Appendix — Swekel v. Harrington

DOCUMENT 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DELORES MARIE SWEKEL, Personal

Representative of the Estate of

ARNOLD F. SWEKEL, Deceased,

Plaintiff, No. 91-CV-76258-DT

v. HON. GEORGE E. WOODS

GREGORY HARRINGTON, WILLIAM

ABAIR, JOHNSON TAYLOR, DETECTIVE -

WILLIAM COOPER and DAVID ISRAEL,

jointly and severally,

Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO AMEND

THE RECORD

AT A SESSION of said Court, held in the United States

Courthouse, in the City of Detroit, State of Michigan, on

the 20th day of February, 1996.

PRESENT: THE HONORABLE GEORGE E. WOODS

United States District Judge

This matter having come before the Court on defendants’ motion

to amend the record;

The Court having reviewed the pleadings submitted herein, and

being otherwise fully informed in the matter,

IT IS HEREBY ORDERED that defendants’ motion to amend

the record shall be, and hereby is, DENIED.

This Court granted summary judgment in favor of defendants on

May 16, 1995, and denied plaintiff's motion for reconsideration of the

dismissal of her case on August 29, 1995. Plaintiff has appealed the

dismissal of her case to the United States Court of Appeals of the Sixth

Circuit and has filed her appeal brief.

Defendants now move to amend the record because “certain key

deposition transcripts taken in this case were inadvertently not filed with

the District Court and thus were not made a part of the District Court

record.” Defendants’ Motion, p. 2. Defendants further assert that the

transcripts “are integral to giving the Court of Appeals a full

understanding of the facts of this case,” and that “the information

contained in these four key depositions has already been presented to

this Court.” Id, at 3.

Fed. R. Civ. P. 10(e) provides that a district court may correct

the record on appeal “[i}f anything material to either party is omitted

from the record by error or accident or is misstated therein.” As plaintiff

points out, however, Rule 10(e) merely provides for the correction of

2

clerical error or error by the Court; it does not allow attorneys to correct

their own inadvertence. Plaintiff also is correct that the Court allowed

both parties an opportunity to supplement the record before it ruled on

the motion for reconsideration. Further, the Sixth Circuit must review

the merits of the Court’s rulings in this case only in the context of the

information that in fact was before the Court. Torrington Co. v. Local

Union 590 of Int’] Union, 803 F. 2d 927, 932 (7th Cir. 1986); Jones v.

Jackson Nat’ Life Ins. Co., 819 F. Supp. 1385, 1386-87 (W.D. Mich.

1993). Finally, if defendants are correct that the information at issue

already has become part of the record, the instant motion is unnecessary.

For the reasons stated, defendants’ motion to amend the record

shall be, and hereby is, DENIED.

So ordered.

GEORGE E. WOODS

UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DELORES MARIE SWEKEL, Personal

Representative of the Estate of

ARNOLD F. SWEKEL, Deceased,

Plaintiff, ’

United States District Court

Case No. No. 91-CV-76258-DT

Vv. HON. GEORGE E. WOODS

GREGORY HARRINGTON,

WILLIAM ABAIR, JOHNSON

TAYLOR, DETECTIVE WILLIAM

COOPER and DAVID ISRAEL,

jointly and severally,

Defendants.

FRASER & McHUGH, P.C.

THOMAS G. McHUGH (P36175)

Attorney for Plaintiff

20 South Main

Suite 112

Mt. Clemens, Michigan 48043

ANDREW R. GRIFKA (P42348)

Attorney for Defendants

William Cooper and David Israel

600 Randolph

Second Floor

Detroit, MI 48226

(313) 224-5030

ORDER OF DISMISSAL

At a session of said Court held in the U.S. District Court,

Eastern District of Michigan on

PRESENT: HONORABLE

U.S. DISTRICT COURT JUDGE

This matter having come on for hearing on May 16, 1995,

upon the Court’s sua sponte Motion to Show Cause why Plaintiff's

Complaint should not be dismissed in light of the Court’s reading of

Joyce v. Mavyromatis, 783 F. 2d 56 (6th Cir. 1986), and after having

read the briefs submitted by the respective parties hereto and after

being otherwise fully advised in the premises;

IT IS HEREBY ORDERED that Count II, the remaining count

in Plaintiff's Complaint, is hereby dismissed for the reasons stated on

the record on May 16, 1995.

IT IS HEREBY ORDERED.

HONORABLE GEORGE E. WOODS

U.S. District Court Judge

A-3

DOCUMENT 3

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DELORES MARIE SWEKEL, Personal

Representative of the Estate of

ARNOLD F. SWEKEL, Deceased,

Plaintiff,

Case No. 91-CV-76258-DT

-VS- HON. GEORGE E. WOODS

GREGORY HARRINGTON, WILLIAM

ABAIR, JOHNSON TAYLOR, DETECTIVE

WILLIAM COOPER and DAVID ISRAEL,

jointly and severally,

Defendants.

ORDER DENYING PLAINTIFF’S MOTION.

FOR RECONSIDERATION

AT A SESSION of said Court, held in the United

States Courthouse, in the City of Detroit, State of

Michigan, on the 29th day of August, 1995.

PRESENT: HONORABLE GEORGE E. WOODS

United States District Judge

This matter having come before the Court on plaintiff's May

30, 1995, motion for reconsideration of the Court’s sua sponte motion

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to dismiss, as well as plaintiff's June 19, 1995 supplemental brief and

exhibits in support of her motion for reconsideration of the Court’s sua

sponte motion to dismiss;

The Court having reviewed the pleadings submitted herein, and

being otherwise fully informed in the matter;

IT IS HEREBY ORDERED that plaintiff's motion for

reconsideration shall be, and hereby is, DENIED.

