United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS, GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S MOTION TO AMEND, SETTING
DEADLINE, AND EXTENDING SCHEDULING ORDER
L. LUDINGTON United States District Judge
Richard Kevin Steiger, the County Prosecutor for Defendant
Presque Isle County, initiated the above-captioned matter by
filing his complaint on November 24, 2015. See
Compl., ECF No. 1. Plaintiff alleges that, in response to his
attempts to expose corruption in the Presque Isle County
Sheriff's Department, Defendant Presque Isle and various
members of the Presque Isle County Board of Commissioners
denied him a raise for the 2015 calendar year and voted to
discontinue using him as civil counsel. Plaintiff alleges
that these actions constitute a violation of Plaintiff's
First Amendment rights to free speech and to petition
government under 42 U.S.C. § 1983, and a violation of
the Michigan Whistleblowers' Protection Act
(“WPA”), Michigan Compiled Law § 15.361.
August 1, 2016 Plaintiff Steiger filed a motion for leave to
file a first amended complaint. See ECF No. 15.
Plaintiff seeks to add § 1983 claims against two
additional parties, Presque Isle Sherriff Robert Paschke and
Judge Donald McLennan, alleging that they too violated his
First Amendment rights to petition government and to be free
from retaliation. See Mot to Amend ¶ 7.
Plaintiff also seeks to amend his complaint to add facts
supporting a claim of constructive discharge. Id. at
¶ 4 (“on or about March 4, 2016, Plaintiff issued
a Press Release which indicated that he will not be seeking
re-election as a result of the unlawful retaliation that he
has endured while employed as a prosecutor for Defendant
Presque Isle County.”). On August 24, 2016 Defendants
filed a motion to dismiss Plaintiff's complaint, arguing
in part that the individual Defendants are entitled to
legislative immunity. See ECF No. 20. For the
reasons stated below, both motions will be denied.
Steiger, a resident of Rogers City, Michigan, has served as
the elected Prosecutor for Defendant Presque Isle County
since 2006. See Compl. ¶¶ 1-2, 13.
Defendant Presque Isle County is a governmental entity within
the State of Michigan. At all relevant times, the named
Defendants served on the Presque Isle County Board of
Commissioners: Defendant Carl Altman as the chairman,
Defendant Robert Schell as the vice-chairman, and Defendant
Stephen Lang and Defendant Michael Darga as commissioners
(altogether “Defendant Commissioners”).
Id. at ¶¶ 3-6. Plaintiff alleges that
during the events in question Defendants Commissioners were
acting under color of law within the scope of their duties
and within their individual and official
the course of his tenure as prosecutor for Presque Isle
County, Plaintiff Steiger alleges that he became “an
outspoken critic of police officers and/or police agencies
who attempt to trample on the rights of citizens,
specifically but not limited to, the Presque Isle County
Sheriff's Department.” Compl. ¶ 14. In a
separate lawsuit filed by Plaintiff against various officers
affiliated with the Michigan State Police (“MSP”)
and the Huron Undercover Narcotics Team (“HUNT”),
a taskforce that included members of the Presque Isle County
Sheriff's Department, Plaintiff alleged that he was
maliciously investigated and prosecuted for fraudulently
obtaining prescription drugs in retaliation for his criticism
of their conduct and procedures. See Steiger v.
Hahn, Case No. 14-cv-14110 (E.D. Mich., October 24,
2014), ECF No. 1. That lawsuit was dismissed shortly after
the commencement of discovery upon the stipulation of the
parties due to “unforeseen medical
circumstances.” Id. at ECF No. 28.
lawsuit was subsequently refiled on July 27, 2015. See
Steiger v. Hahn, Case No. 15-cv-12627 (E.D. Mich., July
27, 2015). Plaintiff attempted to add claims against Sheriff
Paschkie and Undersheriff Brebaker, which were dismissed as
they were barred by the statute of limitations. Id.
at ECF No. The remaining Defendants' motion for summary
judgment was granted on September 30, 2016 after the Court
determined that a reasonable officer could have concluded
that probable cause existed for the investigation, arrest,
and prosecution of Steiger for fraudulently obtaining
prescription drugs. Id. at ECF No. 55. As a result,
the Court determined that Defendants were protected by
qualified immunity with respect to Steiger's § 1983
claims of unreasonable seizure and malicious prosecution
under the Fourth Amendment. Id. The Court further
determined that, because a reasonable officer could have
believed that probable cause existed for the criminal
charges, Steiger could not proceed on his claim of First
Amendment retaliation or his claim that his Fourteenth
Amendment due process rights had been violated. Id.
Steiger's remaining state law gross negligence claim was
dismissed without prejudice. Id.
