distrct court of the united states western district … · according to the complaint, the deq then...

DISTRCT COURT OF THE UNITED STATES WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARISE SPINK,

Plaintiff, v

Mike Gaylord, Supervisor, CLEARWATER

TOWNSHIP, CLEARWATER TOWNSHIP,

a Michigan municipality, Kathy Eldridge,

Clerk, CLEARWATER TOWNSHIP, Greg

Bradley, Trustee, CLEARWATER

TOWNSHIP, Jeremy Morrison, Trustee,

CLEARWATER TOWNSHIP, Adam

Parzych, Zoning Enforcement,

CLEARWATER TOWNSHIP, Greg

Snyder, ZBA, CLEARWATER

TOWNSHIP, Kyle Beaver, Deputy Sheriff

Kalkaska County, Lynne M. Buday, District

Court Judge, Colin G. Gunter, Circuit Court

Judge, Pro Tem, YOUNG, GRAHAM &

WENDLING, PC, a professional

Corporation, Nicole E. Essad, Counsel for

CLEARWATER TOWNSHIP, James

Sweet, Kalkaska County Commissioner,

Patty Cox, Kalkaska County

Commissioner, Kevin Hughes, District

Health Dept. #10, Matt Fournier, District

Health Dept. #10, Thomas Reichard,

District Health Dept. #10, Kyle Anderson,

District Health Dept. #10, The Board of

Health, District Health Dept. #10, Phil

Lewis, Board of DHD#10, Shelly

Pinkeiman, Board of DHD#10, Betty

Dermyer, Board of DHD#10, Dawn Martin,

Board of DHD#10, Pauline Jaquish, Board

of DHD#10, Richard Schmidt, Board of

DHD#10, Steven Hull, Board of DHD#10,

Charles Lange, Board of DHD#10, Tom

O’Neil, Board of DHD#10, Ray Steinke,

Board of DHD#10, Roger Ouwinga, Board

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO

DISMISS

***Oral Argument Requested***

Case No. 1:19-cv-900 Hon. Paul L. Maloney

Case 1:19-cv-00900-PLM-PJG ECF No. 10 filed 11/18/19 PageID.184 of 16

ii

of DHD#10, Hubert Zuidrveen, Board of

DHD#10, Byran Koik, Board of DHD#10,

Jim Miake, Board of DHD#10, Martha

Meyette, Board of DHD#10, Denny

Powers, Board of DHD#10, Judy Michois,

Board of DHD#10, Gary L. Taylor, Board of

DHD#10, Holly Pennioni, DNR Law

Enforcement Division, Chris Bowen, DNR

Law Enforcement Division, Gary Hagler,

Chief DNR Law Enforcement Division John

and Mary Doe unknown at this time,

Cathern D. Jusinkski, Counsel DHD#10.

Defendants. _____________________________________________________________________/

_____________________________________________________________________/

Charise Spink In Pro Per 7528 Blake Avenue NW Rapid City, MI 49676 (231) 347-0008

ROSATI, SCHULTZ, JOPPICH, & AMTSBUECHLER, P.C. Andrew J. Brege (P71474) Attorney for Defendants Health Department Board Members 822 Centennial Way, Suite 270 Lansing, MI 48917 (517) 886-3800 [email protected]


iii

Table of Contents

Table of Contents ............................................................................................................ iii

Index of Authorities..........................................................................................................iv

I. Introduction ................................................................................................ 1

II. Statement of Facts ..................................................................................... 1

III. Standard of Review ................................................................................... 4

IV. Argument ................................................................................................... 5

A. Plaintiff’s claims against the individual Defendants fail because she has not identified individual action taken by any of them that resulted in a violation of her constitutional rights, and therefore, her claims against DHD 10 also fail .............. 5

B. Plaintiff cannot establish a valid Taking / Inverse Condemnation Claim. ...................................................................... 7

V. Conclusion ............................................................................................... 10


iv

Index of Authorities

Cases

Bassett v. NCAA, 528 F.3d 426 (6th Cir. 2008) ............................................................. 5

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .......................................................... 4

City of Los Angeles v. Heller, 475 U.S. 796 (1986) ...................................................... 7

