Lindke v. King

• Docket Number: 19-cv-11905
• Decision Date: 24 May 2023
• Parties: KEVIN LINDKE, Plaintiff, v. MAT KING, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

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KEVIN LINDKE, Plaintiff, v. MAT KING, et al., Defendants.

No. 19-cv-11905

United States District Court, E.D. Michigan, Southern Division

May 24, 2023

ORDER (1) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS BY DEFENDANTS MAT KING AND DALE KAYS (ECF No. 96) AND (2) GRANTING MOTION TO DISMISS BY DEFENDANT TINA TROY (ECF No. 112)

MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

In this action, Plaintiff Kevin Lindke alleges that certain provisions of Michigan's Non-Domestic Personal Protection Order statute, Mich. Comp. Laws § 600.2950a (the “PPO Statute”), as “authoritatively construed” by the Michigan courts, violate the First and Fourteenth Amendments to the United States Constitution. (Third Am. Comp., ECF No. 92, PageID.3161-3171.) In his Third Amended Complaint, Lindke seeks a declaration that the provisions at issue are unconstitutional, an injunction prohibiting enforcement of the provisions, and an award of nominal damages. Lindke brings his claims under 42 U.S.C § 1983, and he has named the following individuals as Defendants: Mat King, the St. Clair County Sheriff; Dale Kays, an employee with St. Clair County Central Dispatch and Tina Troy, a woman who obtained a personal protection order (“PPO”) against him (Lindke) under the PPO Statute.

King and Kays have now moved to dismiss Lindke's claims against them. (See Mot. to Dismiss, ECF No. 96.) They argue that the Court lacks subject-matter jurisdiction over Lindke's claims for declaratory and injunctive relief because those claims are moot, and they contend that Kays has qualified immunity from Lindke's claim for nominal damages (which he did not seek against King). For the reasons explained below, their motion is GRANTED IN PART and DENIED IN PART.

Troy has also moved to dismiss the claims against her. (See Mot. to Dismiss, ECF No. 112.) She argues that she is not a state actor and thus is not subject to suit under Section 1983. The Court agrees. Therefore, Troy's motion to dismiss is GRANTED.

I

A

Lindke's challenge to the PPO Statute arose out of a dispute between (1) Lindke, (2) the mother of Lindke's daughter (a woman whose initials are A.M.), and (3) a woman named Tina Troy. (See Third Am. Compl. at ¶¶ 8-9, ECF No 92, PageID.3148.) Troy is the maternal great-aunt of Lindke's daughter. (See id. at ¶8 PageID.3148.)

Lindke and A.M. have been engaged in a “heated and contested child custody battle” for several years. (Id. at ¶9, PageID.3148.) Lindke says that the “heart” of the dispute is that certain members of A.M.'s family, including Troy, have allowed his daughter to “come into regular contact with a twice-convicted sex offender.” (Id. at ¶10, PageID.3149.)

According to Lindke, there is a Facebook page called “Through My Eyes” that “features political and opinion commentary about” the “actions” and “failures” of A.M.'s family. (Id. at ¶¶11-12, PageID.3149.) Lindke posted entries about Troy and other members of A.M.'s family on this Facebook page. (See id. at ¶¶ 15, 33, PageID.3149, 3155.) In addition, according to Troy, Lindke sent her direct messages through Facebook. (See ECF 92-1, PageID.3180.)

Troy felt threatened and harassed by Lindke's posts and messages. Therefore, on March 4, 2019, Troy filed an ex parte petition for a PPO against Lindke in the St. Clair County Circuit Court. (See PPO Pet., ECF No. 92-1.) The proceedings surrounding Troy's petition for a PPO are described in greater detail below.

B

In order to better understand both the PPO proceedings and Lindke's claims in this action, it is helpful to begin with a brief overview of the relevant provisions of the PPO Statute and how those provisions had been construed by the Michigan Court of Appeals at the time Troy sought a PPO against Lindke.

