UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DOUGLAS C. CUNNINGHAM,

Plaintiff,

Case No. 5:00‑CV‑73

CITY OF EAST LANSING; TED STATON, as City Manager and individually; HOWARD ASCH, as Director of Code Enforcement and individually; ANNETTE IRWIN, as Housing Enforcement Specialist and individually; and HARRIET FERRIGNO, as Code Enforcement Officer and individually,

HON. DAVID W. McKEAGUE

Defendants.

MEMORANDUM OPINION ON DEFENDANTS'

MOTION TO DISMISS

Plaintiff Douglas C. Cunnigham is the owner of a residential duplex on Durand Street in the City of East Lansing. This action grows out of the termination of his rental unit license for the property. Plaintiff alleges City of East Lansing officials exercised their regulatory power discriminatorily, arbitrarily and maliciously. His complaint contains five counts: two under 42 U.S.C. § 1983 seeking damages and declaratory and equitable relief for denial of his constitutional rights to equal protection and substantive due process; and three under Michigan law, for malicious prosecution of civil proceedings. Defendants have moved

for dismissal of all claims under Fed. R. Civ. P. 12 (b)(6), contending plaintiff has failed to state a claim upon which relief can be granted.

I. PLAINTIFF'S COMPLAINT

The 28‑page complaint contains a long litany of poorly organized factual allegations. On September 18, 2000, the Court issued a case management order requiring plaintiff, an attorney then proceeding pro se, to file an amended complaint not later than October 6, 2000. This requirement was premised on plaintiff's acknowledgment at the September 15, 2000 Rule 16 scheduling conference that the complaint is not well‑drafted and does not fairly apprise defendants and the Court of the nature of his claims. Plaintiff did not file an amended complaint. Nor has he demonstrated excusable neglect or good cause for his failure to comply with the Court's order. Instead, despite having eventually retained counsel to represent him, he has decided to defend his original complaint.

Named in the complaint as defendants are the City of East Lansing, City Manager Ted Staton, Director of Code Enforcement Howard Asch, Housing Enforcement Specialist Annette Irwin, and Code Enforcement Officer Harriet Ferrigno.

In count I, plaintiff asserts an equal protection claim under 42 U.S.C. § 1983, complaining of defendants' selective enforcement

of the East Lansing Housing Code. This claim grows out of events which occurred in late 1996, when plaintiff was cited for allowing over‑occupancy of his rental unit. Plaintiff alleges he was the victim of selective enforcement, not because he was singled‑out from among other landlords based on some suspect classification, but because he, as a landlord, was unfairly punished more harshly than the tenants, who were the willful violators of the over-occupancy regulation.

In count II, plaintiff asserts a substantive due process claim under 42 U.S.C. § 1983. This claim grows out of the process by which plaintiff's rental license was allowed to expire and was then not renewed by East Lansing officials despite plaintiff's efforts to identify and cure deficiencies. These events occurred between January 1997 and the present time. Plaintiff has not specifically complained of defects in procedure, but contends defendants acted arbitrarily and capriciously.

Counts III, IV and V contain malicious prosecution claims under Michigan law, based on allegations that defendants initiated enforcement proceedings against him maliciously, issuing false citations for the purpose of terminating his existing rental license.

II. DISMISSAL STANDARD

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint, asking whether plaintiff has stated a claim for which the law provides relief. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). The complaint must give defendants fair notice of what the plaintiff's claims are and the grounds therefor. Id. The complaint must be construed liberally in plaintiff's favor and the Court must accept all well-pled factual allegations as true. Id. This rule does not, however, require the Court to accept plaintiff's alleged conclusions of law. Papason v. Allain, 478 U.S. 265, 286 (1986). A motion to dismiss should be granted only if it appears beyond doubt that plaintiff can prove no set of facts in support of a claim that would entitle him to relief. Gazette, 41 F.3d at 1064.

III. EQUAL PROTECTION SELECTIVE ENFORCEMENT

Defendants move for dismissal of plaintiff's equal protection selective enforcement claim. Defendants argue plaintiff has not alleged that he was singled out for prosecution under the Housing Code because he is a member of a protected class or because he had exercised a constitutionally protected right. Indeed, selective enforcement of the law by governmental authority may be actionable under § 1983 where a person is intentionally singled‑out for punishment because of membership in a protected group or because of

the exercise of a constitutionally protected right, or because the government's purposeful discrimination was intended to accomplish some forbidden aim. See Futernick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996). "Protected group" refers to classification by race, nationality, religion, gender or some other suspicious classification recognized under equal protection jurisprudence generally. Id. 78 F.3d at 1057; Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000). "Forbidden aim" refers to "intentional selective enforcement because of race, nationality, religion, gender or `other arbitrary classification."' Gardenhire, 205 F.3d at 319, quoting Futernick, 78 F.3d at 1056‑57.

