Fox v. Van Oosterum

Decision Date10 May 1999
Docket NumberNo. 98-1022,98-1022
Citation176 F.3d 342
PartiesJason Matthew FOX, Plaintiff-Appellant, v. Cris J. VAN OOSTERUM, Laude Hartrum, Larry Stewart, in his official capacity as Mason County Sherriff, County of Mason, a municipal corporation, and John R. Bulger, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Douglas A. Springstead (argued), J. Nicholas Bostic (briefed), Springstead & Bostic, Hart, Michigan, for Plaintiff-Appellant.

Robert K. Kaufman, George W. Beeby (argued), Catherine D. Jasinski (briefed), Cummings, McClorey, Davis, Acho & Tremp, Traverse City, Michigan, for Defendants-Appellees.

Before: KENNEDY, DAUGHTREY, and CLAY, Circuit Judges.

KENNEDY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. CLAY, J. (pp. 354-58), delivered a separate opinion concurring in part and dissenting in part.

KENNEDY, Circuit Judge.

Plaintiff Jason Matthew Fox appeals from the summary judgment dismissal in this 42 U.S.C. § 1983 ("section 1983") action against Mason County officials and Mason County. Fox alleges that defendants violated the Fourth, Sixth, and Fourteenth Amendments and state law by refusing to return his driver's license and by initiating a prosecution that resulted in a 60 day "discretionary time" sentence. With respect to Fox's driver's license claim against Mason County and Sheriff Stewart in his official capacity, we affirm the grant of summary judgment because Fox has not established any facts showing that the deprivations resulted from county custom or policy. With respect to Fox's driver's license claim against the individual defendants, we affirm the grant of summary judgment because Fox was not entitled to predeprivation process, Fox has not established any deficiency in postdeprivation remedies, and no seizure violating the Fourth Amendment occurred. With respect to the "discretionary time" claim, we affirm the grant of summary judgment because the individual defendants possess absolute prosecutorial immunity against this claim. The "discretionary time" claim against Mason County fails because no evidence indicates that the deprivation resulted from county policy or custom.

I. Factual Background and Procedural History

As this appeal reviews the grant of summary judgment for the defendants, we view the facts in the light most favorable to Fox. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In August 1993, defendant Laude Hartrum, a detective with the Mason County Sheriff's Department, began investigating several thefts from cars. Hartrum received a tip that Mike Thompson and plaintiff Fox were involved in the crimes. Hartrum arrested Thompson and impounded Thompson's truck. During an inventory search of the truck, Fox's wallet and driver's license were found. After additional evidence implicating Fox was collected, Fox was arrested and charged with two counts of Breaking and Entering a Motor Vehicle. Fox was released on the condition that he not drive. On August 26, 1993, defendant Hartrum observed Fox driving and arrested Fox. Fox's bond was revoked and he was incarcerated pending the outcome of the August 1993 car theft case.

Fox pleaded guilty to the August 1993 charges. The sentence, which Circuit Court Judge Richard Cooper imposed on November 2, 1993, contained some contradictory terms. Fox was sentenced to "serve 1 year in jail" with 71 days credit given for time previously served. However, the sentence also stated that he was to "[s]erve 6 mos. as follows: 90 days in jail and 90 days on Community Corrections tether and/or community service. Remainder of jail time is reserved to be served at the Court's discretion." Fox signed an Order of Probation acknowledging the identical sentence.

