DAVID R. GRAND, Magistrate Judge.
Before the Court is a Motion to Dismiss filed on November 16, 2015, by Defendants Macomb County Sheriff MACE Unit ("Macomb County"
An Order of Reference was entered on November 16, 2016, referring all pretrial matters to the undersigned pursuant to 28 U.S.C. §636(b). (Doc. #19). Generally, the Court will not hold a hearing on a motion in a civil case in which a party is in custody. See E.D. Mich. L.R. 7.1(f). Here, the Court finds that the facts and legal issues are adequately presented in the briefs and on the record, and it declines to order a hearing at this time.
For the reasons set forth below,
This civil action originates out of the Individual Defendants' execution of a search warrant at the business address of Floor Coverings on January 31, 2014. (Doc. #1 at 8). Authorities were apparently searching for evidence of child pornography crimes committed by Winquist, and Winquist has since been convicted of two crimes involving use of a computer to engage in child sexually abusive activity, and sentenced to a term of incarceration of 2-20 years. Floor Coverings' "corporate computer" was seized, and a forensic examination of its contents was apparently conducted at some point.
Winquist alleges that "there was no contraband found" when the forensic examination was conducted. (Id. at 7). He alleges that "Santoro requested the Data/Information from the confiscated corporate computer [e.g., "tax records, 1099 files . . . customer accounts, referral lists, past clients [sic] records, accounts receivable . . ."] in order to continue corporate business and an unknown member of M.A.C.E. Sheriff's Unit informed Ms. Santoro that they would not return the corporate computer or any of the Data/Information contained within." (Id. at 6). Attached to the complaint is Santoro's affidavit in which she avers that in February 2014, she "asked a person (unknown name) from the Macomb County Sheriff's Department for the corporate computer that was confiscated from Floor Coverings [ ] . . . A Macomb County Sheriff's Department person (unknown name) said, `The Macomb County Sheriff's Department would not return the corporate computer or any information [or data on it] . . . [and that] [t]hey have the right not to return the corporate computer or any information from the corporate computer to you.'" (Id. at 11).
On September 8, 2015, Winquist filed the instant complaint pursuant to 42 U.S.C. §1983, alleging that the seizure and retention of Floor Coverings' computer violated his and the other Plaintiffs' rights under the 4
In their Motion to Dismiss, Defendants argue that: (1) the claims of Plaintiffs Floor Coverings and Santoro should be dismissed because neither has actually appeared in this action, and they cannot be represented by Winquist; (2) the claims against the Individual Defendants should be dismissed because Winquist does not adequately allege that any of them were personally involved in any wrongdoing; and (3) the claims against Macomb County should be dismissed because Winquist failed to adequately allege a policy or custom that caused him to suffer injury, and because Macomb County cannot be responsible under a respondeat superior liability theory.
A motion to dismiss pursuant to Fed. R. of Civ. P. 12(b)(6) tests a complaint's legal sufficiency. Under Fed. R. Civ. P. 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. (citing Twombly, 550 U.S. at 556). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Twombly, 550 U.S. at 556. Put another way, the complaint's allegations "must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief." League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 550 U.S. at 555-56). See also Iqbal, 129 S.Ct. at 1950, ("where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief.") (internal quotations omitted).