Conley v. Gibson, 355 U.S. 41 (1957) ........................................................................... 4

D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014) .................................................... 4

Doe v. Claiborne Cnty., Tenn., 103 F.3d 495 (6th Cir. 1996) ........................................ 6

Hayerman v. County of Calhoun, 680 F.3d 642 (6th Cir. 2012) ................................... 6

Hinojosa v. Department of Natural Resources, 263 Mich.App. 537, 688 N.W.2d 550 (2004) ........................................................................................ 7

Parratt v. Taylor, 451 U.S. 527 (1981) ....................................................................... 5, 6

Riverview Health Institute, LLC v. Medical Mutual of Ohio, 601 F.3d 505 (6th Cir. 2010) ................................................................................................ 4

Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014) ........................................................ 6

United States v. Coleman, 871 F.3d 470 (6th Cir. 2017) .............................................. 9

Wilson v. Morgan, 477 F.3d 326 (6th Cir. 2007) ............................................................ 7

Federal Court Rules

Fed. R. Civ. P. 12(b)(6) ............................................................................................... 4, 5

Fed. R. Civ. P. 56 ............................................................................................................ 5

Michigan Statutes

M.C.L. § 333.12501 ..................................................................................................... 1, 8

M.C.L. § 333.12505 ......................................................................................................... 8

M.C.L. § 333.12506 ......................................................................................................... 8

M.C.L. § 333.12506(1) .................................................................................................... 3


v

Other Authorities

Mich. Const 1963, art. IV, §51 ......................................................................................... 7


1

I. INTRODUCTION

Plaintiff Charise Spink, owner of property in Kalkaska County, has filed this 42

U.S.C. § 1983 action against numerous state and local municipal officials, including the

District Health Department #10 (DHD 10), its officers and board members. Her complaint

contains 8 separate counts, though it is difficult to discern which counts are asserted

against which Defendants, as the meandering complaint rarely identifies any particular

action taken by any particular defendant. However, it seems clear that the crux of

Plaintiff’s claim is that DHD 10 and the Michigan Department of Environmental Quality,

now known as the Department of Environment, Great Lakes, and Energy,1 have inversely

condemned her property through the issuance of two cease and desist letters in 2018,

based on her construction and operation of a campground without obtaining the

necessary permits or licenses, in violation of M.C.L. § 333.12501, et seq. Plaintiff’s

complaint fails to state any valid claim against these Defendants, and therefore, it must

be dismissed.

II. STATEMENT OF FACTS

Defendants Sweet, Cox, Lewis, Pinkeiman [sic], Dermyer, Martin, Jaquish,

Schmidt, Hill, Lange, O’Neil, Steinke, Ouwinga, Zuidrveen, Koik [sic], Maike, Meyette,

Powers, Michois [sic], and Taylor are all DHD 10 Board Members. (See Complaint at ¶¶

17- 36) Defendant Hughes is the DHD 10 Health Officer. (Id. at ¶ 36)2 Defendant

Fournier is the DHD 10 Environmental Supervisor. (Id. at ¶ 37) Defendant Reichard is

1 For purposes of this motion, it will be referred to as the DEQ. 2 Defendant Koik should be “Kolk,” Defendant Michois should be “Nichols,” and Defendant Pinkeiman should be “Pinkelman.”


2

the DHD 10 Environmental Health Director. (Id. at ¶ 38) Defendant Anderson is a DHD

10 Sanitarian. (Id. at ¶ 39)

Plaintiff, a private citizen, owns property in the state of Michigan. (Id. at ¶ 73) She

asserts her property was taken by inverse condemnation when DHD 10 Environmental

Health Supervisor sent her a “Cease and Desist Order” on or about January 16, 2018.

