NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0700n.06

Case No. 20-1124

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAVID AVERY, RESCUE UNIT TOWING, 

INC., UNIVERSE INVESTMENTS, L.L.C., and 

RESCUE UNIT TOWING, INC.,

Plaintiffs-Appellants,

v.

JOCELYN BENSON, Secretary of State of the 

State of Michigan,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

O P I N I O N

BEFORE: BATCHELDER, CLAY, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. David Avery operates a tow truck recovery service, and

he often sells the cars he recovers. As part of an investigation into allegations of title fraud against 

Avery, the Michigan Secretary of State’s office placed an “administrative flash” on Avery and his 

companies (the other plaintiffs). According to the complaint, the administrative flash requires 

Avery to seek approval from an investigator in the Secretary of State’s office before selling cars

or renewing his driver’s license. Avery sued Secretary of State Benson and three other defendants 

under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, Takings Clause, Eighth 

Amendment, and the Due Process and Privileges or Immunities Clauses of the Fourteenth 

Amendment and seeking an injunction against the administrative flash. The district court 
Case No. 20-1124, Avery v. Benson

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dismissed all of Avery’s claims, and Avery appealed only the dismissal of his claims against

Benson. Although the district court erred in finding that it lacked jurisdiction over Avery’s claims, 

we affirm its dismissal based on its alternate holding that Avery failed to state a claim on which 

relief can be granted.

The district court dismissed Avery’s claims against Benson because it found that Avery 

could not maintain a suit against Benson in her official capacity under § 1983. In so finding, it 

relied on the Supreme Court’s statement in Will v. Michigan Department of State Police that state 

officials in their official capacity are not “persons” under § 1983. See 491 U.S. 58, 71 (1989). But

we have held repeatedly, in reliance on footnote ten in Will, that the “personhood” of official 

capacity defendants under § 1983 turns on the relief a plaintiff seeks. See, e.g., Diaz v. Mich. Dep’t 

of Corr., 703 F.3d 956, 964 (6th Cir. 2013); Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 637 & n.3

(6th Cir. 2005). When plaintiffs seek only injunctive relief, Ex Parte Young allows the plaintiff to 

circumvent state sovereign immunity. See Puckett v. Lexington-Fayette Urb. Cnty. Gov’t, 833 

F.3d 590, 598–99 (6th Cir. 2016). Here, Avery has dropped his claim for damages and now seeks 

only injunctive relief. So we must determine whether Avery has stated a plausible claim.

We review a dismissal for failure to state a claim de novo. Rudd v. City of Norton Shores, 

977 F.3d 503, 511 (6th Cir. 2020). Our analysis accepts as true all of the complaint’s factual 

allegations and draws all reasonable inferences in Avery’s favor, but we disregard legal 

conclusions. Id. To survive dismissal, the complaint must “plausibly give rise to entitlement to 

relief.” Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018). Avery’s claims do not. 

Fourth Amendment. The amended complaint’s allegation that the administrative flash 

constitutes both a search and a seizure is exactly the kind of “naked assertion” of liability that the 

Supreme Court has instructed is inadequate. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 
Case No. 20-1124, Avery v. Benson

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Bell Atl. Corp. v. Twombly, 550 U.S. 554, 557 (2007)). Nothing in Avery’s complaint alleges what 

the administrative flash is searching, so that aspect of his claim fails. And a delay in the ability to 

sell cars—the only possible “seizure” that can be inferred from the complaint—does not constitute 

a seizure under the Fourth Amendment. See California v. Hodari D., 499 U.S. 621, 624 (1991) 

(noting that seizure means “taking possession”).

Takings Clause. The Takings claim is similarly lacking in factual support. Initially, a 

taking requires a cognizable property interest under state law. Kerns v. Chesapeake Exploration, 

L.L.C., 762 F. App’x 289, 296 (6th Cir. 2019). The complaint does not allege that Avery has any 

property interest in the cars that he recovers. What’s more, the injury that the complaint alleges 

with regard to the cars is that Avery is “[b]eing deprived of the opportunity to timely respond to 

business opportunities.” Delaying Avery’s car sales is not a taking of private property.

Eighth Amendment. The Eighth Amendment applies to punishments. See Timbs v. 

Indiana, 139 S. Ct. 682, 689–90 (2019) (noting that the Eighth Amendment’s Excessive Fines 

Clause only applies to civil forfeitures when they are partially punitive). Avery does not allege 

that the requirement that he seek an investigator’s approval to sell cars is punishment for anything, 

so this claim fails.

Due Process. Avery alleges that his inability to sell cars or renew his driver’s license 

without seeking an investigator’s approval deprives him of a property interest without due process 

of law. He is correct that he has a property interest in his driver’s license. See Fowler v. Benson,

924 F.3d 247, 257 (6th Cir. 2019) (“Supreme Court case law recognizes a protectible property 

interest in a driver’s license under state law.”). But he does not allege that the administrative flash 

deprives him of that interest. He alleges only that it subjects the renewal of his license to an 

investigator’s approval without offering any claim that the investigator will withhold approval. As 
Case No. 20-1124, Avery v. Benson

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such, he fails to allege a sufficiently concrete, particularized, and imminent injury to warrant 

injunctive relief on his due process claim. See Summers v. Earth Island Inst., 555 U.S. 488, 493 

(2009). 

Privileges or Immunities. The complaint does not clarify what privilege or immunity of 

citizenship the administrative flash deprives Avery of. In his opening brief before this court, Avery 

clarifies that the administrative flash deprives him of his constitutional right to sell cars in the 

national market. The Supreme Court made clear more than a century and a half ago that the “clause 

did not protect an individual’s right to pursue an economic livelihood.” Craigmiles v. Giles, 312 

F.3d 220, 229 (6th Cir. 2002) (citing Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872)). 

Avery’s claim that selling cars in the national market is a privilege or immunity of national 

citizenship falls squarely within that rule. 

We can affirm the district court on any grounds that the record supports. Wallace v. 

Oakwood Healthcare, Inc., 954 F.3d 879, 886 (6th Cir. 2020). Although the district court erred in 

dismissing the case because Avery sued Benson in her official capacity, its alternate holding that 

Avery does not state a claim on which relief can be granted is correct. We therefore affirm on that 

ground.