In deciding whether a plaintiff has set forth a "plausible" claim, the court must accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). That tenet, however, "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," to prevent a complaint from being dismissed on grounds that it fails to sufficiently comport with basic pleading requirements. Iqbal, 129 S.Ct. at 1949. See also, Twombly, 550 U.S. at 555; Howard v. City of Girard, Ohio, 346 Fed. Appx. 49, 51 (6
Pleadings filed by pro se litigants are entitled to a more liberal reading than would be afforded to formal pleadings drafted by lawyers. See Thomas v. Eby, 481 F.3d 434, 437 (6
As an initial matter, the complaint should be dismissed without prejudice as to Santoro and Floor Coverings because Winquist cannot bring it on their behalf. As noted above, although the instant complaint bears only Winquist's signature, he purports to have filed it "for" Floor Coverings, and also on behalf Santoro, in addition to himself. However, federal law prohibits pro se individuals like Winquist from representing other litigants, whether they be other individuals or corporations. 28 U.S.C. §1654 (emphasis added) states:
Thus, like any litigant, while Winquist may prosecute his own claims pro se, he is limited to representing himself and may not act in a representative capacity for any other person or business. See Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007); Rowland v. California Men's Colony, 506 U.S. 194, 201-03 (1993) (recognizing that federal law requires that "corporations, partnerships, or associations" must appear in court only through counsel."); Doherty v. Am. Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984) ("[T]he rule of this circuit is that a corporation cannot appear in federal court except through an attorney."); Van Lokeren v. City of Grosse Pointe Park, Mich., No. 13-14291, 2014 WL 988965, at *7 (E.D. Mich. Mar. 13, 2014). Put simply, "[t]he statute does not permit `unlicensed laymen to represent anyone else other than themselves.'" Lattanzio, 481 F.3d at 139 (quoting Eagle Assoc. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)).
The Sixth Circuit has specifically held that pro se prisoners like Winquist may not represent others in federal court litigation. For instance, in Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002), the Sixth Circuit held that plaintiffs may not appear pro se "where interests other than their own are at stake." See also Garrison v. Michigan Dept. of Corrections, 333 F. App'x 914, 919 (6th Cir. 2009) (holding that pro se litigant may represent himself on his own claims but may not act in representative capacity on behalf of others). Numerous other courts have similarly held that pro se inmates do not have the capability to adequately litigate suits on behalf of others. See, e.g., Moore v. Warren, 2014 WL 1464404, at *3 (E.D. Mich. April 15, 2014) ("[The] case law and plain language of 28 U.S.C. § 1654 preclude [Plaintiff] from representing anyone other than herself."); Bey v. Youngblood, 2014 WL 4965956, at *2 (E.D. Mich. October 3, 2014) ("The right to litigate for oneself . . . does not create a coordinate right to litigate for others) (quoting Myers v. Loudon Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005)); Proctor v. Applegate, 2008 WL 2478331, at *1, n. 3 (E.D. Mich. June 16, 2008) ("It is well established that plaintiff Proctor may only represent himself with respect to his individual claims and many not act on behalf of other[s].").
Thus, to the extent Winquist purports to have filed the complaint on behalf of Santoro and/or Floor Coverings, this is not allowed. Accordingly, the complaint should be dismissed without prejudice as to Plaintiffs Santoro and Floor Coverings.
Winquist has failed to state a claim for relief against the Individual Defendants. In order to demonstrate an individual defendant's liability under §1983, a plaintiff must first establish that the defendant acted under color of state law and that his actions violated rights secured by the Constitution and/or laws of the United States. See Baker v. McCollan, 443 U.S. 137 (1989). The plaintiff also must make a clear showing that each named defendant was personally involved in the activity that forms the basis of the complaint. See Rizzo v. Goode, 423 U.S. 362, 377 (1976); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Here, while Winquist has adequately alleged that each of the Individual Defendants was a state actor, the only specific conduct he accuses them of is seizing Floor Coverings "corporate computer." This allegation fails to state a claim for relief under the 4
In his opposition brief, Winquist argues that "the sworn affidavit submitted by Mrs. Santoro (President of Floor Coverings [ ]), is in fact proof of a
In sum, Winquist has alleged no facts from which the Court could find that the Individual Defendants engaged in any unlawful conduct, and his complaint against them should therefore be dismissed. Rizzo, 423 U.S. at 377; Bellamy, 729 F.2d at 421.
Winquist's 14
Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013).
Defendants argue that "[Macomb] County cannot be liable for a Section 1983 violation unless [the retention of the computer in question] directly resulted from the implementation of a County policy or custom." (Doc. #12 at 13) (citing Thompson v. Ahse, 250 F.3d 399 (6th Cir 2001), and Waters v. City of Morristown, TN, 242 F.3d 353 (6th Cir 2001)). They further claim that Winquist failed to properly allege "the existence of a constitutionally offensive County policy or practice causally related to the harm of which [he] complain[s]. Instead, it appears that [Winquist] predicate[s] the County's liability upon the acts or omissions of its employees." (Id. at 16).
