United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
KENT United States Magistrate Judge.
a pro se civil rights action brought pursuant to 42
U.S.C. § 1983 against defendants County of Calhoun
(“County”), the State of Michigan
(“Michigan”), and the Michigan Department of
Corrections (“MDOC”). This matter is now before
the Court on motions to dismiss filed by defendants Michigan
and MDOC (docket no. 8) and the County (docket no. 10).
Plaintiff's amended complaint
amended complaint, plaintiff identifies himself as a
“natural person” who is an “inhabitant of
the republic of Michigan.” Amend. Compl. (docket no. 5,
PageID.65). Since 1996, plaintiff alleged that “certain
agents and confederates” of defendants have conspired
to deprive him of his “constitutionally-protected
rights to the dominion, association, and consortium of his
natural daughters.” Id. at PageID.65.
Specifically, on October 31, 2006, plaintiff was arrested
“with malicious intent and under fraudulent
pretenses” by agents of the County. Id. From
March 7, 2007 to February 28, 2015, during his eight years of
incarceration, Michigan and the MDOC “fraudulently
deprived [plaintiff] of his liberty (for a purported
‘failure to pay' a fraudulently-assigned
‘debt')”. Id. at PageID.66.
appears to raise two constitutional claims. First, plaintiff
alleged that defendants violated his
“clearly-established Constitutional right” of
paternal dominion under the Fourteenth Amendment.
Id. at PageID.67-68, 70. Second, plaintiff alleged
defendants violated his rights under the Thirteenth Amendment
and the Anti-Peonage statute by incarcerating him for a
“failure to pay.” Id. at PageID.68, 70.
Plaintiff seeks $2, 500, 000.00 in damages. Id. at
Defendants Michigan and MDOC's motion to
dismiss (docket no. 8)
Michigan and MDOC have moved to dismiss plaintiff's
complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted. A complaint may
be dismissed for failure to state a claim if it fails to give
the defendants a fair notice of the claim and the grounds
upon which it rests. Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 555 (2007).
[A] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face. 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. The plausibility standard is not
akin to a probability requirement, but it asks for more than
a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent
with a defendant's liability, it stops short of the line
between possibility and plausibility of entitlement to
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations and quotation marks omitted). In making
this determination, the complaint must be construed in the
light most favorable to the plaintiff, and its well-pleaded
facts must be accepted as true. Morgan v. Churchs Fried
Chicken, 829 F.2d 10, 12 (6th Cir. 1987). However, while
pro se pleadings are to be liberally construed,
see Williams, 631 F.3d at 383, “this court is
not required to conjure up unpled allegations.”
Dietz v. Sanders, 100 Fed.Appx. 334, 338 (6th Cir.
state a claim under 42 U.S.C. § 1983, a plaintiff must
set forth facts that, when construed favorably, establish (1)
the deprivation of a right secured by the Constitution or
laws of the United States (2) caused by a person acting under
the color of state law.” Sigley v. City of Parma
Heights, 437 F.3d 527, 533 (6th Cir. 2006). Defendants
Michigan and MDOC contend that they are immune from suit
under § 1983. The Court agrees. Regardless of the form
of relief requested, the states and their departments are
immune under the Eleventh Amendment from suit in the federal
courts, unless the state has waived immunity or Congress has
expressly abrogated Eleventh Amendment immunity by statute.
See Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 98-101 (1984); Alabama v.
Pugh, 438 U.S. 781, 782 (1978); O'Hara v.
Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). “This
jurisdictional bar applies regardless of the nature of the
relief sought.” Pennhurst, 465 U.S. at 100.
Congress has not expressly abrogated Eleventh Amendment
immunity by statute, Quern v. Jordan, 440 U.S. 332,
341 (1979), and the State of Michigan has not consented to
civil rights suits in federal court. Abick v.
Michigan, 803 F.2d 874, 977 (6th Cir. 1986). See
McCoy v. Michigan, 369 Fed.Appx. 646, 653-54 (6th Cir.
2010) (“[b]ecause sovereign immunity extends to state
instrumentalities, and the MDOC is an arm of the State of
Michigan, the MDOC is entitled to sovereign immunity on the
§ 1983 claim) (internal quotation marks and citations
omitted). Accordingly, Michigan and the MDOC's motion to
dismiss (docket no. 8) should be granted.
The County's motion to dismiss (docket no. 10)
County has moved to dismiss the complaint on a number of
grounds, including insufficient service of process pursuant
to Fed.R.Civ.P. 12(b)(5). The Court's analysis begins and
ends with the service of process issue, because the Court
cannot grant relief to the County unless the County is a
party to this litigation. “[O]ne becomes a party
officially, and is required to take action in that capacity,
only upon service of a summons or other authority-asserting
measure stating the time within which the party served must
appear and defend.” Murphy Brothers, Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
“Unless a named defendant agrees to waive service, the
summons continues to function as the sine qua non
directing an individual or entity to participate in a civil
action or forgo procedural or substantive rights.”
Id. at 350-51. As evidenced by its motion, the
County has not waived service of process.
plaintiff bears the burden of proving that proper service was
effected. Aetna Business Credit, Inc. v. Universal Decor
& Interior Design, Inc., 635 F.2d 434, 435 (5th Cir.
1981); Frederick v. Hydro-Aluminum S.A., 153 F.R.D.
120, 123 (E.D. Mich.1994). See LSJ Investment Company,
Inc. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999)
(“actual knowledge and lack of prejudice cannot take
the place of legally sufficient service”). In resolving
a motion to dismiss for ineffective service under
Fed.R.Civ.P. 12(b)(5), the court may construe such a motion
as a motion to quash service. See Young's Trading
Company v. Fancy Import, Inc., 222 F.R.D. 341, 342-43
(W.D. Tenn. 2004) (“[w]here service is ineffective, a
court has discretion to either dismiss the action or quash
service and retain the case”). Indeed, the Sixth
Circuit has expressed a preference to treat the first motion
for improper service as a motion to quash. See Stern v.
Beer, 200 F.2d 794, 795 (6th Cir. 1953) (“if the
first service of process is ineffective, a motion to dismiss
should not be granted, but the case should be retained for
proper service later”). See also, Daley v.
ALIA, 105 F.R.D. 87, 89 (E.D. N.Y.1985) (“[w]hen
the gravamen of defendant's motion is insufficiency of
process, however, the motion must be treated as one to quash
service, with leave to plaintiffs to attempt valid
service”). Under the circumstances of this case, the
Court views defendants' Rule 12(b)(5) motion as one to
quash service of process rather than as one to dismiss the
action. See Stern, 200 F.2d at 795.