NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0079n.06
No. 11-1790
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

HOWARD A. MONI Z , P laintif f-App ellant,

v. MI CHAEL

COX,
Defendan t-Appellee.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.

KA REN NELSO N MOORE, Circuit Jud g e. Plaintiff-Appellant Howar d Moniz (“Moniz”), a Michig an p ri s oner, alleg es in this civil-rig hts suit that Michig an’s former attorney
g ener al, Michae l Cox (“Cox”), violated Moniz ’s rig hts by failing to investiga te or otherwise reme dy

a purportedly corr

upt and discriminatory towing policy car ried out by a private towing company in
Monroe County , Michig an. M oniz asser ts that Cox and those he supervises lied in fede ral court ab o u t the asser

ted towing scam and that Cox failed to corr ect or preve nt misconduct by local
prosec utors. The district court summarily dismiss ed the complaint for failing to state a claim upon which relief can be g rante d under any of 42 U.S.C. §§ 1981, 1982, 1983, 1985, or 1986. We
AF F IRM

.No. 11-1790

Moniz v. Cox

I. BACKG ROUND Moniz , a Michig an state prisoner proce eding pro se, broug ht this civil- ri gh ts complaint alleg ing that Cox violated Moniz ’s constitutional rig hts. Moniz alleg es that in J uly 1999, the Erie Township Chief of Police seized Moniz ’s car and persona l proper ty throug h the use of Star Towing , I nc., a private towing company . See R. 1 (Compl. at 2) (Pag e I D #2). Moniz asser ts that this seizure

was due to a “cor

rupt and discriminatory local policy ,” wher eby beca use Moniz “w as v er y dark skinned and labelled Hispanic the price s wer e g rossly inflated.” Id. The following day , Moniz was

arr est e d a n d c harg ed with sever al crimes, including unarme d robber y , second- deg ree home invasion, unlawfully driving awa

y in an automobile, resisting a police office r, and flee ing a police office r. See R. 5 (Dist. Ct. Order at 2 n.3) (Pag e I D #25). Moniz alleg es that prosec utors in Erie Township later conspired with Star Towing and with the Erie Township Chief of Police to eng ag e i n perjury and to “conc eal the corr upt and discriminatory towing p olicy being inflicted upon people in Monroe Count y .” R. 1 (Compl. at 3) (Pag e I D #3). Moniz states that he “re peate dly soug ht the assistance ” of Cox “to uncover and corr ect the corr upt and discriminatory towing policy , and remedy and fix the attorney -prose cutorial misconduct which had conce aled it.” Id. at 4 (Pag e I D #4). Moniz alleg es that C o x failed to investiga te or corr ect both the prosec utorial misconduct and the towing policy , as well as “the illega l and unconstitutional punishments for Mr. Moniz ’s complaints about same.” Id. at 5 (Pag e I D #5). Moniz faults Cox for failing to exercise his supervisory authority to corr ect the purportedly unlawful towing policy and the alleg ed misconduct by Erie Township p ro secutors. Id. at 4 (Pag e I D #4).

2No. 11-1790

Moniz v. Cox

Moniz also makes g ener al alleg ations reg arding misrepre sentations made to fede ral courts by Cox and other unnamed of

ficials over

whom Cox has super

visory authority

. See id. Moniz filed his complaint in the U.S. District Court for the Easter n District of Michig an on J anuar y 10, 2 0 1 1

. T h e d i strict court summarily dismiss ed the case , and Cox was never serve d. Moniz filed various other motions, including a motion to rec o n s i d er , m otions to disqualify the district judge , a mot ion for cl as s ce rt i fi cation, and a motion to appoint counsel, all of which wer e denied. Moniz timely appea led. Be cause Moniz alleg es constitutional violations, subject-matt er jurisd i cti on exis ts under 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II. ST ANDAR D OF REVIEW
Pursuant to the scre ening procedures of 28 U.S.C. § 1915A, for civil suits broug ht by prisoners, a district court “shall identify cog nizable claims or dismiss the complaint, or any portion of the complaint, if the com p l ai n t

