Opinion
21-12184
03-15-2023
BENJAMIN ALLEN SWITEK Plaintiff, v. MIDLAND COUNTY, CHIPPEWA COUNTY Defendants.
Matthew F. Leitman, United States District Judge.
REPORT AND RECOMMENDATION DENYING AS MOOT DEFENDANTS' MOTION TO DISMISS (ECF No. 74); GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No.77).
Curtis Ivy, Jr. United States Magistrate Judge.
On September 7, 2021, Plaintiff Benjamin Allen Switek filed this lawsuit against Midland County, Isabella County, Chippewa County, and the Michigan Parole Board. (ECF No. 1, PageID.4-5). He alleges violations of the Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments to the United States Constitution, violations of the Uniform Commercial Code, and failure to implement proper COVID protocols. (Id.). This matter was referred to the undersigned for all pretrial proceedings. (ECF No. 38). Presently before the Court are Defendant Chippewa County's motion to dismiss and Defendants Midland and Chippewa Counties' motion for summary judgment. (ECF Nos. 74; 77).
Plaintiff voluntarily dismissed Isabella County from this case and the Court dismissed the Michigan Department of Corrections (“MDOC”) Parole Board because that claim is barred by sovereign immunity. (ECF No. 28).
I. DISCUSSION
a. Defendants Midland County and Chippewa County's motion for summary judgment (ECF No. 77).
Plaintiff was incarcerated at the Chippewa County Correctional Facility from May 30, 2019, to May 7, 2020. (ECF No. 77, PageID.877). During this stint, Plaintiff received a charge for possessing a weapon as a prisoner, which appears to be the subject of some of Plaintiff's claims. (Id.). On July 23, 2020, Plaintiff was brought back to Chippewa County Correctional Facility on other charges. (Id.). He posted bond on July 25, 2020, and was released on July 28, 2020. (Id.).
On April 5, 2021, Plaintiff was brought to the Midland County Jail on other additional charges. (Id.). According to Defendants in their brief, Plaintiff remained in Midland County pretrial for a little over one year as his various criminal charges were resolved. (Id. at Page.ID.887). Pursuant to the resolution of his criminal matters, Plaintiff is currently incarcerated in the Chippewa Correctional Facility. (Id. at PageID.878).
In his complaint, Plaintiff alleges Defendants violated his Fifth, Sixth, Eight, Nineth, Tenth, and Fourteenth Amendment rights under the United States Constitution. (ECF No. 1, PageID.4). He also alleges violations of the Uniform Commercial Code (“UCC”), specifically §1-308 and §1-207. (Id.). The entirety of Plaintiff's complaint is as follows:
The County Courts and parole board, Infringed on my Constitutional Rights-do to not summoning my petitions for my writs of Habeas Courpus and conditional agreements in there timely manner. They violated my 5, 6, 8, 9, 10, 14th Amendments and UCC 1-308/1-207-reservations of rights. The Countys, Midland, Isabella, Chippewa, Parole Board violated my Liberty. March 1st 2021, is when I got locked up in Midland County Municipal Corporation County Jail. With the holds from Isabella County and M.D.O.C. Parole-board. Also Midland County Municipal Corporation has ‘Kept/Destroyed' a civil action that I have tried to send you guys on July 29th, 2021. They are takeing my mail, violating my due process. Also for subject matter jurisdiction they failed to state on the record and violation do to the Covid 19 pandemic/delta varian[t]. I have given no consent for this to be done to me.(ECF No. 1, PageID.5). Remaining Defendants Midland County and Chippewa County move for summary judgment pursuant to Fed.R.Civ.P. 56. (ECF No. 77). Defendants argue Plaintiff has failed to prove municipal liability for either County, his claims are barred, and he has failed to allege sufficient factual support to support any of his claims. (Id. at PageID.881).
i. Summary Judgment Standard
Summary judgment is mandated “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When evaluating a motion for summary judgment, the Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004).
“The moving party has the initial burden of proving that no genuine issue of material fact exists....” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56(e)(2) (providing if a party “fails to properly address another party's assertion of fact,” then the court may “consider the fact undisputed for purposes of the motion”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must “make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also Lee v. Metro. Gov't of Nashville & Davidson Cty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts, there must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.”) (internal quotation marks and citation omitted). In other words, summary judgment is appropriate when “a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case....” Stansberry, 651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
That Plaintiff is pro se does not reduce his obligations under Rule 56.
