Opinion
Case No. 5:99-CV-139
Date June 21, 2000
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that the Defendant's motion to dismiss (Docket #10) is GRANTED.
IT IS FURTHER ORDERED that the Complaint is DISMISSED in its entirety without prejudice.
OPINION
The Plaintiff, Bruce MacDonald, alleges that he was terminated in retaliation for engaging in protected activities in violation of Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"), M.C.L.§ 37.2101 et seq., M.S.A. § 3.549(101) et seq., (Count I), and in violation of the First Amendment (Count II). Count II also asserts that the Defendant violated the Plaintiff's right to litigate in order to seek redress for grievances. Before the Court is the Defendant's motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6). For the reasons stated herein, the motion is granted.
I
In evaluating a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint, and construes ambiguous allegations in the plaintiff's favor. In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997).
However, the Court need not accept as true legal conclusions or unwarranted factual inferences. Id. "In order for a dismissal to be proper, it must appear beyond doubt that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint." Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996).
II
The Complaint alleges the following. The Plaintiff, Bruce MacDonald, was a Michigan Department of Corrections ("MDOC") employee since August 1989 and for the last three years had been working at the Western Wayne Correctional Facility, where the Defendant, Mark Symons, is the personnel director.
The Plaintiff alleges that "in the last three years and previously," he had engaged in protected activity under ELCRA and/or the Michigan Handicappers Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq., M.S.A. § 3.550(101) et seq. The allegedly protected activity is identified as follows: "Plaintiff filed an EEO Handicap Discrimination Claim with the MDOC on July 30, 1999.
Compl. ¶ 8.
Plaintiff filed a retaliation claim in Ingham County Circuit Court Case No. 99-90317-NZ." In December 1999, the Plaintiff commenced this action against Symons in his individual capacity.
Compl. ¶ 26.
III
The Defendant, having asserted the doctrine of qualified immunity in his answer, now moves to dismiss Count II on the grounds that the Plaintiff has failed to allege specific facts to survive the defense of qualified immunity.
The defense of qualified immunity protects government officials performing discretionary functions from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Within the context of allowing private parties to vindicate their right to be free from § 1983 infractions, the animating purpose of the Supreme Court's articulation of qualified immunity standards in Harlow is to allow public officials to perform important government functions free from the debilitating effects of excessive litigation. . . . In limiting a public official's personal liability to objectively unreasonable violations of clearly established law, the Harlow Court was expressly concerned that numerous lawsuits would distract government officials from performing their functions, would inhibit discretionary action, and would deter desirable candidates from performing public service.Bartell v. Lohiser, ___ F.3d ___, 2000 WL 726482, at *4 (6th Cir. Jun 7, 2000) (citation omitted.). See Crawford-El v. Britton, 523 U.S. 574 (1998) (reiterating that qualified immunity protects a defendant official where that official "could not reasonably be expected to anticipate subsequent legal developments, nor . . . fairly be said to `know' that the law forbade conduct not previously identified as unlawful.") (quoting Harlow, 457 U.S. at 818) (internal quotation marks omitted). The Court employs a two step analysis to determine whether qualified immunity is proper: first, the Court must determine whether a "clearly established" constitutional or statutory right has been violated; and second, the Court must ascertain whether the official's conduct was acted objectively unreasonable in light of the clearly established right. See Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).
In Vebey v. Hogan, 70 F.3 d 917 (6th Cir. 1995), the plaintiff's complaint alleged that he had filed numerous intra-departmental complaints regarding the actions of various supervisors. The plaintiff further alleged that the defendants demoted him in retaliation for the complaints. The Sixth Circuit found that in response to the defendant's qualified immunity defense, the Plaintiff's factual allegations would have to include the precise content, form, and context of those complaints. When the defense of qualified immunity is asserted, the complaint must "include the specific, non-conclusory allegations of fact that will enable the district court to determine that those facts, if proved, will overcome the defense of qualified immunity." Id. at 922. See Kain v. Nesbitt, 156 F.3d 669, 672 (6th Cir. 1998). In short, the plaintiff must come forward with additional facts or allegations that show not only the violation of his rights, but also that these rights were so clearly established when the acts were committed that any official in the defendant's position, measured objectively, would have clearly understood that he was under an affirmative duty to refrain from the conduct. Veney, 70 F.3d at 921. If plaintiff fails to plead "the `circumstances, occurrences, and events in support of the claim presented,'" dismissal is proper. Id. at 921-22. In this case, the Plaintiff's complaint and response to the motion to dismiss manifestly fail to conform to the pleading standard articulated in Veney. In response to the motion to dismiss, the Plaintiff merely repeats the allegations in his complaint, namely that he filed an internal grievance and state court action. The Plaintiff alleges that the Defendant should have known, based on that information, that the Plaintiff had engaged in protected activity and that the Defendant's conduct was unconstitutional.
In Crawford-El v. Britton, 523 U.S. 574 (1998), the Court rejected the District of Columbia Circuit's requirement that a plaintiff offer clear and convincing evidence of a defendant's improper motive in response to defendant's motion for summary judgment on the issue of qualified immunity, where unconstitutional motive is an element of plaintiff's affirmative case. In rejecting this higher standard, the Court clarified that the purely factual question of improper intent is separate from the "essentially legal" qualified immunity question whether the official's alleged conduct violated clearly established law. The Court expressly approved a trial court's requirement that "the plaintiff `put forward specific, nonconclusory factual allegations' that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment." Id. at 598 (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)). InSiegert, Justice Kennedy referred to this burden as "the heightened pleading requirement." Id.
Moreover, because of the vague pleadings, it is unclear to the Court whether the retaliation claim in this action is foreclosed by the retaliation claim filed in state court.
Yet the Plaintiff does not specify the allegations of the underlying claims nor provide the precise content, form, and context of his complaints. He simply asserts that they exist. With regard to the right to litigate claim, the Plaintiff likewise provides no facts from which the Defendant could conclude either that a constitutional violation existed or that his conduct was unconstitutional. The complaint merely states that the Plaintiff was seeking to redress his grievances by exercising his right to litigation. As the Sixth Circuit held in Veney, this sort of "inchoate, generalized" pleading will not defeat a defense of qualified immunity. Veney, 70 F.3d at 922. "Clearly, if the affirmative defense of qualified immunity is to fulfill its purpose of protecting public officials from litigating baseless claims, plaintiff's pleading falls far short of the standard that is necessary to weed out meritless claims. Since it was plaintiff who says he complained and challenged, he is in the best position to plead the facts that would defeat qualified immunity, if such facts exist." Id. Accordingly, Count II is dismissed without prejudice for failure to comply with Veney. Because this claim forms the basis of this Court's jurisdiction, the complaint is dismissed in its entirety without prejudice.
In both his complaint and his response to the Defendant's motion to dismiss, the Plaintiff described the allegedly protected speech in the following manner only as:
A. Plaintiff filed an EEO Handicap Discrimination Claim with MDOC on 7-30-99.
B. Plaintiff filed a retaliation claim, Ingham County Circuit Court case No. 99-90317-NZ.
An order and judgment consistent with this opinion will be entered.