whose names are unknown or unremembered at this time." Plaintiff never sought or obtained leave to amend his complaint to make those unidentified Board members defendants in this lawsuit.
Plaintiffs First Amended Complaint is far from a model of clarity. Under the heading "FACTS," plaintiff identifies the basis for his latest lawsuit:
Plaintiff Gerald Bush has been an employee of the Zeeland Public Schools since 1969. Due to the harassment and unlawful acts and unconstitutional actions taken against him by his supervisor Michael Z. Jones, in and before 1993, Mr. Bush was required to take sick leave. Jones was Principal of Zeeland High School at the time and Personnel Director. Defendants were "deliberately indifferent" to these violations and/or conspired with Jones to terminate Plaintiff.
Mr. Bush filed for Workers Compensation and had a trial lasting almost 2 years. Defendants subpoenaed information from Mr. Bush's psychologist and used it against him. Subsequent to the conclusion thereof, Mr. Bush was terminated unlawfully and unjustly again using the same information. Defendants did not grant Mr. Bush a pre-termination hearing. Zeeland Public Schools has violated the Plaintiff's rights of Due Process of Law by not granting a pre-termination hearing before taking action to terminate his employment and rights thereof with Zeeland Public Schools and other acts in retaliation for Mr. Bush's lawsuits, free speech therein and defending his Constitutional and legal rights.
(First Amended Complaint, p. 3, docket # 3). After this statement, plaintiff lists ten separate counts:
1. Violation of plaintiff's privacy rights under the Ninth Amendment;
2. Violation of plaintiff's free speech rights under the First Amendment;
3. Violation of plaintiff's due process rights under the Fourteenth Amendment by not providing plaintiff with a pre-termination hearing;
4. Violation of plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment;
5. Violation of plaintiff's Sixth Amendment and due process "right to face and confront his accusers;"
6. Violation of plaintiff's "state granted property rights in employment" in violation of the Fourteenth Amendment;
7. "Violation of the US Constitution Supremacy Clause by Michigan's teacher tenure statute;"
8. Violation of defendants' "policy on discrimination in the workplace;"
9. Conspiracy to deprive plaintiff of "multiple rights;" and
10. Deliberate indifference "to multiple and continued violations of plaintiff's substantial rights."
(Id. at 4-5). Plaintiff seeks relief in the form of monetary damages in excess of $50,000 "for all back wages unjustly denied him, including retirement, monetary equivalent of medical, dental, and life insurance benefits, all compensatory damages, punitive damages and injunctive and declaratory relief."
On July 8, 2002, defendants filed the motion for summary judgment now before the court. (docket # 21). Also before the court is defendants' August 19, 2002 motion to impose Rule 11 sanctions against plaintiff (docket # 32). For the reasons set forth herein, defendants' motions will be granted.
This case was originally assigned to Senior Judge Douglas W. Hillman. Upon Judge Hillman's retirement, the case was initially reassigned to United States District Judge Gordon J. Quist. (docket # 41). Judge Quist recused himself from hearing this case, and the case was reassigned to Chief Judge Robert Holmes Bell. (docket #'s 45, 46).
Applicable Standard
Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); APJ Assoc., Inc. v. North Am. Philips Corp., 317 F.3d 610, 614 (6th Cir. 2003); Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) ( en banc). The standard for determining whether summary judgment is appropriate is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381, 1385 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); see also Dudley v. Eden, 260 F.3d 722, 725 (6th Cir. 2001); March v. Levine, 249 F.3d 462, 471 (6th Cir. 2001). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Sommer v. Davis, 317 F.3d 686, 690 (6th Cir. 2003).
Facts
The following facts are beyond genuine issue. Plaintiff became a shop teacher at Zeeland Public Schools in 1969, and he achieved tenure in approximately 1971. (Plf Aff., ¶ 2, docket # 32). Plaintiff last worked as a teacher for the Zeeland Public Schools in 1993. Plaintiff "attended the first day of 1993-94 [school year], called in sick the 2nd day and [has] not been back." (Plf. Aff., ¶ 19).
A. Plaintiffs Prior Federal Lawsuit
On May 24, 1996, plaintiff filed a lawsuit in this court against numerous defendants associated with the Zeeland Public Schools. See Bush v. Zeeland Bd. of Educ. et al., No. 1: 96cv420 (W.D.Mich.). Plaintiff's complaint named ten defendants:
1. Zeeland Board of Education;
2. Michael Z. Jones, past Principal of Zeeland High School and Personnel Manager for the Zeeland Schools;
3. Kenneth Harper, Superintendent (1979 to 1993);
4. Jay Klinge, Assistant Principal of Zeeland High School;
5. Zeeland Education Association;
6. Michigan Education Association;
7. William Robertson, MEA Representative;
8. James Galer, MEA Representative;
9. Robert Larsen, MEA Representative; and
10. Mary Ann Zimmerman, MEA Representative.
Plaintiff alleged that defendants violated his rights under the First, Fourth, Fifth, Ninth, Thirteenth and Fourteenth Amendments to the United States Constitution. Plaintiff asserted claims under 42 U.S.C. § 1981, 1983, 1985, 1988, and 2000 et seq. Plaintiff also claimed violations of state law under "the statutes, ordinances, regulations, customs and usages of the State of Michigan," citing Michigan Public Act 4 of 1937, M.C.L. § 38.71 et seq. and Michigan's teacher tenure statute, MICH. COMP. LAWS § 38.101, et seq.
On February 27, 1997, Chief Judge Richard Alan Enslen entered judgment in favor of defendants, finding no merit in any of plaintiff's claims. (docket #23, Ex. A). Plaintiff's section 1981 claim was meritless because plaintiff, a white male, had not alleged or shown that he had been discriminated against on the basis of race or ethnicity. (Op. 6). Judge Enslen found that plaintiff's section 1983 claim against the union defendants was meritless because the defendants did not act under color of state law. (Op. 6-7). Judge Enslen granted summary judgment in favor of the Zeeland Board of Education on plaintiff's section 1983 claim. (Op. 8-9). Judge Enslen found that plaintiff's section 1983 claim against the superintendent, principal, and assistant principal in their official capacities was simply another way of pleading his claim against the Zeeland Board of Education. (Op. 9-10). Judge Enslen's opinion recited a history of legal actions by plaintiff in Michigan's courts, the Teacher Tenure Commission, and the United States Supreme Court. This history need not be repeated herein, but is incorporated by reference. (Op. 13-16). Judge Enslen found that collateral estoppel barred most of plaintiff's section 1983 claims against the superintendent, principal and assistant principal in their individual capacities. (Op. 17-19). Judge Enslen found that defendants were entitled to summary judgment on the merits of plaintiff's claims against defendants related to plaintiff's 1993 suspension (Op. 19) and subsequent decisions concerning plaintiff's employment through the 1995 school year.
Unless otherwise indicated, the exhibits referenced herein are the exhibits presented in support of defendants' motion for summary judgment.
The remaining claims that are alleged against all three defendants are that the defendants did not rehire plaintiff at the end of the 1993-94 school year, and the defendants quit offering auto mechanics. Plaintiff cannot state a constitutional claim based on either of these allegations. Plaintiff stated in his complaint that he called in sick on the first day of school in 1993, continued to use his sick days, went on long term disability, and did not return to work the entire year. Furthermore, a school board's decision not to offer a particular type of elective does not give rise to a constitutional claim.
(Op. 19).
Plaintiffs remaining claims were leveled against Principal Jones. Judge Enslen granted summary judgment in favor of Jones on plaintiff's claims of retaliation in violation of plaintiff's First Amendment rights. (Op. 20). The court found that plaintiff's First Amendment claim that he had been retaliated against because he was not a member of the teacher's union was utterly devoid of factual support. Judge Enslen granted summary judgment in favor of defendant Jones on plaintiff's First Amendment and Due Process Clause claims concerning plaintiff's 1993 suspension and the decision not to rehire plaintiff for the 1994-1995 school year. (Op. 20). Judge Enslen granted defendants' motion for summary judgment on plaintiff's claims under sections 1985 (Op. 21-23), 1988 (Op. 23), and 2000e (Op. 23). The court declined to exercise supplemental jurisdiction over plaintiff's purported state-law claims. (Op. 24-25).
