UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT TREVOR-BLAIR DAVIS, 

Sr., 

Plaintiff,

v

CARLA A. ROBERT, in her 

individual and official capacity as 

the FOIA Coordinator for the 

Michigan Department of Treasury, 

and SUE HALL, in her official 

capacity as a duly appointed 

member of the Wayne County 

Airport Authority,

Defendants.

No. 2:15-cv-12076

HON. MARK A. GOLDSMITH

MAG. DAVID R. GRAND

DEFENDANT ROBERT’S 

CORRECTED MOTION FOR 

SUMMARY JUDGMENT AS 

TO COUNTS I – VI and VIII

Andrew A. Paterson, Jr. (P18690)

Attorney for Plaintiff

46350 Grand River Avenue

Novi, MI 48374

(248) 568-9712

aap43@hotmail.com

Erik A. Grill (P64713) 

James J. Kelly (P72111) 

Attorneys for Defendant Carla Robert

Michigan Department of Attorney General

Civil Litigation, Employment & Elections Division

P. O. Box 30736

Lansing, MI 48909

(517) 373-6434

grille@michigan.gov

/

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2

Defendant Carla Robert moves for summary judgment under Fed. 

R. Civ. P. 12(b)(6) because Plaintiff Robert Davis has failed to state any 

claim against her, stating:

1. Davis cannot access government records through Michigan’s 

Freedom of Information Act (FOIA) because he was serving a sentence 

of incarceration at a federal prison, not because of Defendant Robert’s 

actions. Mich. Comp. Laws § 15.232(c), Mich. Comp. Laws § 15.233(1).

2. Davis has no constitutional or federal statutory right to 

invoke Michigan’s FOIA.

3. Violation of a state law cannot support a claim under 42 

U.S.C. §1983, so even if Defendant Robert had violated Davis’s rights 

under Michigan’s FOIA, Davis still has not stated a claim.

4. Davis’s claims are barred by immunity under the Eleventh 

Amendment.

5. Davis’s claims for injunctive relief, attorney fees, and costs 

are derivative of his other claims, but since he did not properly state 

those claims, his claims for injunctive relief, attorney fees, and costs 

should be dismissed for the same reasons.

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3

6. I, Erik A. Grill, certify that this document complies with 

Local Rule 5.1(a), including: double-spaced (except for quoted materials 

and footnotes); at least one-inch margins on the top, sides, and bottom; 

consecutive page numbering; and type size of all text and footnotes that 

is no smaller than 10-1/2 characters per inch (for non-proportional 

fonts) or 14 point (for proportional fonts). I also certify that it is the 

appropriate length. Local Rule 7.1(d)(3).

7. In compliance with L.R. 7.1(a), concurrence in the relief 

sought in this motion was sought from opposing counsel in a conference 

held on April 5, 2016, during which counsel discussed the nature of the 

motion and legal basis, but concurrence was denied. 

Respectfully submitted, 

Bill Schuette

Attorney General

/s/Erik A. Grill 

Erik A. Grill (P64713)

James J. Kelly (P72111) 

Assistant Attorneys General

Attorneys for Defendant

Carla Robert

P. O. Box 30736

Lansing, MI 48909

(517) 373-6434

Dated: April 6, 2016 grille@michigan.gov

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

ROBERT TREVOR-BLAIR DAVIS, 

Sr., 

Plaintiff,

v

CARLA A. ROBERT, in her 

individual and official capacity as 

the FOIA Coordinator for the 

Michigan Department of Treasury, 

and SUE HALL, in her official 

capacity as a duly appointed 

member of the Wayne County 

Airport Authority,

Defendants.

