Lowery v. Department of Corrections

Decision Date22 January 1986
Docket NumberDocket No. 81776
Citation380 N.W.2d 99,146 Mich.App. 342
PartiesRaymond LOWERY, Plaintiff-Appellant, Cross-Appellee, v. DEPARTMENT OF CORRECTIONS, Perry Johnson, John Doe and James Doe, Defendants- Appellees, Cross-Appellants.
CourtCourt of Appeal of Michigan — District of US

Terrence H. Bloomquist, Grayling, for plaintiff.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and David G. Edick, Asst. Atty. Gen., for defendants.

Before ALLEN, P.J., and WAHLS and O'BRIEN, * JJ.

PER CURIAM.

Plaintiff sued defendants in the Court of Claims to recover for personal injuries allegedly inflicted in a series of assaults by unknown guards and inmates while plaintiff was incarcerated at the State Prison of Southern Michigan. His first amended complaint set forth the following eight causes of action: (1) intentional infliction of injury; (2) negligence; (3) maintenance of a defective condition in a public building; (4) breach of contract; (5) fraud; (6) violation of civil rights under 42 U.S.C. Sec. 1983 and the federal and Michigan Constitutions; (7) conspiracy to deprive plaintiff of his constitutional rights under 42 U.S.C. Sec. 1985(3); and (8) knowingly failing to prevent the conspiracy alleged in count (7), in violation of 42 U.S.C. Sec. 1986. The Court of Claims held that it was without jurisdiction to hear plaintiff's constitutional claims and that plaintiff's remedy, if any, was in federal court. Further, the court stated that it did not believe that the state constituted a "person" within the meaning of 42 U.S.C. Sec. 1983. With respect to the remaining claims, the lower court found that they were barred by the doctrine of governmental immunity or that plaintiff had failed to adequately plead a cause of action. The court further held that plaintiff's claim for intentional infliction of injury was not barred by the statute of limitations. 1 Plaintiff appeals as of right from the Court of Claims' order granting summary judgment to defendants. Plaintiff does not appeal from the finding in regard to negligence.

I

Court of Claims Jurisdiction.

Defendants averred that the Court of Claims was devoid of subject-matter jurisdiction over constitutional claims and actions against individuals. Although the lower court made no disposition regarding claims against individuals, it found that it was without jurisdiction over constitutional claims, believing that they could not be categorized as either ex contractu or ex delicto.

The jurisdiction of the Court of Claims is exclusive and extends to "all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies". M.C.L. Sec. 600.6419(1); M.S.A. Sec. 27A.6419(1). Defendants maintain that "ex delicto" should be narrowly construed so as to encompass only traditional common-law torts. We do not believe that the meaning of ex delicto was intended to be so restricted.

Black's Law Dictionary (4th ed), p 660 defines "ex delicto" as "[f]rom a delict, tort, fault, crime, or malfeasance". "Delict" has a broader meaning than "tort" and is defined as "[a] wrong or injury; an offense, a violation of public or private duty". Id., p 514. "Ex delicto" describes one of two great classes into which all civil and common-law causes of action can be divided. The other class, ex contractu, pertains to civil actions arising out of contract. In contrast, ex delicto claims "are such as grow out of or are founded upon a wrong or tort". Id., p 660.

Constitutional claims arising out of violations of civil rights have been regarded as a "species of tort liability". Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042 1046, 55 L.Ed.2d 252 (1978). Moreover, such claims have been compared to personal injury actions for purposes of determining the applicable statute of limitations. Wilson v. Garcia, 471 U.S. ----, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Since ex delicto claims encompass wrongs against persons which are not restricted solely to traditional torts, and, in any event, civil rights actions are in the nature of torts and can be regarded as delicts, we believe that the Court of Claims was vested with subject-matter jurisdiction over plaintiff's constitutionally-based civil rights claims.