In responding to Defendants' argument that he did not sufficiently allege an actual policy on the part of Macomb County that is unconstitutional, Winquist makes two arguments: (1) that whichever Macomb County employee denied Santoro's request to return the computer and/or its data "demonstrated deliberate indifference;" or (2) alternatively, that if that person "did not know that the refusal was deliberate indifference then [he or she] would not have been properly trained by Macomb County [ ] causing Macomb County to be liable for a 1983 lawsuit." (Doc. #20 at 4, ¶5).
As to Winquist's claim that the Macomb County employee who denied the request to return the computer and/or data acted with "deliberate indifference," his claim is ripe for dismissal in two respects. First, as noted above, the law is clear that "[a] municipality `may not be sued under § 1983 for an injury inflicted solely by its employees or agents.'" Burgess, 735 F.3d at 478 (quoting Monell, 436 U.S. at 694). Second, even assuming that a Macomb County employee acted in an unauthorized manner by failing to return the computer and/or data to Santoro, Winquist has not shown that he lacked post-deprivation state court remedies to rectify that wrong. See Copeland v. Machulis, 57 F.3d 476, 479-80 (6th Cir. 1995). An analogous Western District of Michigan case, Riddle v. Kent County Sheriff's Dept., No. 1:08-cv-1228, 2009 WL 365239, at *6 (W.D. Mich. Feb. 11, 2009), exemplifies this point of law which derives from Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).
In Riddle, the plaintiff was being investigated in connection with the shooting death of a victim. Search warrants were authorized and executed at his residences, and certain property was seized. Riddle was convicted, and at some point sought the return of the seized property to his family. He alleged that the Kent County Sheriff's Department employees refused to return the property. He further alleged that they were "hostile to Plaintiff and his family when they [ ] requested return of the items," and that they maintained "a pervasive atmosphere of hostility toward Plaintiff Riddle and his family when requesting these items be returned." Riddle, 2009 WL 365239, at *1. Riddle then filed a Section 1983 lawsuit, alleging (as Winquist does in the instant action) that the County's refusal to return his property amounted to a violation of his due process rights under the 14
Riddle, 2009 WL 365239, at *5-6.
It is appropriate to apply the Parratt doctrine to Winquist's case. As noted above, Winquist makes clear that his claim is that an unknown person (whom he presumes was a Macomb County Deputy) acted with "deliberate indifference" in refusing Santoro's request to return the computer and/or its data. However, to remedy that alleged wrong, Winquist could have filed a post-judgment motion in his criminal case for the return of the computer and/or data, and could have instituted a Court of Claims action, as well, and Winquist has not "alleged that [those] state post-deprivation remedies are inadequate," or that he attempted to avail himself of those remedies. Id. at *6. Accordingly, as in Riddle, Winquist's 14
Winquist alleges that, if the County employee who denied the request to return the computer and/or date did not act with "deliberate indifference," then he or she must "not have been properly trained by Macomb County [ ] causing Macomb County to be liable for a 1983 lawsuit." (Doc. #20 at 4, ¶5). This conclusory assertion regarding the training provided by Macomb County is precisely the type of "threadbare" allegation that Twombly and Iqbal hold to be insufficient as a matter of law. See Vanzant v. Highland Park, No. 16-10488, 2016 WL 198400, at *2 (E.D. Mich. Apr. 28, 2016); see also supra at 4-5. Accordingly, this claim should be dismissed.
For the reasons set forth above,
Within 14 days after being served with a copy of this Report and Recommendation and Order, any party may serve and file specific written objections to the proposed findings and recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will be preserved for the Court's appellate review; raising some objections but not others will not preserve all objections a party may have. See Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. LR 72.1(d)(2).
A party may respond to another party's objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