No. 2:15-cv-12076

HON. MARK A. GOLDSMITH

MAG. DAVID R. GRAND

BRIEF IN SUPPORT OF 

DEFENDANT ROBERT’S 

CORRECTED MOTION FOR 

SUMMARY JUDGMENT AS 

TO COUNTS I – VI AND VIII

Andrew A. Paterson, Jr. (P18690)

Attorney for Plaintiff

46350 Grand River Avenue

Novi, MI 48374

(248) 568-9712

aap43@hotmail.com

Erik A. Grill (P64713) 

James J. Kelly (P72111) 

Attorneys for Defendant Carla Robert

Michigan Department of Attorney General

Civil Litigation, Employment & Elections Division

P. O. Box 30736

Lansing, MI 48909

(517) 373-6434

grille@michigan.gov

/

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ii

TABLE OF CONTENTS

Page

Table of Contents ......................................................................................ii

Statement of Facts ....................................................................................1

Prisoners have no rights under Michigan’s FOIA...........................1

Davis is a prisoner who lost his rights under Michigan’s 

FOIA because of the crimes he committed. ............................3

Argument...................................................................................................5

I. Davis has plead claims arising under the First Amendment, 

the Fourteenth Amendment, and Michigan state law. These 

claims are unsupported by law and frivolous. This Court 

should grant summary judgment and dismiss Defendant 

Robert. ..............................................................................................5

Counts I and III – Mich. Comp. Laws § 15.232(c)’s 

exclusion of prisoners from those who may invoke 

Michigan’s FOIA does not violate the First 

Amendment. ............................................................................6

Count II – Mich. Comp. Laws § 15.232(c)’s exclusion of 

prisoners from those who may invoke Michigan’s FOIA 

does not violate the Fourteenth Amendment’s Due 

Process Clause.......................................................................10

Count IV – Violation of a state law cannot support a 

claim under 42 U.S.C. §1983. ...............................................13

Count V – Defendant Robert did not retaliate against 

Davis for exercising First Amendment rights by 

delaying a response to his FOIA request. Defendant 

Robert responded timely. ......................................................14

Counts VI and VIII – Davis’s claims for injunctive 

relief, attorney fees, and costs are derivative of his 

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iii

other claims. They should be dismissed for the same 

reasons...................................................................................18

Davis’ claims are barred by immunity. ................................19

Conclusion and Relief Requested............................................................21

Certificate of Service (e-file)....................................................................22

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iv

CONCISE STATEMENT OF ISSUES PRESENTED

1. Counts I and III; Whether Mich. Comp. Laws § 15.232(c)’s 

exclusion of prisoners from those who may invoke Michigan’s 

FOIA violates the First Amendment? 

2. Count II; Whether Mich. Comp. Laws § 15.232(c)’s exclusion of 

prisoners from those who may invoke Michigan’s FOIA violates

the Fourteenth Amendment’s Due Process Clause? 

3. Count IV; Whether the Violation of a state law can support a 

claim under 42 U.S.C. §1983?

4. Count V; Whether Defendant Robert retaliated against Davis for 

exercising First Amendment rights where Defendant Robert 

responded timely? 

5. Counts VI and VIII; Whether Davis’s claims for injunctive relief, 

attorney fees, and costs are derivative of his other claims and 

should therefore be dismissed for the same reasons? 

6. Whether Davis’ claims are barred by immunity? 

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v

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Authority:

Lewis v. Casey, 518 U.S. 343, 355; 116 S. Ct. 2174; 135 

L.Ed.2d 606 (1996)

Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999)

Spadafore v. Gardner, 330 F.3d 849, 852 (6th Cir 2003)

Scarbrough v. Morgan County Bd of Educ, 470 F3d 250, 255 

(6th Cir. 2006)

Anderson v. Creighton, 483 U.S. 635, 640 (1987)

Mich. Comp. Laws § 15.232(c)

Mich. Comp. Laws § 15.233(1)

Mich. Comp. Laws § 15.240

42 U.S.C. §1983

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1

STATEMENT OF FACTS

On June 8, 2015, Plaintiff Robert Davis filed a complaint for 

declaratory and injunctive relief against Defendant Carla Robert, 

raising a number of constitutional challenges to an amendment to 

Michigan’s Freedom of Information Act (FOIA), Mich. Comp. Laws § 

15.231 et seq. (R. 1, Compl., Pg ID #1-31). The amended statute 

provided an individual serving a sentence of imprisonment in a state or 

county correctional facility in this State or any other State, or in a 

federal correctional facility, does not have the right to request records 

under the FOIA. Mich. Comp. Laws § 15.232(c), Mich. Comp. Laws § 

15.233(1). 

