Prater v. Linderman

          OPINION

          RAY KENT, UNITED STATES MAGISTRATE JUDGE

         This a civil rights action brought by pro se plaintiff Jeffrey Bernard Prater against prosecutors and deputies in Emmet County Michigan. This matter is now before the Court on defendants' motion for summary judgment (ECF No. 25). For the reasons stated below, defendants' motion will be granted.

         I. Plaintiff's complaint

         Plaintiff has a dispute with officials in Emmet County, Michigan, over the implementation of the registration requirements under Michigan's Sex Offender Registration Act (SORA). Plaintiff was convicted on two counts of criminal sexual conduct (“CSC”) (2nd degree) in 1997. See Prosecutor's Letter (ECF No. 1-1, PageID.14); Compl. (ECF No. 1, PageID.4). Although plaintiff has been reporting to register as a sex offender on a quarterly basis for many years, the present federal lawsuit arises from plaintiff's claim that “[he] is not required to report quarterly under his 1997 sentence.” Compl. (ECF No. 1, PageID.4).

         In his complaint, plaintiff alleged a chain of events which led to him pleading guilty for use of marijuana: he attempted to register as a sex offender in November 2017; when that did not occur, plaintiff received a call from a deputy advising him that he did not register as required under SORA; when plaintiff went to the Sheriff's Office to register later that day, he brought some marijuana with him; plaintiff was charged with violating the SORA registration requirements and possession of marijuana; given plaintiff's rather extensive criminal history, he was charged as an habitual offender;^[1] the government later dismissed the SORA and habitual offender charges; plaintiff sought to have the marijuana charge dismissed as well because it was found as the result of an illegal search related to an unconstitutional SORA charge; finally, plaintiff pled guilty to the marijuana charge and was sentenced to probation. Plaintiff filed this lawsuit seeking relief related to almost all of these events.

         Plaintiff's pro se complaint sues the following defendants in both their individual and official capacities: Emmet County prosecuting attorney James R. Linderman; Emmet County Sheriff's Deputy (“Deputy”) Irene Davis; Deputy Jennifer Krussell; Deputy Cody Wheat; and, Emmet County assistant prosecutor Michael McNamara. Id. at PageID.4-6. Plaintiff alleged that defendants violated his First Amendment right to free speech, his Fourth Amendment right to a “Warranted search incident”, his Fifth Amendment “Right to Remain Silent”, his Fourteenth Amendment right to due process, and the Sixth Circuit's decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016). Id. at PageID.3.

         Plaintiff filed his current federal lawsuit^[2] on September 4, 2018, less than one month after being sentenced for use of marijuana on August 7, 2018. Defendants fairly summarized plaintiff's allegations^[3] in their supporting brief as follows:

On January 2, 2018, Deputy Jennifer Krussell reported that Plaintiff had not registered in November of 2017 as required by Michigan's Sex Offender Registration Act (“SORA”). ECF No. 1, PageID.4. On the same day, Deputy Cody Wheat spoke to Plaintiff over the telephone to inquire as to why. PageID.5. During that conversation, Plaintiff acknowledged his oversight - claiming he “must have spaced it.” Exhibit A, Recording of 1/2/18 Phone Call Between Deputy Wheat and Plaintiff; Exhibit B, Deputy Wheat Report. Despite that admission, Plaintiff now claims he attempted to register with Deputy Irene Davis consistent with his quarterly reporting obligations on or about November 15, 2017, but Deputy Davis implied she could not help him. PageID.4.

On January 11, 2018, Emmet County Prosecutor Michael McNamara began criminal proceedings against Plaintiff as a result of his failure to register in November 2017 in violation of M.C.L. 28.725a, a high court misdemeanor. ECF No. 1-1, PageID.17. Given his criminal background, Plaintiff was also charged as a habitual offender-fourth offense. Id. Prosecutor James Linderman also participated in the prosecution. On or about February 2, 2018, Plaintiff was arrested for the SORA violation. PageID.5. During the course of his arrest, Plaintiff was searched. Although the search did not uncover the marijuana he had on him, he eventually surrendered it. Exhibit C, Deposition of Plaintiff, pg. 64.

Prosecutors ultimately dismissed the SORA violation prosecution (PageID.16), but charged Plaintiff with one count of marijuana possession in violation of M.C.L. 333.7403(2)(d). PageID.18. Plaintiffs defense counsel attempted to have the marijuana possession charge dismissed, arguing Plaintiff's SORA arrest was unlawful thus the search that led to the discovery of the marijuana was not incident to a lawful arrest. The court denied the motion. PageID.51. Plaintiff ultimately pleaded guilty to the marijuana possession charge, acknowledging under oath that he possessed marijuana on February 2, 2018. PageID.135-136. Plaintiff's marijuana conviction has not been overturned or even appealed. Exhibit C, pgs. 69, 71.