After finding that defendants were entitled to summary judgment on all plaintiff's federal claims, Chief Judge Enslen considered defendants' motions for imposition of Rule 11 sanctions against plaintiff (Op. 25). Judge Enslen found that plaintiff asserted numerous causes of action without even knowing the elements of a prima facie case under these statutes. (Op. 27). Plaintiff, a frequent litigant, should have been aware that his unsuccessful state-court cases would bar relitigation of those claims in federal court. ( Id.). Judge Enslen found that, "Plaintiff's inclusion of many claims for which there was no basis, and of claims that ha[d] previously been litigated and ha[d] been previously dismissed because they had been litigated constitute[d] a Rule 11 violation." (Op. 27). Judge Enslen gave plaintiff the benefit of a doubt that he may not have completely understood claim preclusion stemming from unsuccessful state litigation and did not impose monetary sanctions. (Op. 28). Judge Enslen did find that plaintiff's Rule 11 violations warranted injunctive relief Judge Enslen's judgment states that "plaintiff shall not attempt to file any other actions with respect to the issues raised in the complaint." (Ex. A). The injunction also states, "plaintiff shall not file additional pleadings or motions in any federal court without first familiarizing himself with the Federal Rules of Civil Procedure." Plaintiff pursued an unsuccessful appeal of Judge Enslen's decision. On November 10, 1997, the United States Court of Appeals for the Sixth Circuit issued an order dismissing plaintiff's appeal for lack of jurisdiction. See Bush v. Zeeland Bd. of Educ., No. 97-1576, (6th Cir. Nov. 10, 1997). Plaintiff filed a petition for certiorari to the Supreme Court of the United States. (docket # 66). On June 10, 1998, the United States Supreme Court denied plaintiff's petition for certiorari. See Bush v. Zeeland Bd. of Educ., 524 U.S. 904 (1998).
B. Plaintiff's Worker's Compensation Claim Asserting Psychiatric Disability
Plaintiffs First Amended Complaint in the present action alleges that he had a lengthy worker's compensation trial, during which defendants subpoenaed information from his psychologist, and that defendants subsequently used this information against him. It is therefore necessary to review the history of plaintiff's disability claim.
The record shows that on or about December 28, 1994, plaintiff filed a worker's compensation claim asserting disability on the basis of a psychiatric impairment. Magistrate Richard J. Anderson of the Michigan Bureau of Worker's Compensation presided over the trial of plaintiff's claim. Plaintiff was represented at trial by Attorney Roy J. Portenga. The trial was a lengthy one, with the Magistrate Anderson hearing testimony on numerous dates between February 1996 and June 1997. (Ex. B). On May 23, 1996, during the trial, plaintiff testified that he had advised his psychiatrist, Dr. Beyer, that he had contemplated killing Principal Jones. (Ex. I at 202). Police officers were present during the trial to prevent any violent confrontation involving plaintiff from occurring. ( Id.). On July 28, 1997, Magistrate Anderson issued his decision finding that plaintiff had a personality conflict with Principal Jones, but plaintiff did not suffer from a psychiatric disability. (Ex. B at 7). Plaintiff appealed.
Magistrate Anderson's summary of plaintiff's testimony reflects plaintiff's considerable level of hostility and anger. "Plaintiff testified that he was irate with his teacher's union . . . Plaintiff testified that he was mad at the City of Zeeland and its officials for citing him for violations of certain city codes." (Ex. B at 3).
Although plaintiff was represented by counsel at trial, plaintiff sought to "supersede his attorney" by personally objecting to cross-examination questions on the basis of privilege. Magistrate Anderson advised plaintiff that by filing a lawsuit asserting psychiatric disability and by testifying in support of such a claim, plaintiff had waived any claim of privilege. (Ex. I at 202-03).
On June 29, 1999, the MichiZin's Worker's Compensation Appellate Commission affirmed Magistrate Anderson's decision (Ex. C). The Appellate Commission's decision quoted at length from Anderson's summary of plaintiff's psychiatric care and plaintiff's history of confrontations with Principal Jones:
In reviewing the medical testimony elicited at trial, I found that the testimony of Howard G. Ager, M.D., a board certified psychologist, most credible. This physician was of the opinion that the Plaintiff had a rather passive/aggressive personality, obsessive personality style and that he was also somewhat paranoid. Dr. Ager, after an examination of the Plaintiff, could find no current objective signs of mental disability. This physician did feel, however, that the Plaintiff may have passive/aggressive/obsessive compulsive, and paranoid personality traits. This physician was of the opinion that the Plaintiff was a rather tenacious individual, when it comes to something that he believes in. Dr. Ager testified that in his opinion the Plaintiff appears much too dogmatic and convinced of his own opinions to be willing to listen to the insights or advice of another person.
The Plaintiff points to the personality conflict he has with Principal Jones as being the cause of his emotional condition. The Plaintiff presented to me as a strong willed, single minded person who wants to vent his spleen against Principal Jones as a cause of his life's problems. But for the singular personality conflict with Jones, Plaintiff would still be working at Zeeland Public Schools or another system doing the same work. Plaintiff stated he could not return to work at Zeeland Public Schools because Jones was in charge. He did testify, however, that he could teach his specialty in another environment.
To say that plaintiff has a litigious nature would be to engage in an understatement. A multitude of litigation has ensued after his leaving the school system. These included lawsuits and grievances against the school system, lawsuits against his union, lawsuits against former attorneys and litigation involving the City of Zeeland.
My observation of Plaintiff disclosed no psychiatric disability. He is a highly intelligent person who is attempting to manipulate the legal system to justify his personal feelings about many issues.
(Ex. C at 52-53, quoting Ex. B at 6-8). The Appellate Commission affirmed the decision finding that plaintiff did not suffer from a psychiatric disability. (Ex. C).
On April 28, 2000, the Michigan Court of Appeals denied plaintiff's application for leave to appeal the Appellate Commission's decision "for lack of merit in the grounds presented." (Ex. D). On November 29, 2000, the Michigan Supreme Court denied plaintiff's application for leave to appeal, stating that it was not persuaded that questions presented should be reviewed by the court. (Ex. E). The Michigan Supreme Court issued an order on February 26, 2001, denying plaintiff's motion for reconsideration. (Ex. F). On October 1, 2001, the Supreme Court of the United States denied plaintiff's petition for certiorari. ( See Bush v. Zeeland Pub. Sch. Bd. of Educ., et al., No. 00-1796, 122 S.Ct. 51 (2001) (denying three petitions for certiorari by plaintiff), Ex. G). On January 7, 2002, the Supreme Court denied plaintiff's motion for reconsideration. (Ex. H).
C. Actions Taken Subsequent to Judge Enslen's February 27, 1997 Decision Related to Plaintiff's Leave of Absence and Abandonment of His Teaching Position
Plaintiff called in sick on the second day of the 1993-94 school year and never returned to work. (Plf Aff., ¶ 19). On or about November 17, 1997, the Zeeland Public Schools Board of Education passed a resolution regarding plaintiff's status with the school district. (Ex. J). Superintendent Gary Feenstra had assumed that, based upon the psychiatric disability claim plaintiff was then pursuing, that plaintiff desired to remain on leave of absence status, at least through the balance of the 1997-1998 school year. Superintendent Feenstra's efforts to have plaintiff confirm his intention or desire in this regard had proved unsuccessful. The School Board's resolution (Ex. J) classified plaintiff as being on leave of absence status from his last work on August 31, 1993 through June 30, 1998, the end of the 1997-1998 school year. The School Board indicated that plaintiff remained a tenured teacher of the Zeeland Public Schools, subject to all rights and obligations provided under the Master Agreement with the Zeeland Education Association and the Tenure Act. The Board continued to pay the premium for plaintiff's health insurance coverage through January 31, 1998, even though the Board did not believe that such payment was required under the Master Agreement. Defendant Don Lake did not participate in the November 1997 meeting. Defendant Tom Bock abstained from voting on the resolution. (Ex. J). Superintendent Feenstra sent a copy of the School Board's resolution to plaintiff by certified mail. Feenstra's cover letter dated December 2, 1997, stated that he would appreciate hearing from plaintiff by April 1, 1998, concerning plaintiff's plans for the upcoming 1998-99 school year and whether plaintiff intended to ask the School Board for an extension of his leave of absence. (Ex. K).