(Id. at ¶ 162) Plaintiff attached a copy of the letter as Exhibit C to the Complaint, located

at Dkt. No. 1-2, PageID.51. The letter states:

Dear Ms. Spink: The HEALTH DEPARTMENT has learned that Jeff West is OPERATING/CONSTRUCTING a campground without a CAMPGROUND LICENSE / CAMPGROUND CONSTRUCTION PERMIT from the Department of Environmental Quality (DEQ) at the above state address. Campgrounds are regulated under Part 125 of the Public Health Code, 1978 PA 368, as mended (Part 125). The operation of a campground without a license is a violation of Section 12506(1) of Part 125, which states in part, “A person shall not operate a campground without a campground license issued by the department . . . .” Section 1106 of the Public Health Code defines a person as an individual, partnership, cooperative, association, private corporation or other legal entity. According to a cite visit conducted by Kyle Anderson of District Health Department No. 10, the campground currently consists of 40 sites with site water connections, sewer connections, and electrical service. You are hereby directed to cease and desist construction until all pertinent state and local permits are obtained. Please proceed with the proper licensing process within sixty days of receipt of this letter. The licensing process begins by applying for a DEQ Campground Construction Permit for a NEW / MODICITAITON TO A campground.

(Id.)


3

According to the complaint, the DEQ then issued another “cease and desist” letter

on or about March 12, 2018. (Id. at ¶ 166) This second letter is also attached to the

Complaint as Exhibit D, Dkt. No. 1-2, PageID.52, though only the first page is included.

This second letter additionally points out that a campground was being constructed or

operation on Plaintiff’s property without appropriate permits and licenses, in violation of

M.C.L. § 333.12506(1). Like the letter from DHD 10, the DEQ letter advised Plaintiff to

complete certain permit and licensing applications before continuing to construct or

operate the campground.

Plaintiff apparently also filed an administrative action against the DEQ in the State

of Michigan Administrative Hearing System, as Docket No. 19-008811. (Id. at ¶ 154-155)

That action was sua sponte dismissed by Administrative Law Judge Paul Smith on April

12, 2019, and a copy of the order is attached to Plaintiff’s complaint as Exhibit B, Dkt. No.

1-2, PageID.47-49.

Plaintiff has asserted 8 separate counts, seemingly all stemming from the

undefined actions of various Defendants to require her to obtain the proper licenses and

permits to operate the campground on the property. It appears the crux of her allegations,

despite the numerous legal “theories” asserted in the various Counts, is that since her

property is owned by her, a private citizen, neither the State of Michigan nor any of its

political subdivisions has any authority to regulate her use of the property or impose any

conditions on her chosen use. (See, e.g., Id. at ¶ 136, 153, 156-168) This, it seems,

stems from her legal conclusion that the DEQ only has authority to regulate state-owned

lands in the “public domain.” (See, e.g., Id. at ¶ 156)


4

III. STANDARD OF REVIEW

“A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is designed to test the

sufficiency of the complaint.” Riverview Health Institute, LLC v. Medical Mutual of

Ohio, 601 F.3d 505, 512 (6th Cir. 2010). A complaint may be dismissed for failure to

state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain

detailed factual allegations, a plaintiff’s allegations must include more than labels and

conclusions. Twombly, supra at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”).

Stated otherwise, to survive a motion to dismiss brought pursuant to Fed. R. Civ.

P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state

a claim to relief that is plausible on its face.” Iqbal, supra at 678. A claim has “facial

plausibility” when the plaintiff “pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Determining whether a complaint states a plausible claim for relief is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. Where the well-pleaded facts do not permit the court to infer more than the

“mere possibility of misconduct,” the complaint has not shown that the pleader is entitled

to relief. Id. at 679.

“[C]onclusory allegations or legal conclusions masquerading as factual allegations

will not suffice.” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). A plaintiff


5

cannot defeat a dismissal motion and “unlock the doors of discovery,” if “armed with

nothing more than mere conclusions.” Iqbal, 556 U.S. at 679. Thus, the plaintiff must

plead “more than unadorned, the-defendant-unlawfully-harmed-me accusations.” Id. “A

pleading that offers labels and conclusions or formulaic recitation of the elements of a

cause of action will not do.” Id. “Nor does a complaint suffice if it tenders naked assertions

devoid of further factual enhancement.” Id.

Additionally, a Court may consider public records and documents attached to the

complaint without converting a Rule 12(b)(6) motion into one for summary judgment under

Fed. R. Civ. P. 56. See Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) (“When a

court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any

exhibits attached thereto, public records, items appearing in the record of the case and

exhibits attached to the defendant's motion so long as they are referred to in the

Complaint and are central to the claims contained therein.").