. . . fails to state a claim upon which relief may be g rante d.” § 1915A(b)( 1); see also § 1915(e) (2). We revie w de novo a dis trict court’s dismi ssal under the se
statutes. Hill v Lappin , 630 F.3d 468, 470 ( 6th Cir. 2010). Dismissals for failure to sta te a claim under § 1915(e) (2) and § 1915A are g overne d by the

same standards as dismiss als for failure to state a claim under Rule 12(b)( 6). See id. at 470–71. To avoid dismiss al, “a co m p laint must contain sufficie nt fac tual matter, acc epted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 5 5 0 U.S

. 544, 570 (2007))

. “Althoug h a complaint need not contain

3No. 11-1790

Moniz v. Cox

‘deta iled fac tual alleg ations,’ it does require more than ‘labe ls and conclusions’ or ‘a formulaic

rec itation of the eleme nts of a ca use of a ction.’” Reilly v. Vadlamudi , 680 F.3d 617, 622 ( 6th Cir. 2012) (quoting Twombly , 550 U.S. at 555). Alleg ations in a pro se complaint are construed liberally ,
see, e.g. , Jourdan v. Jabe , 951 F.2d 108, 110 (6th Cir. 1 9 9 1 ), an d we “ac cept[] as true all nonconclusory alleg ations in the complaint.” Davis v. Prison Health Servs. , 679 F.3d 433, 437 (6th Cir. 2012) (inter

nal quotation marks omitted).

III. SE CTION 1983 CLAIM
To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth fac ts showing that he was deprive d of a rig ht secur ed by the Constit ution or laws of the United States, and that the depriva tion

was cause d by a person acting under color of state law. Harris v. City of Circleville , 583 F.3d 356,
364 (6th Cir. 2009); see 42 U.S.C. § 1983. A plaintiff in a § 1983 s u i t “must plead that eac h
Gover nment-off

icial d ef en d ant, throug h the officia l’s own individual actions, has violated the Constit ution.” Iqbal , 5 5 6 U. S

. at 676. I n other words, Cox cannot be vicar iously liable for the actions of the local prosec utors, or the law-e nforc ement ag ents purportedly involved in an illega l towi n g policy

. See id. I nstead, to state a valid claim for relief , Moniz must alleg e that Cox was
persona lly involved in the alleg ed unconstitutional conduct. See Miller v. Calhoun Cnty. , 408 F.3d 803, 817 n.3 (6th Cir. 2005). “The first step in [a § 198 3 ] claim is to identify the specific constitutional rig ht alleg edly infring ed.” Albright v. Oliver , 510 U.S. 266, 271 (1994). I t is not clea r t o t h i s co u rt what constitutional rig ht Moniz alleg es t hat C ox violated. Moniz expressly asser ts on appea l that he is

4No. 11-1790

Moniz v. Cox

not alleg ing any rac e-ba sed discrimination by Cox that would violate the Four teenth Amendment. Appellant Br

. at 12. Fr om the rec ord, it seems that Moniz asser t s t h at h i s only claim of rac ial discrimination rela tes to the towing policy , which purportedly led to disparate char g ing for service s. See R. 7 (Mot. for Reconsider ation at 6) (Pag e I D #54). Moniz also specific ally states that he is not claimi n g t h at he was unlawfully arr ested, or that Cox violated his rig hts in connec tion with his criminal trial or conviction, or that his sentenc e was unlawfully enhanc ed. See Appellant Br

. at 10.
Acc ording ly , Moniz does not asser t a violation of his Fourth, F ifth, or Six th Amendment rig hts in

connec tion with his criminal prosec ution. I nstead, Moniz appea rs to be arg uing on appea l that Cox , 1 throug h other g overnme nt ag ents under his supervision, “misrepr ese n t ed and conce aled fac ts and evidenc e,” w hich re sulted in a violation of his right to ac cess the c ourts. See Appellant B r. at 11.
Howeve r, the constitutio n al rig ht to acc ess the courts conce rns, for example, whether the state “provide s th[ e] prisoner with either the leg al tools nece ssary to defe nd himself

. . . or the assistance of leg ally -traine d personne l.” Holt v. Pitts , 702 F.2d 639, 640 (6th Cir

. 1 9 8 3 ) (c i t i n g Bounds v.