Plaintiff subsequently filed an action with the Michigan Teacher Tenure Commission against Zeeland Public Schools objecting to the School Board's resolution. Among other things, plaintiff asked the Tenure Commission to "disqualify and disbar" defendant's attorneys. The Teacher Tenure Commission held that plaintiff's appeal of the Board's decision was untimely. It further held that it lacked authority to disbar licensed attorneys. Plaintiff appealed this decision to the Michigan Court of Appeals. On December 14, 1999, the Michigan Court of Appeals issued an unpublished, per curiam opinion affirming the Tenure Commission's decision. See Bush v. Zeeland Pub. Sch., No. 213446, 1999 WL 33327154 (Mich.Ct.App. Dec. 14, 1999). On September 26, 2000, the Michigan Court of Appeals denied plaintiff's application for leave to appeal. See Bush v. Zeeland Pub. Sch. Bd. of Educ., 618 N.W.2d 591 (Mich. 2000). On December 27, 2000, the Michigan Supreme Court denied plaintiff's motion for reconsideration. See Bush v. Zeeland Pub. Sch. Bd. of Educ., 620 N.W.2d 851 (Mich. 2000).
On June 4, 1998, Superintendent Feenstra wrote a letter to plaintiff stating that he had not yet received plaintiff's response to his December 2, 1997 letter concerning plaintiff's intentions concerning the upcoming 1998-1999 school year. He reminded plaintiff that his leave of absence expired on June 30, 1998. Superintendent Feenstra indicated that he would submit to the Board for its consideration any request for an extension received on or before June 30, 1998. In the absence of a response, Superintendent Feenstra would assume that plaintiff intended to return to his teaching duties for the 1998-1999 school year. (Ex. L).
On August 5, 1998, Superintendent Feenstra sent plaintiff a letter certified mail, return receipt requested. The letter notified plaintiff of Zeeland Public Schools' classes for the 1998-1999 school year began on August 25, 1998. It advised plaintiff of his teaching assignments for the 1998-1999 school year. (Ex. M). Superintendent Feenstra's letter then stated, "Because you have made numerous statements concerning workplace violence in various legal forums, before you will be allowed to return to active teaching duties, the Board of Education must have reasonable assurance that you pose no threat of violence to others in the school workplace. Your return to the active teaching assignment set forth above with the Zeeland Public Schools is conditioned on the Board receiving such assurance." (Ex. M). Plaintiff was advised of the date and time to appear for an independent psychological examination.
On August 14, 1998, plaintiff sent the following letter to Superintendent Feenstra:
Mr. Feenstra
This is a short note to inform you I do not intend to be evaluated on August 17, 1998, by your psychologist. There are several reasons some of which I will briefly mention here.
I will not continue to waste my time, without pay, for the benefit of the Zeeland Public Schools. I have wasted literally 1000's of hours and years already without pay.
Second, you intend to have me evaluated, but not the perpetrators, Mr. Jones and his union accomplices, all who are prejudiced against me for various multiple reasons.
Third, no provisions have been made to protect me or my privacy rights.
Maybe since I will not make the appointment you could send Mr. Jones to find out what is wrong with him and why he harasses some people making them quit or wish they had.
(Ex. N).
On August 19, 1998, Superintendent Feenstra wrote the following letter to plaintiff:
We are in receipt of your letter of August 14, 1998, and we are aware that you did not attend the appointment with Dr. R. Scott Stehouwer, which had been scheduled for August 17, 1998, as you had been directed to do in my letter of August 5, 1998.
This letter is to inform you that the School District insists that you submit to an independent psychological evaluation by Dr. Stehouwer on the subject of whether or not you pose a threat of violence to others in the school workplace before you will be allowed to return to your active teaching duties.
We have arranged for another appointment with Dr. Stehouwer. You should report to his office on Friday, August 21, 1998, at 1:00 PM. Alternatively, you may see Dr. Stehouwer on Thursday, August 27, 1998. You should call Dr. Stehouwer's office as soon as possible to tell him which of these two appointments you prefer. His telephone number is 616-957-9112.
The School District will pay you your contractual hourly rate for the time you expend in attending the independent psychological evaluation, including travel to and from that evaluation. You have already received a School District check for mileage. In addition, the results of that evaluation will be kept confidential and used only in connection with the determination of whether or not you pose a threat of workplace violence.
When we have received Dr. Stehouwer's evaluation, we will contact you. Because the School District needs to have reasonable assurance that you do not pose a risk of workplace violence, we need Dr. Stehouwer's evaluation before you report to work. You should not report for work until we have contacted you.
Your continued failure to meet with Dr. Stehouwer as directed, which is a necessary prerequisite to your return to work, will be deemed an abandonment of your employment with Zeeland Public Schools.
(Ex. O). Plaintiff came to Dr. Stehouwer's office on August 27, 1998, but refused to take any psychological tests.
Classes for the 1998-99 school year began on August 25, 1998. On September 1, 1998, Superintendent Feenstra wrote a letter to plaintiff concerning plaintiff's refusal to perform the psychological tests required by Dr. Stehouwer.
We have been informed that, although you met with Dr. Stehouwer on Thursday, August 27, 1998, you refused to take the psychological tests, which are essential in order for Dr. Stehouwer to complete his independent psychological evaluation.
We understand that you do not need an appointment with Dr. Stehouwer to take those tests. You do, however, need to call his office and tell them when you will be coming to take the tests. We are hereby directing you to report to Dr. Stehouwer's office as soon as possible, and no later than Friday, September 5, 1998.
Your continued failure to comply with Dr. Stehouwer's request that you take and complete the psychological tests, which are an essential part of his independent psychological evaluation, will be deemed an abandonment of your employment with the Zeeland Public Schools. In addition, we will not pay you for the time you have spent with Dr. Stehouwer unless, and until, you have completed that process.
(Ex. P).
On September 14, 1998, Dr. Stehouwer wrote a letter to Superintendent Feenstra. (Ex. Q). Dr. Stehouwer advised Superintendent Feenstra that plaintiff's refusal to take the necessary tests prevented him from completing the psychological evaluation process. Dr. Stehouwer went on to state, "[I]n my opinion it certainly is appropriate and, indeed, necessary to undertake an evaluation of Mr. Bush prior to any return to active teaching duties with the Zeeland Public Schools." (Ex. Q, ¶ 3).
On September 23, 1998, nearly a month into the new school year, Superintendent Feenstra advised plaintiff that he intended to recommend to the School Board that they find that plaintiff had abandoned his teaching position with the Zeeland Public Schools. Plaintiff was advised that the Board would consider Superintendent Feenstra's recommendation at their regular public meeting on October 19, 1998. (Ex. R). The letter advised plaintiff that he could submit a written statement to the Board prior to its meeting or he could appear in person and provide the Board with any information he believed the Board should have prior to making its decision. Plaintiff elected not to submit a written statement and did not appear at the October 1998 meeting. On October 19, 1998, the Zeeland Public School Board adopted a resolution finding that plaintiff had abandoned his teaching position with the Zeeland Public Schools. (Ex. T).
D. Tenure Commission and Related Proceedings Regarding Plaintiff's Abandonment of His Teaching Position
In November 1998, plaintiff filed an appeal to the Teacher Tenure Commission of the School Board's decision finding that he had abandoned his teaching position. (TC #98-40, Ex. U). On December 14, 1998, plaintiff filed an amended claim of appeal. (Ex. V).
On February 2, 1999, plaintiff testified before Administrative Law Judge Tessema Berga of the Michigan Teacher Tenure Commission reguarding the advance notice and opportunity to be heard plaintiff had enjoyed prior to the Board's adoption of the resolution finding that plaintiff had abandoned his teaching position.
Q You then received the letter of September 23rd, 1998, from Mr. Feenstra which is Exhibit 11; correct?
A Yeah, I believe that's correct.
Q And you read it when you received it?
A I read it.