Rather, “liberal treatment of pro se pleadings does not require lenient treatment of substantive law.” Durante v. Fairlane Town Ctr., 201 Fed.Appx. 338, 344 (6th Cir. 2006). In addition, “[o]nce a case has progressed to the summary judgment stage, . . . ‘the liberal pleading standards under Swierkiewicz [v. Sorema, N.A., 534 U.S. 506, 512-13 (2002)] and [the Federal Rules] are inapplicable.'” Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)). The Sixth Circuit has made clear that, when opposing summary judgment, a party cannot rely on allegations or denials in unsworn filings and that a party's “status as a pro se litigant does not alter [this] duty on a summary judgment motion.” Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010); see also United States v. Brown, 7 Fed.Appx. 353, 354 (6th Cir. 2001) (affirming grant of summary judgment against a pro se plaintiff because he “failed to present any evidence to defeat the government's motion”).
ii. Municipal Liability Under Monell
“A plaintiff who sues a municipality for a constitutional violation under § 1983 must prove that the municipality's policy or custom caused the alleged injury.” Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006) (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978)). In Monell, the Supreme Court held that municipalities are “persons” subject to suit under § 1983. 436 U.S. at 700-01. That said, such a claim may be brought only when “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694.
The Sixth Circuit has instructed that, to satisfy the requirements of Monell, a plaintiff “must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993) (internal citations and quotations omitted). For these reasons, to succeed on a Monell claim, a plaintiff must first allege that the municipality itself caused a constitutional tort. Monell, 436 U.S. 658 at 691. “A municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. Second, a plaintiff must show that the alleged conduct qualifies as a policy. Monell municipal liability may attach where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Id. at 690. Monell liability may also attach when a plaintiff alleges “constitutional deprivations visited pursuant to governmental ‘custom' even though such a custom has not received formal approval through the body's official decision making channels.” Id. at 690-91. A plaintiff must claim that “a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
Third, a plaintiff must show causation. In other words, a plaintiff must connect the policy to the particular injury alleged. “At bottom, this is a causation inquiry, requiring the plaintiff to show that it was the defendant's custom or policy that led to the complained of injury.” Powers v. Hamilton Cnty. Pub. Def. Com'n, 501 F.3d 592, 608 (6th Cir. 2007) (citing Garner v. Memphis Police Dep't, 8 F.3d 358, 363-64 (6th Cir. 1993)).
Defendants argue that Plaintiff has elicited no evidence of the existence of an illegal official policy or legislative enactment, the ratification of illegal actions by an official with final decision-making authority, the existence of a policy of inadequate training or supervision, or the existence of a custom of tolerance or acquiescence of federal rights violations.
Defendants indicate that neither County has jurisdiction or control over the operation of the county jails. (Id. at PageID.881). Both the Chippewa County Jail and the Midland County Jail are administrated by the county sheriffs, which are independent Constitutional Officers and Elected Officials. (Id.) (citing MICH. CONST. 1963, Art. VII, § 4). Defendants acknowledge that the County does fund the operation of the correctional facilities, but that neither has the statutory authority to direct the way the facilities are operated. (Id.). Plaintiff argues it is sufficient under § 1983 to merely identify conduct properly attributable to the municipality, that he has shown the municipal action was taken with the requisite degree of culpability, and demonstrated a direct causal link between the municipal action and the deprivation of his federal rights violations. (ECF No. 80, PageID.1143). Plaintiff does not cite any evidentiary or legal support for these arguments. He argues that the Counties fund the sheriff to operate the jails and the Counties can be held liable for the conditions. (Id. at PageID.1144).
Plaintiff's complaint contains no factual allegations at all and he brought forth no admissible evidence about any alleged policy, practice, or custom of the Defendants that resulted in the alleged constitutional violation related to his conditions of confinement. Thus, the undersigned suggests Plaintiff has failed to prove that the Defendants are responsible for causing him any injury. Thus the undersigned suggests summary judgment is appropriate because Plaintiff has not set forth specific facts showing a triable issue which could support an essential element of Plaintiff's claim. The failure to meet the first element dooms the claim. Even so, the undersigned will analyze the substantive aspects of Plaintiff's claims.
iii. Plaintiff's challenges to his criminal proceedings
As far as Plaintiff seeks to challenge his criminal proceedings, civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments. Plaintiff's claims related to his criminal convictions are barred by the favorable-termination requirement set forth in Heck v. Humphrey, 512 U.S. 477 (1994).
Under the Heck doctrine, a state prisoner may not file a § 1983 suit for damages or equitable relief challenging his conviction or sentence if a ruling on the claim would render the conviction or sentence invalid, until and unless the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or questioned by a federal court's issuance of a writ of habeas corpus. Id. at 486-87; Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred (absent prior invalidation)- no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”). This holds true regardless of the relief sought by the plaintiff. Heck, 512 U.S. at 487-89.
