Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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The Prison Litigation Reform Act (PLRA); Payment of filing fees by prisoners; The PLRA’s “three-strikes” rule; 28 USC § 1915(g); Whether mixed-claim actions (those involving claims covered by the PLRA & claims not covered by it) count as strikes; Pointer v Wilkinson
[This appeal was from the WD-MI.] The court joined other circuits in holding that under § 1915(g) of the PLRA, “all claims in a complaint, not just some of them, must be dismissed on grounds listed in the Act for the dismissal to count as a strike.” Thus, it vacated the district court’s denial of in forma pauperis status to plaintiff-prisoner (Crump) based on the PLRA’s three-strikes rule and dismissal of his action against defendants-prison employees. Crump, who is incarcerated at a correctional facility in Michigan, sued several prison employees under § 1983 for allegedly withholding treatment for his multiple sclerosis. He “did not pay his filing fee and instead sought leave to proceed in forma pauperis. The district court held that the Act’s three-strikes rule disqualified him from obtaining” this relief. On appeal, the court framed the question as whether “mixed-claim actions, those involving claims covered by the Act and claims not covered by the Act, count as strikes under the Prison Litigation Reform Act?” Reviewing the PLRA’s language, the court noted that the Act “refers to ‘action[s] or appeal[s],’ not claims, when it mentions what counts as a strike.” The court explained that an “action” usually means the whole “case containing one or multiple claims.” It agreed with other circuits that “‘a prisoner’s entire “action or appeal” must be dismissed on a § 1915(g) ground to count as a strike under the PLRA.’” The court determined that “Crump’s prior actions—one that included a decision not to exercise supplemental jurisdiction over state-law claims and one that included a dismissal on Eleventh Amendment immunity grounds—do not count as strikes.” It did not see any “good ground to extend” the reasoning in Pointer, noting that decision’s “reasoning has not fared well in the other circuits, and it’s not clear that it respects the language of the Act. Either way, the essential point today is that Pointer’s holding does not cover these dismissals. A dismissal for failure to exhaust is different in kind from today’s dismissals. A failure to exhaust is an affirmative defense that defeats liability. . . . A refusal to exercise supplemental jurisdiction and an Eleventh Amendment dismissal amount to defenses that avoid deciding liability altogether.” Vacated and remanded.
Right to present a defense & to a fair trial; Exclusion of evidence; United States v Blackwell (6th Cir); Relevance; MRE 401; Unfair prejudice; MRE 403; Sentencing; Scoring of OV 4 (victim suffered a serious psychological injury); MCL 777.34(l)(a); Child victims; People v Needham; New York v Ferber; Comparing People v White; Presentence Investigation Report (PSIR); Child sexually abusive activity (CSAA); Using a computer to commit a crime (UCCC); Child sexually abusive material (CSAM)
The court held that there was no violation of defendant’s constitutional rights, but that the trial court erred in assessing 10 points for OV 4 at sentencing. However, since the scoring error did not alter his guidelines range, the court affirmed his convictions and sentences, but remanded for the ministerial task of correcting the PSIR. He was convicted of multiple counts of CSAA, CSAM, and UCCC after the search and seizure of computers that allegedly contained CSAM. The trial court sentenced him to 10 to 20 years for CSAA and the corresponding UCCC counts, with the sentences to run concurrently. On appeal, the court rejected his argument that the inability to present searches on a pornography website to the jury denied him the right to present a defense and deprived him of his right to a fair trial. It agreed with the prosecution that conducting a search on the pornography website several years after the original search was done would not be relevant. And even if it were, the court agreed “with the trial judge in finding such a demonstration would be more prejudicial than probative. There would be no way to ensure that the search results presented to the jury would match the results [defendant] would have accessed years prior to trial – leading to potential confusion and misleading of the jury.” In addition, “as the ages of the individuals featured here were only proven with expert testimony, the search results alone would be insufficient to establish that the individuals were over” 18 years old. Further, the “point that defense counsel sought to assert with the use of the [pornography] website was accomplished through the testimony of several witnesses, including two prosecution witnesses.” As to the scoring of OV 4, the record lacked “victim testimony regarding psychological injury or a prospect of such injury suffered by said victim.” Comparing White, the court noted there was “no victim impact statement at a preliminary examination or at sentencing to establish psychological injury.” As such, the trial court “erred in scoring OV 4 at 10 points.” But because this error did not alter the guidelines range, resentencing was not required, only remand to correct the PSIR “to reflect 0 points for OV 4.”
