Prisoner claims related to a dog allergy; Eighth Amendment’s cruel & unusual punishment prohibition; Qualified immunity; Clearly established right; Lack of case law specifically addressing the issue; Distinguishing cases involving prisoners exposed to tobacco smoke; Hunt v Reynolds; Helling v McKinney; Claims under Section 504 of the Rehabilitation Act (RA) & Title II of the Americans with Disabilities Act (ADA); Finley v Huss; Failure to accommodate; Medical documentation; Tchankpa v Ascena Retail Group, Inc; Kennedy v Superior Printing Co; Johnson v Dobbins (Unpub 6th Cir); Intentional discrimination; The McDonnell Douglas burden-shifting framework; Michigan Department of Corrections (MDOC)

[This appeal was from the WD-MI.] The court held that defendant-prison counselor (Pancheri) was entitled to qualified immunity on plaintiff-prisoner’s (Miles-El) cruel and unusual punishment claim where no case “clearly established that the Eighth Amendment required Pancheri to transfer Miles-El to a prison without a dog program.” It also held that the other defendants were properly granted summary judgment on his ADA and RA failure to accommodate and intentional discrimination claims. He has “asthma and an alleged allergy to dogs. While incarcerated, he sued over his exposure to dogs at” defendant-MDOC’s facilities. He asserted that “Pancheri’s failure to isolate him from dog dander violated the” Eighth Amendment, and that the MDOC and other state entities violated Title II of the ADA and Section 504 of the RA, among other things. To overcome Pancheri’s qualified immunity defense, Miles-El had to show a violation of a right that was clearly established at the time of the challenged conduct. The right he asserted was “that an officer violates the Eighth Amendment ‘by declining to transfer a prisoner with asthma to a facility without a dog program or by transferring that prisoner to a facility with a dog program.’” But the closest cases he cited for clearly established law were “two decisions involving prisoners exposed to tobacco smoke[,]” Hunt and Helling. The court found that they concerned “situations afield from the facts here.” It concluded that neither “case clearly established that the Eighth Amendment required Pancheri to transfer Miles-El to a prison without a dog program.” Miles-El’s chronic-care report only documented “his asthma generally and identified ‘animals’ as one of several aggravating factors[.]” The court noted that it “also indicated that inhalers relieved his symptoms. That was the very remedy that prison officials provided.” As to his ADA and RA failure to accommodate claim, the court held that it failed “because he did not sufficiently document a health condition that required the prison to accommodate him by completely isolating him from dogs.” Finally, the intentional discrimination claim failed because he did not point to any “evidence connecting either his transfer to Alger or the denial of his requested transfer to discriminatory animus based on his disability.” Thus, he did not establish a prima facie case. Affirmed.

Prisoner claims related to a dog allergy; Eighth Amendment’s cruel & unusual punishment prohibition; Qualified immunity; Clearly established right; Lack of case law specifically addressing the issue; Distinguishing cases involving prisoners exposed to tobacco smoke; Hunt v Reynolds; Helling v McKinney; Claims under Section 504 of the Rehabilitation Act (RA) & Title II of the Americans with Disabilities Act (ADA); Finley v Huss; Failure to accommodate; Medical documentation; Tchankpa v Ascena Retail Group, Inc; Kennedy v Superior Printing Co; Johnson v Dobbins (Unpub 6th Cir); Intentional discrimination; The McDonnell Douglas burden-shifting framework; Michigan Department of Corrections (MDOC)

