Kevin Lindke v. John Tomlinson ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
KEVIN LINDKE,
│
Plaintiff-Appellant, │
> No. 21-2612
│
v. │
│
JOHN D. TOMLINSON and MAT KING, in their official │
capacities, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:20-cv-12857—Sean F. Cox, Chief District Judge.
Argued: January 26, 2022
Decided and Filed: April 12, 2022
Before: GRIFFIN, DONALD, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
Appellant. Todd J. Shoudy, FLETCHER FEALKO SHOUDY & FRANCIS, PC, Port Huron,
Michigan, for Appellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC,
Hemlock, Michigan, for Appellant. Todd J. Shoudy, FLETCHER FEALKO SHOUDY &
FRANCIS, PC, Port Huron, Michigan, for Appellees.
No. 21-2612 Lindke v. Tomlinson, et al. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
Plaintiff Kevin Lindke and his ex-girlfriend, Ami Moeller, engaged in a contentious child
custody dispute, during which Moeller obtained a domestic personal protection order (PPO)
against Lindke. After she sued Lindke for violating that PPO, defendant Judge John Tomlinson,
a Michigan probate court judge, agreed and ruled in her favor. Rather than appeal that
determination in Michigan state court, Lindke sued Judge Tomlinson and county sheriff Mat
King in federal court under 42 U.S.C. § 1983, seeking to enjoin enforcement of Michigan’s
domestic PPO statute. The district court dismissed the case, concluding that no subject-matter
jurisdiction existed in the case against Judge Tomlinson and that Lindke failed to state a claim
against Sheriff King. We agree and affirm.
I.
This case stems from a “bitter custody dispute” between Lindke and Moeller that led to
Lindke’s “personal Internet crusade” against Moeller. See TT v. KL, 965 N.W.2d 101, 104
(Mich. Ct. App. 2020). The two are the parents of a minor child, whom we will refer to as OGL.
In September 2015, Moeller filed a complaint in St. Clair County Circuit Court seeking to
resolve custody and parenting time for OGL. During that litigation, Moeller sought and obtained
a PPO against Lindke by alleging that Lindke beat her repeatedly, threatened her, and sent nude
photos of her to her family, friends, and coworkers. Lindke violated that PPO twice, and, when
it expired, Moeller sought a second PPO, which alleged that Lindke continued to harass her
online. Judge Tomlinson granted the second PPO on March 31, 2016, barring Lindke from,
among other things, “sending mail or other communications” to Moeller. Eventually, Moeller
obtained sole legal and physical custody of OGL.
In March 2019, Moeller sued Lindke in state court, alleging that his “continued
harassment . . . on social media” violated the March 2016 PPO. Specifically, she alleged that
Lindke was “attempting to communicate” with her on Facebook by “speaking directly to [her]
No. 21-2612 Lindke v. Tomlinson, et al. Page 3
and about [her]” and “tagging [her] in comments.” Moeller also alleged that Lindke had posted
old photos of her and an order from their custody case, which Lindke says was because Moeller
had allowed OGL to have regular contact with a sex offender. Judge Tomlinson found that most
of Lindke’s online activity was constitutionally protected speech but that his act of “tagging”
Moeller in a specific Facebook post violated the PPO.
Rather than appeal that decision to the Michigan Court of Appeals, Lindke sued Judge
Tomlinson and Sheriff King in federal court. He contended that Michigan’s domestic PPO
statute, Mich. Comp. Laws § 600.2950, violated his First and Fourteenth Amendment rights and
was, thus, unconstitutional. He requested that the court issue declaratory relief and enjoin Judge
Tomlinson and Sheriff King from enforcing the statute against him.
This is not the first time Lindke has sued a state-court judge in federal court. He
previously challenged another state-court judge’s adjudication under Michigan’s non-domestic
PPO statute, Mich. Comp. Laws § 600.2950a, in federal court. See Lindke v. Lane, 523 F. Supp.