On September 4, 2018, Plaintiff filed this lawsuit based on the foregoing encounters alleging multiple constitutional violations against these Defendants in their individual and official capacities. With respect to Deputy Davis, Plaintiff claims that she violated his Fourth and Fourteenth Amendment rights to due process when she failed to register him under SORA on November 14, 2017. ECF No. 1. With respect to Deputy Krussell, Plaintiff claims that she was required to report his failure to register immediately (within three (3) business days) [FN 1], and her late reporting of Plaintiff's failure to register violated his Fourth and Fourteenth Amendment rights to due process. Id. Plaintiff also claims Deputy Krussell violated his First Amendment rights by requiring him to register in person. Id. With respect to Deputy Wheat, Plaintiff claims his failure to Mirandize Plaintiff during their January 2, 2018 conversation violated the Fifth Amendment. Id. Plaintiff further claims he is a member of a protected class as a sex offender and Prosecutor Linderman violated Plaintiff's Fourteenth Amendment right to be free from discrimination when he participated in Plaintiff's prosecution for SORA violations. Id. Finally, with respect to Prosecutor McNamara, Plaintiff claims that by punishing him for violating SORA, Prosecutor McNamara violated his Fourteenth Amendment rights and that the search that uncovered marijuana was illegal under the Fourth Amendment. Id.

In addition to the foregoing claims, Plaintiff argues that prosecuting him for violating SORA violates the United States Constitution's Ex Post Facto Clause because his 1997 sentence did not require him to report in person quarterly on a public registry. Further, he claims that under his 1997 sentence no punishment existed for failing to report because reporting was not mandated. Id.

Plaintiff seeks the following relief: (1) placement into the confidential, non-public sex offender database with no regular reporting requirements; (2) release of video footage from the front lobby of the Emmet County Sheriff's Office on or about November 15, 2017; (3) overturning his use of marijuana plea as unconstitutionally gained; (4) money damages for lost wages, bail, vehicle impound/towing, state court costs, jail booking fee, and federal court filing fee; (5) exemplary damages for damage to his reputation while on bond for violating SORA, (6) punitive damages for malicious enforcement of ex post facto laws post Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016), and (7) attorney fees for a “large class of citizens Plaintiff Pro Se represents.”

[FN 1] See M.C.L. 28.728a(1) (requiring local law enforcement to “immediately” take certain actions after a registrant's failure to register-including seeking a warrant for the registrant's arrest) and M.C.L. 28.722(g) (defining “immediately” as “within 3 business days”).

         Defendants' Brief (ECF No. 25, PageID.179-180) (emphasis omitted).

         Two of plaintiff's claims for relief are without merit. With respect to requested relief no. 2, there is no video footage from “on or about November 15, 2017” which defendants can release for plaintiff's review. At plaintiff's deposition on April 29, 2019, defendants' counsel advised plaintiff that the video records over itself every 30 days, so any footage from November 2017 did not exist anymore. Prater Dep. (ECF No. 25-3, PageID.219). With respect to requested relief no. 7, plaintiff testified that the time he spent working on this lawsuit is worth $1, 000, 000.00. Id. at PageID.235. Plaintiff, however, is not represented by an attorney in this lawsuit, paid no attorney fees (id.), and cannot collect attorney fees for a non-existent class action. Accordingly, the Court will consider only plaintiff's requested relief nos. 1, 3, 4, 5 and 6.

         II. Legal Standard

         A. Summary judgment

         All defendants have moved for summary judgment. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties= burden of proof in a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the Court is not bound to blindly adopt a non-moving party's version of the facts. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         B. Section 1983

         Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of action for individuals who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.

         III. Discussion

         A. Defendants Linderman and McNamara

         Plaintiff has alleged claims against defendants Linderman and McNamara for acts committed on: January 11, 2018; February 2, 2018; February 22, 2018; May 7, 2018; June 19, 2018; and, August 7, 2018. Compl. at PageID.4.

         On January 11, 2018, “Prosecutor Linderman Concurred the Prosecution of Plaintiff pursuant to SORA violations MCL 28.725, 729 tier III, 4th habitual, 2-15 year Felony” in violation of plaintiff's 14th Amendment right to be free from discrimination in his suspect class of a “Sex Offender” and “Government intrusion of citizens” contrary to the decision in Does #1-5. Compl. at PageID.5.

         On February 2, 2018,

Plaintiff was arrested under a Warrant issued in part by Prosecutor McNamara. Under Plaintiffs [sic] 1997 Sentence no Punishment existed for not reporting because it was not mandated. Only address changes need be reported.

The 1999 Amendment of SORA made it a Misdemeanor not to report which was replaced by the 2011 Amendment Which made it a felony[.] This was found Unconstitutional in the 6th Circuit, 2016/U.S. Supreme Court, August, 2017[.] Defendant disavows these Court Orders evidence [sic] by his charging decision Concerning Plaintiff's Ex Post Facto issue, violating Plaintiff [sic] 4th / 14th Amendment Rights.

Id.

         On February 22, 2018, “Prosecutor Mcnamara [sic] Arrested Plaintiff for Possession of Marijuana during the February 2, 2018 SORA Arrest.” Id. at PageID.6.

         While plaintiff alleged that defendants violated his civil rights on May 7, 2018, he does not allege any act that occurred on that date. Contrary to plaintiff's claim, no civil rights violation occurred on that date. The record reflects that on May 7, 2018, the state court judge granted prosecutor McNamara's motion to dismiss the criminal case involving the SORA violation without prejudice. The “Motion/Order of Nolle Prosequi” signed by the judge dismissed Count 1, described as “Sex Offenders - Failure to Comply with Reporting Duties” under ...