I. INTRODUCTION AND FACTS

Plaintiff is the personal representative of the estate of decedent

Arnold Swekel, who was struck in the City of River Rouge, Michigan,

as a pedestrian in an accident involving either one or two Cars on

September 30, 1988. Mr. Swekel ultimately died from his injuries on

October 17, 1988. Defendants were police officers working for the

City of River Rouge when the accident occurred and during all other

relevant times. Plaintiff filed this suit in 1991 pursuant to 42 U.S.C.

§ 1983, alleging in part that defendants violated her right to access the

courts by concealing the identity of the driver of one of the two

possible cars involved in the accident.

/il

Plaintiff has alleged that during the police investigation of the

accidents, rumors emerged in the community that the identity of the

second driver was the son of a high-ranking police officer. Plaintiff

asserts in part that defendants (1) ignored anonymous tips stating that

Russell Kulinski, a police commander at the time of the accident, or

his son, Todd, was one of the drivers who struck decedent, (2) failed

to disclose to plaintiff the anonymous tips implicating the Kulinskis,

despite the fact that plaintiff told the police that she suspected Todd

Kulinski, (3) refused to investigate the possible link between the

Kulinskis and the accident, even though some eye-witnesses has stated

that two cars, not just one car, hit the decedent, (4) took the unusual

step of not asking the officer who responded to the accident to attend

the preliminary examination of the first driver, and (5) refused to

interview Todd Kulinski. Plaintiff, who successfully pursued a

wrongful death action against the first driver, argues that defendants’

actions deprived her of a similar suit against the second driver.

Trial was scheduled to occur on May 15, 1995. The Court,

however, dismissed the case on that date in an opinion from the bench.

Plaintiff now requests reconsideration of the dismissal.

3

Il. STANDARD

Local Rule 7.1(h) provides:

Generally, and without restricting the discretion of the

Court, motions for rehearing or reconsideration which

merely present the same issues ruled upon by the

Court, either expressly or by reasonable implication,

shall not be granted. The movant shall not only

demonstrate a palpable defect by which the Court and

the parties have been misled but also show that a

different disposition of the case must result from a

correction thereof.

This particular motion for reconsideration, however, comes

before the Court in an unusual procedural posture. This case was

scheduled for trial on May 15, 1995. The Court notified the parties

by telephone on May 11, 1995 that it was ordering plaintiff to show

cause why the case should not be dismissed in light of controlling

precedent that the Court had found on the night of May 10, 1995 while

researching one of plaintiff's motions in limine. The parties submitted

briefs to the Court as requested on May 14, 1995, and the Court

issued an opinion from the bench on May 15, 1995, dismissing

plaintiff's remaining claim. Plaintiff accordingly filed on May 30,

1995 a motion for reconsideration and a brief in support (“May 30,

1995 Brief”), in which she requested the Court either to reverse its

4

decision immediately or to allow her to file additional briefs and

exhibits. The Court responded by issuing an order on June 2, 1995,

allowing plaintiff to file by June 19, 1995 any additional arguments or

exhibits that she thought appropriate. The Court also allowed

defendants to respond to any additional filings by plaintiff. Although

plaintiff filed a second brief in support of its motion for

reconsideration (“June 19, 1995 Brief”), defendants have not

responded to the instant motion.

Given the brief period of time in which plaintiff had to react to

the Court’s May 11, 1995 order to show cause, as well as the fact that

the Court now has before it a much more complete record, the Court

will not hold plaintiff to Local Rule 7.1(h)’s general “palpable defect”

standard. The Court instead will reexamine all of plaintiff's

arguments and exhibits anew in order to determine whether she should

proceed to trial on her right of access claim.

The Court must employ Fed. R. Civ. P. 56(c)’s standard for

summary judgment motions when deciding whether a genuine issue of

material es exists as to whether plaintiff has a viable claim. In order

to avoid summary judgment, plaintiff must identify sufficient evidence

5

in the record to allow a reasonable jury to find for her at trial.

Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574

(1986). The sufficiency of the evidence is to be tested against the

substantive standard of proof that would control at trial. Anderson,

supra. Plaintiff should proceed to trial unless an absence of evidence

supports her claim. Celotex v. Catrett, 477 U.S. 317, 325 (1986).

“[A] party opposing a properly supported motion for summary

judgment may not rest on mere allegations or denials of his pleading,

but must set forth specific facts showing that there is a genuine issue

for trial.” Anderson, 477 U.S. at 256. This Court must consider the

evidence in the light most favorable to plaintiff, but it also may weigh

competing inferences for their persuasiveness. Matsushita, supra.

Ill. ANALYSIS

Piaintiff has asked the Court to reconsider both its analysis of

Sixth Circuit precedent and its application of that precedent to the

facts. The Court will address each request in turn.

A. Interpretation of Sixth Circuit Precedent

6

The Court has ruled that the dismissal of plaintiff's case is

compelled by the Sixth Circuit’s holding in Joyce v, Mavromatis, 783

F.2d 56, 57 (1986), a case which narrowly construed the right of

access to the courts. Plaintiff has argued that the Joyce opinion

applied only an equal protection and procedural due process analysis,

thereby failing to consider that the right of access to the courts is a

fundamental right.' Plaintiff argues that this analytical failure led the

Joyce Court to require plaintiffs in right-to-access cases to demonstrate

that defendants successfully prevented them from filing a lawsuit.