IV. ARGUMENT

A. Plaintiff’s claims against the individual Defendants fail because she has not identified individual action taken by any of them that resulted in a violation of her constitutional rights, and therefore, her claims against DHD 10 also fail

To state a prima facie case under § 1983, Plaintiff must establish that a person

acting under color of state law deprived him of rights, privileges, or immunities secured

by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535

(1981). The “critical aspect” of a federal civil rights claim against an individual

governmental official is that the plaintiff “must demonstrate that each individual

government-official defendant, through the official’s own individual actions, has violated


6

the Constitution.” Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014). A defendant’s

“[p]ersonal involvement is necessary” to establish liability. Hayerman v. County of

Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). Plaintiff must allege that each Defendant

actively engaged in the behavior which directly caused the constitutional deprivation.

Parrat, supra. Furthermore, individual liability must lie upon more than a mere right to

control employees and cannot rely on simple negligence. Id. Plaintiff must prove that

each Defendant violated her constitutional rights, by more than a mere passive role or

tacit approval of decisions or actions of others. Id.

Here, Plaintiff has not identified any actions by any of the individual DHD 10 board

members at all, other than their mere presence on the Board. Not only has Plaintiff failed

to identify any action by any of the individual board members, she has failed to identify

any action taken by the DHD 10 Board as a whole. Even if she had, it has long been

established in the Sixth Circuit that individual board members cannot be personally liable

for actions taken as members of a board, unless the law requires or empowers them to

act individually. See Doe v. Claiborne Cnty., Tenn., 103 F.3d 495, 512 (6th Cir. 1996).

Given Plaintiff’s failure to identify any action by any of the individually named Board

Members, all claims against them must be dismissed.

The same is true of any claims asserted against the DHD 10 officials and

employees. Plaintiff has not identified any individual action by Health Officer Hughes at

all, other than naming him as a Defendant. Plaintiff’s only direct allegations against

Environmental Health Director Reichard, Environmental Health Inspector Fournier, and

Sanitarian Anderson is they were apparently listed as recipients of DEQ’s March 12, 2018

“Cease and Desist” order. (Complaint at ¶ 166, at Fn. 37) Plaintiff has failed to identify


7

how their receipt of such letter constitutes a violation of her constitutional rights, or how

their receipt of such letter could have harmed her in any way.

Because Plaintiff’s complaint fails to establish a constitutional violation by any of

the individual officials, it also fails to state a claim for municipal liability against DHD 10.

City of Los Angeles v. Heller, 475 U.S. 796 (1986); Wilson v. Morgan, 477 F.3d 326,

340 (6th Cir. 2007).

For these reasons, Plaintiff’s complaint must be dismissed in its entirety against

these Defendants.

B. Plaintiff cannot establish a valid Taking / Inverse Condemnation Claim.

The Courts generally recognize two elements to an inverse condemnation claim:

(1) the government's actions were a substantial cause of the decline of the plaintiff's

property's value; and (2) that the government abused its legitimate powers in affirmative

actions directly aimed at the plaintiff's property. See generally, Hinojosa v. Department

of Natural Resources, 263 Mich.App. 537, 549, 688 N.W.2d 550 (2004). Here, Plaintiff

cannot establish these elements against DHD 10 or any of its officials.

Starting with the second element, Plaintiff cannot establish any abused legitimate

powers. The Michigan Constitution specifically provides that the state legislature will

provide laws for the public health and welfare. Mich. Const 1963, art. IV, §51. Pursuant

to this constitutional authority, the state enacted the Public Health Code, which includes

Part 125, entitled “Campgrounds, Swimming Areas, and Swimmers' Itch,” and consists of

several statutory regulations over the construction, permitting, and licensing of


8

campgrounds. M.C.L. § 333.12501, the definition section of Part 125, contains the

following definition:

(a) “Campground” means a parcel or tract of land under the control of a person in which sites are offered for the use of the public or members of an organization, either free of charge or for a fee, for the establishment of temporary living quarters for 5 or more recreational units. Campground does not include a seasonal mobile home park licensed under the mobile home commission act, 1987 PA 96, MCL 125.2301 to 125.2349.

