Opinion
Case No. 1:98-CV-52.
Dated: November 2, 1999.
MEMORANDUM OPINION
Now before the Court are defendants' motions to dismiss or, in the alternative, for summary judgment. A hearing was held before the Court on May 20, 1999, at which time the Court took under advisement plaintiff's claims in counts II and VI against defendant Galloup, and plaintiff's claims in count V against defendant Lady. The Court has carefully considered the parties' arguments both as set forth in their briefs and as set forth at the hearing. For the reasons stated from the bench and for those detailed below, the Court will grant both defendant Galloup's and defendant Lady's motions for summary judgment.
Defendants have moved for summary judgment on plaintiff's third amended complaint, which alleges seven counts against the various defendants under 42 U.S.C. § 1983. Like a blunderbuss, plaintiff's complaint "`aims in the general direction of the federal Constitution with buckshot,'" and fires off allegations of a vast conspiracy undertaken by the various defendants, including plaintiff's ex-wives, one of their attorneys, and several local and state law-enforcement officials. Coogan v. City of Wixom, 820 F.2d 170, 174 (6th Cir. 1987) (quoting Campbell, C.J., in Chiplin Enterprises v. City of Lebanon, 712 F.2d 1524, 1526 (1st Cir. 1983). Plaintiff has twice sought new counsel, and has amended his complaint three times. Accordingly, the factual and procedural history of this case is quite complex; however, a review of the controlling law reveals that a repetition of this case's circumstances is unnecessary to decide the instant motions.
The Court's analysis commences with count II of plaintiff's complaint, in which plaintiff alleges defendant Galloup brought stalking and parental kidnapping charges in state court against him without probable cause. As a result, plaintiff claims to have been falsely arrested and imprisoned, in violation of his Fourth Amendment rights. For support, plaintiff submits defendant Galloup's police report and warrant request which plaintiff characterizes as filled with "false rumors, innuendoes and allegations."
Moving for summary judgment, defendant Galloup makes four arguments:
first, that plaintiff is collaterally estopped from bringing a Fourth Amendment claim because he pleaded guilty to the underlying prosecution in state court; second, that plaintiff cannot state a valid claim for damages that would call into question the underlying criminal conviction unless and until that conviction has been set aside; third, that plaintiff's claim of malicious prosecution is barred because the state actions did not terminate in his favor; and fourth, that qualified immunity precludes plaintiff's claim because he is a member of the Michigan State Police.
Analysis of Galloup's first and third arguments obviates the need to look further to decide this issue. The Supreme Court has long recognized that a prior criminal conviction may operate as collateral estoppel to a subsequent civil-proceeding. See Allen v. McCurry, 449 U.S. 90, 94 (1980). In Allen v. McCurry, the Supreme Court held that collateral estoppel bars the litigation of issues under § 1983 where the issues could have been raised in the underlying state court matter. See Allen v. McCurry, 449 U.S. at 90. The Sixth Circuit has further held that collateral estoppel bars a plaintiff from pressing a § 1983 claim if he had a "full and fair opportunity" to litigate the question of whether the plaintiff was falsely arrested and/or imprisoned. Walker v. Schaeffer, 854 F.2d 138 (6th Cir. 1988). Thus, the question before the Court is whether plaintiff had a full and fair opportunity to litigate the charges against him in the state court proceedings.
Plaintiff, however, offers no response to defendant Galloup's contention that collateral estoppel precludes plaintiff from bringing his action under § 1983. More significantly, the Court can discern no evidence in the record to suggest that plaintiff enjoyed anything but a full and fair opportunity to litigate his claims of false arrest in his state court proceedings. Plaintiff waived the probable cause hearing on the parental kidnapping charge before the state court. Plaintiff then entered into a plea agreement with the State of Michigan on behalf of the corporation of which he was the sole shareholder and manager. Had plaintiff desired to dispute the validity of the charges against him, he could have done so at his probable cause hearing. Hence., the Court finds that plaintiff fails to present a material issue of fact for trial, because collateral estoppel precludes him from raising an issue that could have been raised in the prior state proceedings.
The Court next turns to Galloup's third argument. Galloup submits plaintiff's claim fails to establish the underlying proceedings in the state court terminated in his favor, foreclosing plaintiff's malicious prosecution claim. Plaintiff asserts the state court charges against him were dismissed, negating an inference of probable cause for his arrest and prosecution.
