Pounds v. Michigan, State of et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
HERMAN LAMOIT POUNDS, 	Case No. 1:25-cv-01645
Plaintiff, 	Hon. Jane M. Beckering
U.S. District Judge
v.
STATE OF MICHIGAN, et al.,
Defendant.
/
REPORT AND RECOMMENDATION
I. Introduction
Pro se Plaintiff Herman Lamoit Pounds filed this civil rights lawsuit pursuant
to 42 U.S.C. § 1983 against the following seven Defendants: 	the State of Michigan,
Michigan Governor Whitmer, Michigan Attorney General Nessel, Michigan Secretary
of State Benson, Michigan State Police Colonel Grady II, Kalamazoo Department of
Public Safety Chief Boysen, and the Life EMS Ambulance CEO/registered agent.
ECF No. 1.
This Court granted Pounds’s request to proceed in forma pauperis. 	ECF No.
14.
Pounds alleges that Defendants violated his rights under the Second, Fourth,
and Fourteenth Amendment. Id., PageID.2. Specifically, Pounds says that on August
29, 2025, he was a victim of a physical assault inside the Michigan Secretary of State
branch office in Kalamazoo, Michigan. 	Id., PageID.3. 	He says he was treated as a
suspect, rather than the victim. Id. 	Kalamazoo Police officers allegedly attempted
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to search him in the back of the ambulance, and Life EMS Ambulance staff allegedly
refused medical care due to safety reasons. Id.
Pounds says that he served “FOIA requests and Litigation Hold Notices” on all
Defendants but received no response, in violation of Mich. Comp. Laws § 15.235(3).
Id. He claims that evidence has been withheld from him and only Life EMS
Ambulance provided him with a response. Id., PageID.4.
Further, Pounds alleges that he was denied the ability to lawfully purchase a
firearm after failing a background check. 	Id. 	He says that the gun dealer failed to
provide reasons in writing or any explanation for the denial. Id., PageID.5.
Pounds alleges that Defendants violated his due process rights by withholding
evidence and failing to respond to his FOIA request. He alleges that unnamed officers
working for the Kalamazoo Police Department conducted a warrantless search of him
without probable cause, and that Defendants Life EMS Ambulance and Kalamazoo
Police Department refused to provide him with medical care, in violation of rights
under the Fourteenth Amendment. 	Id., PageID.6. 	He asserts that his Second
Amendment rights were violated when the non-Defendant gun dealer refused to sell
him a firearm. 	Id. 	Finally, Pound alleges that Defendants failed to protect him
“during and after the assault.” Id.
Pounds 	seeks 	$4,500,000.00 	in 	compensatory 	damages, 	plus 	unspecified
punitive damages, declaratory and injunctive relief, and costs.
On October 20, 2025, Plaintiff was granted in forma pauperis status. (ECF No.
5.)
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II. Standard of Law
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss any action brought in
forma pauperis if the action is (1) frivolous or malicious; (2) fails to state a claim on
which relief may be granted; or (3) seeks monetary relief against a defendant who is
immune from such relief.
A complaint may be dismissed for failure to state a claim if it fails “to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations,
a plaintiff’s allegations must include more than labels and conclusions. Id. The court
must determine whether the complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Id. at 570. “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.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). 	Although the plausibility standard is not equivalent to a
“probability requirement, . . . it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556).
In addition, the Court must read Plaintiff’s pro se complaint indulgently, see
Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true,
unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S.
25, 33 (1992).
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III. 	Analysis
As a starting point, although Pounds named the State of Michigan as a
Defendant, he asserted no claims against the State of Michigan. 	Even if he had
asserted allegations against the State of Michigan, his claim necessarily fails.
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. Pennhurst State Sch. & Hosp. 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). 	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). In addition, the State of
Michigan is not a “person” who may be sued under § 1983 for money damages.
Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 66 (1989)).
Accordingly, it is recommended that the Court dismiss Defendant State of
Michigan from this lawsuit based on Eleventh Amendment immunity.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of
a right secured by the federal Constitution or laws and must show that the
deprivation was committed by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir.
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2009); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). A party cannot
be held liable under Section 1983 absent a showing that the party personally
participated in, or otherwise authorized, approved or knowingly acquiesced in, the
allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246
(6th Cir. 1989), cert. denied, 495 U.S. 932 (1990).
In his complaint, Pounds names Michigan Governor Whitmer, Michigan
Attorney General Nessel, Michigan Secretary of State Benson, Michigan State Police
Colonel Grady II, Kalamazoo Department of Public Safety Chief Boysen, and the Life
EMS Ambulance CEO/registered agent as individual Defendants. But he but makes
no allegations against these Defendants. 	It is a basic pleading essential that a
plaintiff attribute factual allegations to particular defendants. 	See Twombly, 550
U.S. at 545 (holding that, in order to state a claim, a plaintiff must make sufficient
allegations to give a defendant fair notice of the claim). The Sixth Circuit “has
consistently held that damage claims against government officials arising from
alleged violations of constitutional rights must allege, with particularity, facts that
demonstrate what each defendant did to violate the asserted constitutional right.”
Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v. Northville
Reg’l Psych. Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). Where a person is named as a
defendant without an allegation of specific conduct, the complaint is subject to
dismissal, even under the liberal construction afforded to pro se complaints. 	See
Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing the plaintiff’s
claims where the complaint did not allege with any degree of specificity which of the
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named defendants were personally involved in or responsible for each alleged
violation of rights); Griffin v. Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th
Cir. Nov. 30, 2000) (requiring allegations of personal involvement against each
defendant) (citing Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998));
Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722, at *1 (6th Cir. June 19, 1990)
(“Plaintiff’s claims against those individuals are without a basis in law as the
complaint is totally devoid of allegations as to them which would suggest their
involvement in the events leading to his injuries.”). Plaintiff fails to even mention
Defendants Governor Whitmer, Attorney General Nessel, Secretary of State Benson,
Michigan State Police Colonel Grady II, Kalamazoo Department of Public Safety
Chief Boysen, and the Life EMS Ambulance CEO/registered agent in the body of his
complaint. 	Pounds does not make any allegations in his complaint that could show
that each of these Defendants were involved in his alleged Second, Fourth, or
Fourteenth Amendment violations.
It appears that Pounds named each of these Defendants because they may
have some supervisory authority over the office or the individuals that he believes
violated 	his 	rights. 	Government 	officials 	may 	not 	be 	held 	liable 	for 	the
unconstitutional conduct of their subordinates under a theory of respondeat superior
or vicarious liability. 	Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A
claimed constitutional violation must be based upon active unconstitutional behavior.
Grinter v. Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d
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889, 899 (6th Cir. 2002). 	The acts of one’s subordinates are not enough, nor can
supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576;
Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). 	“[A]
plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
The Sixth Circuit repeatedly has summarized the minimum required to
constitute active conduct by a supervisory official:
“[A] supervisory official’s failure to supervise, control or train the
offending individual is not actionable unless the supervisor either
encouraged the specific incident of misconduct or in some other way
directly participated in it.” Shehee, 199 F.3d at 300 (emphasis added)
(internal quotation marks omitted). We have interpreted this standard
to 	mean 	that 	“at 	a 	minimum,” 	the 	plaintiff 	must 	show 	that 	the
defendant 	“at 	least 	implicitly 	authorized, 	approved, 	or 	knowingly
acquiesced in the unconstitutional conduct of the offending officers.”
Peatross v. City of Memphis, 818 F.3d 233, 242 (6th Cir. 2016) (quoting Shehee, 199
F.3d at 300, and citing Phillips v. Roane Cnty., 534 F.3d 531, 543 (6th Cir. 2008)); see
also Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (citing Rizzo v. Goode,
423 U.S. 362, 375–76 (1976), and Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984)); Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989).
Plaintiff fails to allege any facts showing that any of the named individual
Defendants encouraged or condoned the conduct of their subordinates, or authorized,
approved or knowingly acquiesced in the conduct. 	His vague and conclusory
allegations are insufficient to demonstrate that Governor Whitmer, Attorney General
Nessel, 	Secretary 	of 	State 	Benson, 	Michigan 	State 	Police 	Colonel 	Grady 	II,
Kalamazoo Department of Public Safety Chief Boysen, and the Life EMS Ambulance
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CEO/registered agent were personally involved in the allegations asserted in his
complaint. 	Because Plaintiff’s allegations fall far short of the minimal pleading
standards under Fed. R. Civ. P. 8 (requiring “a short and plain statement of the claim
showing that the pleader is entitled to relief”), it is recommended that the Court
dismiss the individual Defendants.
Finally, Plaintiff’s conclusory allegations of harm fail to state a claim upon
which relief may be granted. 	Plaintiff asserts that a gun dealer, after conducting a
background check, refused to sell him a firearm. Plaintiff fails to allege any facts that
could plausibly show that any of the Defendants violated his Second Amendment
rights. 	Plaintiff asserts that his Fourth Amendment rights were violated when
unnamed police officers searched him in the back of the ambulance without a
warrant. 	Plaintiff fails to provide any factual allegations that could support a
violation of the Fourth Amendment. 	Plaintiff alleges that he was denied medical
care, but he fails to set forth facts showing how he was injured and what type of
medical care he should have received for any alleged serious injury. Finally, Plaintiff
has failed to set forth facts as to how Defendants did not protect him during and after
the alleged assault.
IV. 	Recommendation
Accordingly, the undersigned respectfully recommends that the Court dismiss
the complaint because it is frivolous and fails to state a claim upon which relief may
be granted.
NOTICE TO PARTIES: Objections to this Report and Recommendation must
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be served on opposing parties and filed with the Clerk of the Court within fourteen
(14) days of receipt of this Report and Recommendation. 	28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). 	Failure to file timely objections
constitutes a waiver of any further right to appeal. United States v. Walters, 638 F.2d
947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).
Dated: 	March 19, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U. S. MAGISTRATE JUDGE
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