Piaintiff concludes that this requirement is no longer valid in light of

the Sixth Circuit’s subsequent ruling in Graham vy. Nat. Collegiate

Athletic Ass’n, 804 F. 2d 953, 959 (1986), that the right of access is

fundamental.

//1/

' Plaintiff's characterization of the law has been somewhat

inconsistent. Plaintiff has argued occasionally that she has a right of

unhampered access to the courts. See p. 3, Plaintiff's June 19, 1995

Brief. Nonetheless, plaintiff also has conceded occasionally that

defendants could have violated her right of access only if they

completely prevented her from filing a suit against the Kulinskis. See

p. 4-6, Plaintiff's May 30, 1995 Brief.

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Plaintiff's characterization of Joyce is incorrect. The Joyce

Court explicitly indicated in two separate portions of the opinion that

it was ruling on three distinct constitutional claims, one of which was

a substantive First Amendment claim of access to the courts. See

Joyce, 783 F. 2d at 57. The Joyce opinion therefore properly

analyzed the right of access as a fundamental right, yet nonetheless

construed that right very narrowly. Moreover, Graham actually

reaffirmed the holding in Joyce by implying that the right of access to

the courts is not an expansive right. See Graham, 804 F. 2d at 959

(stating that “[plaintiff] cannot claim, however, that the defendants

completely denied him access to the courts, since he successfully

pursued his state court action ... Rather, [his claim] is more accurately

characterized as a claim of retaliation for the exercise of a First

Amendment right”) (emphasis added).

B. Application of Joyce to the Facts

As noted, the instant issue turns upon whether defendants

?The result in Joyce is consistent with the fact that the

declaration of an abstract fundamental right, standing alone, reveals

nothing about the practical content of that right.

prevented plaintiff from bringing a wrongful death action against one

or both of the Kulinskis. The Joyce opinion allows an access to the

courts claim to proceed only if the state actors have succeeded to a

sufficient degree in denying a plaintiff actual access. An access to the

courts claim therefore serves as a vehicle to recoup damages which

should have been awarded in the lost cause of action, not as an

opportunity to sue state actors for reprehensible but ultimately

ineffectual actions. The constitutional violation arises from results,

not mere effort.

The Court finds that, even if everything that plaintiff has

alleged is true, no genuine issue of material fact exists as to whether

plaintiffs eventually could have pursued a viable tort claim against

either one of the Kulinskis. Plaintiff has submitted considerable

evidence regarding what defendants knew during the three-year statute

of limitations period about the link between the Kulinskis and the

accident. What plaintiff knew about the alleged second driver,

however, is also important for the purposes of the instant motion.

Plaintiff admits:

From September 30, 1988 through September 30,

9

1991, the information available to [plaintiff] and her

attorney Judge Bajorek through their investigation was

merely that there was a second driver. This

information was forwarded by them to the police in

1989 and 1990 with a request that the investigation be

reopened prior to the statute of limitations running.

The police refused.

P. 10, Plaintiff's May 30, 1995 Brief. Plaintiff's belief in the

existence of a second driver was based partly on the April 28, 1989

deposition testimony of the reporting officer, Dwight Courtland, that

four witnesses had stated that two cars were involved, as well as direct

deposition testimony on June 28 and December 5, 1989 by two of

those witnesses. See Exhibit B, C, & D id. Plaintiff therefore firmly

knew or thought that she knew by 1989 that a second driver had been

involved in the accident.

After the police closed the criminal investigation into the

accident, plaintiff reported to defendant Cooper that she had heard

rumors that Todd Kulinski was the driver of the second vehicle. { 4,

Exhibit B, Plaintiff's June 19, 1995 Brief. Plaintiff also told defendant

Cooper in 1989 that she felt that Todd Kulinski was in fact the second

driver. P. 115-16, Exhibit A, Plaintiff's May 30, 1995 Brief.

Moreover, plaintiff has admitted that, during the civil suit against the

10

first driver, her attorney “drove by the Kulinski residence and noticed

a mid-size blue automobile in the driveway, which fit the description

of the second car as testified by Estel Chaffins.” 8, Exhibit A,

Plaintiff's June 19, 1995 Brief.’ Likewise, during a June 28, 1989

deposition, counsel for plaintiff asked an accident witness whether he

knew Todd Kulinski. See P. 19, Exhibit D, Plaintiff's May 30, 1995

Brief. Plaintiff therefore believed by 1989 that Todd Kulinski was the

second driver and made limited efforts to investigate and confirm that

belief.

Judge David A. Bajorek, who represented plaintiff prior to the

filing of this suit, has stated in an affidavit that he never was able to

amass enough facts to sue the Kulinskis before the statute of

limitations had run without risking sanctions for having filed an

improper action based upon mere rumor. Exhibit A, Plaintiff's June

3Plaintiff deposed EstelChaffins on December 5, 1989. Mr.

Chaffins testified at deposition that two cars were involved in the

accident and that the second car was a two-door, mid-sized, medium

metallic-blue vehicle. P. 9, Exhibit C, Plaintiff's May 30, 1995 Brief.

Counsel for plaintiff sent Mr. Chaffins’ statement to the police in

early 1990 when requesting that the investigation into the accident be

reopened. ¥ 7, Exhibit A, Plaintiff's June 19, 1995 Brief; p. 120,

Exhibit A, Plaintiff's May 30, 1995 Brief.