The basis for the holding in Heck is that “civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486. Plaintiff has not alleged that he has a favorable termination in a challenge to the basis of his criminal convictions. If Plaintiff was to prevail on his claims related to the validity of his criminal proceedings, his convictions and continued confinement would be questioned. Consequently, such claims are barred by Heck and the undersigned suggests granting summary judgment is appropriate.
The Court notes Plaintiff appears to have pled nolo contendere and accepted a plea deal regarding the criminal convictions. (ECF No. 77, PageID.877-78).
iv. Plaintiff's claims related to his mail
As to Plaintiff's claims that Midland County is taking, keeping, or destroying his mail in violation of due process, the undersigned suggests there are no material facts in dispute on the issues with Plaintiff's mail and that summary judgment for Defendant Midland County is appropriate.
In his complaint, Plaintiff alleges Midland County is tampering with his mail because his legal mail “keeps being rejected,” and/or “has not come back to [him].” (ECF No. 1, PageID.10). To support this belief, Plaintiff attaches several returned envelopes to his complaint. Each of these envelops indicate they were returned for insufficient postage-all the letters contain a notation that extra postage was due. (Id. at PageID.11-14). Plaintiff's complaint alleges that Midland County has “‘Kept/Destroyed' a civil action that I have tried to send you guys on July 29th 2021.” (Id. at PageID.5). In his response Plaintiff alleges that Midland County interfered with Plaintiff's mail in a way that prejudiced him, but does not state how he has been prejudiced by the issues about his mail. (ECF No. 80, PageID.1147).
To succeed on such a claim, a prisoner must generally allege that a prison official's interference with his legal mail has affected the prisoner's access to the courts. Stanley v. Vining, 602 F.3d 767, 770 (6th. Cir. 2010) (citing Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)) (“In order to state a claim for denial of meaningful access to the courts, however, plaintiffs must plead and prove prejudice stemming from the asserted violation.”); see also Sprinkle v. Barksdale, 2009 WL 1956370, at *6 (W.D. Va. July 6, 2009) (dismissing access-to-courts claim based on allegation that a prison official denied the use of a photocopier because the plaintiff did explain how this action caused any injury to his litigation efforts). As to Plaintiff's bare assertion that Midland County “‘Kept/Destroyed' a civil action[,]” this statement contains no particular allegation that Plaintiff was prejudiced, and Plaintiff has since been able to successfully file lawsuits. (ECF No. 1, PageID.5). The undersigned suggests that no reasonable jury could find for Plaintiff based on this bare assertion related to his civil action of July 29, 2021.
Plaintiff has not alleged the issues resulting in return of the documents prejudiced him in any litigation and the undersigned suggests summary judgment is appropriate.
v. Plaintiff's Pretrial Detention
Within the Sixth Circuit an excessive duration of pretrial detention can violate due process. United States v. Watson, 475 Fed.Appx. 598, 601 (6th Cir. 2012). The Sixth Circuit evaluates four factors in determining whether pretrial detention is unconstitutionally excessive: “(1) the length of the detention; (2) the extent of the prosecution's responsibility for the delay of the trial; (3) the gravity of the charges; and (4) the strength of the evidence upon which the detention was based.” Id. The Court evaluates each of these factors in turn.
Generally, “the length of pretrial detention is not dispositive, and will, by itself, rarely offend due process.” Watson, 475 Fed.Appx. at 601 (citing United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000)). In Watson, the defendant had been detained awaiting trial about one year, and the Sixth Circuit noted that “[c]ourts have found lesser periods of detention to be a violation of due process, but they have also found lengthier periods that were not in violation of the Fifth Amendment.” Id. at 602 (internal citations removed). Plaintiff was detained a little over a year while awaiting trial. (ECF No. 77, PageID.887) (Plaintiff eventually pleaded nolo contendere or accepted a plea rather than go to trial). The Court must “look to the other factors in conjunction with length of detention” in order to assess whether this twelve-month pretrial detention violated his due process rights. Watson, 475 Fed.Appx. at 602.
