United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge Anthony P. Patti
DEFENDANTS' MOTIONTODISMISS [#4]
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE
initiated this suit on December 18, 2018, alleging several
civil rights violations under § 1983. Dkt. No. 1.
Defendants now move to dismiss all claims in Plaintiff's
Complaint. Dkt. No. 4.
before the Court is Defendants' Motion to Dismiss [#4].
The Court will resolve the matter without a hearing.
See E.D. Mich. LR 7.1(f)(2). For the reasons set
forth below, the Court will GRANT the Motion IN PART and DENY
the Motion IN PART.
Shane Anders is the owner of Area Towing, a business
operating in the state of Michigan. Dkt. No. 1, p. 2 (Pg. ID
2). On November 21, 2017, a court officer requested Plaintiff
to remove all vehicles from a location where a tenant was
being evicted. Id. at p. 3 (Pg. ID 3). Among the
vehicles that Plaintiff removed and impounded was a Denali
travel trailer purportedly registered to a woman named
Michelle Rae Yoscovits (“Yoscovits”).
Id. at p. 4 (Pg. ID 4).
11, 2018, Yoscovits came to Plaintiff's office and
demanded that he release the trailer to her immediately.
Id. Plaintiff explained that he could not do so
because the trailer was part of an ongoing bankruptcy
proceeding, and he would thus need authorization from the
court. Id. On July 6, 2018, Plaintiff received a
call from a man named J. Henry Lievens (“Defendant
Lievens”), again demanding that Plaintiff immediately
release the trailer to Yoscovits. Id. at p. 5 (Pg.
ID 5). Plaintiff declined. Id. at p. 6 (Pg. ID 6).
Defendant Lievens is an attorney and the Chairman of the
Monroe County Board of Commissioners. Id. at p. 2
(Pg. ID 2). Yoscovits is an employee at Defendant
Lievens' law firm. Id. at p. 9 (Pg. ID 9).
August 3, 2018, Plaintiff claims to have received a call from
Monroe County Commissioner David Hoffman, informing him that
Defendant Lievens had been “bad mouthing”
Plaintiff and his company for “allegedly breaking the
law.” Id. at pp. 6-7 (Pg. ID 6-7). Plaintiff
asserts that he received a second call from Commissioner
Hoffman on September 19, 2018, again informing him that
Defendant Lievens had been making “false and defamatory
statements” about Plaintiff. Id. at p. 7 (Pg.
ID 7). Later that day, Plaintiff called Defendant Lievens and
explained that “as an elected official, he should not
be making false and defamatory statements about the Plaintiff
considering such false statements could jeopardize
Plaintiff's business.” Id. According to
Plaintiff, Defendant Lievens immediately hung up the phone.
Id. at p. 8 (Pg. ID 8).
this conversation, Plaintiff allegedly received another call
from a member of the Monroe County Board of Commissioners --
Commissioner Moore. Id. at p. 8 (Pg. ID 8).
Commissioner Moore, like Commissioner Hoffman, informed
Plaintiff that Defendant Lievens had been making statements
about Plaintiff suggesting he was violating the law.
Id. Subsequently, Plaintiff had his attorney send a
cease and desist letter to Defendant Lievens, requesting that
he refrain from making any further defamatory remarks.
Id. at pp. 8-9 (Pg. ID 8-9).
point, Plaintiff learned of an “anonymous letter”
allegedly sent to Monroe County Prosecutor William Nichols
that questioned Plaintiff's business practices. See
Id. at p. 10 (Pg. ID 10). On September 13, 2018,
Plaintiff sent a Freedom of Information Act
(“FOIA”) request to the Monroe County Board of
Commissioners seeking this letter. Id. After not
receiving a response, Plaintiff sent a second FOIA request on
September 19, 2018 to both the Board of Commissioners and the
County Prosecutor's Office. Id.
email dated September 28, 2018, Michael Roehrig, Chief
Assistant Prosecuting Attorney, advised Plaintiff that the
Office was not in possession of the anonymous letter and that
the Board of Commissioners' FOIA coordinator would tender
an official response. Id. at p. 11 (Pg. ID 11). That
same day, Michael Bosanac, the Board of Commissioners'
designated FOIA coordinator, issued a letter denying
Plaintiff's FOIA request. Bosanac's letter informed
Plaintiff that the document he requested did not exist. Dkt.
No. 4-1. The letter further informed Plaintiff that he could
appeal the denial to the Board of Commissioners' Chairman
-- Defendant Lievens. Dkt. No. 1, p. 11 (Pg. ID 11). On
October 15, 2018, Plaintiff sent Defendant Lievens a formal
written request appealing the denial. Id. at p. 12
(Pg. ID 12). Within twenty-four hours, Defendant Lievens
denied Plaintiff's FOIA appeal. Id.
now files suit raising several state and federal claims.
First, Plaintiff raises a First Amendment Retaliation claim,
alleging Defendant Lievens' made defamatory remarks --
under the color of state law -- about Plaintiff's
business following Plaintiff's refusal to release Ms.
Yoscovits' Denali travel trailer from impound. Second,
Plaintiff raises a Fourteenth Amendment
“Class-of-One” Equal Protection claim, alleging
Defendant Lievens treated his FOIA appeal differently than
others by issuing a denial without first presenting the
appeal to the entire Board of Commissioners. Finally,
Plaintiff raises several claims arising under Michigan state
law, including (1) failing to timely respond to a FOIA
request, (2) failing to disclose documents sought in a FOIA
request, and (3) denying a FOIA appeal without due process.