Kibbe v. Humphrey, s. 89-1456

Decision Date24 July 1990
Docket NumberNos. 89-1456,89-1720,s. 89-1456
Citation908 F.2d 973
PartiesUnpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Dean R. KIBBE, Plaintiff-Appellant, v. Patricia A. HUMPHREY; the Thomas Edison Inn; the City of Port Huron; and the County of St. Clair, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Before NATHANIEL R. JONES and DAVID A NELSON, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

PER CURIAM.

This is a somewhat unusual civil rights action, brought under 42 U.S.C. Sec. 1983 against (a) the plaintiff's former landlady, (b) the promoters of a project to build a hotel on a municipally-owned tract of land in the City of Port Huron, Michigan, (c) the city itself, and (d) the county in which the city is located.

The case arises out of an alleged conspiracy among the defendants unlawfully to evict the plaintiff and his dogs from an apartment they occupied near the site of the proposed hotel, and to prevent the plaintiff from placing on the ballot at a municipal election an alternative proposal for use of the hotel site. In addition to alleging violations of local law, the complaint asserts that the defendants violated the plaintiff's due process and equal protection rights under the United States Constitution.

The district court dismissed the complaint for failure to state a federal claim. The plaintiff then filed interrogatories and moved for an order compelling the defendants to answer them. The court denied the motion. The plaintiff has filed separate notices of appeal with respect to the dismissal of the complaint and the denial of the motion to compel.

We shall affirm the judgment dismissing the complaint, thereby mooting the second appeal.

I

In 1985, according to his complaint, plaintiff Dean R. Kibbe lived in an apartment at 1934 Stone Street, Port Huron, Michigan. The apartment is said to have been located in a slum surrounding a publicly-owned parcel called the Peerless site. At a city council meeting held in January of 1985, the complaint avers, the president of defendant Thomas Edison Inn submitted a proposal to build a hotel on the Peerless site. Mr. Kibbe subsequently submitted a proposal under which the site would be used instead for a non-profit American Indian cultural center and park. The hotel proposal was placed on the ballot, but Mr. Kibbe's proposal was not. We gather that the hotel was eventually built.

In April of 1985 Mr. Kibbe filed a civil rights action in federal court, alleging that his cultural center proposal had been kept off the ballot illegally. We are told that the action was dismissed in August of 1985 on standing and ripeness grounds.

At about the time of the dismissal of his lawsuit, Mr. Kibbe says, he began withholding the rent on his apartment because his landlady, defendant Patricia Humphrey, had allowed it to become infested with mice. The landlady--who, like the Thomas Edison Inn, is apparently supposed to be a member of a class of "comparatively wealthy landowners" comprising a "quasi-government"--brought suit in state court and obtained a judgment against Mr. Kibbe in November. Mr. Kibbe claims he reached an oral settlement with the landlady on December 3, 1985, but the following day, notwithstanding the settlement and notwithstanding alleged illegalities in the state court proceedings, a phalanx of city and county officials evicted him from his apartment.

The eviction supposedly left Mr. Kibbe homeless and made it necessary for him and the dogs he had adopted to live outdoors in the cold. Mr. Kibbe survived, but one of the dogs did not:

"Baby, a registered American Pit Bull Terrier Bitch, second to no dog of any breed that has ever lived, and literally priceless as an unsurpassed specimen of the breed, potential breeder, and courageous, protective, loving companion, and adopted daughter of Plaintiff Dean R. Kibbe, died on January 20, 1986, as a result of Plaintiff being forced to eventually live outdoors in a remote area outside of town as a result of the unlawful eviction carried out by the defendants...." *

Mr. Kibbe contends, among other things, that the defendants conspired to evict him from his apartment in retaliation for his civil rights suit and to make it harder for him to pursue an appeal in that case. (Despite the dismissal of his original case, Mr. Kibbe asserts, the pendency of an appeal was interfering with the financing of the hotel project; the landlady allegedly hoped that construction of the hotel would result in a large increase in the value of her property.) Mr. Kibbe also maintains that although he had appealed to the Michigan Court of Appeals from the judgment entered by the state court in November of 1985, the loss of his home prevented him from seeking further redress in the state court system. "[H]omelessness," he explains, "makes it difficult, if not impossible, for a tenant to pursue his rights...."

The present lawsuit was begun in federal district court on January 23, 1987, pursuant to an order allowing Mr. Kibbe to proceed in forma pauperis. He promptly moved to disqualify District Judge James Harvey, whereupon a magistrate entered an order appointing counsel for Mr. Kibbe. The motion to disqualify was denied, which led to the first of several unsuccessful appeals in this case. (See our order of April 16, 1987, in Case No. 87-1277. Another unsuccessful appeal dealt with the withdrawal of one of Mr. Kibbe's court-appointed lawyers. Case No. 88-1497, June 13, 1988.)

The defendant county moved for judgment on the pleadings, and the remaining defendants all filed answers to the complaint. The court eventually granted the county's motion dismissing the county from the suit.

In August of 1988, following a pretrial conference, Mr. Kibbe was allowed to file an amended complaint. Although Mr. Kibbe had been represented off and on by various court-appointed lawyers,...

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