TED BIRKHOLZ, Personal Representative of the Estate of Helen Alton v. Naomi Mial

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0090n.06
Filed: February 3, 2009
Nos. 08-1239, 08-1269
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TED BIRKHOLZ, Personal Representative of the
Estate of Helen Alton; MARTHA PRIDEMORE;
CINDY SCHWARTZKOPF, Personal Representative
of the Estate of Jacob Schwartzkofp,
and
LAWRENCE J. KAWECKI, a protected person;
JOANNE MARLOWE, Conservator and Guardian
and on behalf of a class individuals similarly situated,
Plaintiffs-Appellants,
v.
NAOMI MIAL,
Defendant,
COUNTY OF MACOMB; MACOMB COUNTY
DEPARTMENT OF SENIOR CITIZENS SERVICES;
MARY NELSON-PULICE,
Defendants-Appellees.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
BEFORE: NORRIS, BATCHELDER, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Plaintiffs, representing the interests of several estates, appeal the
district court’s grant of summary judgment in favor of defendants Macomb County, Macomb County
Department of Senior Citizen Services, Naomi Mial, and Mary Nelson-Pulice. Plaintiffs brought

-- 1 of 2 --

Nos. 08-1239, 08-1269
Birkholz v. County of Macomb
- 2 -
this suit pursuant to 42 U.S.C. § 1983, claiming that defendants’ misappropriation of funds from
plaintiffs’ estates amounted to a violation of their substantive due process rights under the Fourteenth
Amendment. After reviewing the record, the parties’ briefs, and the applicable law, and hearing oral
argument, this court determines that no jurisprudential purpose would be served by a panel opinion
and affirms the district court’s decision for the reasons stated in part III.C of Judge Rosen’s January
24, 2008, opinion and order. See Kawecki ex rel. Marlowe v. County of Macomb, Nos. 04-70907,
05-73498, 2008 WL 205241, at *23 (E.D. Mich. Jan. 24, 2008). Plaintiff cites no authority for the
award of damages on a substantive due process theory for governmental action that neither threatens
nor causes physical injury. In light of plaintiffs’ failure to state a constitutional claim to support their
§ 1983 action, it is not necessary to address the district court’s alternative holding that the plaintiffs’
claims were barred by the collateral estoppel effect of the state probate court proceedings. The
judgment of the district court is therefore affirmed.

-- 2 of 2 --