3d 940, 942 (E.D. Mich. 2021). After a thorough analysis, Lane concluded that the judge’s role
under the non-domestic PPO statute was to act “in an adjudicatory capacity when she construed
and applied” the statute in the underlying action. Id. at 953. The judge’s interests were not
adverse to Lindke and thus his claims “present[ed] no justiciable Article III case or controversy,”
depriving the court of subject-matter jurisdiction. Id.The district court here found the analysis in Lane “instructive.” Lindke v. Tomlinson,
No. 20-cv-12857, 2021 WL 2434120, at *2 (E.D. Mich. June 15, 2021). Relying on Lane, the
court dismissed Lindke’s suit against Judge Tomlinson because “there is no Article III subject
matter jurisdiction to hear this case.” Id. And the district court noted that Lindke’s complaint
lacked specific allegations about how Sheriff King allegedly violated Lindke’s constitutional
rights, so Lindke failed to state a claim against Sheriff King under Fed. R. Civ. P. 12(b)(6). Id. at
*3.
Lindke now appeals.
No. 21-2612 Lindke v. Tomlinson, et al. Page 4
II.
Lindke first argues that we have subject-matter jurisdiction over his claims for
declaratory relief against Judge Tomlinson because Judge Tomlinson is a proper party to this
case. We disagree.
“We review de novo the district court’s decision to dismiss this case for lack of subject
matter jurisdiction under Rule 12(b)(1).” Cartwright v. Garner, 751 F.3d 752, 760 (6th Cir.
2014). To the extent that the district court made factual findings in making its determinations,
we review those findings for clear error while reviewing the application of the law to those facts
de novo. Id.1
Federal law recognizes that litigants, in some circumstances, may obtain declaratory
relief against judicial officers acting in their official capacity. 42 U.S.C. § 1983 states, in
pertinent part:
Every person who, under color of any statute . . . of any State, . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges or immunities secured by the Constitution and laws, shall be
liable to the party injured in . . . [a] suit in equity . . . except that in any action
brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.
(Emphasis added). While this language does not expressly authorize declaratory relief against
judges, it is a “recognition of its availability or unavailability, depending on the circumstances,
which the statute does not delineate.” Brandon E. ex rel Listenbee v. Reynolds, 201 F.3d 194,
198 (3d Cir. 2000). Because of this, determining whether declaratory relief is available against a
1
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a
facial attack or a factual attack.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). “A facial attack challenges subject matter jurisdiction without disputing the facts alleged in the complaint
and requires the court to treat the allegations of the complaint as true. A factual challenge attacks the factual
allegations underlying the assertion of jurisdiction, either through the filing of an answer or otherwise presenting
competing facts.” 5B C. Wright & A. Miller, Federal Practice and Procedure § 1350 (3d ed. April 2021). Though
the parties dispute whether the motion to dismiss was a facial attack or a factual attack on jurisdiction, that
distinction matters little here. No party challenges the factual predicate for the district court’s decision—that Judge
Tomlinson was a state-court judge who rendered a decision under the PPO statute at issue. Whether he is a
sufficiently adverse party to Lindke, thereby creating Article III jurisdiction, is purely a question of law.
No. 21-2612 Lindke v. Tomlinson, et al. Page 5
judge turns on “whether the judges in this case properly may be named as defendants to
this § 1983 action.” Id.
In this case, the issue is whether a live case or controversy exists under Article III.
“Article III of the Constitution affords federal courts the power to resolve only ‘actual
controversies arising between adverse litigants.’” Whole Woman’s Health v. Jackson, 142 S. Ct.
522, 532 (2021) (quoting Muskrat v. United States, 219 U.S. 346, 361 (1911)). “Where there is
no real, substantial controversy between parties having adverse legal interests, there is no case or
controversy in the constitutional sense.” Ahmed v. Univ. of Toledo, 822 F.2d 26, 27 (6th Cir.
1987) (citation and quotation marks omitted).
