UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM HELMER,

Plaintiff,

v.

BRIAN GUEST, KATHLEEN SOLOMON,

OSCODA COUNTY, KEVIN GRACE,

DAVE STENZEL, ED POKRZYWNICKI,

and RONALD NIGHTINGALE

Defendants.

 /

Case No. 09-11697

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on_February 3, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

On May 4, 2009, William Helmer (“Plaintiff”), a state prisoner currently incarcerated

at the Bellamy Creek Correctional Facility, in Ionia, Michigan, filed this pro se civil rights

action pursuant to 42 U.S.C. § 1983. Presently before the Court is a Motion for Summary

Judgment filed by Defendant Guest on April 9, 2010. Also before the Court is a Motion to

Dismiss, or in the Alternative, for Summary Judgment, filed by Defendants Guest, Grace,

Solomon, Stenzel, Pokrzywnicki, and Oscoda County on October 5, 2010. The Court has

referred this action to Magistrate Judge Mona K. Majzoub for all pretrial proceedings. 

On December 22, 2010, Magistrate Judge Majzoub issued a Report and

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Recommendation (“R&R”) in which she recommends that this Court grant Defendants’

motions in part. Magistrate Judge Majzoub concludes that Plaintiff has established

genuine issues of material fact regarding his individual capacity claim of excessive force

against Defendant Guest. Magistrate Judge Majzoub also concluded that triable factual

issues exist concerning Plaintiff’s individual capacity excessive force claims against

Defendants Pokrzywnicki and Stenzel. Magistrate Judge Majzoub concluded that

Plaintiff’s remaining claims against Defendants Guest, Solomon, Grace, Stenzel,

Pokrzywnicki, and Oscoda County should be dismissed. In addition, Magistrate Judge

Majzoub recommends that this Court dismiss Defendants Solomon, Grace, and Oscoda

County from this action.

Plaintiff submitted objections to the R&R on January 3, 2011, which were filed with

this Court on January 5, 2011. Defendants filed responses to Plaintiff’s objections on

January 18, 2011.

Plaintiff’s first objection is that Defendants’ motions are untimely, as they were filed

after the April 9, 2010 cutoff for dispositive motions. After that date, however, the Court

reinstated Plaintiff’s false testimony claims and permitted Plaintiff to amend his Complaint

to add new defendants. The Court specifically noted that a new Scheduling Order would

be entered to minimize prejudice to the new defendants, as deadlines for both dispositive

motions and discovery had already passed. See Sept. 7, 2010 Op. and Order at 6. Thus,

the Court cannot conclude that Defendants’ motions are untimely.

Plaintiff next objects to Magistrate Judge Majzoub’s recommendation to dismiss his

false document and false testimony claims. Magistrate Judge Majzoub addressed these

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claims in a separate Report and Recommendation issued on November 24, 2010, and

Plaintiff filed objections to her recommendation on December 8, 2010. The Court has

concluded, in a separate Opinion and Order, that Plaintiff’s objections lack merit and the

false testimony claims must be dismissed. The Court therefore declines to discuss the

false testimony claims in further detail here.

Plaintiff objects to Magistrate Judge Majzoub’s conclusion that his official capacity

claims must be dismissed. In support of his position, Plaintiff asserts essentially the same

arguments he relied upon in objecting to Magistrate Judge Majzoub’s Report and

Recommendation of November 24, 2010. Because the Court has already concluded that

these arguments lack merit, they will not be addressed here. Plaintiff cites Arpin v. Santa

Clara Valley Transportation Agency, 261 F.3d 912, 925 (9th Cir. 2001), for the

proposition that even a bare allegation that officers’ conduct conformed to official policy

is sufficient to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). Official capacity suits “‘generally represent only another way of pleading an

action against an entity of which an officer is an agent.’” Brandon v. Holt, 469 U.S. 464,

472 n.21, 105 S. Ct. 873, 878 n.21 (1985) (quoting Monell v. Dep’t of Social Servs., 436

U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55 (1978)). For Plaintiff to hold a municipality

liable for his injuries, he must establish that a municipal policy or action was the “moving

force” behind the injury. Memphis, Tenn. Area Local, Am. Postal Workers Union, AFLCIO v. City of Memphis, 361 F.3d 898, 902 (6th Cir. 2004). Plaintiff has not alleged facts

sufficient to find that a policy of Oscoda County was the moving force behind his injuries;

thus, his official capacity claim against Guest fails.