Q And you were aware after reading it that Mr. Feenstra was telling you that he was going to present his recommendation of abandonment to the board of education at its meeting of October 19th, 1998; correct?
A Yeah, I guess he says that in the last paragraph.
Q And he told you that you could attend the meeting and provide information you believed the board should have concerning his recommendation of a finding of abandonment; right?
A I guess that's what he says.
Q And he said in addition to that, you could submit a written statement to the board on that subject; cortect?
A I guess that's what he says.
Q You did not appear before the board of education?
A I did not.
Q And you did not submit any written response or input to his recommendation?
A I did not.
Q You did not respond in any way. Is that a fair statement?
A That is fair.
(Ex. S at 72-73). Plaintiff testified that he had received a copy of the Board's October 19, 1998 resolution finding that he had abandoned his teaching position. (Ex. S at 74).
On March 29, 1999, plaintiff submitted his brief in case No. 98-40 before the Tenure Commission. (Ex. W). Plaintiff's opening paragraphs expressed anger "that the system doesn't work, that law and order is ineffective, and can be easily thwarted by devious school administrators, unions and their unethical legal counsel, and that these guilty administrators suffer no cost or consequence, since the taxpayers pay every cent of their defense. . . ." (Ex. W at 2). Plaintiff then repeated his history of litigation before the Teacher Tenure Commission, the Michigan Employment Relations Commission, and the courts. (Ex. W at 3, 4).
On May 24, 1999, Administrative Law Judge Berga issued her preliminary decision and order denying plaintiff's appeal. (Ex. X, Bush v. Zeeland Pub. Sch., No. 98-40). Judge Berga's opinion reviewed Superintendent Feenstra's reasons for requiring plaintiff to undergo a psychological examination before plaintiff could return to the classroom as a teacher.
[B]efore appellant would be allowed to return to work, Mr. Feenstra required appellate to undergo psychological evaluation to assess whether he posed a risk of workplace violence. In response to why he took such action, Mr. Feenstra responded that appellant had talked about workplace violence, and had displayed extreme anger toward Assistant Superintendent Michael Jones and Mr. Jay Klinge, the assistant principal at the high school. Also in some of his legal briefs appellant had written that he had entertained thoughts of killing Mr. Jones with a gun. He had placed his anger towards Mr. Jones at a 10, on a scale of 1 to 10, with a 10 being the most severe. Mr. Feenstra testified that after reading appellants statements in his briefs, about being "tempted to commit some violence to gain revenge", being "trapped in a corner", of "homicide being the leading cause of workplace fatalities", writing about "going postal", about "unjust attorneys not being immune from violence", "teachers, like postal employees are not immune from committing violence" and using the "11th avenue relief" which is "evening the score", all of these individually and collectively, created a concern for the safety of his employees and the possibility that appellant posed a risk of workplace violence. This concern is heightened because the central office, where Mr. Feenstra and Mr. Jones worked, is located inside an elementary school. (Tr. Vol I, pp 114-117; Tr Vol II, pp 77-105).
(Ex. X at 3-4). Judge Berga noted that Dr. Stehouwer, after reviewing excerpts from plaintiff's briefs and lawsuit transcripts, testified that Superintendent Feenstra's request to have plaintiff evaluated for potential threat of workplace violence was reasonable. (Op. 11). Judge Berga held that defendants had authority to require the psychological evaluation and that, under the circumstances, it was quite reasonable to require plaintiff to undergo a psychological evaluation. (Op. 12-13). She noted that, although plaintiff claimed that his references to workplace violence "were intended to get the courts' and administrative tribunals' attention," it was objectively reasonable to consider plaintiff's statements to be threats. (Ex. X at 11). "[H]is briefs, which contained reference to `street justice," "going postal," "attorneys and administrators are not immune from workplace violence' or pointing to the incident at Oklahoma City as what might happen when justice is thwarted, [gave] a sound basis for requiring some assurance that [plaintiff] would not resort to violence." ( Id. at 12). The judge found that plaintiff had abandoned his teaching position and that he "ha[d] no intention of returning to work." ( Id. at 17). Administrative Law Judge Berga rejected plaintiff's claim that the finding of abandonment by the Zeeland Public School Board had been "subterfuge." ( Id. at 20).
Plaintiff did not file timely written exceptions to Judge Berga's preliminary decision and order. In the absence of timely exceptions by p1aintiff, "the Preliminary Decision and Order [became the] Tenure Commission's final decision and order." (Ex. Y, citing MICH. COMP. LAWS § 38.104(5)(j)). On September 29, 1999, the Tenure Commission denied plaintiff's motion for rehearing. (Ex. Z).
On November 23, 1999, the Michigan Court of Appeals dismissed petitioner's appeal for lack of jurisdiction "because the order from the State Tenure Commission [was] not appealable as a matter of right." (Ex. AA, Bush v. Zeeland Pub. Sch., No. 223030 (Mich Ct. App. Nov. 23, 1999)). The Michigan Court of Appeals denied plaintiff's motion for rehearing. (Ex. BB). On September 26, 2000, the Michigan Supreme Court denied plaintiff's petitions for superintending control and applications for leave to appeal, stating that it was not persuaded that the questions presented should be reviewed. (Ex. CC, Bush v. Zeeland Pub. Sch. Bd. of Educ., Nos. 116478, 116560 (Mich. Sept. 26, 2000)). On December 27, 2000, the Michigan Supreme Court denied plaintiff's motion for reconsideration. (Ex. DD). Plaintiff filed a petition for certiorari to the United States Supreme Court. (Ex. EE). On October 1, 2001, the Supreme Court of the United States denied plaintiff's petition for a writ of certiorari. See Bush v. Zeeland Pub. Sch. Bd. of Educ., 122 S.Ct. 51 (2001).
On January 7, 2002, the Supreme Court denied plaintiff's motion for rehearing. See Bush v. Zeeland Pub. Sch. Bd. of Educ., 122 S.Ct. 860 (2002).
Plaintiff filed this lawsuit on October 18, 2001.
Discussion
The court will first address defendants' motion for summary judgment, then proceed to decide defendants' motion for Rule 11 sanctions against plaintiff.
I. Defendants' Motion For Summary Judgment
A. Plaintiffs Claims against Defendants for Events Occurring on or before Judge Enslen's February 27, 1997 Decision are Barred by Federal Claim Preclusion.
Defendants' motion argues that most, if not all, of plaintiff's claims are barred by claim preclusion. Plaintiff's response to defendants' motion (docket # 35 at 2) and his affidavit "Concerning Some of the Relevant Facts And History of this Case" (docket #36, ¶ 1-27, 29) make it pellucid that plaintiff is attempting to relitigate his prior unsuccessful lawsuits.
Issue preclusion is generally referred to as collateral estoppel, whereas claim preclusion is encompassed by res judicata. Dubuc v. Green Oak Twp., 312 F.3d 736, 745 (6th Cir. 2003).
"The doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action." Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1031 (6th Cir. 1998). Federal claim preclusion stemming from a final judgment precludes not only relitigation of issues that were raised, but also theories of recovery that could have been litigated. See J.Z.G. Resources, Inc. v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996); see also Watts v. Federal Express Corp., No. 02-1234, 2002 WL 31828199, at * 2 (6th Cir. Dec. 13, 2002); Taylor v. United States Gov't, No. 00-2311, 2001 WL 1298959, at * 1 (6th Cir. Aug. 7, 2001).
The elements of federal claim preclusion are well established: (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or should have been litigated in the prior action; and (4) an identity of the causes of action. Rivers, 143 F.3d at 1031; see Bittinger v. Tecumseh Prods Co., 123 F.3d 877, 880 (6th Cir. 1997).
The prior judgment by Judge Enslen is clearly a judgment on the merits for purposes of claim preclusion. See Rivers, 143 F.3d at 1032; see also Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981), Spann v. Detroit Bd. of Ed., No. 99-1107, 2000 WL 1359626, at * 2 (6th Cir. Sept. 14, 2000). The prior judgment involved the same parties or their privies and all the issues raised in this lawsuit concerning actions by defendants on or before February 27, 1997, were or should have been litigated in the prior lawsuit. Finally, the causes of action are identical, as all of plaintiff's claims stem from his school district employment. See Sanders Confectionary Prods., Inc. v. Heller Financial Inc., 973 F.2d 474, 484 (6th Cir. 1992) ("Identity of causes of action means an identity of the facts creating the cause of action and evidence necessary to sustain each action."). It is patent that federal claim preclusion bars the vast majority of plaintiff's claims.