Prisoners have no rights under Michigan’s FOIA.

Before 1994, prisoners could make written requests for public 

records under Michigan’s FOIA. Through Public Act 131 of 1994, the 

Legislature amended the FOIA to exclude individuals serving sentences 

of imprisonment in state, local, or federal correctional facilities from 

those who could access that statute. In 1996, the Legislature adopted 

Public Act 553, which brought the relevant language of the statute to its 

present form, but did not substantively change the exclusion adopted in 

PA 131. Mich. Comp. Laws § 15.232(c) now provides that 

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2

“Person” means an individual, corporation, limited liability 

company, partnership, firm, organization, association, 

governmental entity, or other legal entity. Person does not include 

an individual serving a sentence of imprisonment in a state or 

county correctional facility in this state or any other state, or in a 

federal correctional facility. (emphasis added).

Mich. Comp. Laws § 15.233 provides that a person may submit a 

written request for public records to a public body. Mich. Comp. Laws § 

15.240 provides that a person may enforce the FOIA by appealing a 

decision to deny all or part of a request to the head of the public body or 

may file a lawsuit to seek judicial review of a denial. Thus, PA 131 

clearly and unambiguously excluded prisoners from those who can 

invoke rights under the statute or enforce those rights through an 

appeal or by filing a lawsuit.

The Michigan Court of Appeals has described PA 131 as a 

remedial statute that was “clearly enacted to put a halt to the mischief 

and abuse of public resources caused by Michigan’s prisoner population 

through excessive and largely frivolous FOIA requests.” Seaton v. 

Wayne County Prosecutor, 233 Mich. App. 313, 322; 590 N.W.2d 598 

(1998). The Court of Appeals noted that the Michigan Department of 

Corrections (MDOC) received and processed more requests under 

Michigan’s FOIA than any other public body in Michigan, with most of 

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3

the requests coming from prisoners housed in MDOC facilities. Id. at 

321. In 1992, MDOC charged fees of $216,602.93 under Mich. Comp. 

Laws. §15.234, but only collected about 5% of that amount, $11,295.81. 

Id. At that time, MDOC maintained an equivalent of 20 employees to 

process FOIA requests, at a labor cost of over $900,000.00. Id. 

PA 131 was enacted to remedy this situation. The Legislature 

codified its expression of public policy in Mich. Comp. Laws. § 15.231(2). 

Although that section generally reflects Michigan’s broad public policy 

of promoting government accountability and participation in democracy 

through transparency, the Legislature has created an exception for 

prisoners. The Legislature has determined that making a FOIA request 

is one of the many privileges that a convicted and incarcerated prisoner 

forfeits by committing a crime. Proctor, 248 Mich. App. at 466.

Davis is a prisoner who lost his rights under Michigan’s FOIA 

because of the crimes he committed.

Davis’s claims against Defendant Robert arise out of two FOIA 

requests he submitted to the Department of Treasury. He submitted 

the first request, dated February 9, 2015, to Treasury before he began 

serving a term of incarceration in a federal prison. (R. 1, Compl., ¶25, 

Page ID #7-8; Exhibit A, Affidavit of Carla Robert, ¶3). He submitted 

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4

the second request, dated April 8, 2015, after he began serving in a 

federal prison. (Exhibit A, Affidavit of Carla Robert, ¶7). Defendant 

Robert, as Treasury’s FOIA coordinator, responded to both requests 

within the strict time limits imposed by Michigan’s FOIA. (Exhibit A, 

Affidavit of Carla Robert, ¶¶4-5, 7-8). Although Defendant Robert 

learned from Davis’s second request, dated April 8, 2015, that he was 

incarcerated at that time1, until Treasury was served with this lawsuit, 

Defendant Robert did not even know when Davis was scheduled to 

report to federal prison. (Exhibit A, Affidavit of Carla Robert, ¶9).

