Clark #222915 v. Nessel et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AARON CLARK,
Plaintiff, 	Case No. 1:24-cv-1129
v. 	Hon. Jane M. Beckering
DANA NESSEL, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
This is a pro se civil rights action brought pursuant to 42 U.S.C. § 1983 by plaintiff
Aaron Clark, a prisoner in the custody of the Michigan Department of Corrections (MDOC).
Plaintiff is incarcerated at the Oaks Correctional Facility (ECF). Plaintiff has sued the following:
Michigan Attorney General Dana Nessel; Assistant Attorney General Robyn B. Frankel; Michigan
Governor Gretchen Whitmer; Michigan Lt. Governor Garlin Gilchrist, II; and the State of
Michigan. This matter is now before the Court on defendants’ combined motion to dismiss “for
either lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or failure to state a claim pursuant
to Fed. R. Civ. P. 12(b)(6)” (ECF No. 12, PageID.50). Plaintiff did not oppose the motion.
I. 	The complaint
By way of background, defendants point out that,
Plaintiff is serving a sentence of 18 to 30 years on two counts of criminal sexual
conduct 1st degree (mentally disabled and related victim) after his conviction at a
bench trial for the sexual assault of his mentally impaired daughter. 	Clark v.
Bauman, Case No. 2:10-cv-13857, 2013 WL 147662, *1-4 (E.D. Mich., Jan. 14,
2013).
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Defendants’ Brief (ECF No. 12-1, PageID.61) (footnote omitted). 	Plaintiff was sentenced on
August 13, 2007. Clark, 2013 WL 147662 at *1.
Plaintiff has filed a confusing complaint. 	Plaintiff purports to bring this claim
against the State of Michigan and all individual defendants in their personal capacities pursuant to
42 U.S.C. § 1983. Compl. (ECF No. 1, PageID.2-3). Plaintiff contends that defendants denied his
request for an investigation by the Michigan Attorney General’s Conviction Integrity Unit
(“CIU”).1 In relevant part, plaintiff alleged that on October 28, 2021 (in his words),
“I had received a (“letter”) from the (“Assistant Attorney General”) & the
(“Director”) of the (“Conviction Integrity Unit”) very wrongfully “denying” me the
“chance” & “opportunity” to “present” my “(“Actually-Innocence”) “claims” by
“them” very wrongfully (“Discriminating”) against me & probably many others &
then have “pushed me off” to the (“Wayne County Integrity Unit”) (“WCIU”)
“twice” to which that “they” (“WCIU”!) have very wrongfully “denied” & also
“Discriminated”) against me on (3) different occassions. . .
Id. at PageID.4.
It appears that plaintiff wanted the Michigan Attorney General’s CIU to take legal
action in Wayne County to exonerate him, rather than referring plaintiff to the Wayne County CIU.
Id. at PageID.5. See M.C.L. § 14.28 (providing that, “The attorney general . . . may, when in his
own judgment the interests of the state require it, intervene in and appear for the people of this
state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of
this state may be a party or interested.”). 	As discussed, plaintiff has sued defendants for
discrimination. However, plaintiff does not allege any facts to support this claim. Rather, plaintiff
alleged that he cannot claim that he was discriminated against “because of ‘Age’, ‘Race’, etc.
1 Defendants’ motion included a copy of a form “Criminal Conviction Review Application” used by the CIU. See
Application (ECF No. 12-6).
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without me having ‘access’ to their (‘records’). . .” Id. at PageID.4-5. Plaintiff seeks damages in
excess of $20,000,000.00. Id. at PageID.6.
