Opinion
Case No. 19-12346
08-30-2019
WILLIAM SIM SPENCER, Plaintiff v. KARYN DONOHUE, Defendant.
David M. Lawson United States District Judge REPORT AND RECOMMENDATION: PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER (Dkt. 3) AND DISMISSAL BASED ON YOUNGER ABSTENTION
I. PROCEDURAL HISTORY
Plaintiff, William Sim Spencer, filed this complaint against Karyn Donohue, on August 7, 2019 relating to a parental support action pending against him in Oakland County Circuit Court. (Dkt. 1). On August 13, 2019, District Judge David M. Lawson referred this matter to the undersigned for all pretrial proceedings. (Dkt. 7). Spencer filed an ex parte motion for temporary restraining order on August 7, 2019. (Dkt. 3). For the reasons set forth below, the undersigned RECOMMENDS DENYING plaintiff's motion for temporary restraining order and DISMISSING plaintiff's complaint based on the Younger abstention doctrine.
II. FACTUAL BACKGROUND
According to Spencer's complaint, a judgment lien was entered against him in state court in the amount of $88,620.35 based on a judgment dated June 12, 2001. (Dkt. 1, p. 5). Spencer maintains that this judgment was released in writing by the judgment lien administrator on March 17, 2016. (Dkt. 1, p. 5; Exs. 1-2). He seeks a declaration from this Court that Mich. Comp. Laws § 552.511 (Initiating enforcement of support order and custody or parenting time order) is unconstitutional as applied because it permits a new collection proceeding to be initiated without a reviewable hearing to determine whether defendant may deny his vested rights under the release. (Dkt. 1, p. 5). Spencer says that Donohue, who is named as the Judgment Lien Administrator, unilaterally rescinded the release on May 16, 2016. (Dkt. 1, p. 5, Ex. 3).
According to Spencer, Donohue is threatening to initiate and carry out collection proceedings to cause his arrest and seizure of his property unless he agrees to submit to the unilaterally reinstated judgment lien. (Dkt. 1, p. 5). Spencer also alleges that the Michigan Court of Appeals blocked his appeal from a previous collection proceeding. (Dkt. 1, p. 5; Ex. 4). According to Spencer, unless restrained by order of this Court, Donohue will imminently cause him to be arrested, relieved of his private property and detained for an indefinite period under Mich. Comp. Laws. § 552.511 based on bad-faith enforcement of the released judgment lien obligation. (Dkt. 1, p. 5). Spencer seeks declaratory and injunctive relief, but no money damages. (Dkt. 1, p. 6).
In his motion for TRO, Spencer argues that because the Michigan Court of Appeals did not have jurisdiction to hear his constitutional claim, Mich. Comp. Laws. § 552.511 is unconstitutional as applied because there is no exception to the final order rule. That is, Spencer is subject to repeated denials of his liberty and property interests, contrary to the Fourth, Fifth, and Fourteenth Amendments, because he cannot seek relief in the Court of Appeals. Spencer argues that this ongoing harm is irreparable, and he has no adequate remedy at law. Spencer seeks a restraining order to preclude defendant and her "contemporaries" from carrying out any future collection proceedings under Mich. Comp. Laws. § 552.511.
III. ANALYSIS AND CONCLUSION
A. Ex Parte Temporary Restraining Order
The Court has discretion in deciding a motion for temporary restraining order. See Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). Federal Rule of Civil Procedure 65(b)(1), which governs requests for temporary restraining orders issued without notice, states in part:
The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss,
or damage will result to the movant before the adverse party can be heard in opposition; andFed.R.Civ.P. 65(b)(1). "Reasonable notice" means information received within a reasonable time to permit an opportunity to be heard. Brown v. Countrywide Home Loans, 2009 WL 1798069, at *1 (E.D. Mich. June 19, 2009) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 439, (1974) (noting that ex parte "temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard"). If these requirements are satisfied, the court must consider 1) whether the movant has a strong likelihood of success on the merits; 2) whether the movant will suffer irreparable harm without the injunction; 3) whether issuance of the injunction will cause substantial harm to others; and 4) whether the public interest is served by issuance of the injunction. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008).