Further, as this Court has recognized, Defendant Robert’s

statements in her letters to Davis were expressions of her opinions 

regarding the applicability of Michigan’s FOIA. She did not impede 

Davis’s ability to appeal to the State Treasurer or to file a lawsuit in 

State court. There are simply no facts on which this Court could 

conclude that Defendant Robert interfered in any way with Davis’s 

rights.

 

1 Counsel for Defendant has recently learned that Davis is currently 

housed at a federal half-way house. This does not change the legal 

analysis (R. 33 Opinion and Order Denying Plaintiff’s Motion For 

Preliminary Injunction (Pg ID #516).

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5

ARGUMENT

I. Davis has plead claims arising under the First Amendment, 

the Fourteenth Amendment, and Michigan state law. 

These claims are unsupported by law and frivolous. This 

Court should grant summary judgment and dismiss 

Defendant Robert.

Fed. R. Civ. P. 12(b)(6) provides for dismissal of a complaint “for 

failure of the pleading to state a claim upon which relief can be 

granted.” In assessing a Rule 12(b)(6) motion, the court accepts the 

plaintiff’s factual allegations as true, and asks whether, as a matter of 

law, the plaintiff is entitled to legal relief. Rippy v. Hattaway, 270 F.3d 

416, 419 (6th Cir. 2001).

In Bell Atlantic Corp. v. Twombley, 550 U.S 544 (2007), the Court 

held that although a complaint need not contain detailed factual 

allegations, its “[f]actual allegations must be enough to raise a right to 

relief above the speculative level . . . on the assumption that all the 

allegations in the complaint are true.” Id. at 555 (internal citations and 

quotation marks omitted). Further, “a plaintiff's obligation to provide 

the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of 

action will not do.” Id. (internal citations and quotation marks 

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6

omitted). Stated differently, a complaint must “state a claim to relief 

that is plausible on its face.” Id. at 570.

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Court expanded on 

the so-called “two-pronged approach” of Twombley. First, it must be 

determined whether a complaint contains factual allegations, as 

opposed to legal conclusions. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not 

suffice.” Id. at 678 (citing Twombley, 550 U.S. at 555). Second, the 

facts that are pled must show a “plausible” claim for relief, which the 

Court described as follows:

Determining whether a complaint states a plausible claim for 

relief will, as the Court of Appeals observed, be a contextspecific task that requires the reviewing court to draw on its 

judicial experience and common sense. But where the wellpleaded facts do not permit the court to infer more than the 

mere possibility of misconduct, the complaint has alleged-but 

it has not “shown[n]”-“that the pleader is entitled to relief.”

Id. at 679 (internal citations omitted).

Counts I and III – Mich. Comp. Laws § 15.232(c)’s 

exclusion of prisoners from those who may invoke 

Michigan’s FOIA does not violate the First 

Amendment.

In Counts I and III of his Complaint, Davis claims that the 

exclusion of prisoners from those who may invoke Michigan’s FOIA 

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7

violates his right to petition the government for redress of grievances 

under the First Amendment. Specifically, Davis claims that the First 

Amendment affords him with the right to file a lawsuit to enforce 

Michigan’s FOIA and with the right to appeal Defendant Robert’s 

decision to deny his first FOIA request in Count I and his second FOIA 

request in Count III. Davis is incorrect in his application of the First 

Amendment in this context.

The Supreme Court has addressed the proper scope of prisoner’s 

right to access to the courts under the First Amendment and the Due 

Process Clause of the Fourteenth Amendment. In Lewis v. Casey, the 

Court held that the Constitution protects access to the courts in 

situations that “inmates need in order to attack their sentences, directly 

or collaterally, and in order to challenge the conditions of their 

confinement.” Lewis v. Casey, 518 U.S. 343, 355; 116 S. Ct. 2174; 135 

L.Ed.2d 606 (1996). But, in contrast to cases related to their conviction, 

the Supreme Court has recognized that “[i]mpairment of any other

litigating capacity is simply one of the incidental (and perfectly 

constitutional) consequences of conviction and incarceration.” Id.

