Witzke v. Bouchard

1

SCOTT ANDREW WITZKE, Plaintiff, v. MICHAEL J. BOUCHARD, et al., Defendants.

No. 22-13070

United States District Court, E.D. Michigan, Southern Division

June 9, 2023

OPINION & ORDER (1) ACCEPTING 3/23/23 REPORT AND RECOMMENDATION (R&R) (DKT. 41), (2) OVERRULING PLAINTIFF'S OBJECTIONS TO 3/23/23 R&R (DKT. 42), (3) GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. 26), (4) DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER (DKT. 3), (5) ACCEPTING 1/3/23 R&R (DKT. 13), (6) DENYING AS MOOT PLAINTIFF'S MOTION FOR RECONSIDERATION (DKT. 35), AND (7) DENYING PLAINTIFF'S MOTION TO DISQUALIFY (DKT. 29)

Mark A. Goldsmith United States District Judge

Plaintiff Scott Witzke brings this suit against Defendant Michael Bouchard, sheriff for Oakland County, Michigan; Thomas Vida Jr., a captain with the Oakland County Jail (OCJ); and an unidentified employee of Oakland County based on allegations that they blocked Witzke's ability to communicate with detainees incarcerated at OCJ. Before the Court are (i) Magistrate Judge Curtis Ivy, Jr.'s January 3, 2023 report and recommendation (R&R) (Dkt. 13) recommending a denial of Witze's motion for a temporary restraining order (Dkt 3), to which Witzke filed objections (Dkt. 23); (ii) the magistrate judge's March 23, 2023 R&R (Dkt. 41) recommending a grant of Defendants' motion to dismiss (Dkt. 26), to which Witzke filed objections (Dkt. 42); (iii) Witzke's motion for reconsideration (Dkt. 35) of this Court's order (Dkt. 34) directing Defendants to respond to Witzke's objections to the magistrate judge's January 3, 2023 R&R; and (iv) Witzke's motion to disqualify the undersigned (Dkt. 29).

For the reasons that follow, the Court (i) accepts the recommendations in the March 23, 2023 R&R, (ii) overrules Witzke's objections to that R&R, (iii) grants Defendants' motion to dismiss, (iv) denies Witzke's motion for a temporary restraining order, based on the granting of the motion to dismiss, thereby adopting the recommendation of the magistrate judge's January 3, 2023 R&R recommending denial of Witzke's motion for a temporary restraining order, (v) denies as moot Witzke's motion for reconsideration, and (vi) denies Witzke's motion to disqualify.^[1]

I. BACKGROUND

Witzke has an apparent interest in communicating with detainees at OCJ, though he makes no representations to this Court as to why he seeks these communications. In Defendants' view, Witzke-who is not a licensed attorney-has been contacting OCJ detainees to offer his services “providing quality legal research assistance and the drafting and formatting [of] documents.” Br. in Supp. Mot. to Dismiss at 2 (quoting 12/13/22 Witzke Email (Dkt. 26-5) (reflecting Witzke's own description of his interest in contacting OCJ detainees in email addressed to Bouchard and Vida)).

Witzke alleges in his complaint that “[a]ll written communications with OCJ detainees must be done either through traditional ‘snail mail' (U.S. Postal Service) or electronically through ‘Smart Communication[s],' which is a company contracted with by OCJ for both electronic and telephone communications.” Compl. ¶ 10 (Dkt. 1).

Witzke alleges that he created an account with Smart Communications, but in December 2022, he received a notice that his account had been disabled:

Viewing messages from inmates at Oakland County Jail has been disabled.

For the following reason: Inmate is committing a crime by acting as an attorney and charging other inmates to file briefs. Inmate is NOT an attorney. Prosecutors Office has filed a contempt of court motion in front of Judge Polis [sic] and SCAO [State Court Administrative Office].

Id.¶ 13.

Witzke alleges that, because his account was disabled, he cannot access electronic messages from OCJ detainees, and his telephone number was “blocked,” preventing Witzke from receiving telephonic communications from OCJ detainees. Id. ¶¶ 14-15. Witzke submits that Defendants did not “contact[]” him or “offer[] any form of hearing” before disabling his communications with OCJ detainees. Id. ¶ 16.