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
Spencer provided a verified motion for ex parte temporary restraining order, which appears to comply with the verification requirements of Rule 65(b). Such a verification must comply with 28 U.S.C. § 1746, which authorizes litigants to provide unsworn declarations in lieu of affidavits under oath, providing in pertinent part that such unsworn declaration or verification be subscribed in writing as true under penalty of perjury, dated, and in substantially the following form: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)." Cruse v. Wayne, 2014 WL 713001, at *4 (W.D. Mich. Feb. 25, 2014) (quoting 28 U.S.C. § 1746(2)); see also El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (noting that a "verified complaint" is one that is signed under the penalty of perjury pursuant to 28 U.S.C. § 1746). Spencer's motion contains the following language before his signature:
The undersigned certifies under penalty of perjury that the facts stated above are all true, correct, complete and certain to the best of his information, knowledge and belief.(Dkt. 3, p. 13). Accordingly, Spencer has complied with the basic verification requirement.
However, Spencer did not satisfy Rule 65(b)(1)(B). As explained in Brown, a "temporary restraining order is an extraordinary remedy that generally is reserved for emergent situations in which a party may suffer irreparable harm during the time required to give notice to the opposite party or where notice itself may precipitate the harm." Id. (citing Hambell v. Alphagraphics Franchising Inc., 779 F.Supp. 910, 912-13 (E.D. Mich. 1991)); see also Farrell v. Harvey Elam Fair Value Appraisal Servs., 2011 WL 13220291, at * 1 (E.D. Mich. June 3, 2011) ("An ex parte temporary restraining order is an extraordinary measure which will not be granted unless the movant clearly shows that such relief is warranted.") (quoting Schuh v. Mich. Dep't of Corr., 2010 WL 3648876, at *2 (W.D. Mich. July 26, 2010) (internal citation and quotation marks omitted). Here, Spencer has not provided notice to the opposing parties, nor certified in writing "why [notice] should not be required." Fed.RXiv.P. 65(b)(1)(B). He filed no certificate of service with the motion nor has he provided certified reasons, or even discussed, why he has not served the motion on defendant. Thus, Spencer's failure to provide notice is not reasonable. "[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer." Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). The undersigned, therefore, recommends denying the motion for ex parte temporary restraining order on this basis. Moreover, as set forth below, the undersigned further recommends that the Court abstain from exercising jurisdiction in this matter, which also renders Spencer's motion moot.
The Court acknowledges that Spencer indicates that he informed Suzanne Hollyer of his intent to file this lawsuit and to file a motion for injunctive relief. He does not, however, state who Suzanne Hollyer is, explain why notice to her is sufficient for notice to Donohue, or indicate that he otherwise notified the actual defendant, Karyn Donohue or her attorney. The Court also acknowledges that Spencer obtained an order from the Court to have the complaint served on defendant without an obligation to prepay fees or costs. However, he neither references his IFP status, nor offers any other explanation for the failure to serve the defendant with the instant motion. See Whipple v. Tennessee Bd. of Paroles, 2018 WL 1387066, at *10 (E.D. Tenn. Mar. 19, 2018) ("Although on its face, Rule 65(b)(1) applies to attorneys only, courts have interpreted this requirement as applying to a pro se litigant who seeks a TRO.") (citing Hollowell v. Bornkempt, 2017 WL 3446676, at *2 (N.D. Ind. Aug. 10, 2017) (collecting cases).
