Deak v. Schuitema et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
J ONATHAN D AVID D EAK , 	)
Plaintiff, 	)
) 	No. 1:26-cv-1610
v. 	)
) 	Honorable Paul L. Maloney
M IKE SCHUITEMA,
ET AL ., 	)
Defendants. 	)
)
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on Magistrate Judge Green’s Report and
Recommendation (R&R), (ECF No. 8), in which he recommended that Plaintiff’s complaint
be dismissed for failure to state a claim. Plaintiff, proceeding
in forma pauperis in this case,
objected to the R&R. (ECF No. 9). Plaintiff suggests that the “core question” in this case is
whether “the State of Michigan [may] criminally prosecute” him “for failing to comply with
a civil child support order that was entered without the appointment of counsel.” (ECF No.
2). The answer to that question, based on binding legal authority, is straightforwardly yes,
and Plaintiff’s contrary conclusion relies on misrepresentations of the few cases he cites. The
R&R will thus be adopted, and Plaintiff’s complaint will be dismissed.
I.
After being served with a report and recommendation issued by a magistrate judge, a
party 	has 	fourteen 	days 	to 	file 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. §
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636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a de
novo review under the statute.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam). An “objection does not oblige the district court to ignore the report and
recommendation.”
Fharmacy Recs. v. Nassar, 465 F. App’x 448, 456 (6th Cir. 2012). Our
Local Rules require any party objecting to a report and recommendation to “specifically
identify the portions of the proposed findings, recommendations or report to which
objections are made and the basis for such objections.” W.D. Mich. LCivR 72.3(b);
see also
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (holding that “objections disput[ing] the
correctness of the magistrate’s recommendation but fail[ing] to specify the findings . . .
believed [to be] in error” are too general).
In cases where the plaintiff proceeds in forma pauperis, courts must dismiss the case
if they determine that the plaintiff fails to state a claim on which relief may be granted. U.S.C.
§ 1915(e)(2). To state a claim, “a complaint must contain sufficient factual matter, accepted
as true” to plausibly suggest that the plaintiff is entitled to the relief requested.
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Facts “merely consistent with” the defendant’s liability
suggest only possibility, not plausibility, and thus fail this test.
Id. In assessing whether the
complaint contains sufficient factual matter, courts need only accept factual allegations as
true and not legal conclusions or unwarranted inferences.
Kottmayer v. Maas, 436 F.3d 684,
688 (6th Cir. 2006).
II.
Plaintiff seeks an injunction preventing Defendants, a local prosecutor and Michigan’s
Attorney General, from enforcing a criminal statute against him. The statute in question
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allows criminal charges “[i]f the court orders an individual to pay support for the individual's
former or current spouse, or for a child of the individual, and the individual does not pay
the support in the amount or at the time stated in the order.” Mich. Comp. Laws § 750.165.
Plaintiff alleges that an order to pay child support was entered against him in civil
proceedings. During those proceedings, he requested the appointment of counsel, and that
request was denied. He alleges that he is in arrears on his child support payments and argues
that any criminal prosecution of him for failure to pay would be constitutionally defective
because he was denied appointed counsel in the civil proceeding.
Before discussing the R&R and Plaintiff’s objections, some legal background is in
order. In Michigan, child support orders emerge from adversarial civil proceedings in which
defendants have “the opportunity to voice any objections,” direct appeal is available, and
“there are ample statutory provisions under which a party can seek to have [a] judgment
revised to take into consideration changing financial circumstances.”
People v. Adams, 683
N.W.2d 729, 735 (Mich. Ct. App. 2004). In these civil proceedings, no person can be jailed
or imprisoned—the Court determines a financial obligation. But if a child support order is
entered in those proceedings and the person does not pay, the government may prosecute
the person, and to convict, it must prove beyond a reasonable doubt “that (1) the defendant
was required by a divorce order to support a child, (2) the defendant appeared in or received
notice of the action in which the order was issued, and (3) the defendant failed to pay the
required support at the time ordered or in the amount ordered.”
People v. Iannucci, 887
N.W.2d 817, 818-19 (Mich. Ct. App. 2016). The civil proceeding in which the child support
order is entered and the criminal proceedings for failure to pay are separate proceedings in
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separate courts with different parties.
See People v. Likine, 823 N.W.2d 50, 73 (Mich. 2012).
“Neither the support order nor evidence of a defendant’s failure to pay introduced in the
family court proceedings, singly or together, establishes proof beyond a reasonable doubt
that a defendant is guilty of felony nonsupport.”
Id. “[D]ifferent procedural safeguards exist
in family court proceedings than in the criminal proceedings” in a felony nonsupport case,
and in the criminal case, the defendant maintains “the full panoply of constitutional
protections that inhere in any criminal prosecution, which are simply inapplicable in civil
family court proceedings,” including the right to counsel and present defenses which may
not be relevant in a civil case.
Id.