Defendants submit that the OCJ disabled Witzke's use of Smart Communications in response to Witzke's improper filing in Oakland County Circuit Court of a “motion to quash” on behalf of Raul Contreras, who was already represented by counsel as a defendant in a criminal case, People v. Contreras, No. 20-274746-FC, before Oakland County Circuit Judge Yasmine Poles. See Br. in Supp. Mot. to Dismiss at 1-3 (citing 12/13/22 Contreras Mot. to Quash (Dkt. 26-6) (identifying “witzkeparalaw@gmail.com” as email for Contreras and incorrectly identifying Contreras as “Defendant in pro per”)). Defendants state that Judge Poles informed OCJ staff of Witzke's improper filing, after which Vida sent a notice to his staff stating that Witzke was “restricted from having access, visits, messaging with any inmate confined in the Oakland County Jail unless that access [was] vetted and preapproved in writing by command staff.” Id. at 2-3 (quoting 12/13/22 Vida Email at PageID.223 (Dkt. 26-7) (emphasis in 12/13/22 Vida Email)).

Three days after the OCJ disabled Witzke's Smart Communications access, Judge Poles ordered Witzke to show cause why he should not be held in contempt, on the grounds that Witzke had “prepared and filed pleadings in this case while engaging in the unauthorized practice of law pursuant to MCL 600.916.” 12/16/22 Contreras Order (Dkt. 26-9). Witzke subsequently moved in Contreras for an order directing Bouchard to “permit Witzke to serve any and all legal papers which pertain to this case . . . upon Defendant Contreras . . . .” 12/26/22 Contreras Mot. to Allow Serv. (Dkt. 26-11). Judge Poles entered an order finding that Witzke was “prohibited from drafting and/or filing motions or other pleadings in conjunction with or on behalf of Raul Contreras in the instant case” and “prohibited from otherwise interfering with or engaging in the authorized practice of law in the instant case.” 1/5/23 Contreras Order (Dkt. 26-15). After a new attorney was appointed for Contreras, Judge Poles entered an order requiring that Contreras “have no contact with Scott Witzke, either direct or through a third party.” 1/26/23 Contreras Order (Dkt. 26-18).

Witzke then filed a complaint in the Michigan Court of Appeals seeking a writ of superintending control to vacate Judge Poles's order prohibiting contact between Witzke and Contreras. See In re Witzke, No. 364784, Compl. (Dkt. 26-19). The court summarily denied that complaint in a brief order. See 3/30/23 In re Witzke Order, No. 364784 (Dkt. 23).

Witzke now brings claims in this Court based on alleged (i) violations of the First Amendment, (ii) deprivation of due process under the Fourteenth Amendment, and (iii) defamation under Michigan law. Compl. ¶¶ 23-28.

II. ANALYSIS^[2]

Several motions are pending before this Court. The Court begins by addressing the magistrate judge's recommendation that the Court grant Defendants' motion to dismiss as to Witzke's First Amendment, procedural due process, and defamation claims.

A. Motion to Dismiss as to Witzke's First Amendment Claim^[3]

As demonstrated by the case law cited in the R&R, when assessing whether any rule or official conduct at a jail or correctional facility restricting communications with incarcerated individuals impermissibly interferes with First Amendment rights, courts consider the four factors identified in Turner v. Safley, 482 U.S. 78 (1987) to determine whether the facility's regulation is “reasonably related to legitimate penological interests.” Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (quoting Turner, 482 U.S. at 89 (punctuation modified)).^[4] Under Turner, courts consider:

(i) “whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective,” Thornburgh, 490 U.S. at 414;

(ii) “whether there are alternative means of exercising the right that remain open to prison inmates,” id. at 417 (quoting Turner, 482 U.S. at 90);

(iii) “the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison,” id. at 418; and

(iv) whether there exist “obvious, easy alternatives” evidencing that “the regulation is not reasonable, but is an exaggerated response to prison concerns,” id. (punctuation modified).

Noting that Witzke “does not . . . allege that he cannot communicate with detainees via alternative means such as mail through the United State Postal Service, or . . . visit[ing] detainees in person,” the magistrate judge emphasizes that, under the second Turner factor, Witzke has alternative means of communicating with OCJ detainees besides using the Smart Communications platform. See 3/23/23 R&R at 10-13. On this basis, the magistrate judge recommends a dismissal of Witzke's First Amendment claim. Id. at 13.

Witzke lists five objections to this recommendation. Two of these objections appear to argue that the Turner inquiry is not the appropriate standard, while the remaining three objections appear to argue that the magistrate judged applied Turner incorrectly. The Court addresses these arguments in turn.

1. Appropriateness of Turner Standard

The magistrate judge and Defendants agree that the Turner standard applies here. See 3/23/23 R&R at 11; Br. in Supp. Mot. to Dismiss at 18-19. Apparently contradicting his position that this standard is inapplicable, Witzke cites Thornburgh and Turner to support his position that he has a plausible First Amendment claim. See, e.g., Obj. to 3/23/23 R&R at 15-16. However, Witzke also asserts objections indicating that he believes some other, non-specified standard should apply. The Court considers and rejects these objections.

a Objection 4: Challenge to...