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8

The Fourth Circuit Court of Appeals applied this standard in a 

case similar to this one, in which a prisoner alleged a violation of § 1983 

and the First Amendment arising out of Virginia’s exclusion of 

prisoners from those may access Virginia’s FOIA. Giarratano v. 

Johnson, 521 F.3d 298 (2008) (dismissing prisoner’s challenges to 

Virginia’s FOIA for failure to state a plausible claim). The Fourth 

Circuit—quoting Lewis—rejected the premise that access to the courts 

requires the state to “enable the prisoner to discover grievances, and to 

litigate effectively once in court,” and held instead that the right of 

access, “affords only ‘the capability of bringing contemplated challenges 

to sentences or conditions of confinement.’” Giarrantano, 521 F.3d at 

306 (quoting Lewis, 518 U.S. at 354, 356). 

Similarly, Michigan courts have held that the exclusion for 

prisoners does not violate First Amendment rights, including the right 

to access the courts. Proctor v. White Lake Twp Police Dep’t, 248 Mich. 

App. 457, 465-466; 639 N.W.2d 332 (2001). In Proctor, the Michigan 

Court of Appeals held that that, “the principles involving access to the 

courts that plaintiff cites in his brief on appeal do not support his 

assertion of a right to inspect defendant’s records pursuant to the 

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9

FOIA.” Id. at 464. Instead, the Court held that Michigan’s FOIA does 

not implicate a prisoner’s constitutional rights and does not in and of 

itself invest a prisoner with, “a constitutional right to investigate 

government information.” Id. at 465.

Here, Davis is attempting to assert that he—and every prisoner—

has a constitutional right to use Michigan’s FOIA to require the state to 

produce government documents that are unrelated to any challenge to 

their sentences or the conditions of their confinement. Davis offers no 

legal authority for such a sweeping claim. But applying the rationale of 

Lewis, Giarratano, and Proctor, it is clear that the First Amendment 

does not grant prisoners with a constitutional right to enforce 

Michigan’s FOIA in the courts. The exemption of prisoners from the 

use of FOIA does not deprive prisoners of their First Amendment rights 

to access the federal courts. Counts I and III of Davis’ complaint, 

therefore, fail to state a claim.

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10

Count II – Mich. Comp. Laws § 15.232(c)’s exclusion

of prisoners from those who may invoke Michigan’s 

FOIA does not violate the Fourteenth Amendment’s 

Due Process Clause.

In Count II of his Complaint, Davis claims that the exclusion of 

prisoners from those who may invoke Michigan’s FOIA violates his 

right to procedural due process under the Fourteenth Amendment 

because, as he asserts, Defendant Robert deprived him of a property 

interest he had in a cause of action to enforce Michigan’s FOIA. This 

claim is completely unsupported by law.

To establish a procedural due process claim pursuant to § 1983, a 

plaintiff must establish three elements: (1) that they have a life, liberty, 

or property interest protected by the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution, (2) that they

were deprived of this protected interest within the meaning of the Due 

Process Clause, and (3) that the state did not afford them adequate 

procedural rights prior to depriving them of their protected interest. 

Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).

Here, Davis did not have a right to a cause of action with respect 

to his February 9, 2015 FOIA request. Under Michigan law, a 

requesting person may file a lawsuit against a public body to compel 

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11

production of public records “[i]f a public body makes a final 

determination to deny all or a portion of a request. . .” Mich. Comp. 

Laws § 15.240(1). The Michigan Court of Appeals has held that a final 

determination is a prerequisite to cause of action under Michigan’s 

FOIA, but that a final determination is not required until plaintiff has 

paid the deposit. Arabo v. Michigan Gaming Control Board, 310 Mich. 

App. 370, 388; 872 N.W.2d 223 (2015).

Davis did not pay the good faith deposit of $360.51, so Treasury 

has not made a final determination that could form the basis of an 

action under FOIA. (Exhibit A, Affidavit of Carla Robert, ¶6). Davis 

admits that he received notice that he needed to pay the deposit, but he 

did not pay the deposit before he reported to prison. (R. 1, Compl., ¶34, 

36). Davis has failed to satisfy the necessary prerequisites to filing a 

claim under FOIA, and he has not been deprived of a property interest 

with respect to his February 9, 2015 FOIA request. 