The PPO Statute authorizes “an individual” to “petition the family division of circuit court to enter a personal protection order to restrain or enjoin an individual from engaging in conduct that is prohibited under section 411h, 411i, or 411s of the Michigan penal code, 1931 PA 328, [Mich. Comp. Laws §§] 750.411h, 750.411i and 750.411s.” Mich. Comp. Laws § 600.2950a(1). The three sections of the Michigan penal code referenced in the PPO Statute prohibit different types of stalking. Section 411h prohibits “stalking,” which it defines as a “willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Mich. Comp. Laws § 750.411h(1)(d). “Stalking” under Section 411h includes sending unwanted “electronic communications” to a person if those communications otherwise satisfy the statutory definition. Mich. Comp. Laws § 750.411h(1)(d).

Section 411i prohibits “aggravated stalking.” “Aggravated stalking” is “stalking” (as defined by Section 411h) that is, among other things, accompanied by a “credible threat” or committed in violation of a condition of parole or probation. Mich. Comp. Laws § 750.411i(2).

Finally, Section 411s prohibits what has come to be known as “cyberstalking by proxy.” This type of stalking - which the Court describes in much greater detail below - involves posting an electronic message about a person that leads other individuals to have unconsented and harassing contact with that person.

In Troy's petition for a PPO, she alleged that Lindke committed all three types of stalking. (See PPO Pet., ECF No. 92-1, PageID.3180.^[1]) However, as described in detail below, the state court judge who presided over the PPO proceedings ultimately found only that Lindke had committed cyberstalking by proxy and issued a PPO barring him from posting messages about Troy on social media. For that reason, and given the nature of Lindke's claims (which are also described in detail below), the only type of stalking that is relevant to this action is cyberstalking by proxy in violation of Section 411i. The Court therefore turns next to a detailed review of Section 411i and the conduct it prohibits.

In relevant part, Section 411s provides as follows:

(1) A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim's consent, if all of the following apply:

(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.

(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(6) This section does not prohibit constitutionally protected speech or activity.

(8) As used in this section:

(g) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.

(i) “Post a message” means transferring, sending, posting, publishing, disseminating, or otherwise communicating or attempting to transfer, send, post, publish, disseminate, or otherwise communicate information, whether truthful or untruthful, about the victim.

(j) “Unconsented contact” means any contact with another individual that is initiated or continued without that individual's consent or in disregard of that individual's expressed desire that the contact be avoided or discontinued.

Mich. Comp. Laws § 750.411s.

According to the Michigan Court of Appeals, Section 411s “is designed to prohibit what some legal scholars have referred to as ‘cyberstalking by proxy' or ‘cyberharassing by proxy.'” Buchanan v. Crisler, 922 N.W.2d 886, 895-96 (Mich. App. 2018). This theory of cyberstalking posits that:

[It] is not the postings themselves that are harassing to the victim; rather, it is the unconsented contacts arising from the postings that harass the victim. In particular, the statute envisions a scenario in which a stalker posts a message about the victim, without the victim's consent and as a result of the posting, others initiate unconsented contacts with the victim. These unconsented contacts, arising from the stalker's postings, result in the harassment of the victim. In this manner, by posting a message that leads to unconsented contact, the stalker is able to use other persons to harass the victim.

For example, there have been cases of cyberstalking by proxy in which a stalker posts messages with sexual content about the victim and suggests that the victim is interested in sexual contact. See, e.g., United States v. Sayer, 748 F.3d 425, 428 (C.A. 1, 2014). In that situation, third parties read the message and contact the victim, expecting sex. See, e.g., id. See also O'Connor, Cutting Cyberstalking's Gordian Knot, 43 Seton Hall L. Rev 1007, 1009 (2013). In a somewhat more benign example, in a Massachusetts case, harassers posted false advertisements online, suggesting that the victims had something for sale or to give away for free; as a result of these advertisements, the victims received numerous phone calls and visits at their home about the items. See Commonwealth v. Johnson, 470 Mass. 300, 303-304, 21 N.E.3d 937 (2014). In each of these cases, the victim was harassed by the

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