B. The Younger Abstention Doctrine
In the view of the undersigned, Spencer's complaint should be dismissed based on the Younger abstention doctrine. The doctrine provides that unless there are certain unusual circumstances not at issue here, a federal court must refrain from interfering in pending civil or criminal proceedings when important state interests are at stake. Younger v. Harris, 401 U.S. 37 (1971). And application of the doctrine may be raised by the Court sua sponte. "Younger abstention derives from a desire to prevent federal courts from interfering with the functions of state criminal prosecutions and to preserve equity and comity." Tobias v. State of Michigan, 2018 WL 3434344 (E.D. Mich. July 17, 2018) (quoting Doe v. Univ. of Ky., 860 F.3d 365, 368 (6th Cir. 2017) (citing Younger v. Harris, 401 U.S. 37, 44 (1971)); see also Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) (extending the Younger doctrine to encompass civil and administrative proceedings). "To abstain under Younger, '(1) there must be on-going state judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges.'" Hill v. Snyder, 878 F.3d 193, 206 (6th Cir. 2017) (quoting Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006)). "[A]bsent 'bad faith, harassment or any other unusual circumstance,' federal-court abstention is appropriate where a plaintiff invokes federal jurisdiction as a basis for obtaining injunctive relief against state-court criminal proceedings." Squire, 469 F.3d 551, 555 (6th Cir. 2006) (quoting Younger, 401 U.S. at 53-54).
"The Younger abstention doctrine may be raised sua sponte by the court or by the parties." O'Neill v. Coughlan, 511 F.3d 638, 642 (6th Cir. 2008); Skaggs v. Jefferson Circuit Court, 2018 WL 2187723, at *2 (W.D. Ky. May 11, 2018).
In what is perhaps an effort to overcome the possibility of abstention here, plaintiff repeatedly alleges that Donohue is acting in "bad faith" in seeking to enforce MCL 552.511. He insists that the letter he received indicating that his child support case was being closed, a letter he refers to as a "release of judgment lien," constituted a contract between himself and the judgment lien administrator. He thus asserts that Donohue's subsequent unilateral rescission of the release without alleging fraud or mutual mistake, followed by a threat to pursue collection proceedings under MCL 552.511, including arrest and seizure of plaintiff's property constitutes a bad-faith application of the law which will result in irreparable harm to him. He says the potential seizure of his person and property violate the Fourth, Fifth and Fourteenth Amendments. Yet, the actions that Spencer alleges do not meet the standard for bad faith. Indeed, Spencer admits that the underlying judgment was valid. (Dkt. 3, p. 1). And, he has not presented any evidence to the Court that the judgment was set aside. Instead he attached to his complaint the referenced letter. But notably, the March 20, 2016 notice of closure he received was also directed to the custodial party, Rene M. Sturdavant, and it included instructions directing the recipients to call within 60 days of the notice if they had more information or if the notice contained an error. (Dkt. 1, Pg. ID 9). Within 60 days of the notice, Donohue sent new correspondence indicating that Spencer's arrearages would be added back into his case at Sturdavant's request based on information the court received about Spencer's then-upcoming release from incarceration. By the very terms of the letter sent to Spencer, the parties had 60 days within which to notify Donohue of additional information and any errors. And within that time-frame Donohue issued her letter advising Spencer that his anticipated change in circumstances would result in a resumption of the subject judgment. Such circumstances seem unlikely to qualify as bad faith, but this Court need not so conclude, as Spencer will have the opportunity to litigate whether such a sequence of events evidences bad faith in state court as discussed in greater detail below. See e.g. Hessmer v. Bad Government, 2012 WL 5196769, at *1 (M.D. Tenn. Oct. 19, 2012) (Recognizing that a bad faith prosecution is one brought "without reasonable expectation of obtaining a valid conviction") (citations omitted)); Miller v. Franklin county Children Services, et. al., 2016 WL 279260, at *7 (S.D. Ohio Jan. 22, 2016) (Government's repeatedly filing the same complaint against the plaintiff after multiple dismissals was found not to rise to the level of "egregious bad faith or harassment required for an exception to Younger" where dismissals resulted from service issues); Sparks v. Tennessee, 2018 WL 1626230, at *2 (M.D. Tenn. Apr. 4, 2018) (Conclusory allegations of bad faith are insufficient to invoke an exception to Younger); and Strong v. Tenn. Bureau of Ethics and Campaign Finance, 2015 WL 5794561, at *2 (M.D. Tenn. Oct. 2, 2015) (Noting that exceptions to Younger abstention are "reserved for extreme situations where a plaintiff has demonstrated that he or she cannot obtain relief in any state court."). Moreover, as to the "threat" to enforce MCL 552.511, the mere application of a state statute, even if that statute is later adjudged unconstitutional does not provide grounds for an injunction. Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49 (1941).