Moreover, even if Davis had a property interest in a cause of 

action under FOIA, Defendant Robert did not do anything to deprive 

Davis of that interest. It was the statute, not any action by Defendant 

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12

Robert, that has prevented him from accessing the documents he 

requested.

Further, Davis had adequate procedural rights to an appeal prior 

to his imprisonment. Davis would have been able to appeal a denial of 

his FOIA request, but he neglected to pursue such an appeal until after 

his incarceration. Defendant Robert is not responsible for Davis’ being 

convicted and sentenced to prison, nor is she responsible for his failure 

to timely pursue an appeal before he became ineligible to do so. These 

events are both the result of Davis’s own decisions and choices. If Davis 

had not engaged in criminal conduct leading to his imprisonment, he 

would have been capable of appealing a final determination on his 

FOIA request (once one had been made). 

Finally, Davis does not contend that Defendant Robert deprived 

him of due process with regard to his second FOIA request, dated 

April 8, 2015, which was submitted after he began serving a term of 

incarceration in a federal prison. (R. 1, Compl., ¶¶54-66). That request, 

therefore, cannot form the basis of a due process claim.

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13

Count IV – Violation of a state law cannot support a 

claim under 42 U.S.C. §1983.

To state a claim under §1983, Davis must show that Defendant 

Robert deprived him of a right secured by the U.S. Constitution or a 

federal statute while acting under color of state law. Spadafore v 

Gardner, 330 F.3d 849, 852 (6 Cir 2003). Here, neither the U.S. 

Constitution nor a federal statute provide Davis with a right to reduced 

fees under Michigan’s FOIA. Even Davis asserted that a Michigan 

statute, Mich. Comp. Laws § 15.234(3), would be the source of any such 

right, if such a right actually existed. (R. 1, Compl., ¶¶76-78). Davis 

has not stated a claim upon which relief can be granted in Count IV of 

this Complaint.

If Count IV is instead an attempt by Davis to have this Court hear 

and determine his appeal of the denial of his waiver request, such a 

claim would be barred. A state law claim for any kind of relief against 

Carla Robert in her official capacity would be barred by the Eleventh 

Amendment. Pennhurst State School & Hospital v. Halderman, 465 

U.S. 89, 106 (1984). And Michigan’s FOIA does not provide for any kind 

of individual liability. See e.g. Melki v. Clayton Charter Township, 2013 

Mich. App. LEXIS 1293, *11 (Docket No. 309964, July 25, 2013)(copy 

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14

attached as Exhibit B). Thus, any kind of claim Davis seeks to make 

against Defendant Robert is either barred by the Eleventh Amendment 

or fails to state a claim because FOIA does not provide individual 

remedies. In any event, Defendant Robert responded to Davis notifying 

him that the March 4, 2015 notice did not deny any portion of his 

request; to the contrary, Davis’s request was granted and he was 

charged a fee, as permitted under Mich. Comp. Laws § 15.234. (Exhibit 

A, Affidavit of Carla Robert, ¶¶9-12). Davis has not stated a claim on 

which relief can be granted under §1983.

Count V – Defendant Robert did not retaliate 

against Davis for exercising First Amendment 

rights by delaying a response to his FOIA request. 

Defendant Robert responded timely.

To state a retaliation claim, Davis must show that he engaged in 

activity protected by the Constitution or by statute, that Defendant 

Robert took an adverse action against him, and that the adverse action 

was taken because of the protected activity. Thaddeus-X v Blatter, 175 

F.Supp.3d 379, 386-387 (6th Cir 1999)(en banc). Davis contends the 

adverse action was that Defendant Robert intentionally delayed 

responding to his FOIA request until the time he had to report to 

prison. (R. 1, Compl., ¶¶6, 82-86). 