Plaintiff does not contend that he is a member of a "protected group." Nor does he contend that he was singled‑out because of the exercise of a constitutionally protected right. Rather, he argues that he is the victim, as a landlord, of purposeful discrimination intended to accomplish a forbidden aim, to wit: selective enforcement of the Housing Code based on an arbitrary classification.

The Sixth Circuit has developed a three‑part test for identifying this kind of selective enforcement:

First, [an official] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that

group in similar situations. Second, [the official] must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.

Gardenhire, 205 F.3d at 319, quoting United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991). Further, with regard to the first element, it is an absolute requirement that plaintiff make at least a prima facie showing that similarly situated persons outside his category were not prosecuted. .Id.; Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997).

Plaintiff contends that he belongs to an identifiable group comprised of landlords who violate the Housing Code. He alleges that landlords who violate the Housing Code are punished more harshly than tenants who violate the Housing Code. Yet, plaintiff has not even identified any reasonable basis for determining that tenants are similarly situated to landlords for purposes of enforcing the Housing Code or that defendants' alleged stricter enforcement against landlords represents an arbitrary classification. In fact, the alleged classification does not appear to be arbitrary at all. On its face, the practice of more avidly enforcing the Code against owners of property in the City than against their relatively transient tenants appears to be reasonably calculated to efficiently and effectively secure compliance with the Housing Code.

Plaintiff relies on Stemler as authority for the proposition that "a bare desire to harm a politically unpopular group cannot' constitute a legitimate governmental interest." 126 F.3d at 873. Yet, a closer reading of Stemler reveals the fatuity of plaintiff's position. In Stemler, the plaintiff alleged she was arrested and prosecuted for driving under the influence solely because she was perceived to be a lesbian, while a heterosexual man who was undisputedly more intoxicated was allowed to drive away from the scene. The court characterized it as "the rare case in which a plaintiff has successfully stated a claim of selective prosecution," observing that the defendant officers had "not even attempted to demonstrate that there is any conceivable basis for a decision to enforce the drunk driving laws against homosexuals, but not against heterosexuals." Id. at 873‑74.

In other words, for purposes of enforcing drunk driving laws, homosexual drivers are undeniably similarly situated to heterosexual drivers. To single out members of one group for prosecution purely because of membership in that group is clearly an act of selective enforcement based on an arbitrary classification not rationally related to a legitimate governmental purpose. Here, in contrast, the Court is faced with allegations of discrimination between members of two groups that are not similarly situated in relevant respects. The notion that compliance with

Housing Code standards may be more effectively secured through more avid enforcement against landlords is facially reasonable and not reflective of a "bare desire to harm a politically unpopular group."

Accordingly, the Court concludes plaintiff has failed to allege facts satisfying the prima facie showing requirement of a valid selective enforcement claim. He can prove no set of facts consistent with the allegations of his claim that would entitle him to relief under the law. Plaintiff's count I equal protection selective enforcement claim will therefore be dismissed.

IV. SUBSTANTIVE DUE PROCESS

Defendants ask the Court to dismiss plaintiff's count II substantive due process claim, contending plaintiff has failed to allege facts that would justify a finding that he was denied a rental housing license based on arbitrary and capricious action. The Sixth Circuit has recognized that "citizens have a substantive due process right not to be subjected to arbitrary or irrational zoning decisions." Richardson v. Township of Brady, 218 F.3d 508, 512 (6th Cir. 2000), quoting Pearson v. City of Grand Blanc, 961 F.2d 1211, 1217 (6th Cir. 1992). The challenged action relating to plaintiff's license is analogous to a zoning‑decision. The Sixth Circuit has been careful to point out, however, that the "arbitrary and capricious" standard of review which applies in this context is

much narrower than the customary arbitrary and capricious standard of review. See Pearson 961 F.2d at 1221‑1222. Where a substantive due process attack is made on state or local administrative action, the scope of review by the federal courts is extremely narrow. Id. "To prevail, a plaintiff must show that the state administrative agency has been guilty of ‘arbitrary and capricious action' in the strict sense, meaning ‘that there is no rational basis for the . . . [administrative] decision.'" Id. at 1221. In other words, plaintiff must show that the local governmental action was marked by "extreme irrationality" or that it "it shocks the conscience." Id. at 1222. This strong deferential standard of review applies because "federalism and comity demand a reluctance by federal courts ‘to trench on the prerogative of state and local ... institutions.’" Id.