The seminal case on this issue is In re Justices of Supreme Ct. of Puerto Rico, 695 F.2d
17 (1st Cir. 1982). In that case, a group of attorneys sued the Justices of the Puerto Rico
Supreme Court in federal court over a dispute involving the Puerto Rico Bar Association
Foundation. Id. at 18. The First Circuit held that the suit should be dismissed. The court first
looked to the statutes at issue, which required attorneys in the bar association to pay dues and
otherwise support the association financially. Id. at 19. The opinion, written by then-Judge
Stephen G. Breyer, concluded that “the role of the Justices with respect to these statutes is
adjudicative.” Id. at 21. “In deciding cases based on such complaints, the Justices act as they
would in any other case based upon a Commonwealth statute: they sit as adjudicators, finding
facts and determining law in a neutral and impartial judicial fashion.” Id. In such circumstances,
ordinarily no “case or controversy” exists:
Judges sit as arbiters without a personal or institutional stake on either side of the
constitutional controversy. They are sworn to uphold the Constitution of the
United States. They will consider and decide a claim that a state or
Commonwealth statute violates the federal Constitution without any interest
beyond the merits of the case. Almost invariably, they have played no role in the
statute’s enactment, they have not initiated its enforcement, and they do not even
have an institutional interest in following their prior decisions (if any) concerning
its constitutionality if an authoritative contrary legal determination has
subsequently been made (for example, by the United States Supreme Court).
Id. But the First Circuit declined to rest its conclusion directly on Article III, concluding instead
that the plaintiffs had failed to state a claim under Rule 12(b)(6) because Ҥ 1983 does not
No. 21-2612 Lindke v. Tomlinson, et al. Page 6
provide relief against judges acting purely in their adjudicative capacity, any more than, say, a
typical state’s libel law imposes liability on a postal carrier or telephone company for simply
conveying a libelous message.” Id. at 22–23.
According to In re Justices, the threshold consideration is whether the judge is acting,
under the statute at issue, in an adjudicatory capacity or as an enforcer or administrator. A more
recent case exploring this distinction is Allen v. DeBello, 861 F.3d 433 (3d Cir. 2017). Allen
examined whether the plaintiffs could challenge a New Jersey custody statute by suing state-
court judges who had applied that statute; in doing so, the court compared two cases that reached
opposite results. Id. at 440. In Georgevich v. Strauss, 772 F.2d 1078 (3d Cir. 1985), the court
held that judges were proper parties to a § 1983 challenge because the statute at issue “divide[d]
the authority to make parole decisions between the sentencing judges and the [Parole] Board.”
Allen, 861 F.3d at 440–41 (quoting Georgevich, 772 F.2d at 1088). Because the judges
administered the parole statute in the same way as the Board, “there was ‘no basis for
distinguishing the role of the sentencing judges from that of the Board’ and ‘no reason why the
Board, but not the judges, may be sued on a similar challenge.’” Id. at 441 (quoting Georgevich,
772 F.2d at 1088). Conversely, in Brandon E. ex rel Listenbee v. Reynolds, the statute at issue
authorized judges to commit minors to involuntary drug and alcohol treatment programs; these
judges were “neutral adjudicators, not enforcers or administrators of the statute.” Id. (citing
Reynolds, 201 F.3d at 199). The judges did not initiate the proceedings and were required to
appoint independent counsel for the minors; thus the “judge’s position in the . . . proceeding is
simply not adverse to that of the minor.” Id. (quoting Reynolds, 201 F.2d at 199). Therefore,
Allen explained that the question was whether the state-court judges were “neutral arbiters” of
the statute as in Reynolds, or if they had “enough latitude under the statute and policies that they
become enforcers” as in Georgevich. Id. After examining other circuits’ caselaw and the statute
at issue, Allen concluded that the judicial defendants had acted in an adjudicatory capacity and
thus were not proper defendants because they did not initiate the action, could not administer the
statute, and had not promulgated the statutory standards to which the plaintiffs had objected. Id.
at 442. But it too declined to rest its decision on Article III grounds. Id. at 443 n.49.