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19, 1995 Brief. Likewise, plaintiff argues that it was only through

discovery in this case that she finally determined with sufficient

certainty the identity of the second driver.‘ Exhibit B, id. These

assertions, however, directly contradict the fact that plaintiff felt that

she had accumulated enough facts before the statute of limitations had

run to file this lawsuit, a suit based upon the same “mere rumors” that

apparently could not support a suit naming the second driver. Plaintiff

cannot claim simultaneously that (1) she had sufficient knowledge,

based on rumors in the community that Todd or Russell Kulinski was

the second driver, to sue defendants for protecting somebody with

connections to the police department,’ and (2) she nonetheless lacked

sufficient knowledge to file a tort suit naming the Kulinskis.

Moreover, even if defendants succeeded in making plaintiff believe

‘Specifically, plaintiff states that the March 16, 1992

deposition of defendant Cooper and the October 22, 1992 deposition

of Officer Robert Warren finally confirmed that the police had been

protecting the Kulinskis. P. 6, Plaintiff's May 30, 1995 Motion.

‘The premise of this suit is not and could not be that the police

were merely very sloppy and thereby unwittingly allowed someone

(who could have been anyone) to escape justice. See, ¢.g., Bell v.

City of Milwaukee, 746 F. 2d 1205, 1261-62 (7th Cir. 1984).

12

that she could not file a suit immediately naming one or both of the

Kulinskis, she still believed long before the statute of limitations

period had run that defendants were protecting the Kulinskis. She

therefore could have filed an earlier “John Doe” suit against the

second driver and secured all of the same information she now has

through discovery in that suit. Although John Doe suits do not toll the

statute of limitations in Michigan, see, ¢.g., Fassalare v. Desa

Industries, Inc., 135 Mich. App. 1, 6 (1984), plaintiff did not have to

file her suit as she did, on the last possible day.° She at the very least

had sufficient facts to file a John Doe suit, pursue discovery, and

amend her suit by adding the particular identity of the second driver

before the expiration of the statute of limitations.’ Ultimately,

°The statute of limitations in Michigan for wrongful death

actions is three years from the time of the injury. Hardy v.

Maxheimer, 429 Mich. 422 (1987). Because the accident occurred on

September 30, 1988, the last day that plaintiff could have filed a

lawsuit against the second driver was September 30, 1991.

’Plaintiff has argued that the Court mistakenly found during

its May 15, 1995 dismissal of this case that plaintiff should have

known about the involvement of the Kulinskis because defendant

Cooper had disclosed in deposition in this suit that the police had

received tips that one of the Kulinskis was the second driver. See P.

4, Plaintiff's May 30 Motion. The Court, however, was not relying

13

plaintiff could have, and should have, pursued a suit against the

Kulinskis, even though she in fact did not.

IV. CONCLUSION

Accordingly, plaintiff's motion for reconsideration shall be,

and hereby, is DENIED.

So Ordered.

GEORGE E. WOODS

UNITED STATES DISTRICT JUDGE

upon this deposition testimony as evidence that plaintiff had

sufficient knowledge regarding the Kulinskis to file suit before the

statute of limitations had run. The Court mentioned defendant

Cooper’s testimony merely because it was reminding the parties that

it previously had denied defendants’ motion for summary judgment

on the basis that the evidence, including the deposition testimony of

defendant Cooper, had raised an issue of fact as to whether the police

intentionally were protecting a particular person. See p. 13, Exhibit

1, Plaintiff's June 19, 1995 Motion in Support of Reconsideration.

This reminder was part of an overall explanation that plaintiff could

not proceed if her theory of this case was that the lack of an adequate

investigation alone showed that the police must have been protecting

“somebody.” Id.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DELORES MARIE SWEKEL,

Plaintiff -Appellant,

NO. 95-2031

V.

CITY OF RIVER ROUGE,

Defendant,

GREGORY HARRINGTON, WILLIAM

ABAIR, JOHNSON TAYLOR,

WILLIAM COOPER AND DAVID ISRAEL,

Defendants-Appellees,

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 91-76258--George E,. Woods, District Judge

Argued for Appellant: October 18, 1996

Submitted for Appellees: October 18, 1996

Decided and Filed: July 23, 1997

Before: MERRITT, JONES, and COLE, Circuit Judges

2 Swekel v. City of River Rouge, et al.

COUNSEL

ARGUED: Morgan J.C. Scudi, HUTH, LYNETT & SCUDI, San

Diego, California, for appellant. ON BRIEF: Morgan J.C. Scudi,

HUTH, LYNETT & SCUDI, San Diego, California, Thomas G.

McHugh, Mt. Clemens, Michigan, for Appellant. John J. Cibrario,

Westland, Michigan, for Appellee.

JONES, J., delivered the opinion of the court, in which COLE, J.,

joined. MERRITT, J. (pp. 12-14), delivered a separate concurring

opinion.

OPINION

NATHANIEL, R. JONES, Circuit Judge. Plaintiff, Delores Swekel,

appeals the district court's sua sponte dismissal of her suit under 42

U.S.C. § 1983 claiming that Defendants denied her access to the courts.

Because Swekel failed to represent evidence that the Defendants’ actions

rendered a state court remedy ineffective, we now AFFIRM.

I.

On September 30, 1988, at approximately 11:00 p.m., Arnold F.

Swekel attempted to cross a street in River Rouge, Michigan. While

crossing the street, either one or two cars speeding down the street hit

and fatally injured Mr. Swekel.