A claim of malicious prosecution is actionable under § 1983 where all elements of the state law tort are present and probable cause was lacking as defined by Fourth Amendment jurisprudence. See Albright v. Oliver, 510 U.S. 266, 271, 274 (1994); Coogan v. City of Wixom, 820 F.2d 170, 174 (6th Cir. 1987) Under Michgan law, the elements of malicious prosecution are "(1) a criminal prosecution instituted against plaintiff by defendant, terminating in plaintiff's favor, (2) absence of probable cause for the criminal proceeding, and (3) malice or a primary purpose in bringing the action other than bringing the offender to justice." Coogan, 820 F.2d at 172 (quoting Rivers v. Ex-Cell-O Corp., 300 N.W.2d 420, 424 (Mich. 1980)). The first issue before the Court is whether the charges brought against plaintiff by Galloup are properly characterized as terminating in his favor when those charges were later dismissed pursuant to a plea agreement. The Court concludes that no reasonable juror could find that plaintiff has demonstrated evidence sufficient to support his assertion that the state charges against him were terminated in his favor.
The State of Michigan originally brought six charges against plaintiff: felony charges for parental kidnapping and insufficient funds; misdemeanor charges for assault and battery and stalking, and two misdemeanor charges for performing occupation without a license. Plaintiff, represented by counsel, reached a plea agreement with the state. The prosecutor agreed to amend the misdemeanor occupational code violations claims to name plaintiff's business, of which plaintiff was the sole shareholder and manager, instead of plaintiff personally. Plaintiff, on behalf of the business, consented to plead guilty to the two occupational code charges and the felony non-sufficient funds charge. According to the plea agreement, plaintiff pled guilty on behalf of the corporation, and a motion of nolle prosequi on the parental kidnapping charge was entered and granted by the state circuit court.
Defendant argues plaintiff's plea and the subsequent entry of a nolle prosequi does not equate to a termination of the charges in plaintiff's favor, citing Treece v. Naperville, 1998 U.S. Dist. LEXIS 3697 (N.D.Ill. 1998). Plaintiff responds with three arguments. First, plaintiff attempts to distinguish Treece by claiming that the prosecutor's motivation there was to avoid a civil suit by the plaintiff. Second, plaintiff asserts the record presents no independent evidence of probable cause. Third, defendant cites authority for the propositions that dismissal due to delay, double jeopardy, or lack of reasonable grounds represents a termination in the accused's favor.
Although Treece is not binding authority, the Court finds its reasoning to be persuasive.
Federal courts look to the appropriate state law in determining what type of preclusive effect must be given to the prior criminal proceeding. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80 (1984). Under Michigan law, the entry of a nolle prosequi is not equivalent to a finding of innocence. See Sumeracki v. County of Wayne, 354 Mich. 377, 383 (1958) ("Nolle prosequi is not tantamount to an acquittal."). Particularly when entry of a nolle prosequi is the result of an agreement or compromise with the accused, abandonment of the prosecution does not necessarily equate to a finding of innocence. Id. Accordingly, the burden should be upon the plaintiff to demonstrate that the nolle prosequi was entered for reasons consistent with the plaintiff's innocence. Accord Treece, 1998 U.S. Dist. LEXIS 3696 at 22.
In light of the foregoing analysis, the Court finds plaintiff's arguments unconvincing. The motivation of a particular prosecutor in Treece does not implicate that court's underlying reasoning, nor does it affect this Court's conclusion. The lack of an independent finding of probable cause by the state court is insufficient, without more, to demonstrate that the entry of a nolle prosequi was for reasons consistent with the plaintiff's innocence. In fact, a careful review of the record reveals significant evidence to substantiate the existence of probable cause for plaintiff's arrest. Plaintiff's ex-wives and girlfriend made several statements to the police regarding plaintiff's threatening conduct. Finally, with regard to the cases cited by defendant from other circuits — assuming they represent good law — they do not bind this Court. More importantly, they present factual circumstances distinct from the instant case. Thus, the Court finds on the law and this record that plaintiff fails to prove the nolle prosequi entered pursuant to his plea agreement equates to a termination of proceedings in his favor.
Consequently, plaintiff's § 1983 claim against Galloup in count II is barred because it fails to establish the first element of a malicious prosecution claim under Michigan law.