No. 21-2612 Lindke v. Tomlinson, et al. Page 7
Our sister circuits largely agree with In re Justices and Allen. The Eighth Circuit has
noted that after In re Justices, a judge is not a proper defendant “because he has no stake in
upholding the statute: he is not the plaintiff’s adversary, and the complaint should be dismissed
for failure to state a claim upon which relief can be granted.” R.W.T. v. Dalton, 712 F.2d 1225,
1232 (8th Cir. 1983), abrogated in part on other grounds by Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827 (1990). The Ninth Circuit similarly agrees that “judges adjudicating
cases pursuant to state statutes may not be sued under § 1983 in a suit challenging the state law.”
Grant v. Johnson, 15 F.3d 146, 148 (9th Cir. 1994). Other courts have reached the same
conclusion but, in doing so, have used language with broader constitutional implications. In
Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976), the Second Circuit held that the plaintiff’s suit
against the judicial defendant did “not present the honest and actual antagonistic assertion of
rights indispensible [sic] to adjudication of constitutional questions . . . .” Id. at 460 (quotation
marks and internal citations omitted). Similarly, the Fifth Circuit has determined that “due to a
lack of adversity between [the plaintiff] and [the judicial defendant] as to the facial
constitutionality of the statutes she challenges as facially invalid, there is no case or controversy
under Article III and [the judicial defendant] is not a proper party under section 1983.” Bauer v.
Texas, 341 F.3d 352, 359 (5th Cir. 2003).
We find this caselaw instructive. Our circuit has not formally “staked out our own
position” on this issue, McNeil v. Cmty. Prob. Servs., LLC, 945 F.3d 991, 996–97 (6th Cir.
2019), but we have favorably cited In re Justices in at least one unpublished opinion, see Cooper
v. Rapp, 702 F. App’x 328, 333–34 (6th Cir. 2017). Today, we stake out our position: we agree
that no case or controversy exists between a state-court judge who has acted in an adjudicatory
capacity under a state statute and a litigant who is attacking the constitutionality of that statute.
When applying that caselaw here, we must answer two questions. First, what role does
the Michigan domestic PPO statute confer upon Judge Tomlinson? If Judge Tomlinson acted as
an enforcer or administrator of the statute, he may be a proper defendant to this action. If,
however, he acted as an adjudicator of the statute, then we must proceed to the second question:
does that lack of a case or controversy deprive the court of subject-matter jurisdiction as the
No. 21-2612 Lindke v. Tomlinson, et al. Page 8
district court concluded? Or, instead, does it mean that Lindke fails to state a claim against
Judge Tomlinson under Rule 12(b)(6) as In re Justices and Allen concluded?
We begin with the statute at issue, Mich. Comp. Laws § 600.2950, which allows an
individual to petition for a personal protection order against various individuals, including, as in
this case, “an individual with whom he or she has had a child in common.” § 600.2950(1).
Broadly speaking, the petitioner may request a PPO to prohibit the target individual from
contacting or interacting with the petitioner or from engaging in “[a]ny other specific act or
conduct that imposes upon or interferes with personal liberty or that causes a reasonable
apprehension of violence.” See § 600.2950(1)(a)–(l). The statute also directs that, “if the court
determines that there is reasonable cause to believe that the individual to be restrained or
enjoined may commit 1 or more of the acts listed in subsection (1)” the court “shall issue a
personal protection order under this section.” § 600.2950(4). In determining whether such
reasonable cause exists, the court must consider evidence offered in support of the PPO or
whether the individual has committed one of the enumerated acts listed in subsection (1). Id.