I f M o n i z we re raising a claim rela ting to a constit utional violation in connec tion with his 1 arr est, trial, or c onviction, the claim would likely be bar red. I nsofar as Moniz’s complaint alleg es constitutional violations which imply that his confine ment is illega l, perha ps rela ting to the alleg edly illega l se izure of his ve hicle which may have le d to a

n illega l a rre st, or rela ting to the prosec utors’ conduct during his criminal trial which may amount to a denial of criminal-pr ocedur e rig hts, those claims cannot be broug ht throug h a § 1983 suit a bsent a claim that Moniz ’s convictions have been “re verse d on direc t appea l, expunged by execut i v e o rd er , decla red invalid by a state tribunal, or ha[ve] otherwise been called into question by a fede ral court’s issuance of a writ of habea s corpus.” Adams v. Morris , 90 F. App ’x 8 5 6 , 8 5 8 (6t h Cir. 2004) (citing Hec k v. Humphrey , 512 U.S. 477 (1994))

. I f Moniz seeks to challeng e the fac t o r d u ra t i o n o f his confine ment, a challeng e falling “within the t raditional scope of habeas corpus,” such a challeng e is not cog nizable under § 1983. Thomas v. Eby , 481 F.3d 434, 438 ( 6th Cir. 2007). 5No. 11-1790

Moniz v. Cox

Smith , 430 U.S. 817 (1977); Johnson v. Ave ry , 393 U.S. 483 (1969)) ; see Bounds , 430 U.S. a t 823 (explaining that the constitutional rig ht to acc ess the courts require s states to prov i d e m ea n i ng ful

acc ess for indige nt defe ndants). Moniz ’s alleg ations do not addre ss these issues. Thus, it is not clea r from the fac e of the complaint and Moni z’s arg uments on appea l what constit utional v i o lation by
Cox his complaint is concer ned with.
Even assuming that Moniz ’s complaint makes alleg ations that amount to a constitutional violation, Moniz ’s complaint fa i l s to state a claim ag ainst Cox under § 1983 for sever al rea sons. First, Moniz ’s claims for damag es ag ainst Cox in his officia l capa city cannot s u cc ee d

. This is beca use claims ag ainst Cox in his officia l capa city are deeme d claims ag ainst the State of Michig an, and with respe ct to damag es claims, “neither a State nor its officia ls acting in their officia l capa cities

are ‘per sons’ under § 1983.” W ill v. Mich. De

p’t of State Police , 491 U.S. 58, 71 (1989). Second, the § 1983 claims ag ainst Cox in his officia l capa city for injunctive relief and in his individual capa city fail beca use Moniz has not pr esente d any specific fac tual alleg ations reg arding how Cox violated Moniz ’s constitutional rig hts. Moniz has alleg ed that Cox failed to investig ate, supervise, and corr ect mis conduct by Erie Township prosec utors, who all egedly wer e invol ved in

conce aling a towing policy that resulted in the seizure of Moniz ’s vehicle. See R. 1 (Compl. at 3–5) (Pag e I D #3–5). The complaint alleg es that Moniz filed complaints with Cox ’s office reg arding the
prosec utorial misconduct and the towing policy , but that Cox failed to exercise “super visory control

over Erie Town s h i p , t h e discriminatory Monroe County Towing Policy , and the invasive and endemic pr osecutoria l misconduct.” Id. at 5 (Pag e I D #5).