The law does not allow plaintiff the luxury of bringing seriatim lawsuits based on the very same acts and omissions. Plaintiff could have, and should have, brought any claims he had regarding his employment in the prior lawsuit. The judgment in the previous action bars litigation of actions taken by defendants on or before February 27, 1997. Defendants' motion for summary judgment on this ground will be granted.
B. State Law Claim Preclusion Bars Plaintiff's Claims Concerning His Leave of Absence Status until the End of the 1997-1998 School Year.
The doctrine of claim preclusion provides that if an action results in a judgment on the merits, that judgment operates as an absolute bar to any subsequent action on the same cause between the same parties, with respect both to every matter that was actually litigated in the first case, as well as to every ground of recovery that might have been presented. See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994).
The purposes of claim preclusion are to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, prevent inconsistent decisions, encourage reliance on adjudication, and promote comity between the state and federal courts. Allen v. McCurry, 449 U.S. 90, 94, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). A federal court must give a state court judgment the same preclusive effect it would have in the courts of the rendering state. 28 U.S.C. § 1738; Heyliger v. State University and Community College System, 126 F.3d 849, 851-52 (6th Cir. 1997). As such, the preclusive effect of previous state court judgments in this case is governed by Michigan law on preclusion.Dubuc v. Green Oak Twp., 312 F.3d 736, 744 (6th Cir. 2002); see Stuhlreyer v. Armco, Inc., 12 F.3d 75, 77 (6th Cir. 1993) ("State judicial proceedings are entitled to the same preclusive effect in federal court as they would receive in the judgment-rendering state."); 28 U.S.C. § 1738 (Full Faith and Credit Act).
"The preclusive effect of a state court judgment is determined by that state's law." Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, 394 (6th Cir. 2002). Under Michigan law, "[t]here are three prerequisites to application of the doctrine of res judicata: (1) the prior action must have been decided on its merits; (2) the issues raised in the second case must have been resolved in the first; and (3) both actions must have involved the same parties or their privies." Roberts v. City of Troy, 429 N.W.2d 206, 211 (Mich.Ct.App. 1988); see Dubuc, 312 F.3d at 747. Here, plaintiff's prior action concerning his leave of absence status meets all three prerequisites under Michigan law. First, plaintiff's prior action involved the same parties or their privies. Second, both actions involved the same issues regarding the lawfulness of defendants' classification of plaintiff Third, the decision of the Michigan Court of Appeals affirming the Tenure Commission's decision was a decision on the merits.
Some cases refer to a fourth element, the requirement of a final decision. 305 F.3d at 394. In this case, there is no question that the State decisions were final.
Michigan follows the broad Restatement of Judgments rule, which bars "hot only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not." Sewell v. Clean Cut Mgmt., Inc., 621 N.W.2d 222, 225 (Mich. 2001); see also Gose v. Monroe Auto Equip. Co., 294 N.W.2d 165, 167 (Mich. 1980); Dubuc, 312 F.3d at 747-48.
Plaintiff certainly disagrees with the decisions of state tribunals. Plaintiff argues, "[T]he State of Michigan cannot be trusted to enforce the laws and constitution of the State of Michigan, let alone the Federal Constitution. It is my belief that the courts and agencies with whom I have had contact are in the majority incompetent and prejudiced, at the least [sic], and should not be differed [sic] to in way." (docket # 36, ¶ 29). Nonetheless, a state-court judgment, even if gravely erroneous, is entitled to full faith and credit, unless the error deprived the rendering court of jurisdiction under the law of the state. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84-85 (1984); see also In Re Brady, Texas Mun. Gas Corp., 936 F.2d 212, 219 (5th Cir. 1991); United States v. Straits Steel Wire Co., 810 F. Supp. 208, 211 (W.D. Mich. 1992). Until the judgment is set aside in the Michigan courts, "it is valid and binding for all purposes and cannot be collaterally attacked." Atman v. Nelson, 495 N.W.2d 826, 829 (Mich.Ct.App. 1992); see, e.g., Liggins v. Michigan Family Independence Agency, No. 00-1734, 2000 WL 1872043, at * 1 (6th Cir. Dec. 14, 2000); Soltesz v. Ohio Unemployment Compensation Review Comm'n, No. 99-4219, 2000 WL 1182620, at * 2 (6th Cir. Aug. 15, 2000). Defendants are entitled to judgment in their favor as a matter of law on plaintiff's claims concerning his leave-of-absence status.
C. Claim Preclusion Bars Plaintiff's Claims Based Upon the Abandonment of His Teaching Position.
"`It is established law in [Michigan] that the doctrines of res judicata and collateral estoppel apply to administrative determinations which are adjudicatory in nature, where a method of appeal is provided, and where it is clear that it was the legislative intention to make the determination final in the absence of an appeal.'" See Cousino v. Board of Edu. of Utica Cmty. Sch., No. 216770, 2001 WL 788499, at * 1 (Mich.Ct.App. Jan. 12, 2001) (quoting Senior Accountants v. Detroit, 249 N.W.2d 121, 124-25 (Mich. 1976)). A Michigan Teacher Tenure Commission hearing is adjudicatory, provides for an appeal, and was intended by the legislature to be final in the absence of an appeal. Cousino, 2001 WL 788499, at * 1; Dearborn Heights Sch. Dist. v. Wayne County MEA/DEA, 592 N.W.2d 408 (Mich.Ct.App. 1988). The Michigan Teacher Tenure Commission found that plaintiff had abandoned his teaching position when he refused to submit to the psychological evaluations necessary to determine the threat plaintiff posed of violence to co-workers and students. Res judicata bars plaintiff from challenging in this lawsuit the state determination that he had abandoned his teaching position. Defendants are entitled to judgment in their favor as a matter of law on plaintiff's claims concerning abandonment of his teaching position.
D. Even Absent the Preclusive Effect of Prior Judgments. Plaintiff Fails to Raise Any Genuine Issue of Fact for Trial and Defendants are Entitled to Judgment in their Favor as a Matter of Law on Plaintiff's Claims.
Although it is not necessary to lengthen this opinion by applying an issue preclusion analysis, it should be noted that the Tenure Commission's findings on abandonment and all subsidiary issues actually and necessarily litigated, such as plaintiff's threats of physical violence, are binding upon this court. See Dearborn Heights Sch. Dist., 592 N.W.2d at 411.
Decisions of the Bureau of Worker's Compensation are also entitled to res judicata effect and bar relitigation of plaintiff's claim of psychiatric disability. See Gose v. Monroe, 294 N.W.2d 165, 168 (Mich. 1980).
On an alternative basis, the court finds that even without considering claim or issue preclusion, defendants are entitled to summary judgment upon all plaintiff's claims. Plaintiffs First Amended Complaint lists of ten separate counts:
1. Violation of plaintiff's privacy rights under the Ninth Amendment;
2. Violation of plaintiff's free speech rights under the First Amendment;
3. Violation of plaintiff's due process under the Fourteenth Amendment by not providing plaintiff with a pre-termination hearing;
4. Violation of plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment;
5. Violation of plaintiff's Sixth Amendment and due process "right to face and confront his accusers;"
6. Violation of plaintiff's "state granted property rights in employment" in violation of the Fourteenth Amendment;
7. Violation of the Supremacy Clause by the Michigan teacher tenure statute;
8. Violation of defendants' "own policy on discrimination in the workplace;"
9. Conspiracy to deprive plaintiff of "multiple rights;" and
10. Deliberate indifference "to multiple and continued violations of plaintiff's substantial rights."
1. Privacy claim
Plaintiffs first claim arises from his allegation that defendants violated his right to privacy by publishing private facts relating to his mental condition. Plaintiff asserts the existence of federal "privacy rights" under the Ninth Amendment. "The Ninth Amendment is a rule of interpretation rather than a source of rights." Froehlich v. Wisconsin, 196 F.3d 800, 801 (7th Cir. 1999). Its purpose is to make ciear that the enumeration of specific rights in the Bill of Rights is not intended (by the interpretive principle expressio unis est exclusio alterius) to deny the existence of unenumerated rights. 196 F.3d at 801; Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991). The Ninth Amendment does not confer substantive rights in addition to those conferred by other portions of the Constitution. See Gibson, 926 F.2d at 537; see also Green v. Hill, No. 94-1851, 1995 WL 764119, at * 2 (6th Cir. Dec. 27, 1995).
