United States District Court, E.D. Michigan, Northern Division
L. LUDINGTON DISTRICT JUDGE.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
DEFENDANTS' MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT
(DOCS. 32, 33)
Patricia T. Morris United States Magistrate Judge.
reasons set forth below, the Court recommends that Defendant
Schabel's Motion To Dismiss or, in the alternative, for
Summary Judgment, (Doc. 32), be GRANTED,
that Defendant Thompson's Motion for Summary Judgment,
(Doc. 33), be GRANTED, and that
Plaintiff's Complaint, (Doc. 1), be
September 8, 2016, Plaintiffs Theodore Jezowski, Sr. and
Stephanie Jezowski (“Plaintiffs”) filed the
instant action for damages under 42 U.S.C. §§ 1983
and 1985(3) against Defendants County of Arenac, Tina
Thompson, Arenac County Department of Health and Human
Services, Josett Gracey, Matt Engster, Kim Bejcek, Deb
Bonnau, Brian Millikin, Steve Yager, Orlene Hawks, Tobin
Miller, Arenac County Sheriff Department, Randy Schabel, Ryan
Schmidt, and Does #1-50, inclusive. (Doc. 1). Because
Plaintiffs proceeded in forma pauperis, the
complaint was subject to screening under 28 U.S.C. §
1915(e)(2)(B), which requires dismissal to the extent an
action sets forth frivolous or malicious claims, fails to
state a claim upon which relief can be granted, or seeks
monetary relief against a defendant immune from such relief.
On May 15, 2017, I issued a Report and Recommendation
(“R. & R.”) urging this Court to dismiss the
Complaint except to the extent it asserted claims against
Defendants Randy Schabel and Tina Thompson
(“Defendants”) in their individual capacities,
(Doc. 26), and on June 13, 2017, this Court issued an Order
adopting my R. & R.
Defendants filed the instant Motions To Dismiss or in the
alternative for Summary Judgment, (Doc. 32), and for Summary
Judgment, (Doc. 33), to which Plaintiff's responded,
(Doc. 37). Defendants replied to Plaintiffs' Response on
March 21, 2018. (Docs. 38-39). Accordingly, the instant
Motions are ripe for report and recommendation.
facts in this case relevant to the remaining claims against
Defendants involve the events leading up to the Arenac County
Circuit Court's termination of Plaintiffs' parental
rights. I must construe these facts liberally. E.g.,
Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362
(6th Cir. 2010).
September 10, 2014, “after a day of homeschool studies
and after a home cooked lunch, ” Plaintiffs' son,
Michael, wandered off while they were “replacing a
large pane of glass that had been broken during a recent
storm.” (Doc. 1 at 3). “[W]ithin minutes, ”
Plaintiffs and their other children “were out . . .
looking for him.” (Id.). Defendant Schabel
located Michael at a gas station and passed him off to Deputy
Switek, who brought him home “despite having been told
by Michael that no one was home.” (Id.). When
Deputy Switek approached the dwelling, he “looked into
the home through the windows . . . .” (Id.).
Michael was then taken to the Sheriff's Department
“where they proceeded to question him extensively and
detained him for almost an hour and a half without a parent
or lawyer present, ” which Plaintiffs allege
constituted an arrest without a warrant. (Id.).
then contacted Theodore, Sr., who arrived in “under 10
minutes” as he was “already on his way there to
report” Michael's disappearance. (Id.). He
was greeted by Thompson, “whom [sic] had also been
involved in the questioning of Michael.”
(Id.). Thompson later testified that she
“received a complaint that a child had been missing for
an extended period of time, ” and was informed when she
arrived at the sheriff's department that the deputies had
identified the boy. (Doc. 32, Ex. 2 at 15). In
Plaintiffs' view, “[t]he fact that Deputies called
Theodore, Sr. shows that they had not exhausted their
resources for finding [Plaintiffs] and unlawfully and
unnecessarily held Michael under arrest as there was no way
for him to leave nor did he have any reasonable expectation
that he would be allowed to leave.” (Doc. 1 at 4).
Defendants followed Theodore, Sr. to his home, where
“the children were playing in the yard.”
(Id.). Thompson then “demanded to see the
inside of the home” without explanation, and Stephanie
refused access absent a warrant or court order.
(Id.). In response, Defendants told Plaintiffs
“they were not allowed to leave the property in any
way, ” and Deputy Schabel “blocked
[Plaintiffs'] vehicle in the driveway with his patrol
vehicle.” (Id.). In addition, Stephanie
“was threatened with arrest if she called 911 to get
the State Police involved, . . .” (Id.).
obtain a court order from the Arenac County Circuit Court,
Plaintiffs allege that Thompson “generated a report
with allegations that cited the first illegal search”
alongside other “false information, ” and despite
Stephanie's offer to “find an alternative place for
the children to stay while the situation was discussed,
” Thompson nevertheless “did not inform the judge
that there may be alternative placement and options available
to prevent the removal as required by state law.”
(Id.). Rather, Thompson “stated that the only
way the children were leaving was with her and that if she
was not given entry into the home, she would remove the
children.” (Id.). Thompson, unsurprisingly,
remembered this interaction differently, and testified that
“when [Plaintiffs] refused entrance to the ...