6No. 11-1790

Moniz v. Cox

Moniz ’s alleg ations rela ting to Cox ’s rol e as a supervisor are that he g ener ally failed to supervise prosec utors purportedly under his direc tion. “This court has consistently held that damag e claims ag ainst g overnme ntal officia ls alleg ed to arise from violations of constitutional rig hts cannot be founded upon conclusory , vague or g ener al alleg ations, but must instead, alleg e fac ts tha t show the exist ence of the a sserted constituti onal rights violation rec ited in the complaint and wha t each defe ndant did to violate the asser ted rig ht.” Terrance v. Northville Reg’l Psychiatric Hosp. , 286 F.3d 834, 842 (6th Cir. 2002). Fur ther, “a supervisory officia l’s failure to supervise, control or train the offe nding individual is not actionable unless the supervisor either encour ag ed the specific incident of misconduct or in some other way direc tly participa ted in it.” Shehee v. Luttr ell , 199 F.3d 295, 300 (6th Cir. 1999) (interna l quotation marks omitted). Moniz ’s g ener al alleg ations of Cox ’s failure to supervise and investiga te are insufficient to state a claim under these standards. See id. (holding that supervisory liability und er § 1 9 8 3 “must be based on active unconstituti onal behavior and cannot be based upon a mere failure to act” (interna l quotation marks omitted)). I n sum, we ag ree with the district court that Moniz’s complaint fails to state a cla im under § 1983 ag ainst Cox

.

IV. CLAIMS BROUGHT UND ER §§ 1985 AND 1986
To succe ed on a claim broug ht under 42 U.S. C

. § 1985(3), “a plaintiff must prove (1) a conspirac y involving two or more persons (2) for the purpose of depriving , direc tly or indirectly , a
person or class of p er s o n s o f t h e equal protec tion of the laws and (3) an act in further ance of the conspirac y (4) which cause s injury to a person or proper ty , or a depriva tion of any rig ht or privileg e of a citizen of the United States.” Johnson v. Hills & Dales Gen. Hosp. , 40 F.3d 837, 839 (6th Cir.

7No. 11-1790

Moniz v. Cox
1994). The plaintiff must alleg e that “the conspirac y was motivated by rac ial, or other class-ba sed, invidiousl y discriminatory animus.” Bass v. Robinson , 167 F.3d 1041, 1050 (6th Cir. 1 9 9 9); see Bray v. Alexandria W

omen’ s Health Clini c , 506 U.S. 263, 267–68 (1993); Estate of Smithers ex rel.
Norris v. City of

Flint , 602 F.3d 758, 765 (6th Cir. 2010) (“To sustain a claim under section 1985(3),

a claimant must prove both membership in a protec ted class and discrimination on acc ount of it.”). Moniz has not alleg ed any fac ts indicating that Cox ’s actions wer e motivated by any rac ially discriminatory animus or animus based on national orig in. On appea l, Moniz denies that there was
any rac ially motivated conspirac y , arg uing: “Plaintiff did not claim Defe ndant Cox discriminated
ag ainst him beca

use of his rac e, or any other classifica tion.” Appellant Br

. at 12; see id. at 9 (“[I ]n

re al i t y , the onl y actua l discrimination the P laintiff allege d was disparate charg ing for services.”).
Acc ording ly , Moniz ’s complaint fails to state a claim under § 1985 beca use he has not alleg ed any

rac e or class-ba sed discriminatory animus on the part of Cox

. Be cause Moniz has failed to state a 2
claim under § 1985, his claim under § 1986 likewise fails. See Braley v. City of Pontiac , 906 F.2d