Sufficiency of the evidence; First-degree felony murder; MCL 750.316(1)(b); People v Lane; Intent to kill; People v Unger; Identity; People v Yost; Sentencing; Proportionality; Youth as a mitigating factor; People v Boykin; Unusual circumstances
The court held that the evidence was sufficient to support defendant’s convictions, and that his murder sentences were proportional. He was convicted of first-degree felony murder and felony-firearm for his involvement in a botched robbery when he was 17. The trial court sentenced him to concurrent terms of 38 to 60 years for each murder conviction, and a consecutive 2 years for each felony-firearm conviction. On appeal, the court rejected his argument that there was insufficient evidence to prove beyond a reasonable doubt that he accompanied his codefendant, Cooper, to the scene of the shooting. While defendant “may be correct about the lack of physical evidence and testimony from Cooper, there was sufficient evidence produced at trial to establish that he was present at the murder scene and that he caused the deaths of” the victims. In addition, the “evidence was sufficient for a reasonable jury to find [he] possessed a handgun . . . before the murders, possessed a handgun on his person in the car on the way to the murders, and shot” the victims. Further, “there was sufficient evidence of [the] third element for first-degree felony murder, that [he] killed [the victims] while committing, attempting to commit, or assisting in the commission of robbery.” The court also rejected his claim that his murder sentences were “disproportionate given his age at the time of the crimes, that he was present for a robbery only due to the heavy influence of a much older person, and that this much older person, codefendant Cooper, received a 25-year prison sentence compared to” his 38 to 60-year sentences. Defendant “presented no unusual circumstances that render his presumptively proportionate sentences disproportionate. On the contrary, the trial court’s sentence appears to satisfy the requirements of proportionality and reasonableness.” Affirmed.
Whether the Whistleblowers’ Protection Act (WPA) claim was barred by the statute of limitations (SOL); MCL 15.363(1); Constructive discharge; Joliet v Pintoniak
The court concluded that because “plaintiff failed to allege a wrongful act occurring within 90 days before she filed her complaint, the trial court did not err by determining that the” SOL barred her claim and thus, defendants were entitled to summary disposition. Plaintiff was employed by defendant-school district as a special education teacher. One of her students became violent. She “alleged that after the incident she repeatedly communicated to [defendant-Principal Cox] that the student should not be returned to the classroom at that time without a further plan to address the student’s behavior. Cox apparently disagreed, and the student was returned to the classroom. Plaintiff thereafter contacted her union representative with her concerns, met repeatedly with Cox regarding the student, and filed an internal complaint alleging that Cox was violating the school’s policy in her discipline of the student.” Plaintiff alleged that on 3/6/20, “she was contacted by Cox’s supervisor to attend a ‘pre-corrective action’ meeting to discuss the school district’s concerns about plaintiff. Plaintiff alleged that thereafter defendants harassed and retaliated against her, concluding with a final interaction with defendants on” 5/21/21. On 6/7/21, she submitted her resignation, effective 8/10/21. She argued “that her claim did not accrue until she was constructively discharged on [8/10/21], and that her complaint therefore was timely filed on [8/26/21], within the 90-day period of limitation provided by MCL 15.363(1).” Plaintiff claimed “that after she reported that Cox was failing to follow school policies, defendants retaliated against her with disciplinary and harassing measures that ultimately led her to resign.” Defendants contended, and the trial court found, that her claim was barred by the WPA’s 90-day SOL “because there is no dispute that the alleged adverse employment actions occurred at the latest on [5/21/21], more than 90 days before plaintiff filed her complaint.” Plaintiff argued “that her claim accrued at the time she left her employment with defendant. This argument was rejected by our Supreme Court in Joliet[.]” Thus, the court held that “in this case plaintiff’s claim accrued, if at all, on the date of defendants’ alleged wrongful act and not on the date she resigned from her employment with the school.” Affirmed.
Medical malpractice; Timeliness; The discovery rule; MCL 600.5838a(2); The six-year statute of repose; Fraudulent concealment; MCL 600.5855; Sills v Oakland Gen Hosp; A defendant’s silence despite knowledge of a potential cause of action; Kroll v Vanden Berg; Eschenbacher v Hier; Regarding fraud as a continuing affirmative act; Draws v Levin
Holding that plaintiff’s medical malpractice claims were time-barred, the court affirmed summary disposition for defendants. In 2012, defendant-Dr. Castro performed sinus surgery on plaintiff. After he was indicted in 2022 “for performing unnecessary sinus surgeries on other patients[,]” she filed suit. She first contended on appeal that “her complaint was timely under the discovery rule” in MCL 600.5838a(2). The court disagreed, noting the six-year statute of repose included in that statute. Because she filed suit over 10 years after her surgery, she could not rely on the discovery rule “to save her claims.” She further argued the statute of repose did not apply “because Dr. Castro engaged in fraudulent conduct that concealed the existence of her claims as described in MCL 600.5838a(2)(a) and” 600.5855. But as in Sills, plaintiff did not plead fraudulent concealment in the complaint. She asserted “there are two exceptions to the rule requiring her to allege the specific acts or misrepresentations that constituted fraudulent concealment. She first contends that a defendant’s silence despite knowledge of a potential cause of action will constitute fraudulent concealment if the parties have a fiduciary relationship.” But the court found her reliance on Kroll was “misplaced because that case did not establish a broad fiduciary exception to the general rule that mere silence is insufficient to establish fraudulent concealment.” And the court in Eschenbacher “did not state that a doctor’s mere silence was sufficient to establish fraudulent concealment because of the fiduciary relationship between a physician and patient.” In addition, it “relied to a significant extent on the fact that the defendant physician referred the plaintiff to his family doctor, who ultimately discovered the physician’s malpractice.” In this case, court found that plaintiff’s “difficulty breathing and consultation with other specialists following surgery should have alerted her of a possible cause of action, including a claim alleging that her surgery was unnecessary.” Under the facts here, “Dr. Castro’s silence did not constitute fraudulent concealment of plaintiff’s claims . . . .” The court also rejected her argument as to a second exception related to situations where “the basis of a cause of action is fraud[.]” It held that “MCL 600.5855 required plaintiff to file her complaint within two years after she experienced her postsurgical symptoms. Because she failed to do so, her complaint was untimely.”