[This appeal was from the WD-MI.] The court held that defendant-prison counselor (Pancheri) was entitled to qualified immunity on plaintiff-prisoner’s (Miles-El) cruel and unusual punishment claim where no case “clearly established that the Eighth Amendment required Pancheri to transfer Miles-El to a prison without a dog program.” It also held that the other defendants were properly granted summary judgment on his ADA and RA failure to accommodate and intentional discrimination claims. He has “asthma and an alleged allergy to dogs. While incarcerated, he sued over his exposure to dogs at” defendant-MDOC’s facilities. He asserted that “Pancheri’s failure to isolate him from dog dander violated the” Eighth Amendment, and that the MDOC and other state entities violated Title II of the ADA and Section 504 of the RA, among other things. To overcome Pancheri’s qualified immunity defense, Miles-El had to show a violation of a right that was clearly established at the time of the challenged conduct. The right he asserted was “that an officer violates the Eighth Amendment ‘by declining to transfer a prisoner with asthma to a facility without a dog program or by transferring that prisoner to a facility with a dog program.’” But the closest cases he cited for clearly established law were “two decisions involving prisoners exposed to tobacco smoke[,]” Hunt and Helling. The court found that they concerned “situations afield from the facts here.” It concluded that neither “case clearly established that the Eighth Amendment required Pancheri to transfer Miles-El to a prison without a dog program.” Miles-El’s chronic-care report only documented “his asthma generally and identified ‘animals’ as one of several aggravating factors[.]” The court noted that it “also indicated that inhalers relieved his symptoms. That was the very remedy that prison officials provided.” As to his ADA and RA failure to accommodate claim, the court held that it failed “because he did not sufficiently document a health condition that required the prison to accommodate him by completely isolating him from dogs.” Finally, the intentional discrimination claim failed because he did not point to any “evidence connecting either his transfer to Alger or the denial of his requested transfer to discriminatory animus based on his disability.” Thus, he did not establish a prima facie case. Affirmed.

Constitutional right to a speedy trial; Barker v Wingo factors; 26-month pretrial delay; Other-acts evidence; MCL 768.27a; MRE 403; People v Watkins; Prior CSC II conviction; Authentication of Snapchat messages; MRE 901; Mandatory life without parole (LWOP); MCL 750.520b(2)(c); Cruel or unusual punishment; Const 1963 art 1, § 16; People v Brown; People v Parks; People v Taylor; Prior-conviction sentencing enhancement; Almendarez-Torres v United States; Apprendi v New Jersey

The court held that defendant’s approximately 26-month pretrial delay did not violate his speedy-trial rights, the challenged other-acts and Snapchat evidence was properly admitted, and his mandatory LWOP sentences under MCL 750.520b(2)(c) were constitutional as applied to him. Defendant was convicted of six counts of CSC I involving a child under 13 and accosting a child for an immoral purpose. Although the delay exceeded 18 months and was presumptively prejudicial, application of the other Barker factors showed that relatively little delay was attributable to the prosecution, some resulted from court-system problems and pretrial proceedings, and defendant contributed to the delay by obtaining new counsel shortly before trial. He also did not show prejudice to his defense. Balancing the factors, the court held that “the prosecution overcame the presumption and defendant’s speedy trial rights under the United States and Michigan Constitutions were not violated.” The trial court also properly admitted defendant’s 2002 CSC II conviction under MCL 768.27a. Although approximately 20 years separated the offenses, defendant spent 12 of those years incarcerated, the offenses shared relevant similarities, and the prior conviction was reliable. The court emphasized that propensity evidence authorized by MCL 768.27a may not be excluded under MRE 403 merely because it permits a propensity inference. The Snapchat messages were also sufficiently authenticated through the victim’s testimony and their content. The prosecution made the required prima facie showing that a reasonable juror could find the messages were exchanged between defendant and the victim, leaving their ultimate weight to the jury. Finally, the court rejected defendant’s argument that Parks and Taylor rendered mandatory LWOP unconstitutional because the prior CSC offense triggering the enhancement occurred when he was about 18. Those cases concerned sentencing offenders for crimes committed during late adolescence. Here, defendant committed the six sentencing offenses when he was approximately 37 or 38. Thus, “the statute here does not impose LWOP for a single CSC I conviction defendant committed when he was about 18, it enhances the applicable penalty for his conduct when he was in his late 30s.” The court likewise rejected his federal constitutional challenge because the prior-conviction exception recognized in Almendarez-Torres and Apprendi remains binding, and the victim’s age was already an element of his prior CSC II conviction. Affirmed.