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15

To constitute First Amendment retaliation, an adverse action 

would have to deter a person of ordinary firmness from continuing to 

engage in that conduct. Scarbrough v Morgan County Bd of Educ, 470 

F3d 250, 255 (6th Cir. 2006). The term “adverse action” in such claims 

is taken from employment case law; and examples of adverse action 

include discharge, demotions, refusal to hire, nonrenewal of contracts, 

and failure to promote. Thaddeus-X, 175 F3d at 398. But the Sixth 

Circuit has held that it is not necessarily true that every action—no 

matter how small—is constitutionally cognizable. Thaddeus-X, 175 F3d 

at 396. The Court observed, “There is, of course, a de minimis level of 

imposition with which the Constitution is not concerned.” Thaddeus-X, 

175 F3d at 396 (quoting Ingraham v. Wright, 430 US 651, 674 (1977). 

In adopting the standard that an action must “deter a person of 

ordinary firmness” from exercising their rights, the Sixth Circuit in 

Thaddeus-X praised the standard as capable of being tailored to 

different circumstances and of, “screening the most trivial of actions 

constitutional cognizance.” Thaddeus-X, 175 F3d at 398.

First and foremost, Defendant Robert did not take any kind of 

“adverse action” against Davis; she responded to his FOIA request 

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16

within the time provided by statute. (Exhibit A, Affidavit of Carla 

Robert, ¶¶4-5, 7-8). A public body must issue a written notice in 

response to a FOIA request within 5 business days from the day the 

public body receives the request. Mich. Comp. Laws § 15.235(2). A 

public body may take a single 10 business day extension. Mich. Comp. 

Laws § 15.235(2)(d). And a public body does not receive a request 

submitted by electronic means, including e-mail, until 1 business day 

after it is sent. Mich. Comp. Laws § 15.235(1). 

In this case, Davis submitted a FOIA request by e-mail on 

February 9, 2015. By operation of law, the Department of Treasury 

received that request on February 10, 2015. As Davis admits, 

Defendant Robert timely sent him a notice taking the 10 business day 

extension. (R. 1, Compl., ¶26). After accounting for President’s Day on 

February 16, 2015, Treasury’s response was due March 4, 2015. 

Defendant issued a notice granting Davis’s request on March 4, 2015. 

(R. 1, Compl., at Exhibit E). 

Furthermore, even taking Davis’ complaint at face value, a mere 

delay in responding to his request cannot be considered an adverse

action for purposes of a First Amendment retaliation claim. No person 

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17

of ordinary firmness would be deterred from pursuing a FOIA request 

by a simple delay in the government’s response. Such a delay must 

instead be considered a trivial matter below constitutional cognizance. 

In addition, Davis has offered no allegations supporting a causal 

connection between the alleged delay and his prior lawsuits in 2013. A 

time span of two years does not readily lend itself to an inference of 

retaliation. The Sixth Circuit has previously held that a plaintiff may 

not rely solely on temporal proximity between a protected activity and 

adverse action. See Cockrel v. Shelby County School District, 270 F.3d 

1036, 1055 (6th Cir. 2001)(“ [T]he nonmoving party may not rely on the 

mere fact that an adverse employment action followed speech that the 

employer would have liked to prevent.”); Holzemer v. City of Memphis, 

621 F.3d 512, 526 (6th Cir. 2010) (“[O]n a particular set of facts, 

extremely close temporal proximity could permit an inference of 

retaliatory motive, but also recognizing that often evidence in addition 

to temporal proximity is required to permit the inference.”) 

Here, Davis offers nothing to suggest a causal connection except 

the fact that he filed a different lawsuit against the Department of 

Treasury two years earlier. There are no allegations of statements 

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made by Defendant Robert referencing the prior lawsuit, and Davis is 

relying only on the existence of this past protected activity. But even if 

Davis were permitted to make a claim based on temporal proximity 

alone, the span of two years is not “extremely close,” and does not give 

rise to an inference of retaliation. Holzemer, 621 F.3d at 526. 

Davis has failed to allege an adverse action or causal connection 

sufficient to support a claim of First Amendment retaliation.