Steiger's dispute with Defendant Commissioners allegedly
began in September of 2014, after Presque Isle Sheriff Robert
Paschke accused Plaintiff of having an affair with Denise
Stacer. See Compl. ¶¶ 18-19. Ms. Stacer is
a former Chief Juvenile Officer for Presque Isle County who
reported to Probate Judge Donald McLennan. On December 19,
2014, Ms. Stacer filed suit against Judge McLennan, Sheriff
Paschke, and Undersheriff Joseph Brebaker, alleging that she
was terminated from her position and reassigned to a part
time position with Michigan District Judge Maria Barton in
retaliation for reporting that she had been sexually harassed
by a corrections officer assigned to the Presque Isle County
Jail. See Stacer v. Presque Isle County, Case No.
14-cv-14814 (E.D. Mich. Dec. 19, 2014). According to Ms.
Stacer, the corrections officer was eventually convicted of
one charge of criminal sexual conduct in the fourth degree.
Id. Ms. Stacer subsequently amended her complaint to
add Judge Barton as a defendant after Judge Barton terminated
Ms. Stacer's employment. Id. at ECF No. 6. That
action was dismissed by stipulation after the parties reached
a settlement agreement. Id. at ECF Nos. 41-42.
Sheriff Paschke denied accusing Plaintiff Steiger of having
an affair with Ms. Stacer, Defendant Schell and Defendant
Lang, who made up the Commissioner's Personnel Committee,
scheduled a meeting between Plaintiff and Sheriff Paschke for
September 30, 2014. See Compl. ¶¶ 19-20.
Plaintiff alleges that, although Personnel Committee meetings
are usually unattended, the September 30, 2014 meeting was
attended by Judge McLennan, a news reporter, and Sheriff
Paschke's attorney. Id. at ¶¶ 21-22. A
subsequent news report on the meeting represented that
Plaintiff Steiger was “adding fuel to the fire.”
Id. at ¶ 23.
November of 2014, Defendant Commissioners voted against
giving Plaintiff Steiger a raise for the 2015 calendar year.
Compl. ¶ 24. Then, on or about August 28, 2015 Defendant
Commissioners voted in favor of removing Plaintiff from his
role as civil counsel for the County. See Compl.
¶¶ 28-30. Defendants' alleged that Plaintiff
was being removed because they had “lost
confidence” in him. Plaintiff alleges that both of
these actions were in retaliation for inmate lawsuits filed
against officers of the Sheriff's Department,
Plaintiff's allegations that civil rights violations were
occurring in the county jail, and Plaintiff's malicious
prosecution lawsuit against members of the Sheriff's
Department. Id. at ¶¶ 24, 32-33. As a
result, Plaintiff initiated the present action.
proposed amended complaint, Plaintiff argues that these
actions resulted in his constructive discharge from the
position of County Prosecutor. Specifically, Plaintiff
alleges that these actions forced him to decide not to run
for re-election, and so “on or about March 4, 2016,
Plaintiff issued a Press Release which indicated that he will
not be seeking re-election as a result of the unlawful
retaliation that he has endured while employed as a
prosecutor for Defendant Presque Isle County.”
See Mot. to Amend ¶¶ 4, 8. He also seeks
to add Sheriff Paschke and Judge McLennan as Defendants.
Plaintiff alleges that Judge McLennan acted in his individual
and official capacities, but outside the scope of his
judicial duties, in negatively influencing the September 30,
2014 personnel meeting in retaliation for Steiger's
speech that raised concerns about Judge McLennan's
treatment of Ms. Stacer. Id. at ¶¶ 7, 30,
41. He alleges that Sheriff Paschke acted within the scope of
his employment in negatively influencing the September 30,
2014 personnel meeting in retaliation for Steiger's
lawsuits. Id. at ¶¶ 8, 30, 41.
Plaintiff Steiger's proposed amendments are dependent to
a degree upon his existing claims, Defendant's motion to
dismiss will be considered first. A pleading fails to state a
claim under Rule 12(b)(6) if it does not contain allegations
that support recovery under any recognizable legal theory.
Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). In
considering a Rule 12(b)(6) motion, the Court construes the
pleading in the non-movant's favor and accepts the
allegations of facts therein as true. See Lambert,
517 F.3d at 439. The pleader need not have provided
“detailed factual allegations” to survive
dismissal, but the “obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). In essence, the pleading
“must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face” and “the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678-79 (quotations and citation omitted).
initial matter, the parties appear to confuse the distinction
between individual and official capacity suits. As explained
by the Supreme Court in Kentucky v. Graham, 473 U.S.
159 (1985), individual capacity lawsuits, otherwise known as
personal capacity lawsuits, “seek to impose personal
liability upon a government official for actions he takes
under color of state law.” Id. at 165. To
establish such a claim in a § 1983 action “it is
enough to show that the official, acting under color of state
law, caused the deprivation of a federal right.”
Id. at 166. In contrast, a suit against a government
official in his or her official capacity represents another
way of pleading an action against an entity of which the
official is an agent, and must meet the requirements set
forth in Monell v. Department of Social Services of City
of New York, 436 U.S. 658 (1978) and its progeny.
See Id. at n. 55; Graham, 473 U.S. at 165
(“an official-capacity suit is, in all respects other
than name, to be treated as a suit against the
entity.”). To the extent Plaintiff asserts claims
against Presque Isle County ...