Eighth Amendment conditions-of-confinement claim; Deliberate indifference; Qualified immunity; Objective & subjective components; Helling v McKinney; Clearly established right; Governmental immunity; Gross negligence; MCL 691.1407(2)(c) & (8)(a); Proximate cause; Individualized pleading

[This appeal was from the ED-MI.] The court held that plaintiffs plausibly alleged Eighth Amendment deliberate-indifference claims against nine prison officials and gross-negligence claims against eight of them, but five other officials were entitled to qualified and governmental immunity because the complaint alleged their personal involvement only in conclusory terms. Plaintiffs-current or former inmates at the Women’s Huron Valley Correctional Facility alleged pervasive mold throughout the prison caused serious respiratory illnesses, rashes, infections, seizures, and other health problems. The district court denied defendants’ motion for judgment on the pleadings. On appeal, the court first concluded plaintiffs satisfied the objective component of their conditions-of-confinement claims. “Contemporary standards of decency do not tolerate prolonged exposure to mold so pervasive and serious that it allegedly drips onto inmates regularly, exceeds healthy airborne levels, and causes severe respiratory conditions, rashes, and seizures.” As to the subjective component, specific allegations that nine officials received complaints, personally observed mold, ignored inspection findings, or participated in concealing the mold plausibly showed that they knew of and disregarded a substantial risk of harm. By contrast, allegations against five supervisory officials were “‘naked assertion[s] devoid of further factual enhancement’” and did not plausibly establish deliberate indifference. The court further concluded that Helling clearly established that prison officials may not ignore a condition “that is sure or very likely to cause serious illness and needless suffering,” and plaintiffs did not need precedent involving the same type of mold. Turning to Michigan law, the deliberate-indifference allegations also plausibly established gross negligence as to eight officials, and allegations that they concealed or refused to eradicate the mold sufficiently pleaded that their conduct was “the most immediate, efficient, and direct cause” of plaintiffs’ injuries. The court affirmed the denial of qualified immunity as to nine defendants and governmental immunity as to eight, reversed as to the five remaining defendants, and remanded.

Sufficiency of the evidence; Second-degree murder; Self-defense; MCL 780.972(1)(a); Sentencing proportionality; Cruel or unusual punishment; Ineffective assistance of counsel; Failure to request voluntary-manslaughter instruction; People v Yeager; Remand for a Ginther hearing

The court held that sufficient evidence supported defendant’s second-degree murder conviction and his sentence was proportionate and constitutional, but a Ginther hearing was necessary to determine whether trial counsel was ineffective for failing to request a voluntary-manslaughter instruction. Defendant stabbed the victim after the victim arrived at defendant’s home, approached the front door with a brick, and demanded that defendant come outside. Although defendant testified that he feared for himself and his daughter, other witnesses testified that he unlocked and opened the door and immediately stabbed the victim while the victim remained on the porch. The court concluded that a rational jury could find defendant “did not hold an honest and reasonable belief that the use of deadly force was necessary to prevent imminent death or great bodily harm[.]” It also rejected his sentencing challenges. His 408-month minimum fell within the 270-to-562-month guidelines range and was therefore presumptively proportionate. Defendant identified no unusual circumstances overcoming that presumption, and his potential advanced age at release did not make the sentence cruel or unusual. As to ineffective assistance, however, a rational view of the evidence supported a voluntary manslaughter instruction. The events included an escalating argument, a physical fight in which defendant was punched, defendant’s anger and agitation, and the victim’s aggressive arrival with a brick. The court concluded that “the record contained the modicum of evidence required to justify an instruction of voluntary manslaughter.” Because the existing record did not disclose why counsel failed to request the instruction, the court could not determine whether the omission reflected reasonable strategy or deficient performance. Affirmed in part, but remanded.