Moniz does not specify which subsection of § 1985 he believed Cox ’s actions violated, and 2 the district court assumed Moniz ’s claim arose under § 1985(3). Subs ec t i o n (1 ) is inapplicable, beca use Moniz ’s complaint does not addre ss a conspirac y that preve nted an office r from perf orming his duties. See 42 U.S.C. § 1985(1). The first clause of subsection (2) is also inapplicable, beca use Moniz does not alleg e that Cox conspired with others to intimi date or deter witn es s t estimony , or to influence a juror. See § 1985(2). However , Moniz may have intende d to bring his claim under the second clause of § 1985(2), which “prohibits conspirac ies to interfe re with due proce ss in state courts with the intent to deprive persons of their equal protec tion rig hts.” Fox v. Mich. State Police Dep’ t , 173 F. App’x 372, 376 (6th Cir. 2006). Even if Moni z i n t en d ed t o b ri ng his claim under § 1985(2), the claim would fail, beca use under the second clause of § 1985(2), like under § 1985(3), a plaintiff must alleg e “that there was ‘some rac ial, or perha ps otherwise class-ba s ed , invidiousl y discriminatory animus behind t he co nspirators’ action.’” Id. (quoting Kush v. Rutl edge , 460 U.S. 719, 726 (1983)) ; see D allas v. Holmes , 137 F. App’ x 746, 752 n.5 (6th Cir. 2005). 8No. 11-1790

Moniz v. Cox
220, 227 (6th Cir. 1990) (“Where a plaintiff has stated no cause of action under § 1985, no cause of action exists under § 1986.”).
V. SECTIO N 1981 CLAIM Moniz alleg es that Cox is liable under § 1981 for “conc ealing and misrepre sent i ng the obstructions, pains, penalties, censor ship, and punishments Mr. Moniz has been subjected to for his complaints about t h e co rr u pt and discriminatory towing policy car ried out in Monroe County , Michig an.” R. 1 (Compl. at 6) (Pag e I D #6). Section 1981 “prohibits intentional rac e discrimination in the making and enfor cing of contra cts involving both public and private actor s.” Amini v. Oberlin Coll. , 440 F.3d 350, 358 (6th Cir. 2006); see 42 U.S.C. § 1981. To state a claim under § 1981, a plaintiff must plead, among other things, that “he belong s to an identifiable class of persons who are subject to discriminatio n b ased on their rac e” and that “the defe ndant intended to discriminate
ag ainst him on the basis of ra ce.” Amini , 440 F.3d at 358; see Gen. Bldg. Contractors Ass’n, Inc.
v. Pe nnsylvania , 458 U.S. 375, 391 (1982) (holding that a viol ation of § 1981 re quires purpose ful

rac e discrimination). Racial discrimination includes discriminat i o n o n t he basis of “anc estry or ethnic char acte ristics,” althoug h it does not include d i s crimi nation based “solely on the place or nation of [pl aintiff’s] orig in.” St. Francis Coll. v. Al-Khazraji , 481 U.S. 604, 613 (1987). Moniz ’s complaint fails to state a claim ag ainst Cox under § 1981 beca use it does not contain specific fac tual al l ega t i o n s that Cox intentionally discriminated ag ainst Moniz based on his rac e or ethnic char acte ristics. Acc ording ly , the district court did not err in dismi ssing this claim.
VI. SECTIO N 1982 CLAIM

9No. 11-1790

Moniz v. Cox

Section 1982 prohibits rac ial discrimination rela ting to cer tain interests in rea l and persona l
proper ty

. See 42 U.S.C. § 1982; United St ates v. Brown , 49 F.3d 1162, 1166–67 ( 6th Cir. 1995).
A § 1982 claim, like a claim under § 1981, re q u i re s t h at a plaintiff plead rac ial animus. Allen v. Louisvill e City Police Dep’ t , 972 F.2d 346, No. 91-6277, 1992 WL 168097, at *2 (6th Cir. J uly 17, 1992) (“I t is well-settled that one must plead and prove rac ial animus to succe ed on a section 1982 claim.” (citing Jones v. Alfred H. Maye r Co. , 392 U.S. 409 (1968); Gree ne v. City of Mem phis , 535 F.2d 976 (6th Cir. 1976))) ; see also Patulski v. Twp. of Stronach , 41 F.3d 1507, No. 94-1431, 1994
WL 659192, at *2 (6 t h Cir. Nov. 22, 1994) (“[I ]n order to state a claim under § 1982, one must alleg e intentional rac ial discrimination. [P laintiff’s] claim is meritless beca use he does not contend that the Township’s actions wer e motivated by rac e.”) (citation omitted). Moniz has not made any fac tual alleg ations reg arding rac e-ba sed discrimination by Cox

