Summary
abstaining pursuant to Younger during ongoing state criminal proceedings where plaintiff's federal suit sought damages and injunctive relief stemming from defendants' alleged harassment and discrimination of plaintiff and an alleged conspiracy to violate plaintiff's civil rights by entering his home without a warrant or probable cause and seized religious items
Summary of this case from Graves v. Mahoning CtyOpinion
Case No. 04-CV-10250-BC.
February 25, 2005
I. RECOMMENDATION
For the reasons stated below, IT IS RECOMMENDED that the motions be GRANTED and that the claims against Defendants County of Saginaw, City of Saginaw, Saginaw Police Department, Sergeant Mark Lively, and George Best, II, be DISMISSED WITHOUT PREJUDICE. IT IS FURTHER RECOMMENDED that all claims against Defendants Auto Owners Insurance Company and McMartin, Wash, and Associates be sua sponte DISMISSED WITH PREJUDICE.
II. REPORT
A. Introduction
By order of U.S. District Judge David M. Lawson, this case was referred to the undersigned Magistrate Judge for general case management on October 6, 2004. Plaintiff alleges that his home was illegally searched by police, that various items were confiscated, and that he was wrongfully investigated for insurance fraud. (Compl., Dkt 1, ¶¶ 14-20.) Pending are the above-entitled motions. Plaintiff filed a response on December 13, 2004. (Dkt. 16.) Upon review, I conclude that pursuant to E.D. Mich. LR 7.1(e)(2), these motions are ready for Report and Recommendation without oral argument.
B. Background
Plaintiff's pro se complaint was filed on September 21, 2004, alleging a "conspiracy to violate civil rights." (Compl. at 1.) In Count I of the eight-count complaint, Plaintiff alleges that "Defendants" violated his First Amendment rights by "seizing Religious Items (Pray Sheets) from the Plaintiff without probable cause of a crime having been committed by the use of those documents[.]" ( Id. ¶ 21.) Count II alleges that "Defendants" violated the Fourth Amendment when they entered his home without a warrant, conducted an illegal search, and seized items from the home without probable cause. ( Id. ¶ 22.) Count III alleges that the wrongful removal of items from his home violated Plaintiff's Fourteenth Amendment right to due process. ( Id. ¶ 23.) Count IV alleges that Plaintiff's due process rights were violated when "Defendants made remarks to the News Media (Channel 5 News) and to Insurance Companies, as well as Tenants of the Plaintiff of his rental property, that he was committing crimes and that they were not to insure him nor pay their rent as he was going to prison. . . ." ( Id. ¶ 25.) Count V merely asserts that Defendants were all public employees acting in their official capacities under the color of state law. ( Id. ¶ 26.) Count VI contends that Defendants flagrantly misused the powers bestowed upon them by Michigan law. ( Id. ¶ 27.) Count VII claims that Defendants conspired to racially discriminate against Plaintiff, and Count VIII alleges that Defendants conspired with private individuals to violate Plaintiff's civil rights "by having persons give false and fraudulent testimony through force, intimidation, [and] acts of threats" which prevented them from "testifying freely and truthfully in court. . . ." ( Id. ¶¶ 28-29.)
In the caption of the complaint, Plaintiff has named the following defendants: the County of Saginaw; the City of Saginaw; the Saginaw Police Department; Detective Sergeant Mark Lively; George Best II (Saginaw County Assistant Prosecutor); Auto Owners Insurance Company; and the law firm of McMartin, Wash Associates. In the body of the complaint, however, neither the insurance company nor the law firm are listed under the heading of "parties." ( Id. ¶¶ 7-13.) Furthermore, the law firm is never mentioned anywhere in the complaint, and the only mention of the insurance company is when Plaintiff avers in his statement of relevant facts that Detective "Lively then contacted Diane Frost, Auto Owners Insurance Company who talked about his pray sheets that were confiscated, and advised her not to insure the Plaintiff's Rental Property." ( Id. ¶ 16.)
Plaintiff seeks the award of compensatory and punitive damages, along with what amounts to an injunction prohibiting Defendants from any "further abuses of authority, harassment, intimidation, abuse of powers, or fraudulent criminal charges[.]" ( Id. at 12.) Plaintiff also seeks to have Defendants' actions reported to the United States Attorney's Office and requests that the Defendants be ordered to "set up a fund in the name of the Plaintiff for further and other violation of Civil Rights found in the future to the cause of the Defendants in other cases of the same." ( Id. at 13.)