Search & seizure; Motion to suppress; Cell phone search warrant validity; The particularity requirement; People v Carson; People v Brcic

Holding that the search warrant at issue was facially invalid for failing “to comply with the Fourth Amendment’s particularity requirement,” the court concluded that the trial court erred in denying defendant-Perales’s motion to suppress the evidence obtained from his cell phone. In Carson, while the Michigan Supreme Court “declined to issue ‘a per se rule of specificity that applies to all cell-phone searches,’ it identified certain guidelines” to be considered. It stated “that ‘a search warrant should be as particular as the circumstances presented permit and consistent with the nature of the item to be searched.’” It noted that while specifying “‘the crime under investigation is necessary,’” it is usually not “‘sufficient to ensure adequate particularity in the context of a cell-phone search warrant.’” In addition, it “identified temporal and data-category limitations as means of particularization.” The court made it clear that law enforcement has “‘the obligation to provide the most specific description possible and to support a request to search each category of data mentioned in a warrant affidavit.’” The search warrant here “specified the crime under investigation as AWIM,” but the language used “was too broad to ensure that executing officers could ‘reasonably direct their search at uncovering evidence related to the criminal activity identified in the warrant.’ [It] broadly authorized a search of ‘the entire contents of said cell phone,’ which included, but was not limited to ‘any and all photos, videos, music, text messages, contact numbers, call history, location history and any recoverable deleted information found’” in the device as well as any evidence detailing contact between Perales and the complainant. Further, the supporting affidavit did not “supply any meaningfully limiting instructions or context to aid in particularizing the property to be searched.” It failed to “direct officers to seek data from particular dates surrounding the alleged offense and instead vaguely references evidence ‘leading up to, during and after the incident.’” The court concluded that the warrant constituted “a general warrant of Perales’s phone by authorizing the search of nearly any kind of data likely to be found without temporal limitation or adequate evidentiary support.” Reversed and remanded.

Sentencing; Scoring of OV 3; MCL 777.33(1)(c); Consideration of injuries defendant sustained; People v Laidler; Ineffective assistance of counsel; Scoring of OV 13; MCL 777.43(1)(c) & (2)(a); People v Carll; Proportionality of a departure sentence; People v Dixon-Bey

Holding that OVs 3 and 13 were properly scored, and that defendant’s departure sentences for his AWIGBH convictions did not violate the principle of proportionality, the court affirmed. He was also convicted of felony-firearm and carrying a firearm with unlawful intent. He was sentenced as a second-offense habitual offender. He only challenged his AWIGBH sentences on appeal. While his minimum guidelines range was 34 to 83 months, the trial court imposed a concurrent sentence of 10 to 15 years for each AWIGBH conviction. He first argued that it erred in assessing 25 points for OV 3 for injuries that he sustained. But in Laidler, the Michigan “Supreme Court rejected the argument ‘that a victim and an offender cannot be the same person,’ and rejected ‘a definition of “victim” that excludes offenders and co-offenders.’” Defendant tried to distinguish that case on the basis that the defendant there “was held accountable for injuries to a co-defendant, whereas, in this case, he was held accountable for injuries he sustained. But Laidler makes no such distinction[.]” Defendant also challenged the scoring of 25 points for OV 13. While he relied on Carll, the court noted that the two troopers testified he “threatened them by pointing a handgun at them two times, and so the record indicates that there were ‘separate acts in a single criminal episode,’ substantiating at least two crimes that constitute a pattern of felonious criminal activity.” As for a third criminal act, “the trial court correctly referenced defendant’s plea to attempted resisting and obstructing” from 2020. The PSIR indicated that he “was originally charged with multiple counts of resisting and obstructing, and the trial court considered the factual basis for defendant’s 2020 conviction, including that [he] actively resisted multiple” officers. As to his proportionality claim, “the trial court provided extensive reasoning for the departure sentence, describing several factors that it believed the guidelines did not reflect.” These included “the planning, intent, and lack of hesitation that defendant had displayed and described [his] ‘torture kit.’” It also found his targeting of law enforcement “particularly concerning” and noted he “had a criminal history beyond what the scoring of his” PRVs had considered.

