Moes v. Woodward

• Decision Date: 16 November 2012
• Docket Number: Lead Case: No. 1:11-cv-912,Member Case: No. 1:12-cv-1092
• Parties: ROBERT JOHN MOES, Plaintiff, v. JOHN WOODWARD and CITY OF GRAND RAPIDS, Defendants.
• Court: U.S. District Court — Western District of Michigan

ROBERT JOHN MOES, Plaintiff, v. JOHN WOODWARD and CITY OF GRAND RAPIDS, Defendants.

Lead Case: No. 1:11-cv-912

Member Case: No. 1:12-cv-1092

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: November 16, 2012

Hon. Hugh W. Brenneman, Jr.

OPINION

This matter is now before the court on defendants' motion for summary judgment (docket no. 75) filed in the present and lead case, Moes v. City of Grand Rapids, 1:11-cv-912 ("Moes I"), and plaintiff's "Request/Motion to transfer unconstitutional state criminal/City of Grand Rapids ordinances charges to federal court pursuant to Title 28 Section 1443 and 1446" (docket no. 1) filed in the member case, Moes v. City of Grand Rapids, 1:12-cv-1092 ("Moes II").

I. Background

A. Moes I

Plaintiff's complaint in Moes I named two defendants, the City of Grand Rapids (sometimes referred to as the "City") and John Woodward, a City Code Compliance Officer.¹ Plaintiff's claims arise from a dispute with defendants regarding local ordinance violations issued to property located at 1054 Jennette Avenue NW, Grand Rapids, Michigan (sometimes referred toas "the property"). Plaintiff alleged that he purchased the property on contract from non-party Mr. Donker in March 2007. Moes I, Compl. at pp. 3-4.² The land contract was later recorded in June 2008. Id. Plaintiff spent more than $5,000.00 making improvements to the property. Id. at p. 4. Commencing in 2008, plaintiff started to receive "bizarre" complaints, correspondence and "fraudulent invoices" from defendant City of Grand Rapids regarding alleged housing code violations at the property. Id. at pp. 4-9.

Plaintiff lost possession of the property in 2010. Id. at p. 7. Shortly thereafter, the seller on the land contract seller, Donker, rented the property to third-parties. Id. Plaintiff regained possession of the property at proceedings held at the 61st District Court in Grand Rapids on May 3, 2011. Id. Later that month, on or about May 25, 2011, the City started to send plaintiff "fraudulent bills, invoices and complaints" related to the property. Id. at pp. 7-8. Plaintiff was homeless at the time and commenced proceedings in the 61st District Court to evict Donker's tenants. Id. at p. 8. During the eviction proceedings, the tenants retaliated against plaintiff by complaining to the City's housing inspection department. Id. The 61st District Court entered an order to evict the tenants on June 7, 2011. Id. Plaintiff stayed at the property that night. Id. The next morning, two Grand Rapids police officers tried to order plaintiff out of the property. Id. Plaintiff told the police officers they were trespassing and directed their attention to a "no trespassing" sign posted on the property. Id. On June 13, 2011, the City boarded up the property, "making [plaintiff's] residence inaccessible." Id. at pp. 8-9.

Although not mentioned in plaintiff's complaint, on August 11, 2011, the City commenced a criminal action against plaintiff in the 61st District Court arising from ordinance violations. See City of Grand Rapids v. Moes, No. 2011-OM-2234 (61st Dist. Ct.) (sometimes referred to as the "criminal case"). See docket nos. 79-2 and 92-2. The misdemeanor prosecution included four violations of the housing code: allowing a required utility to be shut off; failing to repair the electrical system; failing to repair the water system; and failing to install smoke detectors. Id. (Verdict Form) (docket no. 92-1). The criminal case concluded on August 28, 2012, when plaintiff was found guilty on all four counts Id. (Verdict Form) (docket no. 92-1); (Judgment of Sentence)(docket no. 103-1); and (Order of Probation) (docket no. 103-2). On October 15, 2012, the state court sentenced plaintiff to a term of 12 months probation. Id.

