If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

EDWARD PINKNEY,

Plaintiff-Appellant,

UNPUBLISHED

May 26, 2022

v No. 356363

Court of Claims

STATE OF MICHIGAN, DEPARTMENT OF 

CORRECTIONS, and BERRIEN COUNTY 

PROSECUTOR’S OFFICE,

LC No. 18-000112-MM

Defendants-Appellees.

Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

In this constitutional-tort case, plaintiff, Edward Pinkney, appeals as of right an order 

granting summary disposition to the State of Michigan (SOM) and the Department of Corrections 

(DOC)1under MCR 2.116(C)(8) and (10) and denying plaintiff’s request to amend his complaint. 

Plaintiff also challenges an earlier grant of summary disposition to defendant Berrien County 

Prosecutor’s Office (BCPO) under MCR 2.116(I)(2). The crux of plaintiff’s claims is that his due

process rights under the Michigan Constitution were violated when he was charged, convicted, 

imprisoned, and subject to parole supervision for a violation of MCL 168.937[2] because the 

Michigan Supreme Court later concluded that this statute does not, in fact, create a substantive 

crime. We affirm.

 

1 The SOM and DOC are often referred to as one entity below and on appeal; accordingly, this 

opinion employs the blended acronym “SOM/DOC.”

2 This statute states:

Any person found guilty of forgery under the provisions of this act shall, 

unless herein otherwise provided, be punished by a fine not exceeding $1,000.00, 

or by imprisonment in the state prison for a term not exceeding 5 years, or by both 

such fine and imprisonment in the discretion of the court. [MCL 168.937.]
-2-

I. BACKGROUND AND BASIC FACTS

Pertinent background facts for the present case are set forth in People v Pinkney, 501 Mich 

259, 264; 912 NW2d 535 (2018) (Pinkney II):

Defendant [i.e., plaintiff in the present case] was charged with five counts 

of election-law forgery under MCL 168.937 and six counts of making a false 

statement in a certificate-of-recall petition under MCL 168.957. After being bound 

over to the Berrien Circuit Court on these charges, defendant filed a motion to quash 

arguing, inter alia, that § 937 is a penalty provision, not a substantive, chargeable 

offense. The circuit court denied the motion to quash, and the case proceeded to 

trial. After an eight-day trial, the jury returned verdicts of guilty on the five felony 

counts and not guilty on the six misdemeanor counts. In a motion for a directed 

verdict, defendant again argued that § 937 is a penalty provision and not a 

substantive offense. The circuit court denied the motion and sentenced defendant 

to concurrent prison terms of 30 to 120 months.

After plaintiff appealed, this Court engaged in statutory construction and looked favorably to an 

unpublished opinion—People v Hall, unpublished per curiam opinion of the Court of Appeals, 

issued October 23, 2014 (Docket No. 321045), rev’d on other grounds 449 Mich 446 (2016)—and 

concluded that § 937 sets forth a substantive offense. People v Pinkney, 316 Mich App 450, 462-

465; 891 NW2d 891 (2016) (Pinkney I), rev’d by Pinkney II.

3

 The Supreme Court disagreed,

concluding that § 937 is a penalty provision and that the Legislature appeared to have inadvertently 

left it in—without a corresponding substantive offense—when amending the statutory scheme. 

Pinkney II, 501 Mich at 285-287. The Supreme Court stated, “After focusing on the plain 

language, context, and history of § 937, we conclude that it is nothing more than an inoperative 

penalty provision,” adding, “[W]e recognize that our conclusion that § 937 is an inoperative 

penalty provision is an unusual one, and it is not one that we reach lightly.” Id. at 287.

 

3

In Hall, unpub op at 6, this Court stated, “Reviewing this statute in the context of the Michigan 

election law as a whole[] indicates that MCL 168.937 is not merely a penalty provision, but rather 

creates a substantive offense of forgery.” The Michigan Supreme Court reversed this Court’s 

opinion on other grounds, and it stated, in part:

The Court of Appeals held that this statute creates a substantive offense . . . . 

