I Am The Beast etc. v. Michigan State Police

I AM THE BEAST SIX SIX SIX OF THE LORD OF HOSTS IN EDMOND FRANK MACGILLIVRAY JR NOW. I AM THE BEAST SIX SIX SIX OF THE LORD OF HOSTS IEFMJN. I AM THE BEAST SIX SIX SIX OF THE LORD OF HOSTS. I AM THE BEAST SIX SIX SIX OTLOHIEFMJN. I AM THE BEAST SSSOTLOHIEFMJN. I AM THE BEAST SIX SIX SIX. BEAST SIX SIX SIX LORD, Plaintiff, v. MICHIGAN STATE POLICE; CITY POLICE OF LANSING; STATE OF MICHIGAN; INGHAM COUNTY 54A DISTRICT COURT; and INGHAM COUNTY JAIL, Defendants

File No. 5:89:92

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

1990 U.S. Dist. LEXIS 8792

July 12, 1990, Decided

OPINION
This case is now before this Court on three dispositive motions made by various defendants in this case. Defendant Ingham County Jail filed a Motion to Dismiss on November 2, 1989. Defendants State of Michigan, Michigan Department of State Police, and Michigan's 54-A Judicial District Court, in a November 3, 1989 motion, move this Court to dismiss plaintiff's complaint pursuant to Rule 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant City of Lansing Police Department filed a motion on February 28, 1990 for a judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.

Plaintiff calls himself "I AM THE BEAST SIX SIX SIX OF THE LORD OF HOSTS IN EDMOND FRANK MACGILLIVRAY JR NOW. I AM THE BEAST SIX SIX SIX OF THE LORD OF HOSTS IEFMJN. I AM THE BEAST SIX SIX SIX OF THE LORD OF HOSTS. I AM THE BEAST SIX SIX SIX OTLOHIEFMJN. I AM THE BEAST SSSOTLOHIEFMJN. I AM THE BEAST SIX SIX SIX. BEAST SIX SIX SIX LORD."1 In his complaint, plaintiff makes over sixty (60) allegations that he has endured various violations of his civil rights in a series of incidents arising out of "a peaceful non demonstration demonstration" in the city of Lansing, Michigan. Complaint, at 1 (Oct. 13, 1989). Plaintiff is proceeding in pro per.

DISCUSSION
Background

Plaintiff alleges that on November 21, 1986, he began a peaceful demonstration on the steps of the State of Michigan's capitol. According to plaintiff, he asked "capitol personnel" for permission to protest, and they told him if he merely sat on the steps, did not block pedestrians, did not carry a sign or address individuals nearby, and in general was "simply reading his Bible", he would not be violating the law. Id. at 2. Apparently the Michigan Capitol Post Police several times inquired "congenial[ly]" about plaintiff's purpose for being on the capitol steps during the early part of his protest. Plaintiff reports the following:


 * At issue which came up during such talks was a matter of my name. My religion is a personal nondenominational basically christian religion which incorporates a mix of very basic Christian and Jewish beliefs as well as many personal beliefs and to some degree American Indian beliefs due to my blood of descendants to indians of the Potowatomi. My religion is subject to constant change as I feel my God leads me for whatever purpose is in his desires. At this time I had renounced my name which was, Edmond Frank MacGillivray Jr. My God had so led me to do this yet I based my denial of name upon several scriptures one being Mark 8:34 which reads: Whosoever will come after me, let him deny himself, and take up his cross, and follow. . . . . The State Police seemed to understand my concepts but considered them to be impractical. They of course have their right to their opinions. Yet in general I preached at opportunity against the actions of president elect Ronald Wilson Reagan concerning his sale of weapons to Iran.  --Id.

At the end of the day, the capitol police allegedly took plaintiff into custody, and would not answer his inquiries about if he was under arrest, what he had done, and what suspicions they had about him. In plaintiff's opinion, the police sought to search him to try to discover his name.2 Plaintiff also believes that the police ran a check on him under "Edmond Frank MacGillivray, Jr." Id. Any check on that name would have revealed no military service, no arrests or convictions of any kind, and no history of mental disorders, plaintiff contends.3 Thereafter, plaintiff was allowed to dress and leave, however, the police allegedly threatened to arrest him if he returned to the capitol steps. Plaintiff demanded to know why they would arrest him if he returned, and became upset, stating that they might just as well arrest him then and there because he was returning to the capitol. Id. at 3. Plaintiff returned to the capitol steps, and was first put in the police car and driven around, and later taken into custody, around midnight on that same day.4