As to the factors to be considered, the first prong of Younger is satisfied as there is unquestionably an ongoing proceeding in the Oakland County Circuit Court relating to a claim of child support arrearages against Spencer. See Spencer, Rene M. v. Spencer, William S., Case No. 1994-471049-DM. In fact, according to the publicly available docket in that case, a Support Enforcement Order was entered on August 1, 2019, setting a show cause hearing for September 3, 2019 before Oakland County Circuit Judge Julie A. McDonald. (See Exhibit A attached to this report and recommendation).
While the cases cited above reference state criminal proceedings, the doctrine also applies in civil proceedings under some circumstances. For instance, actions involving child support payment proceedings implicate important state interests that may necessitate abstention. Nali v. Oakland Co. Friend of the Court, 2010 WL 5101041, *2 (E.D. Mich. Dec. 9, 2010). Indeed, in this Circuit, it is well-settled that "federal courts, absent 'extraordinary circumstances' must abstain from granting declaratory or injunctive relief [affecting a civil contempt hearing stemming from the nonpayment of child support] because doing so would involve unduly intrusive interference with, and monitoring of, the day-to-day conduct of state hearings and trials." Sevier v. Turner, 742 F.2d 262, 269-70 (6th Cir. 1984); see also Tindall v. Wayne Co. Friend of the Court, 269 F.3d 533 (6th Cir. 2001). Accordingly, the second prong of Younger is also satisfied.
As to the third prong, it appears that Spencer has an adequate opportunity to present his claims in the state court proceedings. While the Supreme Court recognized in Middlesex County Ethics Comm. that a bad-faith prosecution of an individual may serve as an exception to the application of Younger, the Sixth Circuit has pointed out that no Supreme Court case has yet to authorize federal intervention under this exception. Tindall, 269 F.3d at 539. And, where the alleged actions of bad faith can be challenged in the trial court or the state appellate courts, the plaintiff has an adequate opportunity to have his "constitutional defenses heard and determined during the course of the state proceedings." Ballard v. Stanton, 833 F.2d 593, 594 (6th Cir. 1987). Spencer claims that the Michigan Court of Appeals foreclosed his appeal when it denied jurisdiction because no final order has issued from the trial court. However, nothing in this record or the public record from the state court suggests that Spencer cannot bring his claims and defenses in the state trial court proceeding. In fact, it is clear from the public record that Spencer can assert his rights in the ongoing state court proceedings, as he has filed motions and otherwise participated in the proceedings. (Exhibits B-D attached to this report and recommendation, Spencer's Motion for Clarification dated 3/8/19; Order dated 3/2/18, signed by Spencer; Waiver of Contempt Hearing and Agreement to Penalty dated 3/2/18, signed by Spencer). Moreover, it can be inferred from the Michigan Court of Appeals Order that when a final order does enter in the trial court proceeding, Spencer will be able to appeal as of right. Accordingly, Spencer has an adequate opportunity to address his claims in the state court proceedings and the undersigned concludes that the third prong of the Younger doctrine is satisfied. Given that Spencer's complaint only seeks declaratory and injunctive relief, dismissal of the complaint is appropriate. Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) ("[F]ederal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary.").
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS DENYING plaintiff's motion for temporary restraining order and DISMISSING plaintiff's complaint based on the Younger abstention doctrine.
The parties to this action may object to and seek review of this Report and Recommendation but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and E.D. Mich. Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response. Date: August 30, 2019
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States Magistrate Judge
CERTIFICATE OF SERVICE
I certify that on August 30, 2019, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system and I certify that I have mailed by United States Postal Service to the following non-ECF participants: William Sim Spencer, 15283 Wallin Rd., Thompsonville, MI 49683 and via email: williamsimspencer@gmail.com.
s/Tammy Hallwood
Case Manager
(810) 341-7887
tammy_hallwood@mied.uscourts.gov
EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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