Emergency stay of removal; Withholding of removal; 8 USC § 1231(b)(3)(A); Third-country removal under § 1231(b)(2)(E)(vii); Due process challenge to third-country removal policy; Department of Homeland Sec v DVD; Likelihood of success on the merits; Fed R Civ P 23(b)(2) class action; Effect of certified class action on individual equitable relief; Irreparable injury; Public interest

In an order, the court held that petitioner failed to satisfy the demanding standards for an emergency stay of her removal to Ghana because she had not shown a likelihood of success on the merits and the remaining stay factors did not overcome that deficiency. An immigration judge ordered petitioner, a Nigerian citizen, removed to Nigeria in 2013 but simultaneously granted withholding of removal to that country. The government later sought to remove her to Ghana under a DHS third-country removal policy without providing an additional hearing concerning the risk of persecution or torture there. Petitioner filed a mandamus action challenging that policy under federal statutes and the Due Process Clause. After the district court dismissed for lack of jurisdiction, she appealed and sought an emergency stay. The court concluded that her motion pursued “the same claims that the Supreme Court held did not warrant an injunction” in DVD, a nationwide class action challenging the same policy. Petitioner did not dispute that she was a member of that certified Rule 23(b)(2) class. The court reasoned that the Supreme Court’s repeated injunction stays in DVD “squarely controlled” her request and that an absent class member generally may not pursue a separate equitable action asserting the same classwide claim once the class has been certified. Her individualized circumstances did not change the analysis because she continued to challenge DHS’s general policy or practice rather than asserting a materially different individual claim. Thus, the Supreme Court’s stay established no “more than [a] possibility of success on the merits,” which was “all but fatal to her motion.” Her generalized evidence concerning conditions in Ghana also did not establish that the irreparable-injury factor overcame the weakness of her merits showing. Because the remaining government-harm and public-interest factors likewise favored execution of a lawful removal order, the court denied the motion for a stay of removal.

Emergency stay of removal; Withholding of removal; 8 USC § 1231(b)(3)(A); Third-country removal under § 1231(b)(2)(E)(vii); Due process challenge to third-country removal policy; Department of Homeland Sec v DVD; Likelihood of success on the merits; Fed R Civ P 23(b)(2) class action; Effect of certified class action on individual equitable relief; Irreparable injury; Public interest

In an order, the court held that petitioner failed to satisfy the demanding standards for an emergency stay of her removal to Ghana because she had not shown a likelihood of success on the merits and the remaining stay factors did not overcome that deficiency. An immigration judge ordered petitioner, a Nigerian citizen, removed to Nigeria in 2013 but simultaneously granted withholding of removal to that country. The government later sought to remove her to Ghana under a DHS third-country removal policy without providing an additional hearing concerning the risk of persecution or torture there. Petitioner filed a mandamus action challenging that policy under federal statutes and the Due Process Clause. After the district court dismissed for lack of jurisdiction, she appealed and sought an emergency stay. The court concluded that her motion pursued “the same claims that the Supreme Court held did not warrant an injunction” in DVD, a nationwide class action challenging the same policy. Petitioner did not dispute that she was a member of that certified Rule 23(b)(2) class. The court reasoned that the Supreme Court’s repeated injunction stays in DVD “squarely controlled” her request and that an absent class member generally may not pursue a separate equitable action asserting the same classwide claim once the class has been certified. Her individualized circumstances did not change the analysis because she continued to challenge DHS’s general policy or practice rather than asserting a materially different individual claim. Thus, the Supreme Court’s stay established no “more than [a] possibility of success on the merits,” which was “all but fatal to her motion.” Her generalized evidence concerning conditions in Ghana also did not establish that the irreparable-injury factor overcame the weakness of her merits showing. Because the remaining government-harm and public-interest factors likewise favored execution of a lawful removal order, the court denied the motion for a stay of removal.