Defendants have provided some background for plaintiff’s claims. 	On or about
October 19, 2021, more than 14 years after his sentencing, plaintiff sent a letter to the Michigan
Attorney General’s CIU stating that he was “very wrongfully convicted”. 	See Plaintiff’s Letter
(Oct. 19, 2021) (ECF No. 12-4). The CIU responded by referring plaintiff to the Wayne County
Prosecutor’s Office CIU and advising plaintiff that “your file is closed in our office”. See Letter
from defendant Frankel (Oct. 28. 2021) (ECF No. 12-5). A few years later, on or about February
27, 2024, plaintiff wrote another letter to the “State of MI Integrity Units”. See Plaintiff’s Letter
(ECF No. 12-7). Defendant Frankel responded by again referring plaintiff to the Wayne County
CIU and advising him that his file was closed. See Frankel Letter (March 4, 2024) (ECF No. 12-
8).
II. 	Discussion
A. 	Plaintiff did not oppose the combined motion to dismiss
Plaintiff did not file a response to defendants’ combined motion to dismiss. This
failure is fatal to his position, being both a forfeiture of his claim and a waiver of opposition to the
relief sought in the motion. 	See Notredan, L.L.C. v. Old Republic Exchange Facilitator Co., 531
Fed. Appx. 567, 569 (6th Cir. 2013) (the plaintiff's failure to respond to a motion to dismiss its
claim amounts to a forfeiture of that claim). See also, Scott v. Tennessee, 878 F.2d 382 (6th Cir.
1989) (affirming district court’s grant of the defendant's unopposed motion to dismiss, noting that
“if a plaintiff fails to respond or to otherwise oppose a defendant's motion, then the district court
may deem the plaintiff to have waived opposition to the motion”); Humphrey v.U.S. Attorney
General’s Office, 279 Fed. Appx. 328, 331 (6th Cir. 2008) (same); Thorn v. Medtronic Sofamor
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Danek, USA, Inc., 81 F. Supp. 3d 619, 631-32 (W.D. Mich. 2015) (granting defendant’s motion to
dismiss where “Plaintiff fatally provides no opposition to Defendants’ arguments”) (citing Scott,
Notredan, and Humphrey). For this reason alone, defendants’ combined motions to dismiss should
be granted.
B. 	Plaintiff’s § 1983 claim
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which “provides a civil cause of
action for individuals who are deprived of any rights, privileges, or immunities secured by the
Constitution or federal laws by those acting under color of state law.” 	Smith v. City of Salem,
Ohio, 378 F.3d 566, 576 (6th Cir. 2004). 	To state a § 1983 claim, a plaintiff must allege two
elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and
(2) that the defendant deprived her of this federal right under color of law. Jones v. Duncan, 840
F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
As discussed, plaintiff does not specify any particular constitutional violation.
Presumably, plaintiff is relying on the Fourteenth Amendment, which provides that no State “shall
. . . deny to any person within its jurisdiction the equal protection of the laws.” In order to maintain
a Fourteenth Amendment Equal Protection claim, the plaintiff must prove that he is a member of
a protected class and that a state actor purposefully discriminated against him because of his class
membership. See Herron v. Harrison, 203 F.3d 410, 417 (6th Cir. 2000).
C. 	Defendant State of Michigan
Defendants State of Michigan, Whitmer, Gilchrist and Nessel assert Eleventh
Amendment immunity characterizing all claims as brought against them in their official capacities.
These defendants move to dismiss plaintiff’s complaint for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1). As discussed, plaintiff stated that he was suing the individual
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defendants 	in 	their 	“personal 	capacities.” 	Accordingly, 	the 	Court 	will 	address 	Eleventh
Amendment immunity only as to the State of Michigan.
“Federal courts are courts of limited jurisdiction” which “possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Insurance Co. of America,
511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal
citations omitted). “[W]hen subject matter jurisdiction is challenged, the plaintiff has the burden
of proving jurisdiction in order to survive the motion to dismiss.” Giesse v. Secretary of
Department of Health and Human Services, 522 F.3d 697, 702 (6th Cir. 2008).
Regardless of the form of relief requested, the states and their departments are
immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived
immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh,
438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). “Eleventh
Amendment immunity constitutes a jurisdictional bar, and neither supplemental jurisdiction nor
any other basis for jurisdiction overrides Eleventh Amendment immunity.” 	Edwards v.