As with the statutes at issue in In re Justices and Allen, the role of a judge under
Michigan’s PPO statute is adjudicative. First, the judge does not initiate the underlying action, a
private party does. See Allen, 861 F.3d at 442; Reynolds, 201 F.3d at 199. Instead, the judge
evaluates the petitioner’s request for a PPO. He must then determine if “reasonable cause” exists
to grant the PPO, and if so, the judge must issue the PPO. These are purely adjudicative
grounds—the judge simply decides the questions at issue. And after the PPO is entered, the
judge is not responsible for its enforcement. That renders the PPO statute distinct from the rare
case, such as Georgevich, in which a judge is an “enforcer” of a particular statute. “Where a suit
challenges ‘statutes related to the judicial process or statutes previously enforced by the
particular judge against the plaintiff,’ judges are proper parties.” Georgevich, 772 F.2d at 1088(quoting In re Justices, 695 F.2d at 23). See also Sup. Ct. of Va. v. Consumers Union of the U.
S., Inc., 446 U.S. 719, 736 (1980) (holding that judges were proper defendants because they
promulgated and adopted certain court rules and were responsible for their enforcement). But
here, the PPO statute merely directs the adjudicating judge to make certain findings and issue a
PPO if necessary. Therefore, like the First Circuit stated in In re Justices, judges act “as they
No. 21-2612 Lindke v. Tomlinson, et al. Page 9
would in any other case based upon a [state] statute: they sit as adjudicators, finding facts and
determining law in a neutral and impartial judicial fashion.” 695 F.2d at 21. See also Nollet v.
Justices of the Trial Ct. of the Commonwealth of Mass, 83 F. Supp. 2d 204, 211 (D. Mass. 2000)
(holding that judges who have latitude to fashion and enter a restraining order are not proper
defendants because they are acting in a purely adjudicatory role). For these reasons, Judge
Tomlinson’s role in adjudicating § 600.2950 was purely adjudicative. Consequently, there is no
case or controversy between him and Lindke.
So what effect does this have on our jurisdiction to hear the case? Most courts to address
this issue have decided it on non-jurisdictional grounds: because no case or controversy exists,
the plaintiff fails to state a claim under Rule 12(b)(6). See In re Justices, 695 F.2d at 22–23;
Allen, 861 F.3d at 443 n.49. While the parties here have contended, and the district court
decided, that the lack of adversity is a jurisdictional issue, we could follow the lead of those
cases and affirm the district court on Rule 12(b)(6), not Rule 12(b)(1), grounds. See Hayes v.
Equitable Energy Res. Co., 266 F.3d 560, 569 (6th Cir. 2001) (“[W]e may affirm on any grounds
supported by the record, even if different from the grounds relied on by the district court.”).
However, we conclude that the better approach is to decide this case on jurisdictional
grounds. First, a lack of adversity—and thus a lack of a case or controversy—has obvious
constitutional and jurisdictional implications. “If there is no case or controversy, this court lacks
subject matter jurisdiction to hear this appeal . . . .” Michigan v. Meese, 853 F.2d 395, 397 (6th
Cir. 1988). See also Ahmed, 822 F.2d at 27. Second, we have an independent obligation in
every case to ensure that subject-matter jurisdiction exists. See Plains Com. Bank v. Long
Family Land & Cattle Co., 554 U.S. 316, 324 (2008). “‘Without jurisdiction the court cannot
proceed at all in any cause’; it may not assume jurisdiction for the purpose of deciding the merits
of the case.” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). Consequently, if there
is no case or controversy, we may not proceed to the merits of a plaintiff’s claim. Yet, if we
were to decide the case on Rule 12(b)(6) grounds, we would run afoul of this principle by
sidestepping the jurisdictional issues. The district court in Lane relied on this very point when it
premised its decision on jurisdictional grounds. See 523 F. Supp. 3d at 953 (“[A] federal court
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may not assume that it has Article III jurisdiction and then proceed to resolve the merits of a
dispute. Given these settled rules, the Court does not believe it is appropriate to treat a
jurisdiction-negating lack of adversity as a merits issue, and the Court declines to follow the
cases that have done so.” (internal citation omitted)). In our view, Lane did not blaze a new trail
by doing so—several of the opinions addressing this issue have implied that a lack of adversity
has Article III implications. See Bauer, 341 F.3d at 359 (“The requirement of a justiciable
controversy is not satisfied where a judge acts in his adjudicatory capacity.”); Mendez, 530 F.2d
at 460 (“[T]his case does not present the honest and actual antagonistic assertion of rights,
indispensible [sic] to adjudication of constitutional questions . . . .” (quotation marks and
citations omitted)). Lane correctly stated and applied the law in reaching its conclusion. And the
Supreme Court appears to agree. In Whole Woman’s Health, the Court explained that state-court
judges adjudicating claims under the Texas Heartbeat Act, S.B. 8, were not adverse to those
litigants challenging the law. 142 S.Ct. at 532. Echoing In re Justices, the Court reiterated that,
under Article III, “‘no case or controversy’ exists ‘between a judge who adjudicates claims under
a statute and a litigant who attacks the constitutionality of the statute.’” Id. (quoting Pulliam v.
