distrct court of the united states western district … · according to the complaint, the deq then...
TRANSCRIPT
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
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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]
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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
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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
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Other Authorities
Mich. Const 1963, art. IV, §51 ......................................................................................... 7
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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.”
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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.)
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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)
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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
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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
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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
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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
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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
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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.
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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.
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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]
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