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Plaintiff objects to Magistrate Judge Majzoub’s conclusion that he has failed to assert

state law claims of assault and battery. Plaintiff contends that he should be permitted to

add these claims due to his pro se status. Plaintiff’s Complaint and Amended Complaint,

however, clearly stated that his claims arose under 42 U.S.C. § 1983. The Court also

recognizes that Magistrate Judge Majzoub denied Plaintiff’s motion to file a Second

Amended Complaint, noting that the Court has been lenient in granting him extensions and

that several dispositive motions were pending before the Court. The Court concludes that

the Amended Complaint fails to assert state law assault or battery claims, and rejects

Plaintiff’s objection.

Plaintiff next objects to Magistrate Judge Majzoub’s conclusion that his claims

against Defendants Grace and Oscoda County should be dismissed for failure to exhaust

administrative remedies. Plaintiff asserts that Defendants failed to raise this affirmative

defense. Defendants, however, have not yet filed Answers to the Amended Complaint. 

Plaintiff also asserts that he was unaware of any administrative remedies, but he clearly

exercised those remedies in making his claims against other Defendants. The Court

therefore rejects Plaintiff’s objection.

Plaintiff objects to Magistrate Judge Majzoub’s conclusion that he has not shown

how the decision to allow witnesses to guard and transport Plaintiff led to his injuries. 

Plaintiff makes conclusory assertions to this effect, but fails to establish a more substantial

link. Plaintiff also asserts that the presence of officers during conversations with his

attorney violated his Sixth Amendment rights. Plaintiff admits that “the mere presence of

a guard may not impede the attorney-client relationship,” but fails to establish anything

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further in support of his Sixth Amendment claim. Plaintiff has not shown that Guest

interfered in any way with his right to the effective assistance of counsel. Standing alone,

this is plainly insufficient to support Plaintiff’s Sixth Amendment claim.

Plaintiff disagrees with Magistrate Judge Majzoub’s recommendation that this Court

dismiss the malicious prosecution claims brought against Pokrzywnicki and Stenzel. A

police officer may be responsible for commencing criminal proceedings for purposes of a

malicious prosecution claim where he made, influenced, or participated in the decision to

prosecute. Sykes v. Anderson, 625 F.3d 294, 311 (6th Cir. 2010). Plaintiff has failed to set

forth any evidence showing that Pokrzywnicki or Stenzel made, influenced, or participated

in the decision to prosecute him. Plaintiff has also failed to identify any specific false

statements made by Pokrzywnicki or Stenzel. Accordingly, neither Pokrzywnicki nor

Stenzel can be held liable for malicious prosecution under § 1983.

Finally, Plaintiff objects to Magistrate Judge Majzoub’s recommendation “in regards

to additional constitutional violations.” This vague statement appears to refer to Plaintiff’s

proposed Second Amended Complaint. Because Magistrate Judge Majzoub has already

denied Plaintiff’s motion to file his Second Amended Complaint, the Court declines to

consider Plaintiff’s additional constitutional claims.

For the reasons stated above, the Court concurs with the conclusions reached by

Magistrate Judge Majzoub and rejects Plaintiff’s objections to the R&R.

Accordingly,

IT IS ORDERED that Defendant Guest’s Motion for Summary Judgment is

DENIED with respect to the individual capacity excessive force claim against him, and

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GRANTED with respect to the remaining claims against him;

IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by

Defendants Pokrzywnicki and Stenzel is DENIED with respect to the individual capacity

excessive force claims against them, and GRANTED with respect to the remaining claims

against them;

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is

GRANTED with respect to the claims against Defendants Solomon, Grace, and Oscoda

County;

IT IS FURTHER ORDERED that Defendants Solomon, Grace, and Oscoda

County are DISMISSED from this action.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

William Helmer, #140677

Bellamy Creek Correctional Facility

1727 West Bluewater Highway

Ionia, MI 48846

D. Randall Gilmer, Esq.

G. Gus Morris, Esq.

Adam Purnell, A.A.G.

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