The Ninth Amendment states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." U.S. CONST. amend. IX.
Plaintiff makes passing reference to a claim of a violation of a "right to privacy." The court assumes that plaintiff is attempting to assert a privacy claim under the Due Process Clause of the Fourteenth Amendment. See Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 182 (1st Cir. 1997). The Constitution of the United States "does not encompass a general right to nondisclosure of private information." Hahn v. Star Bank, 190 F.3d 708, 714 (6th Cir. 1999). The Fourteenth Amendment's right of privacy is limited to those rights which are fundamental or implicit in the concept of ordered liberty. See Paul v. Davis, 424 U.S. 693, 713 (1976). The Supreme Court has held that activities within this definition include marriage, procreation, contraception, family relationships, child rearing and education. 424 U.S. at 713; see also Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996). Plaintiff openly litigated his claim of psychological disability. The threats plaintiff made in various briefs and in his testimony are a matter of public record. Plaintiff has not established a viable Fourteenth Amendment privacy claim. Defendants are entitled to judgment in their favor as a matter of law on this claim.
2. First Amendment claim
Plaintiff asserts a violation of his right to free speech under the First Amendment. Plaintiff claims retaliation against him for the threatening statements he made in his briefs to "get the attention" of the courts and administrative tribunals. To establish a prima facie case, plaintiff must demonstrate: (1) that he was engaged in a constitutionally protected speech; (2) that the defendants' adverse action caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to his exercise of constitutionally protected rights. See Gragg v. Kentucky Cabinet for Workforce Development, 298 F.3d 958, 965 (6th Cir. 2002); Sharp v. Lindsey, 285 F.3d 479, 484 (6th Cir. 2002).
"In Connick v. Meyers, 461 U.S. 138 (1983), the Supreme Court established a two-part inquiry for determining when the discharge of a public employee violates the First Amendment. The threshold question is whether the employee's speech may fairly be characterized as constituting speech on a matter of public concern. If the speech relates to a matter of public concern, then the court employs the balancing test outlined in Pickering v. Board of Education, 391 U.S. 563 (1968), to determine if the employee's free speech interests outweigh the efficiency interests of the government as an employer." Rose v. Stephens, 291 F.3d 917, 920 (6th Cir. 2002); see Sharp v. Lindsey, 285 F.3d at 485-86. Because of the need to provide government officials with the ability to manage their offices without intrusive oversight by the judiciary, the court's concern must be to protect those expressive activities of a public employee when he speaks as a citizen on a public matter, a concern that ordinarily does not extend to a public employee speaking on matters only of his personal interest. See Rose, 291 F.3d at 923. "A public employee's speech dealing with `matters only of personal interest' is generally not afforded constitutional protection." Vaughn v. Lawrenceberg Power Sys., 269 F.3d 703, 716 (6th Cir. 2001). "The Supreme Court has elaborated on this definition by characterizing unprotected speech as `speech that involves nothing more than a complaint about the employee's own duties [w]hich may give rise to discipline without imposing any special burden of justification on the government employer.'" Vaughn, 269 F.3d at 716 (quoting United States v. National Treasury Employees Union, 513 U.S. 454, 466 (1995)).
Whether speech addresses a matter of public concern is a question of law for the court to decide. See Bonell v. Lorenzo, 241 F.3d 800, 810 (6th Cir. 2001); Chappel v. Montgomery County Fire Protection Dist. No. 1, 131 F.3d 564, 574 (6th Cir. 1997); Williams v. Kentucky, 24 F.3d 1526, 1532 (6th Cir. 1994). "A public concern is one relating to `any matter of political, social, or other concern to the community.'" Gragg, 289 F.3d at 965 (quoting Connick, 461 U.S. at 146). A court determines whether speech addresses a matter of public concern by looking to the "content, form and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48; Lautermilch v. Findlay City Sch., 314 F.3d 271, 276 (6th Cir. 2003).
Plaintiff has not identified any specific statement which he claims to have been protected speech. Therefore, the content, form and context are completely lacking. Indulgently, plaintiff may be claiming that the threats he made in his legal papers of inflicting physical injury upon supervisors, such as threatening to "go postal," constituted protected speech. Plaintiffs threats of violence are not protected speech on a matter of public concern. By his own admission, plaintiff's threats were, at best, attempts to garner the attention of decisionmakers in his cases. More objectively, plaintiff's threats appear to be attempts to intimidate others opposing plaintiff's position. Defendants are entitled to judgment in their favor as a matter of law on plaintiff's First Amendment claim.
3. Due Process claims
Plaintiff argues that defendants violated his due process rights under the Fourteenth Amendment by not providing plaintiff with a pre-termination hearing. The Fourteenth Amendment prohibits state actors from depriving an individual of life, liberty or property without due process of law. In Bailey v. Floyd Bd. of Educ., 106 F.3d the Sixth Circuit reviewed the standard for finding a protected interest in government employment.
The existence of a property interest depends largely on state law. Government employment amounts to a protected property interest when the employee is entitled to continued employment. Neither mere government employment nor an abstract need or desire for continued employment will give rise to a property interest. Rather, a property interest exists and its boundaries are defined by rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.106 F.3d at 141; see also See Lautermilch v. Findlay City Sch., 314 F.3d at 274. Plaintiff has not identified any Michigan law establishing that he had a property interest in employment for the 1998-1999 or any subsequent school years. Even if plaintiff had demonstrated such a property interest, it is undisputed that plaintiff had prior notice and an opportunity to be heard prior to the School Board's consideration of the resolution finding that he had abandoned his teaching position. Defendants' actions did not violate plaintiff's due-process rights. Defendants are entitled to judgment in their favor as a matter of law.
4. Equal Protection Clause claim
Plaintiff invokes the Equal Protection Clause of the Fourteenth Amendment. Plaintiff, a white, male, has not alleged or supported with evidence any viable claim under the Equal Protection Clause. See Lautermilch v. Findlay City Sch., 314 F.3d at 275. Defendants' motion for summary judgment will be granted on this claim.
5. Sixth Amendment claim
Plaintiff claims a violation of his Sixth Amendment "right to face and confront his accusers." Plaintiff's Sixth Amendment claim is frivolous. The Sixth Amendment states:
To the extent that plaintiff claims a violation of a right under the Fourteenth Amendment's Due Process Clause to "face and confront his accusers," his claim is duplicative of the pre-termination hearing due-process claim, and should be rejected for the reasons previously set forth.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; and which district shall have been previously ascertained bylaw, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
U.S. CONST. amend. vi. The Sixth Amendment is limited to criminal prosecutions. See Hannah v. Larche, 363 U.S. 420, 440 n. 16 (1960); United States v. Zucker, 161 U.S. 475, 481 (1896).
6. Supremacy Clause claim
Plaintiff argues that Michigan's teacher tenure statute is "in violation of the US Constitution Supremacy Clause." Plaintiff does not allege which provision or provisions of Michigan's statute purportedly violate the Supremacy Clause. Plaintiffs disagreement with the Teacher Tenure Commission's decision does not establish a constitutional claim. Plaintiff is aware that his recourse was to seek leave to appeal to the Michigan Court of Appeals. See Bush v. Zeeland Pub. Sch., No. 213446, 1999 WL 33327154 (Mich Ct. App. Dec. 14, 1999); Watt v. Ann Arbor Bd. of Educ., 600 N.W.2d 95 (Mich.Ct.App. 1999). Michigan's appellate courts denied leave to appeal and the Supreme Court of the United States denied plaintiff's petition for certiorari. This court lacks subject-matter jurisdiction over plaintiff's belated claim attempting to challenge, on Supremacy Clause grounds, after the fact, the decisions of the Michigan Teacher Tenure Commission. Plaintiff has not stated any viable claim against the named defendants under the Supremacy Clause, and defendants are entitled to judgment in their favor as a matter of law.