Although the defendant argued in the Court of Appeals that MCL 168.937 does not 

create a substantive offense, he did not appeal this holding or otherwise pursue this 

argument, and the parties did not otherwise ask us to review it. We therefore 

decline to reach this question. [People v Hall, 449 Mich 446, 449 n 2; 884 NW2d 

561 (2016).]

The Court in Pinkney I stated, “[W]hile our Supreme Court’s decision in Hall . . . does not 

specifically address the issue of whether MCL 168.937 creates a substantive offense, it certainly 

does not compel a conclusion other than the one that we have reached in this case.” Pinkney I, 

316 Mich App at 467.
-3-

After the vacating of his convictions by the Michigan Supreme Court, plaintiff filed the 

present lawsuit on the basis of a theory with roots in the United States Supreme Court case of 

Monell v Dep’t of Social Servs of City of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 

(1978). In Monell, id. at 690, the Court stated:

Our analysis of the legislative history of the Civil Rights Act of 1871 

compels the conclusion that Congress did intend municipalities and other local 

government units to be included among those persons to whom [42 USC] 1983[4]

applies. Local governing bodies, therefore, can be sued directly under § 1983 for 

monetary, declaratory, or injunctive relief where, as here, the action that is alleged 

to be unconstitutional implements or executes a policy statement, ordinance, 

regulation, or decision officially adopted and promulgated by that body’s officers. 

Moreover, although the touchstone of the § 1983 action against a government body 

is an allegation that official policy is responsible for a deprivation of rights 

protected by the Constitution, local governments, like every other § 1983 “person,”

by the very terms of the statute, may be sued for constitutional deprivations visited 

pursuant to governmental “custom” even though such a custom has not received 

formal approval through the body’s official decisionmaking channels.

After the issuance of Monell, this Court indicated that a Monell-type claim can be made 

against the state—not just local government units—for violations of the Michigan Constitution. 

For example, in Carlton v Dep’t of Corrections, 215 Mich App 490, 504-505; 546 NW2d 671 

(1996), the Court stated:

A claim for damages against the state arising from a violation by the state 

of the Michigan Constitution may be recognized in appropriate cases. Liability for 

a violation of the state constitution should be imposed on the state only in those 

cases in which the state’s liability would, but for the Eleventh Amendment,[5]render 

 

4 This statute deals with civil actions for the deprivation of rights and states:

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, subjects, or 

causes to be subjected, any citizen of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured in an action 

at law, suit in equity, or other proper proceeding for redress, except that in any 

action brought against a judicial officer for an act or omission taken in such 

officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory 

decree was violated or declaratory relief was unavailable. For the purposes of this 

section, any Act of Congress applicable exclusively to the District of Columbia 

shall be considered to be a statute of the District of Columbia. [42 USC 1983.]

5 The Eleventh Amendment “safeguards the state’s sovereignty in our federal system of 

government.” Jones v Powell, 462 Mich 329, 333-334; 612 NW2d 423 (2000).
-4-

it liable under the 42 USC § 1983 standard for local governments articulated in 

Monell[.]

In Monell, the United States Supreme Court held that a local government 

would be liable under § 1983 only when the execution of an official policy or 

custom caused a person to be deprived of federal constitutional rights. The policy 

or custom must be the moving force behind the constitutional violation in order to 

establish liability.

Thus, the state will be liable for a violation of the state constitution only in 

cases where a state custom or policy mandated the official or employee’s actions. 

[Quotation marks and citations omitted.]

Plaintiff filed his complaint “against the State of Michigan, the Michigan Department of 

Corrections and Berrien County Prosecutor’s Office (a Sub-Entity, Arm and/or Agency of the State 

of Michigan for Purposes of the Claims Herein) due to violations of the Plaintiff’s constitutional 

rights.” Plaintiff stated that “Defendant Berrien County Prosecutor is a subentity, arm and/or 

agency of the State of Michigan and is being sued in order to hold this subentity, arm and/or agency 

of the State of Michigan liable for the constitutional violation(s) herein as opposed to Michael 

Sepic [who held the position of Berrien County Prosecutor at the time of defendant’s trial and 

conviction] being held personally liable for damages in his individual capacity.” Plaintiff alleged 

that Sepic was a policymaker for purposes of holding the state liable under a Monell-type theory

and violated plaintiff’s constitutional rights by prosecuting plaintiff and convicting him of a 

nonexistent crime. He also alleged that the SOM/DOC had a policy of incarcerating and paroling 

convicted persons and that this policy rendered the state liable for violating plaintiff’s 

constitutional rights.

After plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(10), the 

lower court granted summary disposition to the BCPO under MCR 2.116(I)(2), concluding that 

the Court of Claims lacked subject-matter jurisdiction for a claim against the BCPO because it was 

a county office.6 Later, the court granted the SOM/DOC’s motion for summary disposition under 

 

6 MCL 600.6419(1)(a) indicates that the Court of Claims has jurisdiction

[t]o hear and determine any claim or demand, statutory or constitutional, liquidated 

or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, 

or declaratory relief or any demand for an extraordinary writ against the state or 

any of its departments or officers notwithstanding another law that confers 

jurisdiction of the case in the circuit court.

The phrase “the state or any of its departments or officers” is defined in MCL 600.6419(7) to mean

this state or any state governing, legislative, or judicial body, department, 

commission, board, institution, arm, or agency of the state, or an officer, employee, 

or volunteer of this state or any governing, legislative, or judicial body, department, 
-5-

MCR 2.116(C)(8) and (10), concluding that no state policy was at issue for a claim such as that 

discussed in Carlton because the BCPO was a local—not a state—office. The court concluded 

that an additional basis for dismissal was the fact that plaintiff had not alleged a constitutional dueprocess violation because he in fact received due process throughout the criminal proceedings. 

The court also denied as futile plaintiff’s attempt to amend the complaint.

II. STANDARDS OF REVIEW

As stated in Stehlik v Johnson, 206 Mich App 83, 85; 520 NW2d 633 (1994):

Summary disposition is reviewed de novo, because this Court must review 

the record to determine whether the moving party was entitled to judgment as a 

matter of law. MCR 2.116(C)(8) permits summary disposition when the opposing 

party has failed to state a claim upon which relief can be granted. A motion under 

this subsection determines whether the opposing party’s pleadings allege a prima 

facie case. The court must accept as true all well-pleaded facts. Only if the 

allegations fail to state a legal claim is summary disposition pursuant to MCR 

2.116(C)(8) valid. A motion pursuant to MCR 2.116(C)(10) tests the factual basis 

underlying a plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition 

when, except for the amount of damages, there is no genuine issue concerning any 

material fact and the moving party is entitled to damages as a matter of law. A 

court reviewing such a motion must consider the pleadings, affidavits, depositions, 

admissions, and any other evidence in favor of the opposing party and grant the 

benefit of any reasonable doubt to the opposing party. [Citations omitted.]7

This Court reviews for an abuse of discretion a trial court’s ruling regarding a motion to 

amend a complaint. Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 215-216; 859 NW2d 

238 (2014). “[A]n abuse of discretion occurs only when the trial court’s decision is outside the 

range of reasonable and principled outcomes.” In re Kostin, 278 Mich App 47, 51; 748 NW2d 

583 (2008).

 

commission, board, institution, arm, or agency of this state, acting, or who 

reasonably believes that he or she is acting, within the scope of his or her authority 

while engaged in or discharging a government function in the course of his or her 

duties.

This statutory grant of jurisdiction “does not extend to local officials.” Mays v Snyder, 323 Mich 

App 1, 47; 916 NW2d 227 (2018), aff’d 506 Mich 157 (2020).