Generally, the Court of Claims does not have jurisdiction over suits against individuals. M.C.L. Sec. 600.6419(1); M.S.A. Sec. 27A.6419(1). However, jurisdiction does extend to suits against state officers where the acts complained of were performed in an officer's official capacity. Abbott v. Secretary of State, 67 Mich.App. 344, 240 N.W.2d 800 (1976); Grunow v. Sanders, 84 Mich.App. 578, 269 N.W.2d 683 (1978); Burnett v. Moore, 111 Mich.App. 646, 314 N.W.2d 458 (1981); Hamilton v. Reynolds, 129 Mich.App. 375, 341 N.W.2d 152 (1983). In determining whether an individual qualifies as a "state officer", the "primary focus [is] on the degree of discretion and independence associated with the position". Hamilton, supra, p. 379, 341 N.W.2d 152, citing People v. Freedland, 308 Mich. 449, 456-457, 14 N.W.2d 62 (1944). Clearly, defendant Perry Johnson is a "state officer", as the complaint states a claim against him only in his official capacity as the Director of the Michigan Department of Corrections. However, the unknown inmates certainly do not qualify as "state officers". Moreover, we do not believe that the unknown guards were "state officers", given their limited degree of discretion and independence. Accordingly, the Court of Claims had jurisdiction over the suit against Perry Johnson, but not over claims alleged against James and John Doe.

The Court of Claims was in error when it held that it was divested of jurisdiction by M.C.L. Sec. 600.6440; M.S.A. Sec. 27A.6440. This provision bars an action in the Court of Claims if the claimant has an adequate remedy in federal court. The Eleventh Amendment to the United States Constitution "bars suits [for monetary damages] against an unconsenting state in federal court not only when the state is the named party, but also when it is the party in fact". Gordon v. Sadasivan, 144 Mich.App. 113, 118, 373 N.W.2d 258 (1985), citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court of Claims Act is not to be construed as a consent to a suit by a private citizen against the state. Brown Brothers Equipment Co v. Michigan, 266 F.Supp. 506 (W.D.Mich.1967). Moreover, we have found no authority to indicate that this state has consented to suits in federal court which are founded upon 42 U.S.C. Sec. 1983. Since defendants State of Michigan, Department of Corrections and Perry Johnson could raise the Eleventh Amendment as a defense to this action in federal court, plaintiff's remedy in federal court is inadequate. Therefore, Sec. 6440 did not divest the Court of Claims of jurisdiction.

II

State Amenability to Suit under Sec. 1983

In 42 U.S.C. Sec. 1983, Congress provided:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

Presently, there is a conflict in this Court, paralleling a conflict evident in courts throughout the nation, relative to whether a "state" constitutes a "person" under 42 U.S.C. Sec. 1983. 2 This split of authority is in large part based on divergent interpretations of Monell v. Dep't of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). 3

In Monell, supra, the Supreme Court explicitly overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to hold that "Congress did intend municipalities and other local government units to be included among those persons to whom Sec. 1983 applies". 436 U.S. at 690, 98 S.Ct. at 2035 (Emphasis in original.) However, the Court indicated that its holding was "of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes". Id., 690 n. 54, 98 S.Ct. at 2035 n. 54. Nonetheless, some courts have held that states are persons based on Monell, believing that it would be inconsistent to regard municipalities and states as different under Sec. 1983. See e.g., Atchison v. Nelson, 460 F.Supp. 1102 (D.Wyo.1978); cf., Morrow v Sudler, 502 F.Supp. 1200 (D.Colo.1980). Conversely, other courts have held that states are not persons within the meaning of Sec. 1983, based on the fact that Monell restricted its holding to municipalities. See Taylor v. Mitzel, 82 Cal.App.3d 665, 147 Cal.Rptr. 323 (1978), cited in DeVargas v. State ex rel New Mexico Dep't of Corrections, 97 N.M. 447, 640 P.2d 1327 (1981); Clark v. Michigan, 498 F.Supp. 159 (E.D.Mich.1980).

In Quern, supra, the Court held that in enacting Sec. 1983 Congress did not intend to abrogate the sovereign immunity of the states guaranteed by the Eleventh Amendment. In a related prior case, the Court had held that under Sec. 1983 "a federal court's remedial power, consistent with the Eleventh Amendment [was] necessarily limited to prospective injunctive relief * * * and [could] not include a retroactive award which [would require] the payment of funds from the state treasury." Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662, reh. den. 416 U.S. 1000, 94 S.Ct. 2414, 40...

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