Opinion
File No. 1:01-CV-269
May 14, 2002
Christine A. Yared, Grand Rapids, MI, for Plaintiff.
Paul J. Greenwald, Grand Rapids, MI, for Defendants.
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendants' motion for summary judgment (Docket #18) is GRANTED.
OPINION
Before this Court is Defendants Kent County Sheriff's Department ("Sheriff's Department") and Kent County Sheriff James R. Dougan's ("Sheriff Dougan") motion for summary judgment on Plaintiff Andrew Francis Klimik's ("Mr. Klimik") complaint. In his complaint, Plaintiff alleges that Defendants have violated his rights under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. U.S. CONST. amend. XIV § 1. In their motion for summary judgment, Defendants argue that the Sheriff's Department is not a proper defendant, that Plaintiff's constitutional rights were not violated, and that Sheriff Dougan is entitled to immunity. For the following reasons, Defendants' motion for summary judgment is GRANTED.
Sheriff Dougan is the retired Kent County Sheriff. The current Kent County Sheriff is Lawrence A. Stelma ("Sheriff Stelma"). Sheriff Stelma was elected in November 2001 and took office in January 2002.
I.
According to Defendants, the Sheriff's Department has had numerous contacts with Plaintiff since at least 1987. (Def.'s Br. Supp. Ex. B. Dep. E. Westhouse at 10, 16). Generally, Plaintiff would call the Sheriff's Department to complain about his neighbors. (Def.'s Br. Supp. Ex. B. Dep. E. Westhouse at 18). These complaints included incidents of underage drinking and drug activity. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 17). Many of these complaints were against one of Plaintiff's neighbors, Lieutenant Lawrence Flynn ("Lt. Flynn"), who was a road patrol supervisor with the Sheriff's Department, and his family. (Def.'s Br. Supp. Ex. B. Dep. E. Westhouse at 18-19). In his deposition, Plaintiff acknowledged that the Sheriff's Department's responses to his complaints did not meet his expectations. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 13 ("[T]he service was not up to what I expected.")). Following a visit by patrol officers, Plaintiff would inevitably call Sheriff Dougan or Lieutenant Burden ("Lt. Burden"), who was responsible for internal affairs. (Def.'s Br. Supp. Ex. B. Dep. B. Westhouse at 22-24). Because Lt. Flynn was a supervisor and because Plaintiff "was never pleased . . . with the actions taken by the officers" (Def.'s Br. Supp. Ex. B. Dep. E. Westhouse at 24), the deputies investigating Plaintiff's complaints were in an awkward position. (Def.'s Br. Supp. Ex. B. Dep. E. Westhouse at 19). Moreover, a potential conflict of interest existed. (Def.'s Br. Supp. Ex. B. Dep. E. Westhouse at 19). Hence, Sheriff Dougan decided to place a "red flag" or house watch on Plaintiff's address. (Def.'s Br. Supp. Ex. B. Dep. B. Westhouse at 24).
This red flag or house watch dates back to at least September 10, 1997 and appears as a notice on the dispatcher's screen. (Defs.' Br. Supp. Ex. A, Ex. B. Dep. E. Westhouse at 15). It states that:
From Sheriff Dougan/Lt. Burden: If Andrew Klim[i]k calls for any NONEMERGENCY complaint, refer subject to either Rockford MSP or Ionia MSP due to adviserial [sic] relationship with this department. Mr. Klim[i]k is the neighbor of retired Lt. Larry Flynn, KCSD. Mr. Klim[i]k has always complained about matters involving Flynn — which have all been of no substance. ALWAYS SEND ASSISTANCE TO EMERGENCY CALLS AT THIS HOME.
(Defs.' Br. Supp. Ex. A).
Although the facts are not entirely clear, it appears that Plaintiff called the Sheriff's Department in August 1999. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 15). Despite the red flag, an officer was dispatched to Plaintiff's home and took a report of a theft of flowerpots and other yard ornaments. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 15-16). According to Plaintiff, the officer failed to list the names of the suspects in the report. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 16). Plaintiff's suspects included a grandson of Lt. Flynn. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 16-17).
On November 19, 1999 around 9 o'clock in the morning, Plaintiff telephoned the Sheriff's Department's non-emergency phone number to report another theft of flower pots from his property. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 11). Mindy Smith ("Ms. Smith"), a dispatcher for the Sheriff's Department, answered Plaintiff's call. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 7). After Plaintiff informed her that he wanted to report a larceny, she informed him that a patrol car would come to his home. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 7). Two hours later at 11 o'clock in the morning, Plaintiff called the Sheriff's Department again because a patrol car had not arrived at his home. Ms. Smith again responded to Plaintiff's call and told him that he was "red-flagged and was being denied service." (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 9). Then on the same day, Plaintiff called the Michigan State Police ("State Police") to report the same theft. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 9). The State Police also did not send an officer to Plaintiff's home on November 19, 1999. Plaintiff did not call back until April 3. 2000. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 23-24). When he did call the Sheriff's Department in April 2000, Plaintiff was again directed to call the State Police. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 23). The State Police responded by sending out a patrol car. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 14-15). The State Police officer talked with Plaintiff and made a report of the November theft. (Def.'s Br. Supp. Ex. C. Dep. A. Klimik at 15).
II.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). An issue concerning a material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Rule 56, the court must view the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to the party's case for which that party will bear the burden of proof at trial. Celotex Corp. v. Gatrett, 477 U.S. 317, 322 (1986).
III.