Commonwealth of Kentucky Revenue Cabinet, Division of Compliance & Taxpayer Assistance, 22
Fed. Appx. 392, 393 (6th Cir. 2001) (citing Pennhurst, 465 U.S. 89, 100, 121(1984)). Congress
has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S.
332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court.
Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). Accordingly, plaintiff’s claim against the
State of Michigan is barred by Eleventh Amendment immunity and should be dismissed.
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D. 	Failure to state a claim
The individual defendants also moved to dismiss plaintiff’s complaint pursuant to
Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” A
claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. 	The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. 	Where a complaint pleads facts that are “merely consistent with” a
defendant’s liability, it “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In making this
determination, the complaint must be construed in the light most favorable to the plaintiff, and its
well-pleaded facts must be accepted as true. 	Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12
(6th Cir. 1987). While pro se pleadings are to be liberally construed, see Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011), “this court is not required to conjure up unpled allegations.” Dietz
v. Sanders, 100 Fed. Appx. 334, 338 (6th Cir. 2004). 	Thus, “an unadorned, the - defendant -
unlawfully - harmed - me accusation” is insufficient to state a claim for relief. See Iqbal, 556 U.S.
at 678. 	Finally. “[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the
Complaint and any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the
Complaint and are central to the claims contained therein.” Bassett v. National Collegiate Athletic
Association, 528 F.3d 426, 430 (6th Cir. 2008).
1. 	Defendants Nessel and Frankel
Michigan Attorney General Nessel and Assistant Attorney General Frankel are
entitled to absolute prosecutorial immunity. 	Here, plaintiff wanted the Michigan Attorney
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General’s Office to intervene in state court proceedings to exonerate him. 	“[P]rosecutors are
absolutely immune from liability under § 1983 for their conduct . . . insofar as that conduct is
intimately associated with the judicial phase of the criminal process.” Cady v. Arenac County, 574
F.3d 334, 340 (6th Cir. 2009) (internal quotation marks omitted). As discussed, defendant Frankel
declined plaintiff’s request to intervene in his criminal proceedings and referred him to Wayne
County’s CIU. See generally, Bradstreet v. Calhoun County Board of Commissioners, No. 1:08-
cv-1034, 2008 WL 5083532 at *4 (W.D. Mich. Nov. 26, 2008) (“The Attorney General is entitled
to prosecutorial immunity for refusing to take action on a plaintiff’s behalf.”). 	Accordingly,
plaintiff’s claims against defendants Nessel and Frankel are barred by prosecutorial immunity and
should be dismissed.
2. 	Defendants Whitmer, Gilchrist and Nessel
Finally, plaintiff’s complaint makes no allegations against defendants Governor
Whitmer, Lieutenant Governor Gilchrist or Attorney General Nessel. 	“Personal involvement is
necessary to establish section 1983 liability.” Murphy v. Grenier, 406 Fed. Appx. 972, 974 (6th
Cir. 2011). See Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999) (“It is axiomatic that the liability
of persons sued in their individual capacities under section 1983 must be gauged in terms of their
own actions.”). Here, plaintiff alleged no facts linking defendants Whitmer, Gilchrist or Nessel to
the denial of plaintiff’s request. Plaintiff’s complaint consists of “an unadorned, the - defendant -
unlawfully - harmed - me accusation” against these three defendants which is insufficient to state
a claim for relief. 	See Iqbal, 556 U.S. at 78. 	Accordingly, defendants Whitmer, Gilchrist, and
Nessel should be dismissed on this ground. 2
2 The Court notes that while defendants have raised other legal theories for dismissal, it is unnecessary to address these
theories.
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III. 	Recommendation
For all of these reasons, I respectfully recommend that defendants’ combined
motion to dismiss (ECF No. 12) be GRANTED and that this lawsuit be DISMISSED.
Dated: December 29, 2025 	/s Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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