Turning to the second element of a malicious prosecution claim, the Court concludes plaintiff has not adduced sufficient facts to establish that defendant Galloup lacked probable cause for his arrests of plaintiff. Under Michigan law, probable cause is present where sufficient facts exist to cause a prudent person to believe that another has committed a crime. See Koski v. Vohs, 395 N.W.2d 226, 232 (Mich. 1986). Here, the record produced more than ample evidence for reasonable jurors to find probable cause existed for plaintiff's arrest on both the stalking and the parental kidnapping charges. According to several witness statements made to defendant Galloup, plaintiff made threatening phone calls and other verbal threats to his then wife, Betty Jo John, and denied his ex-wife, Barbara Choma, visitation with her son. As a result, plaintiff cannot meet his burden on the second element of a malicious prosecution claim.
II.
The Court next considers count V of the third amended complaint, in which plaintiff alleges Lady violated his Fifth Amendment rights by turning his property over to third parties without notice or judicial process. Lady argues, first, that the Fifth Amendment does not apply to state actors; second, that plaintiff has an adequate remedy under state law that precludes his suit under § 1983. The Court finds defendant correctly states the proposition that the Fourteenth Amendment, rather than the Fifth Amendment, protects individuals from state actors who allegedly violate due process. See Sharp v. Kelsey, 918 F. Supp. 1115 (W.D.Mich. 1996). Yet, even if plaintiff were to have correctly grounded his § 1983 claim in the Fourteenth Amendment, his allegations fail to state a claim upon which relief can be granted because an adequate post-deprivation remedy exists under state law.
To maintain an action under 42 U.S.C. § 1983 for an alleged deprivation of property without due process, a plaintiff must establish that the state has not made available an adequate postdeprivation remedy. See Parratt v. Taylor, 451 U.S. 527 (1981); Vicory v. Walton, 721 F.2d 1062 (6th Cir., 1983) Michigan law provides post-deprivation remedies for both negligent and intentional conversions of personal property. See Green v. State Corr, Dep't, 30 Mich. App. 648; aff'd 386 Mich. 459 (1971); Lawrence v. Department of Corr., 81 Mich. App. 234 (1978); Bandfield v. Wood, 104 Mich. App. 279 (1981). Plaintiff does not dispute the existence of these state law remedies. Rather, plaintiff contends he became aware of Lady's actions after the statute of limitations had run on his state causes of action in late 1998, effectively barring him from relief under state law. When questioned by the Court at the hearing, however, plaintiff conceded the existence of an adequate state law remedy. Plaintiff merely asserted that because Lady's actions rose to a constitutional violation, he was entitled to relief.
Confronted with plaintiff's contradictory positions, the Court would be justified in awarding summary judgment based on plaintiff's concession. Nevertheless, a thorough review of the record reveals plaintiff's claim has no merit. Michigan's three year statute of limitations for personal injury claims, M.C.L. 600.5805(8), governs § 1983 actions when the cause of action arises in Michigan. See Carroll v. Wilkerson, 782 F.2d 44,45 (6th Cir. 1986). Plaintiff maintains the property at issue "was dispersed to third parties and the case closed in April 1995." Lady was served in March 1998, within the three year statue of limitations for deprivation of property actions under Michigan law. Hence, at the time he brought this action, plaintiff possessed state law cause under which he could have sought relief, precluding him from proceeding under § 1983.
III.
In the remaining issue, count VI of plaintiff's third amended complaint, plaintiff claims Galloup acted in concert with others to violate plaintiff's right to free speech and to petition the government for redress of grievances. The gravamen of plaintiff's claim is that Galloup trumped up charges of parental kidnapping against plaintiff after he filed for custody of his son, Edward Conz III, in a Florida state court. Plaintiff claims defendant Galloup's animus resulted from plaintiff's repeated challenges of defendant Galloup's efforts to locate suspects, other than plaintiff, responsible for the break-in at plaintiff's business. Defendant Galloup contends that plaintiff's allegations fail to allege the necessary elements to make out a retaliation claim under the law.
To recover for a claim of First Amendment retaliation, a plaintiff must establish the following three elements: (1) that the plaintiff was engaged in a constitutionally protected activity; (2) that the defendant's adverse action caused the plaintiff 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 the exercise of the plaintiff's constitutional rights. See Mattox v. City of Forest Park, 183 F.3d 515, 520 (6th Cir. 1999). An alleged violation of the Petition Clause is subject to the same analysis applied to a claim arising under the Speech Clause. See Valot v. Southeast Local Sch. Dist, Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir.), cert. denied, 118 S.Ct. 164 (1997).
Before the Court at the hearing, plaintiff argued that defendant Galloup "knew the situation in Florida [filing of a petition for custody before a Florida state court] and . . . over the months leading into this showed a tremendous malicious thought . . . towards Mr. Conz and that his action was voluntary in and of himself to pursue inquiry, which ultimately led towards the parental kidnapping [charge]." Plaintiff does not, however, adduce any further evidence for his claims regarding Galloup's knowledge or malicious intent.
