United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
RECONSIDERATION , GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT , AND DISMISSING THIS ACTION WITHOUT
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.
before the Court is Defendant's Motion for
Reconsideration. Dkt. No. 34. On July 25, 2016, Plaintiff
filed a complaint against Defendants alleging violations of
Equal Protection. Dkt. No. 1. Defendants filed a Motion for
Summary Judgment on August 11, 2017. This Court granted in
part and denied in part Defendants' Motion on November 1,
2017. The remaining defendant, Thomas Pletzke, filed a Motion
for Reconsideration on November 14, 2017. Dkt. No. 34. This
Court ordered Plaintiff to file a response on January 8,
2018. Dkt. No. 35. On January 19, 2018, Plaintiff filed a
response. Dkt. No. 36. For the reasons that follow, the Court
will grant Defendant's Motion and dismiss this action
this Court's Local Rules, the Court may not grant a
motion for reconsideration that merely presents the same
issues upon which the Court already ruled. E.D. Mich. LR
7.1(h)(3) (E.D. Mich. July 1, 2013). Additionally, the movant
must demonstrate that there is a palpable defect in the
opinion or order under attack and that correcting the defect
will result in a different disposition of the case.
Id.; Indah v. U.S. S.E.C., 661 F.3d 914,
924 (6th Cir. 2011). “A ‘palpable defect' is
a defect which is obvious, clear, unmistakable, manifest, or
plain.” Hawkins v. Genesys Health Systems, 704
F.Supp.2d 688, 709 (E.D. Mich. 2010) (quoting Ososki v.
St. Paul Surplus Lines Ins. Co., 162 F.Supp.2d 714, 718
(E.D. Mich. 2001)).
Motion for Reconsideration, Defendant states that the Court
misinterpreted the test for the class-of-one theory.
See Dkt. No. 34, pg. 7-8 (Pg. ID 787-88). Under the
class-of-one theory, a Plaintiff must show: (1) disparate
treatment from similarly situated individuals; and (2) that
the government actors had no rational basis for the
difference; or (3) that the challenged government action was
motivated by animus. Paterek v. Vill. of Armada,
Mich., 801 F.3d 630, 650 (6th Cir. 2015). This Court
understood element three of the test as a distinct element
that Plaintiff could prove instead of proving the first two
elements. See Dkt. No. 30, pg. 17 (Pg. ID 772).
However, element three is an alternative to proving element
two, as shown through prior case law. See EJS Props.,
LLC. v. City of Toledo, 698 F.3d 845, 864-65 (6th Cir.
2012). A plaintiff must always prove element one: disparate
treatment from similarly situated individuals. See
id.; see also Paterek, 801 F.3d 630 at 650
(finding the class of one theory met when there were
similarly situated business to the plaintiff and a dispute
about animus). As this Court stated in its November 1, 2017
Opinion and Order, Plaintiff failed to show a similarly
situated individual. Dkt. No. 30, pg. 17 (Pg. ID 772).
Therefore, Plaintiff cannot succeed on his theory of
retaliation based on a class-of-one theory.
states that his motion for summary judgment response
referenced the theory of a First Amendment retaliation claim.
Dkt. No. 36, pg. 3-4 (Pg. ID 798-99). Plaintiff then states
that there is an issue of material fact with respect to First
Amendment retaliation that also supports the denial of
summary judgment. Id. at pg. 4 (Pg. ID 799).
Therefore, this Court's decision about Plaintiff's
class-of-one Equal Protection claim is not material to
deciding the present Motion. See id.
Court will now assess the viability of a First Amendment
retaliation claim. Plaintiff's summary judgment response
states, “a question of material fact exists as to
whether defendants targeted plaintiff based upon his prior
lawsuit which alleged constitutional violations.” Dkt.
No. 26, pg. 22 (Pg. ID 524). The elements of a retaliation
claim under the First Amendment are: “(1) the plaintiff
engaged in constitutionally protected conduct; (2) an adverse
action was taken against the plaintiff that would deter a
person of ordinary firmness from continuing to engage in that
conduct; and (3) the adverse action was motivated at least in
part by the plaintiff's protected conduct.”
Paterek, 801 F.3d at 645. In this case, there is
enough evidence to create an issue of material fact about
First Amendment retaliation. The Sixth Circuit recognizes
that there is a constitutional right of access to the courts.
Flagg v. City of Detroit, 715 F.3d 165, 173 (6th
Cir. 2013). Therefore, element one is satisfied because
Plaintiff alleges retaliation based on his previous lawsuit
against Bay City. Elements two and three are also satisfied.
This Court previously found that there was an issue of
material fact about whether Pletzke's actions were
motivated by animus surrounding Plaintiff's previous
lawsuit. Dkt. No. 30, pg. 17-18 (Pg. ID 772-73).
Defendant would not be entitled to qualified immunity under a
First Amendment claim of retaliation. To establish qualified
immunity, courts ask “whether the facts alleged or
shown make out a violation of a constitutional right and
whether the right at issue was clearly established at the
time of the incident.” Id. To be clearly
established, “the case law must dictate, that is, truly
compel (not just suggest or allow or raise a question about),
the conclusion for every like-situated, reasonable government
agent that what defendant is doing violates federal law in
the circumstances.” Clemente v.
Vaslo, 679 F.3d 482, 490 (6th Cir. 2012) (quoting
Saylor v. Bd. Of Educ. Of Harlan Cty., 118 F.3d 507,
5156th Cir. 1997)). However, “some violations of
constitutional rights are so obvious that a materially
similar case would be unnecessary.” Id. at 651
(quoting Binay v. Bettendorf, 601 F.3d 640, 646-47
(6th Cir. 2010)). The facts alleged in this case make out a
violation of the right of access to the courts. Access to the
courts is a constitutional right that the Sixth Circuit has
clearly established. Flagg, 715 F.3d at 173. In
conclusion, this Court finds that there is a genuine issue of
material fact regarding First Amendment retaliation that
would survive a qualified immunity defense.
Plaintiff's complaint fails to allege First Amendment
retaliation as a theory of recovery. The Federal Rules of
Civil Procedure require “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The Sixth Circuit has
held that “the Rules require . . . a short and plain
statement of the claim that will give the defendant fair
notice of what the plaintiff's claim is . . . .”
Carter v. Ford Motor Co., 561 F.3d 562, 566 (6th
Cir. 2009) (quoting E.E.O.C. v. J.H. Routh Packing
Co., 246 F.3d 850, 851 (6th Cir. 2001)).
Plaintiff does not have any statement in his complaint
alleging First Amendment retaliation as a theory of recovery.
Paragraph 23 of Plaintiff's complaint alleges that
Defendants discriminated against him because of his race
and/or in retaliation for his prior complaint against Bay
City. Dkt. No. 1, pg. 5-6 (Pg. ID 5-6). However, this
paragraph is in Plaintiff's recitation of the facts and
only mentions retaliation generally-it does not state a
specific theory of recovery. Paragraph 28 of Plaintiff's
complaint generally alleges that Defendants discriminated
against him for retaliatory reasons. Id. at pg. 7
(Pg. ID 7). However, paragraphs 29 and 30 then elaborate on
the claims alleged in paragraph 28. Plaintiff alleges
“[t]hat specifically . . . Plaintiff was targeted and
treated differently and more harshly as a result of his
earlier lawsuit . . . .” Id. This statement
sounds like an Equal Protection claim under a class-of-one
theory, and not a First Amendment retaliation claim.
Plaintiff does not mention retaliation elsewhere in his
complaint; count II of Plaintiff's complaint only
references race. See Id. at pg. 9-11 (Pg. ID 9-11).