CONCES v. CALHOUN COUNTY

ROBERT HOLMES BELL, Chief United States District Judge

Plaintiff filed his pro se complaint in this court on July 29, 2002. Plaintiff is not proceeding in forma pauperis, so his complaint was not subject to initial screening. On October 16, 2001, a few months before plaintiff filed this lawsuit, the Michigan Court of Appeals issued its opinion affirming a state trial court's grant of summary disposition in favor of numerous defendants who had been sued by plaintiff on claims related to the recording of a federal tax lien against plaintiffs property located within Calhoun County. See Conces v. Norlander, No. 224157, 2001 WL 1231840 (Mich.Ct.App. Oct 16, 2001). Plaintiff has not alleged that he sought leave to appeal this adverse decision to the Michigan Supreme Court, nor does plaintiff assert that he sought a writ of certiorari from the United States Supreme Court.

In the present lawsuit, plaintiff again asserts claims arising from the recordation of the tax lien, but names Calhoun County as the only defendant. Plaintiff labeled his claims as follows: (1) violation of plaintiffs Fourth Amendment rights through an unlawful seizure of plaintiffs property by allowing it to be encumbered by the recorded notice of a federal tax lien; (2) violation of Fifth Amendment due process by defendant's refusal to answer plaintiffs letters and allowing plaintiffs property to remain encumbered by the notice of a federal tax lien; (3) seizure of plaintiffs property and property rights in violation of the Due Process Clause of the Fourteenth Amendment; (4) "abuse of process under `color of law;'" (5) and violation of "administrative due process" by refusing to respond to the arguments plaintiff made in his letters. Plaintiff seeks $1.5 million in monetary damages and an order directing removal of any tax liens on his property.

The matter is before the court on defendant's motion to dismiss. (docket #4). On August 22, 2002, plaintiff filed his response to defendant's motion. (docket #8). Upon review, defendant's motion will be granted.

Defendant seeks dismissal of plaintiffs complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6), a complaint may be dismissed only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. See Ludwig v. Board of Trustees, 123 F.3d 404, 408 (6th Cir. 1997); Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The court must construe the complaint in the light most favorable to plaintiff, accept all factual allegations as true, and determine whether it is established beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Nelson v. Miller, 170 F.3d 641, 649 (6th Cir. 1999); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). While this standard is decidedly liberal, it requires more than the bare assertion of legal conclusions. 58 F.3d at 1109. The court need not accept as true legal conclusions or unwarranted factual inferences. Murphy v. Sofamor Danek Group, Inc. (In re Sofamor), 123 F.3d 394, 400 (6th Cir. 1997) (quoting Morgan, 829 F.2d at 12). "In practice, a ` . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993); see Begala v. PNC Bank, 214 F.3d 776, 779 (6th Cir. 2000); Board of Trustees of Painesville Twp v. City of Painesville, 200 F.3d 396, 399 (6th Cir. 1999); Hahn v. Star Bank, 190 F.3d 708, 718-19 (6th Cir. 1999).

Sometime prior to October 16, 2001, Charles F. Conces and Mary E. Conces filed a civil lawsuit in a state trial court naming Anne B. Norlander, the Register of Deeds of Calhoun County, Calhoun County, and numerous others as defendants in connection with the recording of a federal tax lien. The trial court granted summary judgment in favor of all defendants.

On October 16, 2001, the Michigan Court of Appeals upheld the trial court's decision granting summary judgment in favor of all defendants. See Conces v. Norlander, No. 224157, 2001 WL 1231840 (Mich.Ct.App. Oct. 16, 2001). The court found that the register of deeds was immune from liability upon plaintiffs tort claims. 2001 WL 1231840, at * 1. The county commissioners and the prosecuting attorney were similarly immune and, in any event, plaintiff had abandoned any claims against those individuals. Id. at * 2. The county administrator was immune from suit and could not be held liable for acts of the register of deeds. No county official had authority to supervise the functions of the register of deeds because she was "an independent elected official whose duties are set by state statute and not by ordinance of the county." Id. The Michigan Court of Appeals held that plaintiff failed to state a claim against Calhoun County. Id. The Court of Appeals held that no due-process violation had occurred. Id.

The Michigan Court of Appeals found that a notice of tax lien recorded in 1996 contained defects under state law, but the court did not direct that action be taken by any defendant. Plaintiff did not bring a state-court action to quiet title. He sent a series of letters addressed to the county administrator demanding payment of $500,000. He also sent a letter addressed to the register of deeds and "county board members" asserting that plaintiff was "not subject to the UCC as a private citizen nor being subject to any specific UCC agreement that would bring [him] under the government's taxing authority."