After the accident, Officer Dwight Black went to the scene and

interviewed witnesses. Apparently four witnesses told Officer Black

that two cars were involved in the accident. Officer Black then filed a

police report that provided a description of the two vehicles involved.

After filing the report, Officer Black was removed from the case.

Additionally, the daily log sheets for the night of September 30, 1988

NO. 95-20:

3 Swekel v. City of River Rouge, et all.

disappeared after the incident. The Plaintiff alleges that the log sheet

would reveal that the incident involved two vehicles.

Mr. Swekel was in the hospital for seventeen days before he passed

away on October 17, 1988. Delores Swekel. (“Swekel”), the widow and

personal representative of the estate of the decedent, allegedly requested

that the police interview him during this period, but they declined.

Swekel claims that following the accident the police engaged in an

immediate cover up of the second driver because he was the son of a

high-ranking police officer. She alleges that even though the witnesses

stated two drivers were involved, and all of the evidence pointed towards

the high-ranking police officer or his son, the police never investigated

either of them.

Accordingly to Swekel the Defendants: (1) failed to perform forensic

tests on Mr. Swekel’s clothes; (2) ignored the responding officer’s report

that two cars were involved; (3) told the responding officer not to attend

the preliminary hearing, though it is customary for the responding officer

to attend; (4) ignored anonymous tips stating that Russel Kulinski, a

police commander at the time of the accident, or his son, Todd, was one

of the drivers who struck Mr. Swekel; (5) refused to investigate the link

between the Kulinskis and the second driver; (6) refused to interview

Todd Kulinski; and (7) failed to disclose to Plaintiff the anonymous tips

implicating the Kulinskis, despite the fact that Plaintiff told the police that

she suspected Todd Kulinski.

Swekel successfully pursued a wrongful death action against the first

driver. She claims that Defendants’ actions deprived her of a similar suit

against the second driver, because she could not discover his identify

before her time to file suit expired under the Michigan statute of

limitations. In fact, she claims that she did not discover the identify of

the second driver until discovery in this suit. Swekel’s attorney believed

that as a result of the police coverup, he lacked the evidence to filed suit

and would have subjected himself to sanctions if he filed suit.

The federal case for denial of access to the courts was set to go to trial

NO. 95-2031

” Swekel v. City of River Rouge, et al.

on May 15, 1995. On May 11, 1995, the district court ordered Swekel

to show cause why it should not dismiss the case in light of Joyce v.

Mavromatis, 783 F.2d 56 (6th Cir. 1986) (holding that plaintiff was not

denied access to courts if she could file a viable suit in state court). In

her brief to the district court, Swekel argued that the Defendants’ cover-

up of the identify of the second driver caused the statute of limitations to

run and, thus, amounted to her legally being barred from filing suit. The

district court disagreed and held that she could have filed a “John Doe”

suit against the second driver in state court and then amended it when

she discovered the second driver’s identity.

The district court found that Swekel possessed a sufficient factual basis

to file a “John Doe:” suit in state court. These facts are as follows: On

December 5, 1989, the Plaintiff deposed Estel Chaffins, who testified that

two cars were involved in the accident. Furthermore, in another

deposition taken on June 28, 1989, Plaintiff's counsel asked an accident

witness whether he knew Todd Kulinski. Finally, in early 1990,

Plaintiff s counsel sent a copy of Mr. Chaffins’s statement to the police

and requested that they re-open the case. These actions demonstrated

to the district court that Swekel knew of a second driver before the

three-year statute of limitations had run and could have filed a suit in

state court against a “John Doe” defendant. The district court conceded

that “John Doe” suits do not toll the statutes of limitations in Michigan,

see, e.g., Fazzalare v. Desa Indus., Inc. 135 Mich. App. 1, 6(1984), but

reasoned that with the aid of discovery Swekel may have been able to

discover the identify of the second driver before the statute ran.

Consequently, the district court granted summary judgment to

Defendants sua sponte.

Swekel moved for reconsideration, which the district court denied. She

then filed this timely appeal.

II.

“We review a district court’s grant of summary judgement de novo...

{I} a motion for summary judgment, ‘credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from

NO. 95-2031

Swekel v. City of River Rouge, et al.

the facts are jury functions, not those of a judge... The evidence of the

non-movant is to be believed, and all justifiable inferences are to be

drawn in his favor.”” Russo v. City of Cincinnati, 953 F.2d 1036, 1041-

42 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc.), 477 U.S.

242, 255 (1986), and citing Vollrath v. Georgia-Pacific Corp., 899 F.12d

533, 534 (6th Cir., cert. denied, 490 U.S. 940 (1990)); see also Rowley

v. United States, 76 F.3d 796, 799 (6th Cir. 1996). Summary judgment

is appropriate when the record “shows that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. 56(c).

On appeal, Plaintiff argues Defendants denied her the right of access to

the courts by covering up for a high ranking police officer and his son.

“It is beyond the dispute that the right of access to the courts is a

fundamental right protected by the Constitution.” Graham v. National

Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir. 1986). In fact,

the right of access to the courts finds support in several provisions of the

Constitution including: the Due Process Clause of the Fourteenth

Amendment, Wolff v. McDonnell, 418 U.S. 539, 579 (1974), the Equal

Protection Clause, Pennsylvania v. Finley, 481 U.S. 551, 557 (1987),

the First Amendment, Turner v. Safley, 482 U.S. 78, 84 (1987) (citing

Johnson v. Avery, 393 U.S. 482 (1969)), and the Privileges and

Immunities Clause of Article IV, see, e.g., Chambers v. Baltimore &

Ohio R.R., 207 U.S. 1242, 148 (1907); Smith v. Maschner, 899 F.2d

940, 947 (10th Cir. 1990).