7. Violation of School Board policy claim
Plaintiff contends, without any factual support, that defendants' actions violated an unspecified school policy against discrimination in the workplace. A mere violation of school policy, even assuming that one had occurred, does not establish a constitutional violation. Plaintiff has not established a viable claim against any defendant.
8. Deliberate indifference to unspecified multiple violations of unspecified substantial rights
Finally, plaintiff claims that defendants were "deliberately indifferent" to "to multiple and continued violations of plaintiff's substantial rights." Plaintiffs vague and conclusory assertions fail to create any genuine issue of material fact for trial. Defendants are entitled to judgment in their favor as a matter of law.
In summary, all plaintiff's claims are barred by claim preclusion, and alternatively, are meritless. Defendants' motion for summary judgment will be granted.
II. Defendants' Motion for Rule 11 Sanctions
Before the court is defendants' motion for imposition of Rule 11 sanctions. (docket # 32). Plaintiff has elected not to file a response to defendants' motion. Upon review, the court finds that imposition of Rule 11 sanctions against plaintiff is warranted.
Initially, the court finds that defendants have complied with all the procedural prerequisites for imposition of Rule 11 sanctions. Rule 11 of the Federal Rules of Civil Procedure provides that a motion for sanctions "shall not be filed with or presented to the court unless, within 21 days after service of the motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." FED. R. Civ. P. 11(c)(1)(A). The purpose of this provision is to allow a party or counsel to avoid sanctions by withdrawing the challenged claims or his representation. See Ridder v. City of Springfield, 109 F.3d 288, 294 (6th Cir. 1997). Defendants served their motion upon plaintiff by certified mail on July 23, 2002. Plaintiffs safe harbor period within which to dismiss his complaint and avoid sanctions altogether expired on August 13, 2002. Defendants filed their motion for sanctions on August 19, 2002. Defendants provided plaintiff more than ample opportunity to withdraw his complaint and avoid sanctions.
Rule 11(c)(2) provides that, "A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." "[T]he sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation." FED. R. Civ. P. 11(c)(2).
Appellate review of a district court's decision on a motion for Rule 11 sanctions is under an abuse of discretion standard. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); Tropf v. Fidelity Nat'l Title Ins. Co., 289 F.3d 929, 936 (6th Cir. 2002); see also Tafs v. Proctor, 316 F.3d 584, 593 (6th Cir. 2003). Pro se litigants must comply with the requirements of Rule 11. See FED. R. Civ. P. 11(b); see also Joiner v. Evans, No. 00-5832, 2001 WL 1450810, at * 1 (6th Cir. Nov. 6, 2001); White v. Clay, No. 01-5458, 2001 WL 1450675, at * 1 (6th Cir. Nov. 2, 2001); Stevens v. Mooney, No. 95-1757, 1996 WL 125048, at * 1 (6th Cir. Mar. 20, 1996).
On two previous occasions, this court has imposed Rule 11 sanctions against plaintiff Chief Judge Enslen found that plaintiff violated Rule 11 in bringing his prior lawsuit against the Zeeland Public Schools, its employees and affiliated individuals. Judge Enslen refrained from imposing monetary sanctions against plaintiff in that case because plaintiff may not have understood the preclusive effect of his unsuccessful state litigation. Before filing this lawsuit on October 18, 2002, plaintiff knew of Judge Enslen's injunction. Plaintiff openly violated Chief Judge Enslen's injunction forbidding plaintiff from filing any action with respect to issues raised in his prior complaint. (2/27/97 Judgment, Ex. A, p. 2). Plaintiff certainly knew of the preclusive effect of his unsuccessful actions before the state courts and Tenure Commission before initiating this lawsuit. Undaunted, plaintiff continued to pursue patently barred claims. Furthermore, as is his now well-established pattern, plaintiff asserted numerous claims which any reasonable factual or legal inquiry would have placed plaintiff on notice that his claims were frivolous.
Chief Judge Enslen may not have been aware of the sanctions of costs and attorney's fees imposed against plaintiff by United States District Judge David W. McKeague in Bush v. Zeeland Bd. of Public Works, et al., No. 1:96-cv-622 (W.D. Mich. June 2, 1997). Plaintiff pursued an unsuccessful appeal of Judge McKeague's decision. See Bush v. Zeeland Bd., et al., No. 97-1793 (6th Cir. 1998).
Plaintiff is becoming an increasingly frequent litigant in this court on criminal, habeas corpus, and other civil claims. Plaintiff was not, and is not, a licensed attorney.
On January 23, 1997, he filed a lawsuit naming the State of Michigan and others as defendants. This court dismissed plaintiff's complaint on October 17, 1997. See Bush v. Donkersloot et al., No. 1:97-cv-51 (W.D. Mich. 1997). The United States Court of Appeals dismissed plaintiff's appeal on May 21, 1998. See Bush v. Donkersloot, et al., No. 97-2341 (6th Cir. 1998).
On June 30, 1997, plaintiff filed a lawsuit in this court naming the City of Zeeland and others as defendants. The court granted summary judgment in favor of defendants on February 22, 1999. See Bush v. Klunder, et al., 1:97-cv-541 (W.D. Mich. 1999). The Court of Appeals dismissed plaintiff's appeal on October 12, 1999. See Bush v. Klunder, et al., No. 99-1362 (6th Cir. 1999).
On March 27, 2000, plaintiff filed a petition for habeas corpus in this court. On May 4, 2000, the court dismissed the petition with prejudice as legally frivolous. See Bush v. Ottawa County Jail, No. 1:00 cv 206 (W.D. Mich. 2000). On July 11, 2000, the United States Court of Appeals for the Sixth Circuit denied plaintiff's application for a certificate of appealability. See Bush v. Ottawa County Jail, No. 00-1647 (6th Cir. July 11, 2000).
On July 30, 2001, plaintiff attempted to remove a state court criminal proceeding to this court. On August 7, 2001, this court summarily remanded the matter to the 58th District Court for Ottawa County. See People v. Bush, No. 1:01:CR:177 (W.D. Mich. 2001).
On April 19, 2002, plaintiff purported to file a habeas corpus petition on behalf of Kent County jail inmate Mike Kennedy. On May 2, 2002, the court issued an order dismissing the petition. The habeas petition was not signed by inmate Kennedy. Plaintiff was the only signatory. See Kennedy v. Kent County Jail, No. 1:02 cv 268 (W.D. Mich. 2002). Plaintiff appealed this decision. On July 7, 2002, the United States Court of Appeals issued its decision dismissing the appeal. See Kennedy v. Kent County Jail, No. 02-1711 (6th Cir. July 7, 2002). On September 19, 2002, the Court of Appeals denied plaintiff's request for rehearing en banc.
On August 8, 2002, plaintiff filed a lawsuit in this court against the City of Zeeland and others. On December 12, 2002, this court issued an order dismissing plaintiff's complaint. The court's order remanded as improvidently removed, the Ottawa County Circuit Court case of City of Zeeland v. Gerald Bush, No. 02-43822-CZ. See Bush v. City of Zeeland, No. 1:02-cv-565 (W.D. Mich. 2002). Plaintiff has filed a notice of appeal of this decision to the United States Court of Appeals for the Sixth Circuit. See Bush v. Zeeland, et al., No. 03-1080 (6th Cir. 2003).
The court further finds that plaintiff's pursuit of the present lawsuit has been for the purpose of harassment. The claims plaintiff asserted are not warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. Plaintiffs allegations are devoid of evidentiary support. The court finds that all the defendants' costs and attorney's fees incurred in defending this case stem directly from plaintiff's Rule 11 violations in his complaint and first amended complaint. Defendants are entitled to recover reasonable attorney's fees and costs incurred in defending this lawsuit. The court has considered lesser sanctions, but finds that no lesser sanction will deter this plaintiff Defendants will have fourteen days from the date of this memorandum opinion and accompanying judgment within which to submit affidavits and other documentation establishing their reasonable attorney's fees and costs incurred in defending this lawsuit. Plaintiff will have fourteen days thereafter within which to submit and support any objection to the reasonableness of the attorney's fees and costs sought by defendants, after which the court will consider the matter ready for decision.
