United States District Court, W.D. Michigan, Southern Division
KENT, UNITED STATES MAGISTRATE JUDGE
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
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).
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; 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.
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.
filed his current federal lawsuit 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 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
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”).
Brief (ECF No. 25, PageID.179-180) (emphasis omitted).
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.
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).
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
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
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.
Defendants Linderman and McNamara
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.
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.
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.
February 22, 2018, “Prosecutor Mcnamara [sic] Arrested
Plaintiff for Possession of Marijuana during the February 2,
2018 SORA Arrest.” Id. at PageID.6.
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 ...