On August 29, 2011, a few weeks after the City commenced the criminal case, plaintiff filed Moes I against defendants City and Woodward. The complaint in Moes I listed nine claims. In Claim 1, plaintiff alleged that defendants violated the Fifth Amendment by taking his property located at 1054 Jennette without just compensation. Id. at p. 9. Plaintiff alleged that this claim was brought pursuant to 42 U.S.C. § 1983 for violation of his federal constitutional rights. Id. at pp. 13-14. Plaintiff also alleged that this action was part of a conspiracy between defendants in violation of 42 U.S.C. § 1985(3). Id. In Claim 2, plaintiff alleged that various notices and invoices sent by the City were invalid and in violation of state law, M.C.L. §§ 750.213 and 750.214 and 18 U.S.C. § 1862 [presumably 18 U.S.C. § 1962 of the Racketeer Influenced and Corrupt Organizations Act "RICO").³ Id. at pp. 9-10. In Claim 3, plaintiff alleged that he was entitled to $100,00.00 in punitive and compensatory damages. Id. at p. 10. In Claim 4, plaintiff alleged that defendantsinterfered and obstructed his mail in violation of 18 U.S.C. § 1701, because some one from the City "turned over the green address [sic] and wrote 'Vacant' on Plaintiff's address card, posted by the U.S. Post Office." Id. In Claim 5, plaintiff alleged that defendants violated his First Amendment rights of access to the courts by obstructing his mail. Id. In Claim 6, plaintiff alleged that he is entitled to compensation for the City's harassment in "dealing, with and returning fraudulent, illegal bills and invoices" sent to him by the City in 2008. Id. In Claim 7, plaintiff alleged that defendants' actions violated the Americans with Disabilities Act. Id. In Claim 8, plaintiff alleged that defendants violated 18 U.S.C. § 1962 (RICO), because they engaged in a pattern of racketeering activity through a collection of unlawful debts. Id. at pp. 10-11. In Claim 9, plaintiff alleged that defendants were trespassing when City Police Officers went to the property in violation of "No Trespassing" signs. Id. at p. 11.⁴

B. Moes II

On October 5, 2012, plaintiff filed a document entitled "Request/Motion to transfer unconstitutional state criminal/City of Grand Rapids ordinances charges to federal court pursuant to Title 28 Section 1443 and 1446." See Motion, Moes II (docket no. 1). Plaintiff designated this motion as filed in the pending civil litigation, but referred to himself as "Defendant Petitioner," named "City of Grand Rapids[,] Michal D. Tomich as "Respondent," and referenced the state criminal case. Notwithstanding plaintiff's attempt to file this document as a motion in the pending case, the Clerk's Office opened a new civil case file, Moes II, No. 1:12-cv-1092, despite the case being a criminal proceeding in state court. This motion was related to Moes I, contesting plaintiff'scriminal convictions of four misdemeanors arising from the ordinance violations at issue in Moes I. This motion appeared to be part of plaintiff's response to defendants' motion to file a supplemental brief, in which they advised the court of plaintiff's convictions. See Moes I, Defendants' Motion for leave to file supplemental brief (docket no. 91). After reviewing plaintiff's request/motion, and to fairly address it, the court consolidated the actions, with Moes I as the lead case and Moes II as the member case, under the docket number of Moes I (1:11-cv-912). See Order to consolidate cases (docket no. 102).

II. Motion for summary judgment in Moes I

A. Legal Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56 further provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by":

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in deciding a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion forsummary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party." McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the court is not bound to blindly adopt a non-moving party's version of the facts. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

Finally, in resolving this motion, the court has a duty to read pro se plaintiff's complaint indulgently and liberally. See Haines v. Kerner, 404 U.S. 519 (1972); Kent v. Johnson, 821 F.2d 1220, 1223-24 (6th Cir. 1987). However, this duty does not require the court to conjure up unpled allegations and claims.⁵

B. Plaintiff's Federal claims

1. Fifth Amendment (Claim 1)

Plaintiff brings his Fifth Amendment claim pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who,...