The nght of access in its most formal manifestation protects a persons;”

right to physically access the court system. Without more, however,

such an important right would ring hollow in the halls of justice. See

Chambers, 207 U.S. at 148 ({"In an organized society it is the right

conservative of all other rights, and lies at the foundation of orderly

government. It is one of the highest and most essential privileges of

citizenship....”). Access to courts does not only protect one’s right to

physically enter the courthouse halls, but also insures that the access to

courts will be “adequate, effective and meaningful.” Bounds v. Smith,

430 U.S. 817, 822 (1977). Therefore, if a party engages in actions that

effectively cover-up evidence and this action renders a plaintiff's state

NO. 95-2031

6 Swekel v. City of River Rouge, et al. NO. 95-2031

court remedy ineffective, they have violated his right of access to the

courts. See Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir.

1984) (“To deny such access defendants need not literally bar the

courthouse door or attack plaintiffs’ witnesses.”). Otherwise, to what

avail would it be to arm a person with such a constitutional right, when

the courtroom door can be hermetically sealed by a functionary who

destroys the evidence crucial to his case. A contrary interpretation of

this right would encourage “police officials to conceal the circumstances

relating to unlawful killing committed under color of state law and other

deprivations of federal rights Section 1983 was designed to remedy.” Jd.

Several courts have found that a state official’s actions in covering-up

evidence amounted to a denial of access to the courts. For example, in

Bell, supra, the police covered up a murder by one of their officers by

concealing key facts from the family of the murder victim. /d. at 1215-

17. The court found that “a conspiracy to cover up a killing, thereby

obstructing legitimate efforts to vindicate the killing, through judicial

redress, interferes with the due process right of access to courts.” /d. at

1261. The court reasoned that the “constitutional right [of access to the

courts] is lost where, as here, police officials shield from the public and

the victim’s family key facts which would form the basis of the family’s

claims for redress.” Jd.

In Ryland v. Shapiro, 708 F.2d 967 (Sth Cir. 1983), the parents of a

murder victim filed suit alleging that two prosecutors covered up the fact

that a murder had occurred and that the murderer was a fellow

prosecutor. The plaintiffs claimed that by concealing such facts for

eleven months, the defendants had caused them to delay bringing a

wrongful death action against the murder, and thus “wrongfully

interfer[ed] with their access to the state courts.” Jd. at 969-70. The

Fifth Circuit held that the delay created by the defendants could be a

constitutional deprivation if the conduct prejudiced the plaintiff's chances

of recovery in state court. /d. at 974.

In another denial of access case, jCrowder v. Sinyard, 884 F.2d 804

(Sth Cir. 1989), denied, 496 U.S. 974 (1990), abrogated on other

grounds by Horton v. California, 496 U.S. 128 (1990), the Firth Circuit

7 Swekel v. City of River Rouge, et al.

summarized Ryland as follows:

Ryland stands for the proposition that if state officials

wrongfully and intentionally conceal information crucial

to 4 person's ability to obtain redress through the courts,

and do so for the purpose of frustrating that right, and

that concealment and the delay engendered by it

substantial reduce the likelihood of one’s obtaining the

relief to which one is otherwise entitled, they may have

committed a constitutional violation.

Id.at 812. The plaintiffs in Crowder claimed that the defendants seized

their property and removed it from Texas to Arkansas, denying them the

ability to bring suit in Texas to recover their property. /d.at 813. The

court found that the plaintiffs were not denied access to the courts, and

that the defendants were amenable to suit under the Texas Long Arm

Statute. /d.at 814. The Fifth Circuit held that even through the property

was removed from Texas, the plaintiffs had unimpeded meaningful access

to both the state and federal courts to challenge the legality of the

defendants’ actions. /d.

The Defendants argue that this court’s decision in Joyce v. Mavromatis,

supra, is dispositive in this case. In Joyce, the plaintiff alleged that she

was injured in an accident caused by the son of the Steubenville, Ohio,

police chief. 783 F.2d at 57. She filed a § 1983 action claiming that the

defendants, police officers, “sought to defeat her state court damage suit

by revoking a traffic citation issued to the son [of the police chief]... in

connection with the accident and by altering the police report filed by

...the officer who investigated the accident and by having new lines

painted on the street at the intersection.” Jd. She argued that these

actions violated her right to due process, access to the courts, and equal

protection. The district court dismissed the action. This court affirmed.

Id The plaintiff knew the identify of the defendant, had a pending state

court damage suit when the actions occurred, and could bring these

allegations to the attention of the state court judge. Thus, the defendants

did not deny her access to the courts, because she had all of the relevant

facts at her disposal. Furthermore, this court found that “there is no

NO. 95-2031

8 Swekel v. City of River Rouge, et al. NO. 95-2031

reason to believe that an Ohio court and jury would be unavailable and

would not do justice between the parties. Rather than having denied

access, the defendants have opened themselves to punitive damages and

converted a small claims matter into a significant case, albeit not a federal

case.” Jd.