Indigent defendants have a Sixth Amendment right to counsel in criminal cases.
See
Gideon v. Wainwright, 372 U.S. 335 (1963). This right of an indigent litigant to counsel does
not extend to all civil proceedings: an indigent litigant might have that right in a civil case
“only when, if he loses, he may be deprived of his physical liberty,” and even then, not in “
all
such cases.”
Turner v. Rogers, 564 U.S. 431, 443 (2011). In
Turner, the Court held that “the
Due Process Clause does not
automatically require the provision of counsel at civil contempt
proceedings to an indigent individual who is subject to a child support order, even if that
individual faces incarceration.”
Id. at 448. The Court held that because an indigent,
unrepresented person was deprived of liberty without either counsel or adequate procedural
safeguards, the proceeding resulting in his incarceration was in violation of the Due Process
Clause.
See id. at 448-49. In a case where the party claiming a right to counsel did not face a
deprivation of physical liberty, but rather a termination of parental rights, the Court found
that the Constitution did not require “the appointment of counsel in every parental
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termination proceeding,” and left decisions about “whether due process calls for the
appointment of counsel for indigent parents in termination proceedings” to trial courts.
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31-32 (1981).
Turning back to this case, Plaintiff argues that in the civil proceedings where his child
support obligations were determined—where he never faced the possibility of losing his
physical liberty—he had a right to counsel, and relies on
Turner and
Lassiter, two cases where
the Court held that there was
not a right to counsel. (
See ECF No. 2 at PageID.24-27). To
the extent that
	Turner and
	Lassiter are informative, they are so for civil contempt
proceedings based on failure to pay a child support obligation and proceedings where
parental rights could be terminated. This case involves neither.
Turner is closer, but the
suggested, non-necessary safeguards in
Turner would apply in a proceeding where a person
could be deprived of his liberty.
See 564 U.S. at 447-48 (suggesting four safeguards in civil
contempt proceedings and explaining that others might be sufficient). Here, that proceeding
is a yet-to-begin criminal one with
greater safeguards. Plaintiff was never proceeding on a firm
foundation; no wonder, then, that the Magistrate Judge recommended finding that Plaintiff
failed to state a claim. (
See ECF No. 8 at PageID.49-52). The Court now addresses Plaintiff’s
objections.
Plaintiff’s first objection relates to standing. The Magistrate Judge recommended
finding that Plaintiff lacked standing because the prospect of his prosecution was merely
speculative. (
Id. at PageID.47-48). Plaintiff argues that there is a history of “past enforcement
against the same conduct” establishing that “the threat of enforcement is not chimerical.”
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014) (citation modified). But the
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history to which Plaintiff alludes is not presented in the complaint. (
See ECF No. 1 at
PageID.3-5 ¶¶ 10-21). Instead, it is presented for the first time in the objections to the R&R:
Plaintiff represents that felony arrest warrants have issued against him before for failing to
pay his child support obligations. (ECF No. 9 at PageID.55). They cannot have been
“pleaded with sufficient specificity in the original complaint,” (
id. at PageID.56), because they
were not referenced at all. Plaintiff argues that he should be granted leave to amend his
complaint rather than having it dismissed on standing grounds. (
See id.). Amendments to
the complaint must be made under Federal Rule of Civil Procedure 15, not through
objections to an R&R. Even if the Court were amenable to breaking with normal procedure
and 	allowing 	amendment 	to 	cure 	the 	standing 	issue, 	amendment 	would 	be 	futile
substantively, as discussed below.
Plaintiff’s second objection contains several distinct claims, none of which have merit.
First, Plaintiff argues that the R&R contains references to child custody proceedings, when
Plaintiff’s argument is about determinations of child support. (ECF No. 9 at PageID.57). But
the points made in the R&R are that
Turner was about what due process required in civil
contempt proceedings rather than prior child custody or child support proceedings, and that
Lassiter was about cases where parental rights could be terminated. (ECF No. 8 at
PageID.50-51). Second, Plaintiff argues that
Turner entitled him to the suggested safeguards
in the civil proceeding in which his child support obligations were determined. It did not:
Turner 	applied 	safeguards 	only 	because 	the 	civil 	contempt 	proceeding 	resulted 	in
incarceration. Plaintiff never argues that a potential criminal proceeding would have
insufficient safeguards nor that he was ordered incarcerated during the child support
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proceeding. That the existence of the child support order is a pertinent fact in a potential
subsequent prosecution does not retroactively transform the independent family court
proceeding into a
part of the criminal proceeding.
See Likine, 823 N.W.2d at 73. Third,
Plaintiff argues that the R&R is circular. (ECF No. 9 at PageID.58-59). This argument rests
on Plaintiff’s confusion of the recommendation on standing and the recommendation on the
merits and reveals no problems with either.