Nowhere in the record does plaintiff establish any material facts sufficient to infer any causal connection between the filing of plaintiff's petition in Florida State Court and defendant seeking an arrest warrant for parental kidnapping in Michigan. Moreover, plaintiff does not set forth any facts, other than a conclusory allegation of contact between defendants Galloup and Choma, that create a reasonable inference that Galloup's actions were retaliatory. The record does not demonstrate that Galloup acted in response to plaintiff's state court filings, as opposed to merely becoming aware of plaintiff's flight from Michigan. Nor does plaintiff allege facts to show that plaintiff's filing was a motivating factor in attaining a warrant for plaintiff's arrest. Rather, a reasonable jury could only infer Galloup was made aware that plaintiff had left Michigan with his son in violation of a Michigan state court divorce decree, and as a result Galloup sought an arrest warrant.
Although plaintiff repeated makes conclusory allegations of Galloup's knowledge and intentions, yet he cannot cobble together enough facts from which a reasonable jury could find an inference of retaliation. The record fails to establish any connection between the protected activity engaged in by plaintiff and the actions that plaintiff alleges to be retaliatory by defendant Galloup.
Thus, plaintiff's claim against defendant Galloup in count VI will be dismissed.
An order consistent with this opinion shall issue forthwith.
ORDER
In accordance with the Court's bench ruling on May 20, 1999, and the Court's memorandum opinion dated November 2, 1999, the Court orders as follows:
The parties having stipulated to the dismissal of defendants Hundt, Brown, John and Buday in a motion filed May 20, 1999, IT IS HEREBY ORDERED that plaintiff's claims against defendants Hundt, Brown, John and Buday are DISMISSED.
Plaintiff having conceded that he is no longer pursuing Count I of his third amended complaint, IT IS HEREBY ORDERED that Count I of plaintiff's third amended complaint is DISMISSED.
Plaintiff having further conceded that his state law claims under Count II are barred by the applicable statute of limitations, IT IS HEREBY ORDERED that plaintiff's state law claims under Count II are DISMISSED. The Court having found that no genuine issue of material fact exists with regard to plaintiff's federal claims under Count II against defendants Bowron and Choma, IT IS FURTHER ORDERED that defendants Bowron's and Choma's motions for summary judgment are GRANTED.
Accordingly, JUDGMENT IS AWARDED in favor of defendants Bowron and Choma on all of plaintiff's claims against them.
The Court having found that plaintiff is collaterally estopped from bringing his claim against defendant Galloup set forth in Count II, IT IS HEREBY ORDERED that defendant Galloup's motion for summary judgment on Count II is GRANTED. Accordingly, JUDGMENT IS AWARDED in favor of defendant Galloup on Count II.
Because plaintiff asserts Counts III and IV of his third amended complaint only against defendants Hundt and Brown, respectively, and because those defendants have been dismissed pursuant to stipulation, IT IS FURTHER ORDERED that Counts III and IV of plaintiff's third amended complaint are also DISMISSED.
For the reasons set forth in the Court's opinion dated, November 2, 1999, finding there is no genuine issue of material fact regarding plaintiff's claims under Count V against defendant Lady, IT IS ORDERED that defendant Lady's motion for summary judgment with regard to that claim is GRANTED and JUDGMENT IS HEREBY AWARDED in favor of defendant Lady on Count V.
The Court having found that there is no genuine issue of material fact regarding plaintiff's claims under Count VI against defendant Lady, IT IS ORDERED that defendant Lady's motion for summary judgment with regard to that claim is GRANTED, and JUDGMENT IS HEREBY AWARDED to defendant Lady.
Plaintiff having conceded that he is no longer pursuing Count VII of his third amended complaint, IT IS ORDERED that Count VII of plaintiff's third amended complaint is DISMISSED.
Defendant Choma filed various state law counter-claims against plaintiff alleging harassment, slander, libel, intentional infliction of emotional/mental distress, and malicious prosecution. Defendant Choma requests relief in the form of an "equitable decree" barring plaintiff from continuing such behavior and other damages. Having dismissed all of plaintiff's federal claims, the Court declines to exercise continuing supplemental jurisdiction over defendant Choma's state law counter-claims, pursuant to 28 U.S.C. § 1367(c)(3). Therefore, IT IS FURTHER ORDERED that defendant Choma's state law counter-claims are DISMISSED WITHOUT PREJUDICE.