Defendants argue nothing in the record suggests that the government contributed to any delay in the proceedings nor has Plaintiff made an effort in discovery to find evidence related to these factors. (ECF No. 77, PageID.888). In his response, Plaintiff argues there is evidence the government contributed to the proceedings but does not allege what that evidence is. (ECF No. 80, PageID.1148). Plaintiff alleges he has made “strong efforts to discover all evidence related to these factors[.]” (Id.). As to the gravity of the charges, Plaintiff was detained pretrial on a number of felony charges: prisoner in possession of weapon, possession of methamphetamine, unauthorized use of a motor vehicle, and resisting and obstructing a police officer. (ECF No. 77, PageID.887) (citing MCL 800.283(4), 800.285, 333.7403(2)(b)(1), 750.535(7), and 750.81d(1)). Each of these is a felony carrying a prison term of between two and ten years under Michigan law. Considering the around one-year term of pretrial detention, given the serious gravity of the offenses, and the lack of evidence of government delay, the undersigned suggests Plaintiff's pretrial detention did not violate his due process rights.
vi. Plaintiff's claims related to COVID-19
Prison and jail officials must “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). For pretrial detainees, the obligation arises out of the Due Process Clause of the Fifth or Fourteenth Amendment. Cameron v. Bouchard, 815 Fed.Appx. 978, 983-84 (6th Cir. 2020) (citing Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)).
Conditions-of-confinement claims are assessed under the “deliberate indifference” framework. [Villegas, 709 F.3d at 568]. This framework requires plaintiffs to meet two requirements. The first is “objective[ ],” and it requires the inmate to “show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 833 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The second is “subjective,” and it requires the inmate to “show that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and then disregarded that risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837). The official must have a subjective “state of mind more blameworthy than negligence,” akin to criminal recklessness.
Farmer, 511 U.S. at 835, 839-40.Cameron v. Bouchard, 815 Fed.Appx. 978, 984 (6th Cir. 2020). Defendants concede that COVID-19 satisfies the objective prong of the deliberate indifference framework. (ECF No. 77, PageID.889). An “imperfect” response to COVID-19 is “not enough to establish deliberate indifference.” Cameron v. Bouchard, 815 Fed.Appx. 978, 986 (6th Cir. 2020).
Plaintiff's complaint contains no other factual allegations on how Defendants allegedly violated his due process rights related to the COVID-19 pandemic, he merely states the Defendants did so. (ECF No. 1). In his response, Plaintiff's only additional factual allegation is that the Midland County Sheriff “distributed a manual and memorandums to the jail staff and inmate workers about proper cleaning procedures intended to limit the spread within the Jail” and that Plaintiff contracted COVID-19 despite these efforts. (ECF No. 80, PageID.1150). The undersigned suggests a grant of summary judgment is appropriate considering Plaintiff's allegations do not rise to the level of deliberate indifference.
vii. Plaintiff's Claims Under the UCC
The UCC “speaks only to commercial law and does not provide a proper basis for . . . bringing a civil rights action.” Brown v. Midland Cnty., No. 1:21-CV-11701, 2021 WL 6051113, at *2 (E.D. Mich. Dec. 21, 2021) (quoting Brzezinski v. Smith, No. 12-14573, 2013 WL 2397522, at *3 (E.D. Mich. May 31, 2013)). The undersigned recommends Defendants motion for summary judgment be granted on Plaintiff's claims under the UCC because the UCC does not provide a proper basis for bringing a civil rights action.
viii. Plaintiff's Claims under the Fourteenth Amendment and Tenth Amendment.
In his complaint, Plaintiff has a bare assertion unsupported by facts that Defendants have violated his rights under the Fourteenth and Tenth Amendments. (ECF No. 1, PageID.5). Defendants argue that Plaintiff has alleged no disparate treatment occurred. (ECF No. 77, PageID.892). In his reply brief, Plaintiff again argues “he was denied equal protection of the law” and states no other allegations on how the Defendants denied him the equal protection of the law.
The equal protection clause prohibits state actors from denying “to any person within [their] jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. This clause requires that “similarly situated individuals” be treated similarly. Nicholson v. City of Westlake, 76 Fed.Appx. 626, 629 (6th Cir. 2003) (citation omitted). The “threshold element” is “disparate treatment.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). Plaintiff has not factually supported his allegation of disparate treatment and the undersigned suggests granting Defendants' motion for summary judgment is appropriate.
Under the Tenth Amendment the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. Plaintiff has alleged no facts related to the Tenth Amendment and the undersigned suggests granting summary judgment is appropriate.
I. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that Defendants' motion for summary judgment be GRANTED and this case be DISMISSED. (ECF No. 77). As the undersigned has recommended that Defendants' motion for summary judgment be granted and this case dismissed entirely, Defendants' motion to dismiss should be DENIED AS MOOT. (ECF No. 74).
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.