Monetary sanctions alone will not deter plaintiff from violating Rule 11. The court finds that nonmonetary sanctions pursuant to Rule 11(c)(2) are necessary to prevent a repetition of plaintiff's offending conduct. Nothing yet has stopped this plaintiff from attempting to relitigate a decade of unsuccessful claims. Plaintiff has had more than sufficient notice of the possibility of injunctive relief against him. Defendants requested such relief in their August 2002 motion. Plaintiff has enjoyed more than ample opportunity to be heard on the issue. Furthermore, it is well established that federal courts have inherent powers to impose appropriate nonmonetary sanctions to deter future frivolous lawsuits and/or relitigation of the same lawsuit and frivolous and vexatious litigation. See Cauthon v. Rogers, 116 F.3d 1334, 1337 (10th Cir. 1997); United States v. Circuit Court for Taylor County, 73 F.3d 669, 670 (7th Cir. 1995); Wrenn v. Vanderbilt Univ. Hosp., Nos. 94-5453, 94-5593, 1995 WL 111480, at * 3 (6th Cir. Mar. 15, 1995); accord Feathers v. Chevron USA., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Telechron, Inc. v. Intergraph Corp., No. 95-1039, 1996 WL 370136, at *2 (6th Cir. July 2, 1996) ("Although imposing sanctions pursuant to inherent power and Rule 11 are analogous, courts are not bound by the strictures of Rule 11 case law when exercising their inherent powers.").
Every paper filed with the Clerk of this court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice. See In re McDonald, 489 U.S. 180, 184 (1989). Federal district courts necessarily have considerable discretion in drafting orders restricting a litigious party's access to courts. See Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1294 (11th Cir. 2002) (given the plaintiff's "near obsession regarding his former employer, injunctive means [was] the only means that offer[ed] any chance of preventing further harassment"); Martin-Trigona v. Shaw, 986 F.2d 1384, 1387 (11th Cir. 1993); United States v. MK-Ferguson Co., 99 F.3d 1538, 1548 (10th Cir. 1996); United States v. Hughes Aircraft Co., Nos. 94-55620, 94-55826, at *1 (9th Cir. Oct. 21, 1996); United States v. Barker, 182 F.R.D. 661, 664 (S.D.Ga. 1998). Both the Supreme Court and the Sixth Circuit have reaffirmed the district court's inherent authority to take action to prevent abuse of the judicial system. See Chambers v. Nasco, Inc., 501 U.S. 32, 43-45 (1991); Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997); accord First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 512 (6th Cir. 2002); Ulysses I Co. v. Feldstein, No. 01 cv 3102 LAP, 2002 WL 1813851, at * 13 (S.D.N.Y. Aug. 8, 2002) ("The Federal courts have an institutional concern and obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions."). A prerequisite to the exercise of such power is a finding that a litigant has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Big Yank, 125 F.3d at 313. The concept of bad faith is an objective one. See Coppedge v. United States, 369 U.S. 348, 445 (1962). A claim is brought in bad faith if it is frivolous. Id.; see Nabkey v. Gibson, 923 F. Supp. 117, 122 (W.D. Mich. 1990). Objectively, plaintiff's present lawsuit was filed vexatiously and in bad faith.
The court's order under Rule 11 or its inherent powers cannot completely foreclose a litigant from access to the court. See Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996); Washington v. Alaimo, 934 F. Supp. 1395, 1400 (S.D. Ga. 1996). However, the right of access to courts is neither absolute or unconditional, and there is no right of access to the courts to prosecute an action that is frivolous and malicious. See Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989); Roscoe v. Hansen, No. 96-2250, 1997 WL 116992, at * 2 (10th Cir. Mar. 17, 1997). Requiring court review of any proposed future filings by plaintiff would likely result in waste of scarce judicial resources. See Sassower v. American Bar Ass'n, 33 F.3d 733, 736 (7th Cir. 1994). The court finds that requiring plaintiff to pay all costs and attorney's fees imposed in this case and to post a bond before allowing plaintiff to file another civil lawsuit against defendants or affiliated individuals is an appropriate remedy. See United States v. Circuit Court for Taylor County, 73 F.3d at 674; Johnson v. Tuff n Rumble Mgmt., Inc., No. 99-1374, 2000 WL 622612, at * 10 (E.D. La. May 15, 2000); Jean v. Dugan, 29 F. Supp.2d 939 (N.D. Ind. 1998) (requiring payment of all sanctions and imposing $5,000 bond before allowing plaintiff to bring any future lawsuits).
The court is authorized to issue an injunction requiring plaintiff to post a bond in any future lawsuit to cover potential costs, attorney's fees, and other sanctions. See Stewart v. Fleet Fin., No. 99-2282, 2000 WL 1176881, at * 2 (6th Cir. Aug. 10, 2000) (affirming this court's order requiring plaintiff to file a $25,000 bond along with any future action against any defendants in the case); Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Sassower v. American Bar Ass'n, 33 F.3d at 736; Anderson v. Steers, Sullivan, McNamara Rogers, 998 F.3d 495, 496 (7th Cir. 1993); Ehm v. Amtrak Bd. of Directors, 780 F.2d 516, 517 (5th Cir. 1986); Hawes v. Club Ecquestre El Comandante, 535 F.2d 140, 143 (1st Cir. 1976); May v. Hatter, No. 00-4115-CIV-MOORE, 2001 WL 579782 (S.D. Fla. May 15, 2001); Dugan, 29 F. Supp.2d at 941; United States v. Barker, 182 F.R.D. at 664; Student Loan Mktg. Ass'n v. Hanes, 181 F.R.D. 629, 638 (S.D. Cal. 1998). If the bond is not posted, the lawsuit is dismissed. If posted, the bond is held by the clerk of the court. If the litigant conducts the litigation in accordance with law, the bond is returned at the conclusion of that case. 181 F.R.D. at 638.
The court concludes that the least severe sanction likely to deter this plaintiff from filing future frivolous lawsuits is ordering plaintiff to pay the defendants' reasonable attorney's fees and costs incurred in defending this lawsuit, and ordering nonmonetary sanctions in the form of a permanent injunction against plaintiff, requiring him to pay the sanctions imposed in this lawsuit prior to initiating another lawsuit against the Zeeland Public School Board, the Zeeland Public Schools, or its agents or employees, and prohibiting plaintiff from filing any civil action against the Zeeland Public School Board, the Zeeland Public Schools, or its agents or employees unless plaintiff first files with the Clerk of the Court a bond in the amount of $15,000 to cover costs, fees, and sanctions that may be levied against plaintiff in the litigation. The injunctive relief has no punitive aspect, and serves a purely deterrent function. Further, it does not close the courthouse to plaintiff and should not deter the maintenance of meritorious litigation, as the bond secures plaintiff's future liability for costs, attorney's fees, and sanctions in the future litigation, which presupposes that the litigation will be unsuccessful or that plaintiff will engage in sanctionable behavior. If plaintiff does not bring a meritless or sanctionable claim, he has nothing to fear. By the same token, defendants and the court are given real and substantial protection against the maintenance of meritless litigation in the future, as they are assured of a solvent fund for the satisfaction of costs, attorney's fees and sanctions.
Furthermore, the injunction will require plaintiff to attach a copy of this memorandum opinion and accompanying judgment to any future complaints he files in this court or in state court. See Feldstein, 2002 WL 1813851, at * 14-16 (extending the attachment requirement to state courts as well as federal courts for the purpose of providing notice, in the spirit of cooperative federalism, to prevent religitation of barred claims). Plaintiff's failure to comply with the terms of the court's injunction shall be sufficient grounds to dismiss a future complaint in this court with prejudice and or grounds for contempt proceedings. See Martin v. United States, No. Civ. A. 02-186 RWR, ___ F. Supp.2d ___, 2003 WL 470325 (D.D.C. Feb. 14, 2003); Barker, 182 F.R.D. at 665.
Conclusion
Defendants' motion for summary judgment (docket # 21) will be granted and judgment will be entered in their favor. Defendants' motion for sanctions (docket # 32) will also be granted.