1. Plaintiff Cannot Appeal the Adverse Decision of the State Court of Appeals to this Court.

The federal courts are courts of limited jurisdiction, and plaintiff has the burden of proving the court's jurisdiction. Fisher v. Peters, 249 F.3d 433, 444 (6th Cir. 2001); United States ex rel. Jones v. Horizon Healthcare Corp., 160 F.3d 326, 329 (6th Cir. 1998). Even where subjectmatter jurisdiction is not raised by the parties, the court must consider the issue sua sponte. See Norris v. Schotten, 146 F.3d 314, 324 (6th Cir. 1998); Mickler v. Nimishillen Tuscarawas Ry. Co., 13 F.3d 184, 189 (6th Cir. 1993); see also Gaulding v. Smith, No. 98-3023, 1999 WL 164900, at * 1 (6th Cir. Mar. 12, 1999). The recourse available to plaintiff in response an adverse decision of the Michigan Court of Appeals was to seek leave to appeal to the Michigan Supreme Court, and if necessary, apply for a writ of certiorari to the United States Supreme Court. This court lacks jurisdiction to review the state-court decision plaintiff attempts to challenge in this lawsuit. See District of Columbia Circuit Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995); see also Metropolitan Life Ins. Co. v. Brown, No. 02-3318, 2002 WL 31012126, at * 1 (6th Cir. Sept. 6, 2002); Elsman v. Standard Federal Bank, Nos. 00-2293, 01-1544, 2002 WL 3 1007987, at * 3 (6th Cir. Sept. 5, 2002); Hall v. Caudill, No. 01-5664, 2001 WL 1590663, at * 1 (6th Cir. 2001).

Plaintiff asserts "Federal Court venue and jurisdiction are necessary because of possible conflicts of interest and possible prejudices in favor of the Defendant that may arise between Calhoun County Court and Defendant." (Complaint ¶ 5). The Calhoun County Circuit court is not a creature of county government. State circuit judges are not county employees. Rather, they are part of Michigan's "one court of justice" which constitutes a separate branch of state government. MICH. CONST. 1963, art. 6, § 1. Judges are not subject to the control of the county or its board of commissioners, nor does the county pass policies that circuit judges must follow in the exercise of their judicial responsibilities. See Bridges v. Senger, 730 F. Supp. 1401, 1405 (W.D. Mich. 1990). Plaintiff's desire for a federal forum does not provide a statutory basis for the exercise of federal subject-matter jurisdiction.

2. This Court Lacks Subject-Matter Jurisdiction over Plaintiff's Claims that Defendant failed to Respond in Accordance with the Ruling Made by the Michigan Court of Appeals.

The decision of the Michigan Court of Appeals did not direct any defendant, including Calhoun County, to take any action in response to its decision. Even if the Michigan Court of Appeals had ordered a party to act to remove the notice of lien, recourse to vindicate any failure to act in accordance with the order would have been in the state court, not in federal court. See Beaudoin v. Michigan Racing, Inc., No. 01-1556, 2002 WL 409020, at * 1 (6th Cir. Mar. 12, 2002) (citing Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988)). Calhoun County, the only defendant in this lawsuit, lacks the power to relieve plaintiff of his underlying debt for unpaid federal income taxes.

3. Plaintiff's Purported Claims Under the Fourth, Fifth, and Fourteenth Amendments and His Claims of "Abuse of Process" and Violation of "Administrative Due Process" Fail to State Any Claim Upon Which Relief Can Be Granted.

The filing of a notice of lien is not a seizure within the meaning of the Fourth Amendment. See Aronson v. City of Akron, 116 F.3d 804, 811 (6th Cir. 1997). Plaintiff fails to allege any viable due-process claim. A person claiming deprivation of a property interest without procedural due process must plead and prove that state remedies for addressing the alleged wrong are inadequate. See McLaughlin v. Weathers, 170 F.3d 577, 582 (6th Cir. 1999); Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1993); see also I'Juju v. Ohio Attorney General, No. 98-4200, 2000 WL 571940, at * 1 (6th Cir. May 2, 2000). Plaintiff had an available state remedy which he chose to ignore: an action in state court to quiet title. See MICH. COMP. LAWS § 600.2932. The Constitution does not guarantee plaintiff a response by the county to his letters demanding money. Plaintiff has not alleged facts which could support an abuse-of-process claim under state law. See Vallance v. Brewbaker, 411 N.W.2d 808, 810 (Mich.Ct.App. 1987).

For the reasons set forth herein, defendant's motion to dismiss will be granted.