Sufficiency of the evidence; Child sexually abusive activity (CSAA); MCL 750.145c(2); Knowledge that the decoy was a child; Failure to take reasonable precautions to determine age; OV 19; MCL 777.49(c); Denial of culpability; People v Deweerd; Ineffective assistance of counsel; Failure to raise entrapment; People v Jade; Unlawful-inducement prong; Reprehensible-conduct prong; Prejudice

In an order, the court granted reconsideration and vacated its prior opinion. It issued a new opinion holding that defendant-Nowicki received ineffective assistance of counsel because trial counsel failed to raise entrapment as a defense. He was convicted of one count of CSAA after a police sting in which an officer created a Grindr profile representing the decoy as 18, using an adult’s photograph. Defendant arranged to meet the decoy for sexual activity after the decoy sent messages suggesting he was younger and eventually stated “15.” On appeal, the court first concluded that sufficient evidence supported the conviction. Viewed in the prosecution’s favor, “[t]aken as a whole, the jury could reasonably infer that Nowicki either knew or should reasonably have known that he was arranging to engage in sexual acts with a child.” It also concluded that the jury could find defendant failed to take reasonable precautions because he relied solely on the profile age despite knowing Grindr did not verify ages and that underage users could access the app. As to sentencing, the court held that OV 19 was improperly scored at 10 points based on defendant’s evasive statements to police because “[t]hose statements . . . amount to nothing more than a denial of culpability for the offense.” Turning to ineffective assistance, the court found both deficient performance and prejudice. Applying Jade, it determined that the facts implicated both entrapment prongs where the police profile presented an adult, defendant initially pursued lawful adult sexual activity, and the decoy introduced the underage element through ambiguous language and then escalated the encounter. Emphasizing that “‘police must detect crime, not manufacture it,’” the court concluded that the operation involved “the manufacturing of a crime” because police “introduced all criminal elements and induced—using ambiguous language—conduct that the suspect had not shown a willingness to commit.” The court did not itself find entrapment as a matter of law. On remand, the trial court must decide that issue. If defendant was entrapped, it must set aside the conviction and dismiss the case. If not, the conviction stands and the trial court must resentence him. Conditionally reversed and remanded.

Ineffective assistance of counsel; Failure to challenge the prosecution expert’s qualifications; Daubert v Merrell Dow Pharm, Inc; People v Spaulding; MRE 702; Failure to advance a meritless argument; Other acts evidence; MRE 404(b); Hearsay; Whether there was any connection between the disputed testimony & MCL 769.27c; Plain error review; Denial of a motion for a mistrial

The court held that defendant’s trial counsel was not ineffective for failing to challenge the prosecution expert’s (R) qualifications or to request a Daubert hearing. Further, the trial court did not improperly admit other acts evidence or otherwise commit evidentiary error, and did not abuse its discretion in denying his mistrial motion. He was convicted of aggravated assault, CSC I, and witness bribery. The court first concluded that trial counsel “‘had no grounds for requesting a Daubert hearing into the scientific reliability’ of [R’s] expert testimony under the” circumstances. R testified about “her education, decades of experience, professional accolades, and her having served as an expert witness in that and other courts over 100 times. In light of that testimony and [R’s] curricula vitae (admitted into evidence without objection, and to which defendant raises no challenge on appeal), the trial court qualified [R] as an expert and permitted her to testify ‘as to her opinion . . . in the field of victimization and trauma dynamics through sexual assault and domestic violence and nonintuitive victim responses.’” Defendant did not meaningfully challenge her qualifications, or “acknowledge, let alone reckon with,” the court’s precedent establishing “the futility of the challenge he insists trial counsel should have made.” And counsel is not ineffective for failing to raise a futile objection. As to his other acts evidence claims, among other things, because R did not testify about “any prior bad acts, defendant” could not show “the trial court plainly erred, let alone in a manner affecting his substantial rights, by failing to exclude her testimony under MRE 404(b).” He also raised an unpreserved challenge to testimony by the complainant that he choked her on an occasion not involved in the charges. But even if it was inadmissible under MRE 404(b), the prosecution sought to admit it under MCL 768.27b, and defendant did not challenge its separate admissibility under the statute. Affirmed.