The crucial distinction between the Joyce decision and this case is that

the plaintiff in Joyce knew the identify of the defendant and had all of the

requisite facts to file suit. Moreover, it appears that at the time the Joyce

defendants took these actions, the plaintiff already had a pending “state

court damage suit.” /d. Thus, the Joyce plaintiff was not denied access

to the court. None of the alleged abuses prevented her from filing suit

or obtaining effective redress. See 7hompson v. Boggs, 33 F.3d 847,

852-53 (7th Cir. 1994); Foster v. City of Lake Jackson, 28 F.3d 425, 430

(Sth Cir. 1993). Therefore, Joyce is not dispositive of this case.

A court must analyze several factors before deciding whether a person’s

fundamental right of access to the courts have been violated. First, a

court must ascertain whether the above occurred pre- or post-filing.

When the abuse transpires post-filing, the aggrieved party is already in

court and that court usually can address the abuse, and thus, an access

to courts claim typically will not be viable.’ If the abuse occurs pre-

Our decision to limit the nght of access to the courts to pre-filing abuses in most

instances finds support in both the Fifth and Seventh Circuits. In Foster v. City of

Lake Jackson, 28 F.3d 425 (Sth Cir. 1993), the plaintiffs claimed the defendant’s

failure to maintain a traffic light caused their son’s death, and that the defendants

denied them access to the courts by concealing and suppressing evidence during

discovery. /d.at 427. The Fifth Circuit held that “the mght of access [to the

courts]...encompasse[s] a nght to file an action, but not the nghts to proceed free of

discovery abuses after filing.” /d_at 430.

The Seventh Circuit reached a similar conclusion in Thompson v. Boggs,

33 F.3d 847 (7th Cir. 1994), cert. denied, 115 S. Ct. 1692 (1995). In Thompson,

the plaintiff claimed the police used excessive force and denied him access to the

courts by committing critical facts in their police reports. Jd. at 852. The Seventh

Circuit held that the defendants’ actions did not amount to a denial of the plaintiff's

(continued...)

|

9 Swekel v. City of River Rouge, et al.

filing, then the plaintiff must establish that such abuse denied her

“effective” and “meaningful” access to the courts. Bounds, 430 U.S. at

822. She can do this only by showing that the defendants’ actions

foreclosed her from filing suit in state court or rendered ineffectively any

State Court remedy she previously may have had. See Crowder, 884 F.2d

at 812-13; Bell, 746 F.2d at 1261; Ryland, 708 F.2d at 974-75. In most

instances, state courts can address pre-filing abuses by tolling the statute

of limitations or allowing for a “spoliation of evidence” lawsuit.

The case at bar involves alleged pre-filing the abuses. Swekel claims

that the Defendants effectively denied her access to courts by failing to

investigate the possibility of a second driver and covering up any such

evidence. She claims that the Defendants’ actions caused Michigan ’s

three-year statute of limitations to run before she could file suit. We

agree with Swekel, that if true, the Defendants’ actions are reprehensible.

Yet, that is not the issue before us. Instead, we must determine whether

their actions amounted to a constitutional violation.

The alleged actions occurred pre-filing, and thus, Swekel bears the

burden of showing that such actions foreclosed her from filing suit in

state court. The most compelling evidence would be if Swekel went to

the state courthouse and was physically prevented or mechanically barred

fro filing her lawsuit or her sit was dis missed as untimely. Swekel has

not presented any such evidence. Therefore, we agree with the district

court that Swekel has failed to show absolute denial from state court.

Our inquiry however, does not conclude at this point. This case does

not involve an issue of whether the Plaintiff could enter the courthouse

and file suit, but instead whether filing such a suit was rendered

ineffective by the Defendants’ actions.

Swekel alleges that the police covered-up proof against one of their

'(...continued)

nght to access the courts because the plaintiff was present at the scene, knew all of

the facts, and had sufficient facts to promptly file a law suit. Jd. at 852-53

NO. 95-2031

10 Swekel v. City of River Rouge, et al. NO. 95-2031

own, destroyed critical evidence, and delayed Swekel’s own

investigation. These allegations, if true, would substantially prejudice

Swekel’s ability to recover in state court. Delay alone causes “state

evidence and the fading of material facts in the minds of potential

witnesses.” Ryland, 708 F.2d at 975; see also Rhewark v. Shaw, 628

F.2d 297, 303-04 n.10 (Sth Cir. 1980) (citation omitted) (“Delay haunts

the administration of justice.... The most erratic gear in the justice

machinery is at the place of fact finding, and possibilities for error

multiply rapidly as time elapses between the original fact and its judicial

determination.”), cert. denied, 450 U.S. 931 (1981). Swekel, however,

never presented evidence that the state court could not adequately

address these problems.’ In fact, none of the evidence before this court

establishes that Swekel even attmepted to go to the state court in first

instance. Before filing an “access to courts” claim, a plaintiff must make

some attempt to gain access to the courts; otherwise, how is this court

to assess whether such access was in fact “effective “ and “meaningful”?

A plaintiff cannot merely guess that a state court remedy will be

ineffective because of a defendant’s actions. Rather, the plaintiff must

present evidence that the defendants’ actions actually rendered any

available state court remedy ineffective. Swekel has failed to do so.

iil.

Accordingly, we AFFIRM the district court’s grant of summary

judgment.

2

We recognize that in some instances it would be completely futile for a plaintiff

to attempt to access the state court system. The Plaintiff, however, has not

presented evidence that this is such a case.

ll Swekel v. City of River Rouge, et al.

CONCURRENCE

MERRITT, Circuit Judge concurring. I agree with the result reached

and much of the reasoning of the court’s opinion. But I do not agree

iwth the pre-filing/post-filing distinction made by the court or its failure

to make explicit the limitations on right of access claims.