Allen, 466 U.S. 522, 538 n.18 (1984)).
We do not share In re Justices’s reticence to decide the issue on constitutional grounds.
While we typically avoid constitutional questions, the canon of constitutional avoidance is not “a
method of adjudicating constitutional questions by other means.” Clark v. Martinez, 543 U.S.
371, 381 (2005). Rather, it is a tool of statutory interpretation, applicable “only when, after the
application of ordinary textual analysis, the statute is found to be susceptible of more than one
construction; and the canon functions as a means of choosing between them.” Id. at 385(emphasis omitted). It does not apply in cases that fall outside the court’s jurisdiction. See
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring) (noting
that the Court typically does not rule on constitutional questions if there is another ground to
decide the case, but that this applies only “in the cases confessedly within [the Court’s]
jurisdiction”). Here, we are not interpreting a statute; we are determining the threshold
constitutional issue of whether we have subject-matter jurisdiction to hear the case.
No. 21-2612 Lindke v. Tomlinson, et al. Page 11
In sum, we hold that a federal court lacks subject-matter jurisdiction over a challenge to a
state statute brought under § 1983 against a state-court judge when, in the underlying action, the
judge merely acted in an adjudicatory capacity to construe and apply the statute. The parties are
not adverse to one another, so there is no case or controversy. And if there is no case or
controversy, there is no subject-matter jurisdiction. In this case, Judge Tomlinson was
responsible solely for determining whether, under § 600.2950, Lindke had violated the PPO. His
interests are not adverse to Lindke’s. Therefore, we agree with the district court that we lack
subject-matter jurisdiction over Lindke’s claims.2
III.
Lindke also argues that the district court erred in dismissing his claims against Sheriff
King for his failure to state a claim. We disagree.
The district court’s ruling as to Sheriff King was premised on Rule 12(b)(6), the failure to
state a claim upon which relief can be granted. We review that decision de novo. Middlebrooks
v. Parker, 15 F.4th 784, 789 (6th Cir. 2021). “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.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007) (quotation marks omitted)). “This plausibility standard requires the
plaintiff to plead ‘factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Id. (quoting Iqbal, 556 U.S. at 678).
2
On appeal, Lindke repeatedly asserted that, if not for Judge Tomlinson, who should he sue? Rather than
seek review in federal court, we note that he could have appealed Judge Tomlinson’s decision to the Michigan Court
of Appeals. Indeed, he did so in another case involving another PPO issued by another judge, resulting in a
published opinion by the Michigan Court of Appeals holding that the PPO was too broad. See TT, 965 N.W.2d at
121.
Lindke’s counsel claimed that Lindke sued Judge Tomlinson in federal court because of his belief that all
First-Amendment arguments had been waived in the underlying proceeding. As a result, he argued that the only
review available to him was in federal court because Michigan state courts would decline to review his claims. Yet
the plaintiff in Mendez presented a similar argument and the Second Circuit rejected it: “We are unwilling, nor are
we constitutionally able, to speculate that this would be the response of the State courts.” Mendez, 530 F.2d at 459.