C. Defendants County of Saginaw, City of Saginaw, Saginaw Police Department, Sergeant Mark Lively, and George Best II
In their motions, the Saginaw governmental defendants indicate that the incidents forming the basis of Plaintiff's allegations are based in part upon the warrantless police search of Plaintiff's home, which was followed by a second search pursuant to a warrant issued by District Court Judge Darnell Jackson of Saginaw County, Michigan. Defendants represent that these incidents have given rise to pending state criminal charges against Plaintiff and they therefore suggest, among other things, that this Court should abstain and dismiss Plaintiff's complaint.
Principles of equity, comity and federalism in certain circumstances counsel abstention in deference to ongoing state proceedings. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). See also Heck v. Humphrey, 512 U.S. 477, 587 n. 8, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (". . . if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court proceedings"). In this circuit, the time to determine whether abstention is appropriate is when the federal complaint is filed. Zalman v. Armstrong, 802 F.2d 199, 204 (6th Cir. 1986).
In Younger, the Supreme Court held that a federal court should not interfere with a pending state criminal proceeding except in the rare situation where an injunction is necessary to prevent great and immediate injury. Younger, 401 U.S. at 44. The Court has also applied abstention to state civil proceedings which involve important state interests and to a variety of state administrative proceedings. See Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982). In Middlesex County, the Supreme Court enumerated a three-part test to determine whether abstention is appropriate: (1) Whether the proceedings involved constitute an ongoing state judicial proceeding; (2) Whether the proceedings implicate important state interests; and (3) Whether there is an adequate opportunity in the state proceedings to raise constitutional challenges. Id. at 432.
I suggest that each of these circumstances applies in this case. As to the first test, the filing of state criminal charges against Plaintiff clearly constitutes "an ongoing state judicial proceeding." As to the second test, the existence of criminal proceedings without doubt implicates an "important state interest," namely, the compliance with its criminal laws. Finally, as to the last test, Plaintiff has a more-than-adequate opportunity to challenge the constitutionality of the police searches of his home and seizure of his personal items in the state court proceedings. State criminal defendants possess the right under the Fourth Amendment to seek the suppression of the fruits of allegedly unconstitutional searches and seizures, and the Supreme Court has noted the competence of state courts to adjudicate federal constitutional claims. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).
I next consider the appropriate remedy. Defendants request that the instant case be dismissed. Prior to Heck v. Humphrey, supra, Sixth Circuit case law indicated that where a plaintiff sought equitable relief and damages not otherwise available in the state proceeding, the proper remedy was not to dismiss the federal case, but rather to stay the case pending the outcome of the related state proceedings. See Feaster v. Miksch, 846 F.2d 21, 24 (6th Cir. 1988) (finding that proper course for district court was to stay the federal proceedings where plaintiff, who was a state court criminal defendant, filed § 1983 action against police officers). After the Supreme Court's holding in Heck, however, the Sixth Circuit explicitly held that Feaster was no longer good law. Schilling v. White, 58 F.3d 1081, 1085 (6th Cir. 1995). Furthermore, in Shamaeizadeh v. Cunigan, 182 F. 3d 398, 399 (6th Cir. 1999), the Sixth Circuit held that a federal civil rights claim does not even accrue under these circumstances until the state trial and appeal processes have concluded.
In this case, Plaintiff seeks equitable relief as well as damages to compensate him for an allegedly illegal search of his home and seizure of his personal property. Plaintiff's state criminal case, however, is ongoing. Pursuant to Shamaeizadeh, Plaintiff's purported causes of action for violations of his civil rights will not accrue, if at all, until the conclusion of the state court proceedings. I therefore suggest that, pursuant to Schilling and Shamaeizadeh, the claims against these defendants should be dismissed without prejudice until the state criminal proceedings against Plaintiff are concluded.
D. Auto Owners Insurance Company and McMartin, Wash Associates
The Sixth Circuit has held that a court may, at any time, enter a sua sponte dismissal for lack of subject matter jurisdiction when the allegations are "totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion," and that in such a case, the plaintiff need not be given prior notice or an opportunity to amend. Apple v. Glenn, 183 F.3d 477, 478-79 (6th Cir. 1999) (per curiam). Here, where the only allegation against either of these defendants is that an agent of the insurance company engaged in a conversation with a detective concerning Plaintiff, I suggest that the insurance company and law firm be sua sponte dismissed as the claims against them are devoid of merit and unsubstantial.
III. REVIEW
The parties to this action may object to and seek review of this Report and Recommendation within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec'y of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sec'y of Health Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.