Macene v. MJW, Inc.

Decision Date12 December 1991
Docket NumberNo. 90-2352,90-2352
Citation951 F.2d 700
PartiesRichard MACENE, on his own behalf and on behalf of all other shareholders of MJW, Inc., a Michigan Corporation, Plaintiff-Appellant, v. MJW, INC., a Michigan Corporation, Defendant, County of Wayne, a Municipal Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Richard Macene, pro se.

Gregory D. Shulman (argued and briefed), Warren, Mich., for plaintiff-appellant.

Thomas A. Neenan (argued and briefed), Wayne County, Asst. Corporate Counsel, Detroit, Mich., for defendant and defendant-appellee.

Before GUY and BOGGS, Circuit Judges and McRAE, Senior District Judge. *

BOGGS, Circuit Judge.

Plaintiff Richard Macene filed this appeal from a grant of summary judgment to the defendant, Wayne County. Macene was a minority shareholder in the now-defunct MJW, Inc. ("MJW"), a former Michigan corporation. Macene brought this derivative lawsuit under 42 U.S.C. § 1983 to enforce the rights of the dissolved corporation.

MJW had a license to operate a ten-acre landfill in Sumpter Township, Wayne County, Michigan. The Michigan Department of Natural Resources ("MDNR") originally granted this license pursuant to a statute that is now repealed. MJW never operated a ten-acre landfill at the site. Subsequent to the granting of MJW's license, Michigan passed the Solid Waste Management Act ("Act 641"), P.A. 641 of 1978, as amended, Mich.Comp.Laws Ann. §§ 299.501 et seq. (1990). This Act required each county to formulate its own County Solid Waste Management Plan. Mich.Comp.Laws Ann. § 299.425.

Pursuant to Act 641, the Wayne County Commission established a Solid Waste Management Planning Committee ("the Committee") to facilitate development of a County Plan. Mich.Comp.Laws Ann. § 299.426. In accordance with the provisions of Act 641, the Committee included members of the solid waste management industry, environmental groups, the general public, industrial waste generators, and representatives of various levels of local and county government. Ibid. Under Act 641, any plan developed and recommended by the Committee had to be approved by the Wayne County Commission, at least two-thirds of the municipalities that make up Wayne County, and by the Michigan Department of Natural Resources, which had final authority over the plan. Mich.Comp.Laws Ann. §§ 299.428 & 299.429.

MJW proposed that the Wayne County Plan include a 75-acre landfill on the site where MJW had a license to operate the ten-acre landfill. Representatives of MJW went before the Committee on several occasions to make their request and to submit information in support of their proposal.

The final Wayne County Solid Waste Management Plan did not include MJW's proposed 75-acre site. The Committee originally voted to exclude the site from the County Plan on November 30, 1983. The County Commissioners asked the Committee to review this decision. After receiving additional information from MJW, the Committee, on May 31, 1984, again determined that the Wayne County Plan should not include MJW's proposed 75-acre landfill.

On August 23, 1984, the Wayne County Commission adopted the Plan recommended by the Committee. The county then forwarded the Plan to the local communities in order to garner the required approval of two-thirds of the municipalitiesthat make up the county. On October 11, 1984, after this required approval had been obtained, the Plan was sent to the Michigan Department of Natural Resources. The Department gave its final approval to the Plan on November 11, 1984.

Macene filed this derivative lawsuit under § 1983, alleging that Wayne County had violated MJW's due process rights. Macene's central contention seems to be that one or more members of the Planning Committee was biased against MJW and that this bias resulted in the exclusion of MJW's proposed 75-acre site from the Wayne County Solid Waste Plan. He argues that the exclusion from the Plan made MJW's license to operate the ten-acre landfill valueless and that the Committee perpetrated this exclusion in violation of MJW's due process rights. His brief urges that the Committee's conduct amounted to a taking without just compensation and a violation of both procedural and substantive due process.