Challenge to a probation condition; Mootness; People v Anderson

Holding that defendant’s challenge to a probation condition he was no longer subject to was moot, the court dismissed his appeal. The condition at issue restricted his contact with his two minor children. He acknowledged “that contact with his children was subsequently restored and that there is no practical relief” the court could now offer him. It noted that in Anderson, it deemed moot a “defendant’s challenge to a probation condition that he was no longer subject to[.]”

Affidavit of Identity (AOI); MCL 168.558; Seven-day deadline for challenging an AOI; MCL 168.552(2); Mich Admin Code R 168.5; Mootness; Public-significance exception; Administrative rulemaking authority; Statutory gap

The court held that Rule 168.5’s seven-day deadline for challenging an AOI was valid because defendant-Secretary properly exercised delegated rulemaking authority to fill a procedural gap in Michigan election law. A candidate (nonparty-A) filed her AOI on 4/20/26, and plaintiff-Davis did not challenge it until 5/8/26, after the 4/28/26 deadline. The Secretary rejected his challenge as untimely and found that he lacked good cause for the delay. After the Court of Claims granted the Secretary summary disposition, the 2026 primary occurred and A lost. Thus, all of Davis’s appellate issues were moot. But the court addressed the facial validity of Rule 168.5 under the exception for a matter “of public significance that is likely to recur, yet evade judicial review.” It noted that ballot and AOI disputes are particularly likely to evade review because of election deadlines and that a published ruling would provide guidance beyond the parties. On the merits, the court expressly adopted the reasoning of an earlier unpublished decision involving Davis. Michigan election statutes “are silent about the procedures for officials to use when weighing AOI challenges.” The court determined that “[t]his silence is precisely the type of scenario that is appropriate for administrative rulemaking” where the Legislature has delegated rulemaking authority. It found nothing in the rule that exceeded the Secretary’s statutory authority or conflicted with legislative intent and concluded that “the seven-day deadline for challenging an AOI was a permissible delegation of rulemaking authority.” Thus, the filing official had authority to reject Davis’s untimely challenge, and the Court of Claims properly granted the Secretary summary disposition. Affirmed.

Domestic PPO; MCL 600.2950(1)(a) & (4); Reasonable cause; Entry into jointly owned marital home; MCL 600.2950(5); Legitimate-purpose provisions; MCL 750.411h(1)(c) & MCL 750.411i(1)(d); Distinguishing Pickering v Pickering

The court held that the trial court did not abuse its discretion by entering a PPO that prohibited respondent-husband from entering the parties’ jointly owned marital home because reasonable cause existed to believe he might again enter without petitioner-wife’s consent or court approval. Petitioner and respondent were divorcing and jointly owned the marital home. After an earlier PPO and extension expired in 10/24, respondent called petitioner on 10/26/24 seeking to retrieve belongings. She responded through AppClose that he should provide a list and arrange for a police civil standby. About two hours later, respondent entered the home with one of the parties’ children and removed property from the garage. Petitioner returned, blocked his vehicle, and called police. The trial court credited petitioner’s testimony, expressed concern over respondent’s use of self-help while property distribution remained at issue in the divorce, and entered the 2024 PPO. On appeal, the court concluded that the record supported the reasonable-cause finding. Respondent had proceeded despite petitioner’s express objection and admitted as to her request for a civil standby that he “didn’t consider that a deterrent.” The court stated that it was “not definitely and firmly convinced the trial court mistakenly found reasonable cause to believe respondent may again attempt to enter the marital home without consent or court approval.” His joint ownership did not require a different result because MCL 600.2950(5)’s limitation did not encompass spouses with joint property interests. Even assuming respondent had a legal right to enter, he “provides no legal support for the apparent proposition that his ownership interest in the property, alone, permitted him to enter it over petitioner’s objection under these circumstances.” His reliance on the legitimate-purpose provisions governing stalking and aggravated stalking was also misplaced because neither offense formed the basis for the PPO, and Pickering involved a different statutory subsection. Affirmed.