At the State Capitol post, plaintiff was allegedly fingerprinted and photographed, informed in part of his rights, and turned over to the Lansing Police Department. Plaintiff says he was put into a cell with no bed or bedding, and held until about 3:00 p.m. on November 22, 1986. Plaintiff claims to have been deprived of food, warmth, and sleep, and was suffering withdrawal symptoms from certain drugs he was taking. At about this time, plaintiff was taken before a judge in the 54-A District Court, where he explained his renunciation of his given name, his current name, that he had not been allowed to use the phone to contact a lawyer or his family, and that he had not been fully informed of his rights. The judge told plaintiff he was charged with trespassing, and asked for his plea of innocent or guilty. A discussion about plaintiff's name and mental status ensued and plaintiff was eventually taken from the courtroom at the judge's direction.5

From this point, plaintiff provides a litany of events, basically steps taken after arrest and incarceration, including transfer to the Ingham County Jail on November 25, 1986 at about 6:00 p.m.; being put in a large holding cell; and being searched.6 Plaintiff was allegedly ridiculed viciously about his religious beliefs, presumably by both inmates and guards. Id. at 4. Plaintiff became more and more upset, by the search, the ridicule, the presence of open toilets in the holding cell, and he eventually became severely psychotic.7

Plaintiff was transferred to an observation cell at about this point, a cell he describes as "a metal, cement bare cell." Id. at 5. Worse, plaintiff reports that the cell had urine, feces, and water all over the floor, and contained nothing to sleep on, no bed at all. Plaintiff continued to chant and pounded his head on the door and walls and on his own feet. Plaintiff describes a series of further atrocities, including threats "of a sexual nature" made by a man in a cell close by who identified himself as Satan; the lack of clothing except for a pair of prison pants which he ripped up "for warmth"; meals thrown to him upon the floor; and ants which stung him continually. Id. Plaintiff went through periods where he refused to eat, became sick, tied a pair of pants around his neck until he passed out, and slit his wrists on a piece of metal. Id. When plaintiff slit his wrists, the paramedics were summoned and plaintiff was transferred to what plaintiff calls "Ingham Medical in Lansing." At that facility, plaintiff was diagnosed as having a brief reactive psychosis.

Plaintiff alleges that at that point some eight or nine days had passed since he was placed in custody, and he had never been allowed to use the phone, contact a lawyer, or had the charges against him explained to him so he could understand them. Id. at 3. Plaintiff brings this lawsuit, alleging, in general, violations of his civil rights. In compensation, he asks for the sum of $ 1,998,000,000 U.S. dollars.8

Plaintiff is proceeding in pro per, and has not set forth his complaint in counts according to his legal claims; nor has he identified what his legal claim or claims are. This is understandable, and the Court will look to the allegations in plaintiff's complaint to determine the merits of defendants' motions.9 Plaintiff has charged that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated in the course of the events he alleges. Plaintiff contends that this Court has jurisdiction based on diversity of citizenship (he is a California resident) and based on 28 U.S.C. § 1332. The Court interprets this cause of action as one arising under 42 U.S.C. § 1983.

Ingham County Jail

Motion to Dismiss

Defendant Ingham County makes this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Elliot Co., Inc. v. Caribbean Util. Co., 513 F.2d 1176 (6th Cir, 1975). Technically, of course, the 12(b)(6) motion does not attack the merits of the case -- it merely challenges the pleader's failure to state a claim properly. 5 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (Supp. 1987). In deciding a 12(b)(6) motion, the court must determine whether plaintiff's complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the complaint at "face value" and construe them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983); Amersbach v. City of Cleveland, 598 F.2d 1033, 1034-35 (6th Cir. 1979); Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176 (6th Cir. 1975).

The complaint must in essence set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Jenkins v. McKeithen, 395 U.S. 411 (1969); German v. Killeen, 495 F. Supp. 822, 827 (E.D. Mich. 1980). Conclusory allegations are not acceptable, however, where no facts are alleged to support the conclusion or where the allegations are contradicted by the facts themselves. Vermillion Foam Products Co. v. General Electric Co., 386 F. Supp. 255 (E.D. Mich. 1974). The court cannot dismiss plaintiff's complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Defendant Ingham County Jail argues first that it is not a legal entity which can sue or be sued in its own name. The Court agrees. Rule 17 of the Federal Rules of Civil Procedure marks the starting point for the issue of capacity to be sued. That rule reads in pertinent part:

Rule 17. Parties Plaintiff and Defendant:

Capacity

(b) Capacity to Sue or be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C. §§ 754 and 959(a).