Plaintiff’s 	third 	objection 	is 	that 	any 	criminal 	prosecution 	of 	him 	would 	be
constitutionally defective because “the criminal offense is wholly derivative of the civil order,”
and he contends the R&R did not address this argument sufficiently. (
Id. at PageID.59). But
Plaintiff’s argument on this score rests on his having a right to counsel during the civil
proceeding, which the R&R did address. Further, Plaintiff’s central contention that “the
criminal offense is wholly derivative of the civil order” is incorrect. “Neither the support
order nor evidence of a defendant’s failure to pay introduced in the family court proceedings,
singly or together, establishes proof beyond a reasonable doubt that a defendant is guilty of
felony nonsupport.”
Likine, 823 N.W.2d at 73. Prosecutors in § 700.165 cases must prove
beyond a reasonable doubt that the child support order exists, that the defendant was
involved in the proceedings or was on notice, and that the defendant failed to pay.
Iannucci,
887 N.W.2d at 818-19. Further, defendants may defeat a § 700.165 charge by raising an
impossibility defense and presenting evidence that they could not pay despite reasonable
efforts.
Likine, 823 N.W.2d at 70. And people subject to child support orders may appeal
in their civil proceedings and seek modifications of those orders.
Adams, 683 N.W.2d at
735. The initial issuance of a child support order does not make criminal liability for failure
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to follow it a
fait accompli, as Plaintiff suggests. There is no authority suggesting that an
independent civil proceeding can ever retroactively become part of a criminal proceeding,
and Plaintiff’s argument that there is even a robust connection between the two rests on a
misstatement of the law. For
Turner to apply, the child support proceeding would need to,
alone, result in a deprivation of physical liberty. That simply is not the case, so Plaintiff’s
objection has no merit.
Plaintiff’s fourth objection is to the conclusion in the R&R that any appeal “would be
frivolous and not made in good faith.” (ECF No. 8 at PageID.52). A claim is frivolous “where
it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325
(1989). As discussed above, Plaintiff’s legal claims rest on foundational misunderstandings
of
Turner and
Lassiter and on inaccurate representations of Michigan law, so they lack any
arguable basis in law. That makes them frivolous, so this objection has no merit.
Plaintiff’s fifth and final objection is that he should be granted leave to amend rather
than having his complaint dismissed. He cites two authorities for this claim. First, he cites
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). In
LaFountain, the Sixth Circuit
overruled a previous case which
required dismissal without leave to amend at the screening
stage, but left district courts with discretion as to whether to grant leave to amend.
See id. So
courts may still deny leave to amend based on, for example, “futility of the amendment.”
Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting
Foman v. Davis, 371 U.S.
178, 182 (1962)). The second authority Plaintiff cites is
Brown v. Matauszak, 415 F. App’x
608, 614 (6th Cir. 2011). Unfortunately, the quote that Plaintiff attributes to
Brown is not in
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that case. 1
In
Brown, the court remanded a case, granting the pro se plaintiff leave to amend
where his complaint failed to specially plead the claims he was allegedly prevented from
making in his denial of access to courts claim; essentially, he failed to recognize that he “must
plead a case within a case.”
Id. at 612. The court found when dismissal is based on a pro se
plaintiff’s “ignorance of special pleading requirements,” dismissal without prejudice or leave
to amend is appropriate.
Id. at 615.
Brown does not
require courts to grant leave to amend
or dismiss without prejudice if the proposed amendment would be futile. Plaintiff argues that
in an amended complaint, he would “plead, with specificity, the two prior felony arrest
warrants” and “the absence of each
Turner safeguard in the underlying proceeding.” (ECF
No. 9 at PageID.61). But Plaintiff never had a right to an attorney or the “
Turner safeguards”
in the child support proceeding, as discussed above. The amendment would thus be futile,
so leave to amend, even if properly requested, would have been denied, and dismissal with
prejudice is appropriate. None of Plaintiff’s objections have merit, so they are overruled.
III.
Plaintiff’s core argument, that he had a right to counsel in a civil proceeding where he
could never have been deprived of his physical liberty, is unsupported by any legal authority.
The few cases he does cite do not support the propositions for which they are cited, and the
premise from which he makes his arguments rests on a misstatement of Michigan law. The
1
The full sentence in Plaintiff’s objection is: “And ‘where a more carefully drafted complaint might state a claim, a
plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with
prejudice.’
Brown v. Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011) (citation omitted).” Whether this false quotation
is the product of an artificial intelligence “hallucination,”
United States v. Farris, 171 F.4th 920, 923 (6th Cir. 2026), is
unclear, though the citation omitted parenthetical suggests that Plaintiff intended to submit at least some quoted language
from
Brown rather than accidentally including quotation marks.
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Magistrate Judge properly recognized this on the face of Plaintiff’s complaint, so the R&R
(ECF No. 8) is ADOPTED. Plaintiff’s complaint (ECF No. 1) is DISMISSED.
IT IS SO ORDERED.
Date: 	June 18, 2026 	/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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