Medical malpractice; The two-year limitations period; MCL 600.5805(8); The six-year statute of repose; Burton v Macha; The discovery rule; MCL 600.5838a(2); The fraudulent-concealment exception; MCL 600.5855; Sills v Oakland Gen Hosp; Effect of silence; Eschenbacher v Hier; The fiduciary-relationship exception; Kroll v Vanden Berg; Continuing affirmative act; Draws v Levin
Holding that the trial court did not err by finding plaintiff failed to timely file her complaint, the court affirmed the grant of summary disposition for defendants-doctor and healthcare providers. Plaintiff sued defendants for medical malpractice arising out of a sinus surgery. The trial court granted summary disposition for defendants on the basis that plaintiff’s claim was time-barred. On appeal, the court rejected plaintiff’s argument that her complaint was timely under the discovery rule set forth in MCL 600.5838a(2). Her argument failed because of the six-year statute of repose, which “provides that a ‘claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim.’” Because her surgery occurred in2014 “and she filed her complaint more than eight years later, plaintiff cannot rely on the discovery rule set forth in MCL 600.5838a(2) to save her claims.” In addition, similar “to Sills, plaintiff in the instant case failed to plead fraudulent concealment in her complaint.” And her “reliance on Kroll is misplaced because that case did not establish a broad fiduciary exception to the general rule that mere silence is insufficient to establish fraudulent concealment.” In addition, the “Eschenbacher Court did not state that a doctor’s mere silence was sufficient to establish fraudulent concealment because of the fiduciary relationship between a physician and patient.” Finally, MCL 600.5855 “required plaintiff to file her complaint within two years after her symptoms failed to improve and she treated with other specialists. Because she failed to do so, her complaint was untimely.” Affirmed.
Termination under § 19b(3)(j); The doctrine of anticipatory neglect; Whether parental rights were terminated at the initial dispositional hearing; Applicability of MCR 3.977(E); Reasonable reunification efforts
Concluding that MCR 3.977(E) did not apply, the court held that reasonable reunification efforts were made and that § (j) supported terminating respondent-mother’s parental rights to the child (MJA). While respondent asserted the trial court terminated her “rights under MCR 3.977(E) at the initial dispositional hearing[,]” it in fact did so “a little over two months later during a termination hearing.” The initial dispositional hearing was conducted in March and the termination hearing in May. “While the dispositional hearing was essentially contemporaneous with the adjudication trial, it was unambiguously a different proceeding from the termination hearing.” In addition, the trial court did not excuse the DHHS “from making reasonable efforts. The order following the preliminary hearing expressly ordered that ‘[r]easonable efforts shall be made to preserve and reunify the family to make it possible for the child(ren) to safely return home.’ At the adjudication trial, the trial court refused to consider [DHHS’s] previous efforts to reunify respondent with her other children sufficient to ‘satisfy the reasonable efforts requirement,’ and it again ordered that reasonable efforts must be made for reunification with MJA.” It also ordered that if respondent “could show as little as a month of consistent attendance at mental health appointments, [her] parenting time could be resumed.” The court further found that the DHHS “actually made reasonable efforts.” As to a statutory ground for termination, her “failure to participate in or benefit from services, persistent combativeness, and inability to parent her children safely provided evidence that she would likely treat MJA similarly. The trial court did not terminate her” rights on the basis “she necessarily would treat MJA similarly merely because she had treated the older children in a particular way. Rather, [it] gave her a meaningful opportunity to show that she could safely parent MJA.” The court found “no reason to believe MJA was situated differently from the other children.” In addition, there was sufficient evidence specifically as to MJA that respondent “was incapable of providing for MJA, still failed to understand how to parent safely, was homeless and not making meaningful efforts to find housing, was belligerent and violent, was failing to take medications, and showed no insight into her mental health challenges.” Affirmed.