7 As noted, the court granted summary disposition to the BCPO under MCR 2.116(I)(2). “The 

trial court appropriately grants summary disposition to the opposing party under MCR 2.116(I)(2) 

when it appears to the court that the opposing party, rather than the moving party, is entitled to 

judgment as a matter of law.” BC Tile & Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich App 576, 

590; 794 NW2d 76 (2010) (quotation marks and citation omitted).
-6-

III. ANALYSIS

“Where it is alleged that the state, by virtue of custom or policy, has violated a right 

conferred by the Michigan Constitution, governmental immunity is not available in a state court 

action.” Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987), aff’d sub nom 

Will v Mich Dep’t of State Police, 491 US 58 (1989). There is authority for concluding that the 

decision to charge and prosecute plaintiff for a crime under the ostensible authority of MCL 

168.937 was a “policy” for purposes of a Monell-type analysis. See, e.g., Pembaur v City of 

Cincinnati, 475 US 469, 480-481; 106 S Ct 1292; 89 L Ed 2d 452 (1986), superseded in part by 

statute as recognized by Francis v Carroll, 659 F Supp 2d 619, 626 (Del, 2009); see also Mays v 

Snyder, 323 Mich App 1, 63-64; 916 NW2d 227 (2018), aff’d 506 Mich 157 (2020). The parties 

hotly dispute, however, whether the BCPO was acting as an arm of the county or an arm of the 

state in prosecuting plaintiff. Ultimately, we need not resolve this question because even if the 

Court of Claims erred regarding the “state actor” issue, dismissal was nevertheless warranted on 

the basis of plaintiff’s failure to allege or support any viable constitutional violation. See, e.g., 

Mays, 323 Mich App at 58 (noting that a threshold question in determining the availability of a 

damages remedy was whether the plaintiffs had “alleged facts that, if proved true, are sufficient to 

establish . . . a [constitutional] violation”).

As noted, the Court of Claims indicated that an additional basis for dismissal—beyond the 

“state actor” issue—was the fact that plaintiff had, in fact, obtained full due process throughout 

the criminal proceedings.8 Indeed, it is not in dispute that plaintiff had traditional notice and an 

opportunity to be heard; this process was, of course, what led to the ultimate overturning of his 

convictions. Plaintiff, citing Hurtado v California, 110 US 516; 4 S Ct 111; 28 L Ed 232 (1884)

among other cases, suggests that he did not obtain due process because the charging document did 

not contain a crime, and Hurtado, id. at 525, states that a crime must be set forth in an indictment 

or other document.9 But an ostensible crime was set forth against plaintiff, and in fact, on the day 

his trial began, a panel of this Court in Hall concluded that MCL 168.937 set forth a substantive 

offense. Plaintiff is attempting to analogize the present case to a situation in which an accused 

received no notice of the offense being alleged, but plaintiff received such notice and had a full, 

fair, and comprehensive opportunity to defend himself and raise his objections—one of which was 

ultimately successful. See, generally, In re Rood, 483 Mich 73, 92-93; 763 NW2d 587 (2009)

(opinion by CORRIGAN, J.) (discussing requirements for procedural due process).

Statements from the case of Baker v McCollan, 443 US 137; 99 S Ct 2689; 61 L Ed 433 

(1979), are also instructive by analogy. In Baker, id. at 145, the Court said, “The [federal] 

Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide 

 

8 Const 1963, art 1, § 17, states, in part, “No person shall be compelled in any criminal case to be 

a witness against himself, nor be deprived of life, liberty or property, without due process of law.”

9 Plaintiff also relies heavily on Class v United States, ___ US ___; 138 S Ct 798; 200 L Ed 2d 37 

(2018). But Class merely indicates that a plea of guilt does not obviate a person’s ability to argue 

that the statute under which he or she was convicted was unconstitutional. See id., 138 S Ct at 

802-803. Here, plaintiff already raised and “won” his argument that the statute under which he 

was convicted did not provide a valid means for convicting him.
-7-

a cause of action for every defendant acquitted—indeed, for every suspect released.” The Baker 

Court also stated, “The Fourteenth Amendment [of the United States Constitution] does not protect 

against all deprivations of liberty. It protects only against deprivations of liberty accomplished 

‘without due process of law.’ ” Id. The fact that plaintiff was successful in vacating his convictions 

does not automatically mean that his due-process rights were violated.

Defendant also argues that his imprisonment was void—and that the SOM/DOC is liable 

independent of any actions of the BCPO—because the process he obtained was inadequate. But 

his process was, in fact, adequate under constitutional standards for procedural due process. 