Wayne County moved for summary judgment, arguing that Macene was not entitled to relief under § 1983 for an alleged due process violation because Macene did not plead or prove that available state remedies were inadequate. The district court granted the defendant's motion for summary judgment based on Macene's failure to establish the inadequacy of existing state remedies. The district court also held that the case was subject to summary judgment because the plaintiff failed to allege that the constitutional violation by the municipality amounted to a "custom or policy" as required by § 1983.

For the reasons set forth below, we affirm the grant of summary judgment in favor of Wayne County.


We review a grant of summary judgment de novo. EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is appropriate if no genuine issue of material fact exists. Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). A material issue of fact exists where disputed evidence is sufficient to support a verdict in favor of the non-moving party by a reasonable finder of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Ibid. (citations omitted).

Macene presents this court with vaguely stated allegations of a deprivation of MJW's property without due process (both procedural and substantive). Macene also mixes in assertions that one or two members of the Planning Committee were biased against MJW. Macene, however, conveniently ignores the fact that the Committee has only the power to recommend a plan. Act 641 requires that any Solid Waste Plan developed by the Committee be approved by the Wayne County Commission, two-thirds of the local municipalities, and by the state Department of Natural Resources.

Although the specific complaint is not readily apparently from Macene's various submissions to this Court, appellant must be asserting at least one of the following: (1) a taking of property without just compensation to MJW; (2) a taking of property in violation of MJW's procedural and substantive due process rights; (3) actual bias against MJW in the administrative process. The district court granted summary judgment primarily because Macene did not plead or prove the inadequacy of existing state remedies. The critical question in this case, therefore, concerns the interplay between each of these potential violations of § 1983 and the requirement, in certain circumstances, of pleading and proving the inadequacy of state remedies for purpose of maintaining a § 1983 suit.

As a general matter, exhaustion of state remedies is not a prerequisite to the bringing of a § 1983 action in federal court. Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). However, as explained below, the necessity of proving the inadequacy of state remedies in some § 1983 claims is a species of the ripeness doctrine and not an exhaustion requirement. Whether Macene needed to plead and prove the inadequacy of state remedies depends on exactly how Macene's claim is characterized. Each of his potential claims is discussed below. Ultimately, the district court was correct in granting summary judgment to Wayne County but not for all of the reasons stated in that court's opinion.

II A Taking Without Just Compensation

In order to make a § 1983 claim for a taking without just compensation, a plaintiff must have attempted to obtain compensation through established state procedures. This is not technically an exhaustion requirement but is a product of the ripeness doctrine. "The question of whether [state] remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable." Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989), quoting Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 192, 105 S.Ct. 3108, 3110, 87 L.Ed.2d 126 (1985). In other words, "if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation." Williamson, 473 U.S. at 195, 105 S.Ct. at 3121. The case is not "ripe" because "the State's action ... is not 'complete' until the State fails to provide adequate compensation for the taking." Ibid.

If what Macene seeks on behalf of MJW is "just compensation" for the denial of the license, then he must seek his remedy first at the state level. Only if the state denies adequate compensation is his claim ripe for consideration by a federal court. No constitutional violation can occur until just compensation is denied. Four Seasons Apartment v. City of Mayfield Heights, 775 F.2d 150, 151 (1985).

The Supreme Court rejected a taking claim in Williamson because the plaintiff had "not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature." Williamson, 473 U.S. at 197, 105 S.Ct. at 3121. In Michigan, the doctrine of inverse condemnation is long recognized and constitutionally established. Michigan Const., Art. 10, § 2 (1963). See, e.g., Tamulion v. Michigan State Waterways Comm'n, 50 Mich.App. 60, 212 N.W.2d 828 (1973); Heinrich v. Detroit, 90 Mich.App. 692, 282 N.W.2d 448 (1979). The Michigan courts have held that inverse condemnation is a remedy for a taking and that a " 'taking' of private property for public use is not restricted to cases...

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