Fed. R. Civ. P. 17(b).

There is no provision under Michigan law providing that a county jail is a legal entity. This Court has, in the past, applied Michigan law and held that certain departments or subdivisions of an entity capable of being sued are not properly sued themselves. See Moomey v. City of Holland, 490 F. Supp. 188, 190 (W.D. Mich. 1980) (city police department not properly sued where city is real party in interest); Isom v. O'Brien, No. K88-136, slip. op., at 5 (W.D. Mich. 1989) (city sheriff's department not properly sued). For these reasons, the action against the Ingham County Jail is properly dismissed.

If plaintiff had named the Sheriff or County as a defendant in this action, however, the result here would be the same. That is, assuming plaintiff meant to make a claim against the sheriff of Ingham County under 42 U.S.C. § 1983, the requisite showing would have to be either direct participation or authorization, approval, or knowing acquiescence in the alleged unconstitutional conduct of subordinates. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Hayes v. Jefferson County, 668 F.2d 869, 872-74 (6th Cir. 1982). There are no allegations of this sort here.

Moreover, plaintiff also fails to allege any custom, practice, policy, or procedure of Ingham County or its sheriff which violated plaintiff's civil rights. Monell v. Department of Social Services, 436 U.S. 658 (1978). A respondeat superior theory of liability will not suffice to state a claim, and without more, the action must be dismissed.

Nor has plaintiff pled facts suggesting a failure to train action under Canton v. Harris, 103 L. Ed. 2d 412 (1989). The Supreme Court has determined that a municipality's inadequate training may give rise to liability under § 1983 where the "failure to train reflects deliberate indifference to the constitutional rights of its inhabitants." 103 L. Ed. 2d at 429. Under this standard, a policy may be constitutional on its face, but be applied in a way that causes violation of federally protected rights. Id. In Canton v. Harris, after plaintiff was arrested and brought to the Canton Police Department, she slumped to the floor several times and spoke incoherently. No medical attention was ever summoned for her; and when she was released from custody an hour or so later, she was taken by ambulance -- by family members--to a local hospital. Id. at 422. The Supreme Court held that given a showing of deliberate indifference, plaintiff may demonstrate that her due process right to receive necessary medical attention while in custody had been violated. Id. at 422, 429.

In this case, however, plaintiff does not allege the failure to provide medical treatment, instead, he claims that he was brought into custody without charges of unlawful conduct, that he was not allowed to contact an attorney, that the charges against him were never explained, and that a statement of his rights were never provided.10 In fact, there is no allegation of failure to provide medical treatement: to the contrary plaintiff admits that he was put in some type of isolation cell; that he had potentially harmful items, for example, pants, taken away from him; and that he was taken by ambulance to the hospital when he slit his wrists. Thus, I do not find Canton v. Harris to be applicable based on the pleadings in this case.

Therefore, for all the foregoing reasons, I find that defendant Ingham County Jail's motion to dismiss is proper and should be granted. I will enter the appropriate order.

City of Lansing Police Department

Motion for Judgment on the Pleadings

Rule 12(c) of the Federal Rules of Civil Procedure provides as follows:

(c) Motion for Judgment on the Pleadings. After the pleadings are closed butwithin such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed. R. Civ. P. 12(c).

I will not consider material beyond the pleadings here.

Defendant City of Lansing Police Department first points out that a review of the allegations in the complaint reveals that paragraphs 17, 25, and 26 relate to the Lansing Police Department. In addition, the charge in para. 16 -- which is a general one -- also may be imputed in part to defendant Lansing Police. These charges allege that plaintiff was kept in custody but never allowed to contact his lawyer or anyone else during his time at the Lansing Police Department; that his charges were never explained; and that conditions in the Lansing Jail were deplorable.