Plaintiff further contends that the trial court’s order was erroneous because the lower court 

considered only procedural due process and not substantive due process. It is true that the court 

did not undertake an analysis of substantive due process, but we may nevertheless consider it upon 

our de novo review of the summary-disposition decision. See, e.g., Mays, 323 Mich App at 58 

(“[W]e must review the matter de novo, giving no deference to the lower court decision, in order 

to determine whether defendants were entitled to judgment as a matter of law.”).

In Mays, id., the Court stated, “The due process guarantee of the Michigan Constitution is 

coextensive with its federal counterpart,” and added, “The doctrine of substantive due process 

protects unenumerated fundamental rights and liberties under the Due Process Clause of the 

Fourteenth Amendment.” (Quotation marks and citations omitted.) In Mettler Walloon LLC v 

Melrose Twp, 281 Mich App 184, 200; 761 NW2d 293 (2008), the Court explained that a viable 

claim regarding the violation of the right to substantive due process involves an action so arbitrary 

in the constitutional sense so as to “shock the conscience.” “Michigan courts have acknowledged 

that the essence of a substantive due process claim is the arbitrary deprivation of liberty or property 

interests.” Id. at 201. “To state a cognizable substantive due process claim, the plaintiff must 

allege conduct intended to injure in some way unjustifiable by any government interest and that is 

conscience-shocking in nature.” Id. at 201-202 (quotation marks and citations omitted). “At a 

minimum, proof of deliberate indifference is required.” Mays, 323 Mich App at 61.10

The charges against defendant and his convictions, imprisonment, and parole were not 

arbitrary in the constitutional sense, were not intended to injure in a way unjustifiable by any 

government interest, and did not shock the conscience. The statute in question was clearly subject 

to different interpretations by reasonable minds. Recall that in Pinkney II, 501 Mich at 287, the 

Michigan Supreme Court stated, “[W]e recognize that our conclusion that § 937 is an inoperative 

penalty provision is an unusual one, and it is not one that we reach lightly.” (Emphasis added.) 

 

10 A plurality of the United States Supreme Court indicated in Albright v Oliver, 510 US 266, 271-

272; 114 S Ct 807; 127 L Ed 2d 114 (1994):

As a general matter, the Court has always been reluctant to expand the 

concept of substantive due process because the guideposts for responsible 

decisionmaking in this unchartered area are scarce and open-ended. The 

protections of substantive due process have for the most part been accorded to 

matters relating to marriage, family, procreation, and the right to bodily integrity. 

[Quotation marks and citation omitted.]
-8-

The persons or institutions responsible for charging, trying, and imprisoning plaintiff and 

supervising him on parole were not acting with deliberate indifference but were reasonably 

attempting to implement an existing statute. Under these circumstances, defendant did not allege 

or provide evidentiary support for a substantive due-process claim in connection with the actions 

of the BCPO or the DOC.11

Plaintiff also raises an argument about his attempt to amend the complaint. MCR 

2.116(A)(2) states, in part, that “a party may amend a pleading only by leave of the court or by 

written consent of the adverse party. Leave shall be freely given when justice so requires.” “Leave 

to amend should ordinarily be denied only for particularized reasons such as undue delay, bad faith 

or dilatory motive, repeated failures to cure by amendments previously allowed, or futility.” In re 

Kostin, 278 Mich App at 52. “An amendment is futile if it merely restates the allegations already 

made[.]” Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 209; 920 

NW2d 148 (2018) (quotation marks and citation omitted). Plaintiff, in seeking an amendment, 

was not seeking to raise any new claims but was simply attempting to clarify that he was relying 

on the Michigan Due Process Clause and Monell. The trial court did not abuse its discretion by 

denying the motion to amend the complaint.

Affirmed.

/s/ Michael F. Gadola

/s/ Deborah A. Servitto

/s/ James Robert Redford

 

11 We note that the DOC was required to fulfill its duties of imprisoning plaintiff and supervising 

his parole and was not empowered to release him until being informed that the convictions had 

been vacated. In imprisoning plaintiff for convictions that were later deemed improper, the DOC 

did not choose a course of action from among various alternatives. See Mays, 323 Mich App at 

64.