Applying this deferential standard of review, it is clear that plaintiff's allegations do not rise to the level of "extreme irrationality" necessary to make out a valid substantive due process claim. In count II, plaintiff complains about notice received from defendants on November 29, 1999 to the effect that he did not have a rental license and should not be renting the property on Durand Street. Plaintiff alleges essentially that this action was motivated by discriminatory animus against landlords generally. Yet, in plaintiff's earlier allegations, he

acknowledges that the last valid license issued to him was a temporary license, which was to expire on December 31, 1997. The allegations of the complaint further acknowledge that he was cited for deficiencies which were never corrected to the satisfaction of East Lansing officials and which precluded extension or renewal of his license. His allegations recite a tortured history of difficulties concerning identification of specific deficiencies and performance of inspections to confirm the deficiencies' correction.

City of East Lansing officials may not be blameless for the ineptitude and confusion which surrounded licensure of plaintiff's rental unit. Yet, it is clear on the face of plaintiff's own allegations, that defendants' actions were at least facially justified by plaintiff's failure to timely cure deficiencies and plaintiff's failure to submit a complete application for renewal of his license.

This recognition, in plaintiff's own complaint, is sufficient to defeat this substantive due process claim. For, under the extremely narrow standard of review which applies in this context, defendants cannot be deemed to have acted with "extreme irrationality" if the record supplies a reason why they "might have" taken the action they did. See Curto v. City of Harper Woods, 954 F.2d 1237, 1243 (6th Cir. 1992); Tri‑County Concrete Co. v. City of North Royalton, 181 F.3d 104 (Table) , 1999 WL 357789

(6th Cir. (Ohio)). That is, even assuming defendants may have unfairly and unreasonably frustrated plaintiff's ability to cure the cited deficiencies, their actions in failing to renew his license under the alleged circumstances cannot reasonably be deemed to "shock the conscious" so as to be actionable as a substantive due process violation.

Even accepting plaintiff's allegations as true, he has not stated a claim for which the law provides relief. Accordingly, plaintiff's substantive due process claim will also be dismissed for failure to state a valid cause of action.¹

VI. CONCLUSION

With dismissal of plaintiff's § 1983 claims, the basis for federal jurisdiction has been extinguished. The Court, in its discretion, will therefore refrain from exercising continuing supplemental jurisdiction over the state law malicious prosecution claims contained in counts III, IV and V of the complaint, which

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¹In their motion to dismiss, defendants have also challenged plaintiff's count II substantive due process claim to the extent it may also be deemed to contain a procedural due process claim. In response to defendants' argument, plaintiff has argued that, indeed, he has stated a procedural due process claim "because the defendants failed to afford plaintiff notice and opportunity for hearing before terminating his housing license." Notwithstanding the parties' arguments, the complaint cannot be fairly construed as setting forth a procedural due process claim. Nowhere in the complaint does the term "procedural due process" appear, and nowhere in the complaint does plaintiff specifically complain about the denial of notice and opportunity for hearing. Because plaintiff has failed to avail himself of more than ample opportunity to amend his complaint to state his claims more particularly, ignoring the Court's order that he do so, and has thus failed to give fair notice of the nature of his claims, he is not entitled to the liberal construction of the count II claim that he now urges.

claims will also be dismissed. See 28 U.S.C. § 1367(c). An order consistent with this opinion shall issue forthwith.

Dated: September 28, 2001

DAVID W. McKEAGUE

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DOUGLAS C. CUNNINGHAM,

Plaintiff,

Case No. 5:00‑CV‑73

HON. DAVID W. McKEAGUE

Defendants.

ORDER OF DISMISSAL

In accordance with the Court's memorandum opinion of even date,

IT IS HEREBY ORDERED that defendants' motion to dismiss is GRANTED; and

IT IS FURTHER ORDERED that plaintiff's complaint is DISMISSED in its entirety.

Dated: September 28 2001

DAVID W. McKEAGUE

UNITED STATES DISTRICT JUDGE