Fox served the 90 days of his sentence minus the 71 days previously served and was released. Near the end of December, Fox paid several outstanding traffic tickets that had caused his license to be suspended. On January 5, 1994, Fox went to the Sheriff's office to collect his wallet and driver's license that were found during the inventory search of Thompson's truck in August 1993 and retained by the Sheriff's office since that time. Fox asked defendant Hartrum to return his wallet and its contents. After consulting with defendant Mason County Prosecuting Attorney Cris J. Van Oosterum, Hartrum returned Fox's wallet but refused to return the driver's license to Fox because, as he explained to Fox, Fox still had outstanding tickets. While Hartrum was correct that Fox had two outstanding civil infraction tickets for making excessive noise, those tickets had no impact on Fox's driving privileges, which had been restored in late December 1993 upon Fox's release from jail and payment of his outstanding traffic tickets. After January 5, 1994 and before January 26, 1994, Fox made one or two additional trips to the prosecutor's office to try to retrieve his driver's license. His trips were not successful. On January 26, 1994, Fox made another trip to the prosecutor's office, spoke with defendant Van Oosterum in person, and again demanded the return of his license. Van Oosterum gave Fox a copy of the license but refused to return the license until Fox paid his remaining tickets. On June 7, 1994, Fox ultimately received a duplicate license from the Secretary of State. 1 In the meantime, Fox was implicated in the theft of a truck. On February 21, 1994, an acquaintance of Fox reported to the police that Fox had stolen her father's truck. Within a few days, Fox was arrested and placed in jail. According to an affidavit submitted by Fox, Fox was informed that he had violated the conditions of his earlier probation and that he had been sentenced to 30 days of "discretionary time." According to Fox, before this incarceration, no hearing was held, no counsel for his defense was provided, and no notice of the charges was provided. Fox was released on March 22, 1994. In his first amended complaint, however, Fox does not allege that this period of discretionary time incarceration violated his constitutional rights or constituted a state law violation. Fox only complains of the next period of discretionary time incarceration starting in April 1994.

According to Fox's affidavit, on April 7, 1994, Fox was again arrested and arraigned on a warrant relating to the February 1994 theft of the truck incident. Fox posted bond and was released on April 12, 1994. Soon thereafter, Fox was informed that he had again violated the conditions of his release and that he had been sentenced to another period of discretionary time, this time for 60 days. Fox was not provided with notice of the charges against him, counsel for his defense, a hearing, or an opportunity to post bond or appeal. Fox was incarcerated until his release on May 31, 1994.

With respect to this April-May 1994 incarceration, the record also reveals that on April 12, 1994, defendant John R. Bulger, Mason County Assistant Prosecuting Attorney, filed a "Petition to Impose Discretionary Sentence" before Circuit Court Judge Richard Cooper. This petition asked the court to enter an "Order requiring Defendant, JASON FOX, to serve some or all of his remaining balance of his one (1) year jail sentence imposed by this Court on November 2, 1993." As grounds for this request, the petition cited the original November 1993 sentence. That sentence had reserved jail time to the court's discretion and provided that "[a]s a condition of the discretionary jail time, the Defendant was not to violate the criminal laws of any subdivision." The petition also provided these additional grounds:

4. On March 9, 1994, the Mason County Sheriff Department forwarded a criminal complaint alleging that defendant has been involved in a criminal offense.

5. Upon thorough investigation, on March 25, 1994, the Mason County Prosecuting Attorney's Office issued a warrant for Jason Fox for Motor Vehicle, Unlawful Use and Contributing to the Delinquency of a Minor, (a copy of which is attached), respectfully, a felony and misdemeanor offense.

6. The police report further documents the defendant's engaging in anti-social conduct, associating with known supervised individuals, and committing other criminal offenses.

Circuit Court Judge Richard Cooper issued the requested order and then an amended order on the same day. The amended order sentenced Fox to serve "60 days discretionary time in the Mason County Jail" because Fox "failed to comply with the ... sentence order of the Court dated 2nd day of November 1993." On April 13, 1994, the day after Bulger filed the "Petition to Impose Discretionary Sentence" and it was granted, Bulger signed a "Motion/Order of Nolle Prosequi" with respect to the two counts--"Motor Vehicle, Unlawful Use" and "Contribute to Delinquency of a Minor"--arising from the February 1994 incident involving the truck. Both of these counts were cited in Bulger's petition requesting Judge Cooper to impose discretionary time. The "Motion/Order of Nolle Prosequi" cited as the reason for the motion that "[p]rosecution was unable to produce a key witness at preliminary examination." The "Motion/Order of Nolle Prosequi" was granted by a state district court judge on April 19, 1994.

In his affidavit, Fox described one more incarceration for discretionary time starting on August 4, 1994 and lasting 30 days. Fox's first amended and final complaint, however, does not allege that this period of discretionary time incarceration violated his constitutional rights or state law.

In March of 1995, a probation revocation hearing for Fox was held. Fox pleaded guilty to probation violations and was sentenced. Fox complains neither about the procedure used at this hearing nor the resulting sentence.

Fox filed the instant 42 U.S.C. § 1983 action in the district court. He alleged that the defendants violated (1) his Fourteenth Amendment right to due process,...

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