PORTER v. ROCK BORGELT, P.C., (E.D.Mich. 2002)

PATRICK J. DUGGAN, United States District Judge.

This action was originally filed in Wayne County Circuit Court on September 21, 2001. The action was removed to this Court on October 19, 2001. Because Plaintiffs claims are based upon 42 U.S.C. § 1983, removal was based on the Court's federal question jurisdiction. Plaintiff, proceeding pro se, alleges that Defendants have violated his or his son's rights under the Third and Ninth Amendments to the United States Constitution. The matter is currently before the Court on Defendants' motions to dismiss or for summary judgment. For the reasons set forth below, the Court shall grant Defendants' motions.

Plaintiff brought this action against Defendant Rock Borgelt, P.C. (Rock) and the co-defendants alleging Defendants have violated his and/or his son's civil rights, specifically, their rights under the Third and Ninth Amendments to the United States Constitution. Plaintiff alleges that Defendants' violations of his civil rights "prevented, in whole or in part, the Plaintiffs ability to legally establish a family and function as the head of household of that family, and that the sanctity of family as a viable functioning unit was violated." (Comp. at 2.)

Plaintiffs claims arise from his relationship with Defendant Rock. Plaintiff hired Rock to represent him in establishing paternity of his son. Plaintiffs claims against Rock arise out of Defendant Rock allegedly not representing Plaintiff in other situations involving Plaintiff and the other Defendants. Plaintiff names Defendant Rock in each of his allegations against the co-defendants, and seeks that Defendant Rock be held "accountable" for additional "counts" of violating his civil rights for each allegation against the co-defendants.

Plaintiffs claim against Defendant Ameritech arises out of Defendant Ameritech allegedly placing "an adverse credit entry on Plaintiffs credit report" and refusing to provide Plaintiff with phone service. (Comp. at 5.) Plaintiffs claim against Defendant First Federal Bank of Michigan (First Federal) arises out of Defendant First Federal "placing an adverse entry to the Checks System for reasons unknown to the Plaintiff." ( Id.) Plaintiffs claim against Defendant Garden City Hospital (Garden City) arises out of Defendant Garden City placing "a derogatory credit entry on the Plaintiffs [sic] credit report. . . ." ( Id.) For his claim against Michigan Consolidated Gas Company (Michcon), Plaintiff alleges that Defendant Michcon "is employing an unfair business practice that is attempting to extract monies for services not received by the Plaintiff and his family unit and extort[ing] payment under duress of shutoff to obtain monies they felt due them." ( Id.) Plaintiffs claim against Detroit Edison Company (Edison) arises out of Defendant Edison refusing Plaintiff electric power services. Plaintiff seeks an award of "no less than" $100,000,000.00 from each Defendant on each "count." Defendants have moved to dismiss and/or for summary judgment.

Plaintiff is proceeding pro se. Therefore, the Court will liberally construe his Complaint. Williams v. Browman, 981 F.2d 901, 903 (6th Cir. 1992). In order to assert a claim under § 1983, a plaintiff must allege that 1) he or she was deprived of a right secured by Federal law by 2) someone acting under color of state law. Redding v. Eward, 241 F.3d 530, 532 (6th Cir. 2001) (citation omitted). Plaintiff has alleged violations of Federal law, specifically, violations of the Third and Ninth Amendments to the United States Constitution. However, Plaintiff has not alleged, even when the Complaint is construed liberally, that any Defendant acted under color of state law. Defendants have moved to dismiss under Fed.R.Civ.P. 12(b)(6) and/or for summary judgment under Rule 56, contending that they are not state entities and Plaintiff has failed to allege they acted under color of state law.

Rule 12(b)(6) deals with "failure to state a claim upon which relief can be granted[.]" Fed.R.Civ.P. 12(b)(6). Under Rule 12(b)(6), the Court "must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted).

Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir. 2000); see also FED. R. Civ. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could "return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Applying either the Rule 12(b)(6) standard or the Rule 56 standard, it is apparent that Defendants' motions must be granted. Taking all the factual allegations in the Complaint as true, there is no allegation that any of the Defendants are state entities or that they were acting under color of state law. Looking at Plaintiffs allegations in a light most favorable to Plaintiff, Plaintiff still fails to show that any Defendant is a state entity or acted under color of state law. Therefore, Plaintiffs claims fail to state a claim upon which relief can be granted under § 1983. Furthermore, there is no issue of fact that Defendants are entitled to summary judgment as a matter of law. Therefore, Defendants' motions to dismiss under Rule 12(b)(6) or for summary judgment under Rule 56 shall be granted.

Because Plaintiff is proceeding pro se, the Court shall deny Defendant First Federal's request for costs and attorney fees.

A Judgment consistent with this Opinion shall issue forthwith.