Principal residence exemption (PRE); Tax Tribunal (TT) jurisdiction; MCR 2.116(C)(4); MCL 205.731; MCL 211.7cc; Governmental immunity; Governmental Tort Liability Act (GTLA); MCL 691.1407(2); Gross negligence; Intentional infliction of emotional distress (IIED); Equitable estoppel; Injunctive & declaratory relief; Motion for leave to amend; Motion for relief from judgment; MCR 2.612(C)(1)(a); Unpreserved due-process claim

The court held that plaintiff’s claims arising from the denial of her PRE were properly dismissed because the circuit court lacked jurisdiction over her request to establish entitlement to the exemption, defendant-township assessor was entitled to governmental immunity, and her remaining tort and equitable theories failed as a matter of law. Plaintiff alleged that defendants-Brooks and Tucker questioned whether she resided in West Bloomfield Township and that the assessor (Scripture) reported her alleged nonresidency to the Department of Treasury, resulting in loss of her PRE. As to her request for a declaration establishing her residency and PRE entitlement, the court concluded that the TT possessed exclusive and original jurisdiction. Subject-matter jurisdiction “‘cannot be conferred by consent, by conduct or by waiver’” or be acquired by estoppel. Scripture was also entitled to governmental immunity. Reviewing PRE eligibility and recommending denial fell within his statutory authority, and plaintiff alleged at most that he was negligent or mistaken. “Mere negligence is not enough to overcome governmental immunity.” The court further upheld dismissal of plaintiff’s IIED claim because discussions concerning her residency and Scripture’s report to Treasury were not sufficiently extreme or outrageous. It deemed her limitations argument abandoned and, as to the invasion-of-privacy claim, moot. Her equitable-estoppel theory also failed because “equitable estoppel is not an independent cause of action,” and she could not reasonably rely on an earlier residency determination as permanently establishing PRE eligibility when the exemption could be reviewed annually. Likewise, injunctive and declaratory relief were remedies rather than independent causes of action and could not survive after dismissal of the substantive claims. Finally, the trial court did not abuse its discretion by refusing further amendment after plaintiff missed the deadline it had provided. Counsel’s workload and the circumstances surrounding his medical treatment did not establish excusable neglect on this record. Affirmed.

Eighth Amendment conditions-of-confinement claim; Deliberate indifference; Qualified immunity; Objective & subjective components; Helling v McKinney; Clearly established right; Governmental immunity; Gross negligence; MCL 691.1407(2)(c) & (8)(a); Proximate cause; Individualized pleading

[This appeal was from the ED-MI.] The court held that plaintiffs plausibly alleged Eighth Amendment deliberate-indifference claims against nine prison officials and gross-negligence claims against eight of them, but five other officials were entitled to qualified and governmental immunity because the complaint alleged their personal involvement only in conclusory terms. Plaintiffs-current or former inmates at the Women’s Huron Valley Correctional Facility alleged pervasive mold throughout the prison caused serious respiratory illnesses, rashes, infections, seizures, and other health problems. The district court denied defendants’ motion for judgment on the pleadings. On appeal, the court first concluded plaintiffs satisfied the objective component of their conditions-of-confinement claims. “Contemporary standards of decency do not tolerate prolonged exposure to mold so pervasive and serious that it allegedly drips onto inmates regularly, exceeds healthy airborne levels, and causes severe respiratory conditions, rashes, and seizures.” As to the subjective component, specific allegations that nine officials received complaints, personally observed mold, ignored inspection findings, or participated in concealing the mold plausibly showed that they knew of and disregarded a substantial risk of harm. By contrast, allegations against five supervisory officials were “‘naked assertion[s] devoid of further factual enhancement’” and did not plausibly establish deliberate indifference. The court further concluded that Helling clearly established that prison officials may not ignore a condition “that is sure or very likely to cause serious illness and needless suffering,” and plaintiffs did not need precedent involving the same type of mold. Turning to Michigan law, the deliberate-indifference allegations also plausibly established gross negligence as to eight officials, and allegations that they concealed or refused to eradicate the mold sufficiently pleaded that their conduct was “the most immediate, efficient, and direct cause” of plaintiffs’ injuries. The court affirmed the denial of qualified immunity as to nine defendants and governmental immunity as to eight, reversed as to the five remaining defendants, and remanded.