Counts VI and VIII – Davis’s claims for injunctive 

relief, attorney fees, and costs are derivative of his 

other claims. They should be dismissed for the 

same reasons.

In addition to the money damages Davis seeks through Counts I –

V, Davis seeks injunctive relief in Count VI based on the same alleged 

violations of law that form the basis for his earlier counts. Since Davis 

has not stated any substantive claims in this lawsuit, his request for 

injunctive relief should also be denied.

Similarly, Davis seeks an award of attorney fees and costs in 

Count VIII based on the same alleged violations of law that form the 

basis for his earlier counts. Count VIII should be dismissed for the 

reasons described above.

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Davis’ claims are barred by immunity.

As noted above, Davis’s state law claim for relief against 

Defendant Robert in her official capacity are barred by the Eleventh 

Amendment. Pennhurst, 465 U.S. at 106. Further, his §1983 claims 

against Defendant Robert in her official capacity fail because state 

officials acting in their official capacity are also not “persons” under § 

1983. Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 71 (1989).

Finally, Davis’ claims against Defendant Robert in her individual 

capacity are barred by qualified immunity. Government officials are 

immune from liability for civil damages insofar as their conduct does 

not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known. Harlow v. Fitzgerald, 

457 U.S. 800, 818 (1982). The Supreme Court instructs lower courts to 

perform a two-tiered inquiry to determine whether a defendant is 

entitled to qualified immunity. Saucier v Katz, 533 U.S. 194, 201; 121 

S. Ct. 2151; 150 L. Ed. 2d 272 (2001). Courts should first determine 

whether “the facts alleged show the officer’s conduct violated a 

constitutional right[.]” Saucier, 533 U.S. at 201. If the plaintiff 

establishes that a constitutional violation occurred, a court must next 

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consider “whether the right was clearly established.” Saucier, 533 U.S. 

at 201. In order for a right allegedly violated to be considered clearly 

defined, “the contours of the right must be sufficiently clear that a 

reasonable officer would understand that what he is doing violates that 

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

For all of the reasons already argued, Davis has failed to make 

allegations sufficient to establish that Defendant Robert violated any of 

Davis’ rights, let alone a right that was “clearly established.” Davis has 

offered no cases supporting the proposition that, as a prisoner, he has a 

constitutional right to access the courts for matters unrelated to his 

conviction or confinement, or that Defendant Robert knew or should 

have known that by using the statutorily-provided extension, she would 

be “retaliating” against Davis for a lawsuit he filed two years earlier. 

Defendant Robert is entitled to both absolute and qualified immunity. 

This Court should grant summary judgment to her on that basis.

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CONCLUSION AND RELIEF REQUESTED

Davis has no constitutional or federal statutory right to invoke 

Michigan’s FOIA. He forfeited his right to access government records 

through Michigan’s FOIA by committing crimes that lead to his 

conviction and subsequent imprisonment. He has no one to blame for 

this situation but himself.

This Court should grant summary disposition to Defendant Robert 

as to all counts which seek relief against her, Counts I – VI and VIII. 

Defendant Robert should be dismissed.

Respectfully submitted, 

Bill Schuette

Attorney General

/s/Erik A. Grill 

Erik A. Grill (P64713)

James J. Kelly (P72111) 

Assistant Attorneys General

Attorneys for Defendant

Carla Robert

Civil Litigation, Employment & 

Elections Division

P. O. Box 30736

Lansing, MI 48909

(517) 373-6434

grille@michigan.gov

Dated: April 6, 2016

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CERTIFICATE OF SERVICE (E-FILE)

I hereby certify that on April 6, 2016, I electronically filed the 

above document(s) with the Clerk of the Court using the ECF System, 

which will provide electronic copies to counsel of record. 

/s/ Erik A. Grill 

Erik A. Grill 

Assistant Attorney General

Attorney for Defendant Carla 

Robert

Civil Litigation, Employment & 

Elections Division

P. O. Box 30736

Lansing, MI 48909

(517) 373-6434

grille@michigan.gov

P64713

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