Again, I note that plaintiff has sued a party where a serious issue of capacity to be sued arises. See Moomey v. City of Holland, 490 F. Supp. 188. I will go on to examine the merits of defendant's motion for judgment on the pleadings; however, in light of plaintiff's pro se status, and the possibility that amendment of the complaint would solve the capacity to sue problem.11

Defendant City of Lansing Police Department argues that it is entitled to judgment absent any allegations in the complaint that the constitutional violations arose from implementation or execution of a policy, rule, or decision adopted and promulgated by the City or its rulemakers. The department also claims that respondeat superior is no basis for imputing liability on a City or a superior officer under a § 1983 claim. Rizzo v. Goode, 423 U.S. 362 (1976).12 Finally, defendant contends that allegations 17, 25, and 26 do not allege deliberate indifference to plaintiff's rights under Canton v. Harris.

The Court agrees, and for the same reasons articulated in the previous section, on defendant Ingham County Jail's motion, I will grant defendant City of Lansing's motion for judgment on the pleadings.

State of Michigan, State Police, and District Court

Motion to Dismiss

Defendants the State of Michigan, the Michigan State Police, and the 54-A Judicial District Court now move this Court for an order dismissing plaintiff's complaint pursuant to Rules 12(b)(1) (lack of subject matter jurisdiction); 12(b)(2) (lack of personal jurisdiction); and 12(b)(6) (failure to state a claim) of the Federal Rules of Civil Procedure.

These defendants recount a substantially different version of facts underlying this dispute; however, under the aforementioned motions, plaintiff's allegations must be taken as true in the light most favorable to him. For several reasons, the claims against the State of Michigan, the State Police, and the District Court should be dismissed, however. To start with, the Eleventh Amendment to the U.S. Constitution provides that:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.

By its terms the Eleventh Amendment bars any action in law or equity against one of the States by the citizens of another state or citizens of another country. Missouri v. Fiske, 290 U.S. 18 (1933). The amendment has been extended through interpretation to confer immunity in actions by a defendant state's own citizens as well. Hans v. Louisiana, 134 U.S. 1 (1890). The Supreme Court has frequently held that suits for retrospective relief are barred by the Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781 (1978); Quern v. Jordan, 440 U.S. 332 (1979). The amendment does not bar a suit for prospective relief against state officials, however. Ex parte Young, 209 U.S. 123 (1908).

This prohibition also applies to suits against state agencies and state officials where the real party in interest is the state. See Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459 (1945). In the absence of consent, a suit in which the State or one of its agencies or department is named as the Defendant is proscribed by the Eleventh Amendment. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 100 (1984).

Under the circumstances of this case, it is clear that these three defendants may not be sued in federal court. The State Police is a department of the State of Michigan. Mich. Const. 1963, Art. 5, § 2. Likewise, the District Court is an instrumentality of the State created by state law, see Mich. Comp. L. § 600.8101(1) et. seq.; Shoultes v. Szekely, 654 F. Supp. 966 (W.D. Mich. 1987).13 This plaintiff seeks retrospective, not prospective, relief; thus Ex Parte Young is not applicable here. 209 U.S. 123 (1908).

There are additional reasons which support dismissal against these defendants. As a federal district court, I have no jurisdiction over these defendants in an action alleging a violation of 42 U.S.C. § 1983. In Will v. Michigan Department of State Police, 105 L. Ed. 2d 45 (1989), the U.S. Supreme

Court significantly narrowed the sweep of liability under § 1983, holding that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Id. at 58. The Court further wrote that:

Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468 (1987), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States' Eleventh Amendment immunity and so to alter the Federal-State balance in that respect was made clear in our decision in Quern [440 U.S. 332 (1979)].

Id. at 45.14

CONCLUSION
I have found that plaintiff's complaint should be dismissed against each of the defendants in this case, including the Ingham County Jail, the Lansing Police Department, the State of Michigan, the Michigan State Police, and the 54-A Judicial District Court. Given this resolution, it is proper for me to grant the various motions brought by these defendants. I will enter the appropriate judgment order.

JUDGMENT ORDER
In accordance with the opinion entered this date;

IT IS HEREBY ORDERED that defendant Ingham County's motion to dismiss is GRANTED;

IT IS FURTHER ORDERED that defendant City of Lansing Police's motion for judgment on the pleadings is GRANTED;

IT IS FURTHER ORDERED that defendants State of Michigan, Michigan State Police, and Michigan's 54-A Judicial District Court's motion to dismiss is GRANTED.

DATED: Kalamazoo, Michigan July 12, 1990