Principal residence exemption (PRE); Tax Tribunal (TT) jurisdiction; MCR 2.116(C)(4); MCL 205.731; MCL 211.7cc; Governmental immunity; Governmental Tort Liability Act (GTLA); MCL 691.1407(2); Gross negligence; Intentional infliction of emotional distress (IIED); Equitable estoppel; Injunctive & declaratory relief; Motion for leave to amend; Motion for relief from judgment; MCR 2.612(C)(1)(a); Unpreserved due-process claim

The court held that plaintiff’s claims arising from the denial of her PRE were properly dismissed because the circuit court lacked jurisdiction over her request to establish entitlement to the exemption, defendant-township assessor was entitled to governmental immunity, and her remaining tort and equitable theories failed as a matter of law. Plaintiff alleged that defendants-Brooks and Tucker questioned whether she resided in West Bloomfield Township and that the assessor (Scripture) reported her alleged nonresidency to the Department of Treasury, resulting in loss of her PRE. As to her request for a declaration establishing her residency and PRE entitlement, the court concluded that the TT possessed exclusive and original jurisdiction. Subject-matter jurisdiction “‘cannot be conferred by consent, by conduct or by waiver’” or be acquired by estoppel. Scripture was also entitled to governmental immunity. Reviewing PRE eligibility and recommending denial fell within his statutory authority, and plaintiff alleged at most that he was negligent or mistaken. “Mere negligence is not enough to overcome governmental immunity.” The court further upheld dismissal of plaintiff’s IIED claim because discussions concerning her residency and Scripture’s report to Treasury were not sufficiently extreme or outrageous. It deemed her limitations argument abandoned and, as to the invasion-of-privacy claim, moot. Her equitable-estoppel theory also failed because “equitable estoppel is not an independent cause of action,” and she could not reasonably rely on an earlier residency determination as permanently establishing PRE eligibility when the exemption could be reviewed annually. Likewise, injunctive and declaratory relief were remedies rather than independent causes of action and could not survive after dismissal of the substantive claims. Finally, the trial court did not abuse its discretion by refusing further amendment after plaintiff missed the deadline it had provided. Counsel’s workload and the circumstances surrounding his medical treatment did not establish excusable neglect on this record. Affirmed.

Child’s removal; MCL 712A.13a(9); MCR 3.965(B)(12)(b) & (C); Lack of an actual physical injury; In re Middleton; Assumption of jurisdiction; MCL 712A.2b(1) & (2)

The court held that the trial court did not plainly err in removing the child from respondent-mother’s care or in authorizing a neglect petition under MCL 712A.2(b). It concluded that hearing testimony created a sufficient record as to each of the MCL 712A.13a(9) conditions for removing and placing a child into foster care. “The CPS investigator testified that respondent admitted to shaking the child with force requiring medical assessment. Respondent also made homicidal threats toward the child as revealed in text messages she sent to” the child’s putative father (nonrespondent-G). The petition indicated that she “repeated some of those threats to care providers during her in-patient psychiatric stay.” She contended “that the trial court improperly relied heavily on her statements about harming the child which were made during a mental-health crisis, and that [he] was not physically harmed. But respondent’s threats, and acting on those threats by shaking [him], and potentially punching” him (according to texts she sent to G), “were enough to find physical abuse, and so the threat of physical harm to the child existed under MCL 712A.13a(9)(a).” The court noted that while “no physical injury resulted from [her] actions, courts need not wait for actual physical injury to intervene to protect a child.” In addition, the trial court “heard testimony that respondent had not arranged for the child’s care during her inpatient psychiatric stay and he was to be discharged from the hospital the day of the preliminary hearing with nowhere to go because CPS could not locate [G], and respondent’s mother refused to provide care.” The CPS investigator also testified that respondent “admitted she lacked a bond with the child and was unable to provide” him with basic care. Further, the record did “not support her assertion that the trial court failed to consider a less restrictive alternative to removal.” The court held that “the facts showed, by a preponderance of the evidence, that returning the child to respondent upon her release from inpatient psychiatric care would be contrary to” his welfare. It also held that the record supported the trial “court’s factual findings of probable cause that one or more of the allegations in the petition were true and supported” exercising jurisdiction over him.