. Vag ue alleg ations that Cox failed
to investiga te or corr ect an allegedly “discriminatory towing policy ” do not provide any basis for inferr ing that Cox acte d to discriminate ag ainst Moniz on the basis of rac e. See R. 1 (Compl. a t 4) (Pag e I D #4). The district court thus corr ectly dismiss ed Moniz’s § 1982 claim.
VII. DENIAL OF OTHER MOTIONS Moniz also appea ls the district court’s denial of his motion for rec onsideration, his motions to disqualify

the district judge , and his motions for class cer tification and to appoint counsel. We find no err or in the district court’ s denial of these motions.
Acc ording to the Easter

n District of Michig an L ocal Rule 7.1(h), in order for the district court
to g rant a motion for rec onsideration, “[t] he movant must not only demonstrate a palpable defe ct by

10No. 11-1790

Moniz v. Cox

which the court and the parties and other persons entitled to be hear d on the motion have been misled but also show that corr ecting the defe ct will result in a differ ent dispositi on of the case .” E.D. Mich.
L ocal Rul e 7.1(h)(3); see G raham ex rel. Estate of Graham v. Cnty. of W ashtenaw , 358 F.3d 377, 385 (6th Cir. 2004). Her e, the district cour t found that Moniz “simpl y is attempting to re -ar g ue [] issues which wer e alre ady ruled upon by the Court when it dismiss ed his Complaint,” and thus denied the motion to rec onsider. R. 14 (Dist. Ct. Orde r at 3) (Pag e I D #129). This court has stated that a district court does not abuse its discretion in deny ing a motion to rec onsider wher e the motion
“m er ely raise[s] arg uments that wer e alre ady ruled upon.” Graham , 358 F.3d at 385; see a l s o Lommen v. McI

ntyre , 125 F. App’x 655, 659 (6th Cir. 2005) (holdin g t hat it was not an abuse of discretion to deny a motion for rec onsideration wher e the motion “pre sented nothing new” and

mere ly rephr ased alleg ations in the complaint). There was no abuse of discretion in the district
court’s denial of Moniz ’s motion, beca use the motion did not demonstrat e a palpable defe ct, and

mere ly re- hashed a

rg uments alrea dy

ruled upon by

the cour t in its order

dismiss ing the case . The d i s t ri ct court also did not abuse its discretion in deny ing Moniz ’s motions for disqualification of the district judge

. See United Sta t es v. Dandy , 998 F.2d 1344, 1349 (6th Cir. 1993) (apply ing an abuse- of-discr etion standard)

. “[A] judge should disqualify himself only if there is a rea sonable fac tual basis for doubting his impartiality ,” as deter mined from an objective standpoint. Khan v. Y

usufji ( In re Khan ), 751 F.2d 162, 164 (6th Cir. 1984)

. “A bias sufficie nt to justify rec usal must be a persona l bias as distinguished from a judicial one, arising out of the judge ’s backg round and association and not from the judge ’s view of the law.” United States v. Story , 716

11No. 11-1790

Moniz v. Cox

F.2d 1088, 1090 (6th Cir. 1983) (interna l quotation marks omitted). Fur ther, “judicial ruling s alone almost never constitute a valid basis for a bias or partiality mot i o n . ” Liteky v. United States , 510 U.S. 540, 555 (1994). Moniz did not prese nt a ny fac tual basis, other than adver se judicial ruling s, that would cre ate a

rea sonable ba sis for doubting the judge ’s impartiality

. Acc ording ly , there was no abuse of

discretion in the denia l of this moti on. Moniz ’s motions to appoint counsel and for class cer tification wer e proper ly denied by the district c ourt as moot, g iven the proper dismiss al of Moniz ’s complaint for failure to state a claim.
VIII. CONCLUSION
For the fore g oing r easons, the judg ment of the district cour t is AF F IRMED

.

12