M.C.L. § 333.12505 states in full:

A person shall not begin to construct, alter, or engage in the development of a campground without first obtaining a construction permit from the department. Applications for a construction permit shall be submitted to the department along with the fee as prescribed in section 12506a.1 The application shall contain the following: (a) A description of the proposed project. (b) The name and address of the applicant. (c) The location of the proposed project.

M.C.L. § 333.12506 states:

(1) A person shall not operate a campground without a campground license issued by the department, its agent or representative, or a representative of a designated local health department. An application for a campground license shall be submitted to the department, its agent or representative, or a representative of a designated local health department along with the license fee as prescribed in section 12506a.

It is apparently Plaintiff’s contention that Defendants, particularly DHD 10 in

coordination with the state DEQ, cannot enforce these statutes against her and impose

these requirements on her operation of her property because her property is not part of

the “public domain,” the lands under ownership and direct control of the State of Michigan.

However, the Michigan Constitution does not limit the legislature’s authority only to the


9

public domain, and Plaintiff cannot show that the attempted enforcement of these statutes

is an abuse of powers. Plaintiff’s allegations – that her property cannot be subjected to

regulation – are akin to the type of sovereign-citizen claims Courts have routinely rejected.

See, e.g, United States v. Coleman, 871 F.3d 470, 476 (6th Cir. 2017) (“Defendant's

legal arguments directly correspond to meritless rhetoric frequently espoused by tax

protesters, sovereign citizens, and self-proclaimed Moorish-Americans.”). The Court

should similarly reject Plaintiff’s argument here, and dismiss because Plaintiff cannot

establish any abuse of legitimate authority.

Further, Plaintiff asserts her property was “taken” merely because the DHD 10 and

DEQ sent her cease and desist letters notifying her of the statutory prerequisites to her

operation of a campground on her property. There are no factual allegations in the

complaint that any Defendant, let alone DHD 10 or any of its individual board members

or officers, actually took Plaintiff’s property, or imposed such burdens on the property that

it was deprived of all reasonable use or value. On the contrary, Environmental Health

Supervisor Fournier’s January 18, 2018 letter informed Plaintiff of her obligations under

state law to obtain the necessary permits and licenses to operate her property as a

campground – not preventing her from using the property, but merely enforcing the state’s

Public Health Code requirements that any such campground be properly permitted and

licensed. Plaintiff can present no valid argument as to why her property should not be

subjected to the same Public Health Code requirements as all other property in the State

of Michigan, both public and private. Therefore, her claim must be dismissed.


10

V. CONCLUSION

For the reasons stated above, Plaintiff’s complaint fails to state any valid claims

against any of the individually named Defendants, and she has failed to identify any valid

due process inverse condemnation claim against DHD 10 or any of its individually named

officials and board members. Therefore, the complaint must be dismissed.

Respectfully submitted,

ROSATI, SCHULTZ, JOPPICH & AMTSBUECHLER, P.C.,

/s/ Andrew J. Brege____

Andrew J. Brege (P71474) Attorney for Defendants Health Department Board Members

822 Centennial Way, Ste. 270 Lansing, MI 48917 (517) 886-3800 Dated: November 18, 2019 [email protected]

PROOF OF SERVICE AND CERTIFICATE OF COMPLIANCE WITH LCivR 7.2

I hereby certify that on November 18, 2019, I electronically filed the foregoing

paper with the Clerk of the Court using the ECF system which will send notification of

such filing to the attorneys of record/parties identified in the caption. In addition, a copy

of the foregoing paper was served upon the Plaintiff, Charise Spink, by U.S. First-Class

Mail to her address listed in the caption. I also certify that this Brief was created using

Microsoft Word 2016, and that the Brief contains 2,607 words in the text and footnotes,

exclusive of the caption, index, signatures, and this certificate.


11

Respectfully submitted,

ROSATI, SCHULTZ, JOPPICH & AMTSBUECHLER, P.C.,

/s/ Andrew J. Brege____

Andrew J. Brege (P71474) Attorney for Defendants Health Department Board Members

822 Centennial Way, Ste. 270 Lansing, MI 48917 (517) 886-3800 Dated: November 18, 2019 [email protected]


distrct court of the united states western district … · according to the complaint, the deq then...

Documents