We too cannot speculate as to how the Michigan state courts would resolve the waiver question, and, as in Mendez,
such speculation is not pertinent to whether subject-matter jurisdiction exists.
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Lindke’s complaint contained the following allegations against Sheriff King:
69. The Michigan domestic PPO statute, as authoritatively construed by
Defendants JOHN D. TOMLINSON and MAT KING, is a law existing and being
utilized, as effectuated on June 16, 2020 pursuant to its authoritative construction,
in violation of the First Amendment to the United States Constitution.
***
75. Defendant MAT KING further effectuated the unconstitutional Michigan
domestic PPO statute, as authoritatively construed, by enforcing and/or
attempting to enforce the unconstitutional orders of the St Clair County Circuit
Court premised on the Michigan domestic PPO statute, as authoritatively
construed, when knowing or had reason to know that such action against First
Amendment protected speech is expressly unconstitutional.
***
76. Defendant MAT KING failed to halt or failed to terminate the effectuation of
the unconstitutional Michigan domestic PPO statute, as authoritatively construed,
and instead, contrary to the protections of the First Amendment, did seek to, has
attempt[ed] to, and continues to enforce the unconstitutional Michigan domestic
PPO statute, as authoritatively construed.
We agree with the district court that these allegations cannot survive a motion to dismiss.
Even construing these allegations in the light most favorable to Lindke, his claims are “naked
assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quotation marks and
citation omitted). The complaint alleges merely that Sheriff King “effectuated” the PPO statute
by “enforcing and/or attempting to enforce” and “fail[ing] to terminate” Judge Tomlinson’s
orders. Nowhere does it factually describe the actions Sheriff King took to enforce the order.
The allegations are purely conclusory. Such “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. See also Boxill v.
O’Grady, 935 F.3d 510, 518–19 (6th Cir. 2019) (holding that a plaintiff failed to state a claim
because she did not offer “facts specific” to the defendants, relying instead on “broad, conclusory
allegations”).
On appeal, Lindke tries to inject new facts into the record, while acknowledging that “the
exact additional actions of Sheriff King are not well known to Lindke.” He asserts that Sheriff
King entered the PPO into Michigan’s Law Enforcement Information Network (LEIN); he
contends that this is analogous to the circumstances in McNeil, where we concluded a plaintiff’s
No. 21-2612 Lindke v. Tomlinson, et al. Page 13
claim against a sheriff survived a motion to dismiss because Tennessee law required county
sheriffs to hold probationers in jail. See McNeil, 945 F.3d at 995. It is true that § 600.2950(10)
requires a court to “designate a law enforcement agency that is responsible for
entering a personal protection order into the law enforcement information network . . . .” The
March 2016 PPO indeed designates the St. Clair County Sheriff’s Department. But as noted by
the district court, Lindke’s complaint does not allege that Sheriff King entered the PPO into
LEIN. See Tomlinson, 2021 WL 2434120, at *3 n.1. He also has not explained how entering a
PPO into LEIN is analogous to keeping probationers in jail. See id. at *3 n.2. In that absence,
we conclude that McNeil is distinguishable. There, the plaintiffs’ complaint explicitly noted that
the “county and sheriff . . . detain[ed] them after arrest until they pay bail.” McNeil, 945 F.3d at
993. The Michigan LEIN system is used to collect, protect, and disseminate information, and
entering any information in that system is a far cry from a statutory responsibility to detain
someone in jail. See, e.g., Mich. Comp. Laws § 28.214.
In sum, we hold that Lindke’s complaint failed to state a claim against Sheriff King upon
which relief could be granted. Therefore, the district court properly granted the motion to
dismiss under Rule 12(b)(6).
IV.
For these reasons, we affirm the judgment of the district court.