A. Defendants Capacity
Initially, Defendant Sheriff's Department argues that it is not a legal entity subject to suit. This argument is persuasive. E.g. Layman v. Ingham County Sheriff Dep't. No. 5:99-CV-126, 2001 U.S. Dist. LEXIS 1785 (W.D. Mich. Feb. 6, 2001) (Enslen, J.) (collecting cases). Regardless, like the Layman court, this Court finds it appropriate to assume Plaintiff would amend his allegations appropriately. Thus, the Court will consider the liability of the current Kent County Sheriff, Sheriff Stelma, in his official capacity as opposed to the Kent County Sheriff's Department.
The Court must also determine the capacity in which Defendant Sheriff Dougan is sued. "When a § 1983 plaintiff fails to affirmatively plead capacity in the complaint, we then look to the course of proceedings to determine whether Wells's first concern about notice has been satisfied." Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir. 2001). "The `course of proceedings' test considers such factors as the nature of the plaintiff's claims. requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims of qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability." Id. at 772 n. 1. In this case, Plaintiff has not clearly identified in which capacity he is suing Defendant Sheriff Dougan. The complaint, however, clearly requests compensatory and punitive damages. (Pl.'s Compl. ¶ 15). Because the Court is granting Defendants' motion for summary judgment, this request for money damages was sufficient to give Defendant Sheriff Dougan notice that he was sued in his individual capacity. Hence, Defendant Sheriff Dougan's individual liability will be analyzed. In his individual capacity, Sheriff Dougan maybe entitled to qualified immunity. Guest v. Leis, 255 F.3d 325, 337 (6th Cir. 2001).
B. Equal Protection Violation
Turning to the substance of Plaintiff's claims, Plaintiff argues that Defendants violated the Equal Protection clause by arbitrarily and unreasonably red flagging his residence and by failing to provide him with service on November 19, 1999. (Pl.'s Br. Opp'n at 7). Recently, the Supreme Court has reiterated that "`[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.'" Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (quoting Sioux City Bridge Co. v. Dakota County, Neb., 260 U.S. 441, 445 (1923)). Plaintiff does not allege that he is a member of a class or group. Olech, 528 U.S. at 564. Consequently, the Court presumes that Plaintiff is asserting an equal protection violation based on a class of one theory.
In Olech, the Supreme Court found that a plaintiff may assert a class of one equal protection violation but did not address whether the class of one theory required a showing of "subjective ill will." Id. at 564-65. Assuming despite contrary authority, Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000) ("[T]o make out a prima facie case the plaintiff must present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position."); Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir. 2000) (quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000)), that Plaintiff does not have to show ill will, Plaintiff is still "required to show either that there was no rational basis for the unequal treatment received or that the denial of the application was motivated by animus." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 500 (2d Cir. 2001) (citation omitted).
In this case, Plaintiff has not shown that there was no rational basis for the decision to place a red flag or house watch on his address for non-emergency calls or to fail to respond to Plaintiff's non-emergency request on November 19, 1999. Plaintiff has acknowledged that he had problems with his neighbor, Lt. Flynn, that Lt. Flynn was employed with the Sheriff's Department. that Plaintiff was not satisfied with the Sheriff's Department's response to his complaints, and that this situation created "a small problem (conflict of interest)" for the Sheriff's Department. In response, Sheriff Dougan directed Plaintiff to another law enforcement agency with concurrent jurisdiction for non-emergency matters. Although Plaintiff argues that Sheriff Dougan's response was "extreme [and] unjustified," no reasonable jury would find that either the red flag or house watch for non-emergency calls or the failure to respond to Plaintiff's request for service on November 19, 1999 was irrational.
C. Due Process Clause Violation
Next, Plaintiff claims that his rights to procedural and substantive due process were violated. Under the Due Process Clause, Plaintiff may not be "deprive[d] . . . of life, liberty, or property, without due process of law." U.S. Const. amend. XIV § 1. Plaintiff claims that he was denied procedural due process when a red flag or house watch was placed on his address without giving him notice or an opportunity to be heard. "To state a valid claim under § 1983, a plaintiff must show that the defendant acted under color of state law to deprive the plaintiff of a definite liberty or property interest." Mich. Paytel Joint Venture v. City of Detroit, No. 00-1516, 2002 WL 655008, at *7 (6th Cir. Apr. 23, 2002). Plaintiff, however, does not have a right to governmental services like those services provided by the Sheriff's Department. DeShaney v. Winnebago County Dept. of Social Sers., 489 U.S. 189, 195-200 (1989). See also Hilton v. City of Wheeling, 209 F.3d 1005, 1006-1007 (7th Cir. 2000) (recognizing right to petition government for services and acknowledging government's right to deny the petition). Hence, Plaintiff has not demonstrated that he was deprived of life, liberty, or property without due process.
Finally, Plaintiff claims that his substantive due process rights were violated by the red flag or house watch and by the Sheriff's Department's failure to respond to his request for services on November 19, 1999. "[T]he substantive component of the Due Process Clause is viola ted by executive action only when it `can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.'" County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992)). See also Upsher v. Grosse Pointe Public School Sys., 285 F.3d 448, 453 (6th Cir. 2002) ("[I]n order to establish liability for violations of substantive due process under § 1983, a plaintiff must prove that the governmental actor either intentionally injured the plaintiff or acted arbitrarily in the constitutional sense."); Ewolski v. City of Brunswick, No. 00-3066 ___ F.3d ___ 2002 U.S. App. LEXIS 7129, at 41-43 (6th Cir. Apr. 18, 2002) (describing exceptions to this general rule). In response to a non-emergency situation, the Sheriff's Department directed Plaintiff to call the State Police. Although the State Police did not respond to Plaintiff's first call, the State Police did respond when Plaintiff called them again in April. Based on these facts, no reasonable jury would find that Sheriff Dougan's or the Sheriff Department's actions shocks the conscience.
IV.
As explained, Plaintiff has not demonstrated a violation of his constitutional rights, and Defendants' motion for summary judgment is GRANTED. Accordingly, an order consistent with this opinion will be issued.