In 1986, in the same kind of auto accident case as this one (involving

the cover-up evidence by a police chief of his son’s negligence). A

unanimous court held:

The First Amendment access-to-the-courts claim does

not state a cause of action either. The plaintiff has the

right under state law to file her damage suit and to

offeroof about the accident and the alleged destructuon

of relevant evidence. If she is able to prove that the

police cief's son and his conferederates undertook to

destroy evidence of the son’s negligence as a driver, there

is no reason to believe that an Ohio court and jury would

be unavailable and would not do justice between the

parties. Rather than having denied access, the

defdendants have opened themselves to punitive damages

and converted a small claims matter into a significant

case, albeit not a federal case.

Joyce v. Mavromatis, 783 F.2d 56 (6th Cir. 1986). The court in Joyce

did not make the case turn on whether the state court lawsuit had laready

b4een filed or not, and the court’s opinion treates tis distinction as

irrelevant. It treats it as irrelevant because if a state court is able to deal

adequately with cover-up activities that occur after tn action has been

filed, the state court is equally able to deal with sucha ctivities thato ccur

before the action filed. A otential plaintiff is no less likely to receive

adequate relirf ins tate ocurt merely because her allegations of a cover-up

are placed in her initial complaint rather than in a motion or other

NO. 95-2031

12 Swekel v. City of River Rouge, et al. NO. 95-2031

pleading following the initiation of the case.

The standard for a “right-of access to the courts” claims, whether

treated under the First Amendment as part of the right “to petition the

government for a redress of grievances” or as a procedural due process

claim, sould require that the plaintiff alleged and prove that the state’s

judicial process does not rovide fair procedures to remedy the wong

alleged. Proof of the lack of adequate state remedies is required by

Hudson v. Palmer, 468 U.S. 517 (1984), and Vicory v. Walton, 721 F.2d

1062 (6th Cir. 1983), in procedural due process cases and should be

required in judicial access cases. It seems elementary that the federal

right of access to the ocurts is not abridges when the state courts remain

just as open to provide a remedy as the federal courts.

A concealment of evidence that would merely toll the running of the

State statute of limitations or give rise to a state action for “spoliation of

evidence”’ does not “deny access” to the state courts. There must be an

allegation and then a showing that the doors of the state courthouse Have

In Smith v. Howard Johnson Company, Inc., 615 N.E.2d 1037, 1038 (Ohio 1993), a

United States District Court certified to the Supreme court of Ohio a list of questions

concerning the existence of the tort of “intentional or negligence spoliation of evidence

and/or tortious interference with prospective civil litigation.” The Ohio Supreme

Court unanimously answered the questions as follows:

We answer the three questions as follows: (1) a cause of action

exists in tort for interference with or destruction of evidence, (2a)

the elements of a claim for interference with or destruction of

evidence are (1) pending or probable litigation involving the

plaintiff, (2) knowledge on the part of defendant that litigation exists

or is probable, (3) willful destruction of evidence by defendant

designed to disrupt plaintiff's case, (4) disruption of the plaintiff's

case, and (5) damages proximately caused by the defendant’s acts:

(2b) such a claim should be recognized between the parties to the

primary action and against third parties; and (3) such a claim may

be brought at the same time as the primary action.

Although the instant case comes from ichigan rather than ohio, there is no suggestion

that Michigan would not provide a remedy in tort for the wrong alleged here.

i i a co a

13 Swekel v. City of River Rouge, et al.

been closed by the defendant’s action or that the state court remedy has

been rendered ineffective. We should not simply displace the normal

state court remedies for spoliation or concealment of evidence or

obstruction of state judicial proceedings with a new, expanded, loosely

worded, federal constitutional tort under § 1983. Right of access to the

courts claims under the federal constitution should be reserved for

situations in which adequate state remedies are made unavailable and

should not include mere claims of interference with evidence.

NO. 95-2031

A-5

DOCUMENT 5

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DELORES MARIE SWEKEL, Personal

Representative of the Estate of

ARNOLD F. SWEKEL, Deceased,

Plaintiff,

Case No. 91-CV-76258-DT

-VS- Hon. George E. Woods

Opinion

GREGORY HARRINGTON, WILLIAM

ABAIR, JOHNSON TAYLOR, DETECTIVE

WILLIAM COOPER and DAVID ISRAEL,

jointly and severally,

Defendants.

Proceedings had in the above-entitled cause before the

HONORABLE GEORGE E. WOODS, United States District Court

Judge, at 272 United States Courthouse, Detroit, Michigan, on

Tuesday, May 15, 1995.

APPEARANCES:

For the Plaintiff: THOMAS G. McHUGH (P36175)

Fraser & McHugh, P.C.

20 South Main Street, Suite 112

Mount Clements, MI 48043

and

MORGAN J.C. SCUDI (P34453)

Huth, Farmer & Scudi

4300 Penobscot Building

Detroit, MI 48226

(313) 965-5500

APPEARANCES (Continued):

For Defendants KURT A. OLSON (P38321)

Harrington, Abair 8415 Park Avenue

and Taylor: Allen Park, MI 48101-1543

(313) 381-5581

For Defendants Cooper ANDREW R. GRIFKA (P42348)

and Israel: 32255 Northwestern Highway

Suite 145

Farmington Hills, MI 48334

(810) 855-1205

Official Court Reporter: BARBARA C. CHATMAN, CSR-0077

277 United States Courthouse

Detroit, Michigan 48226

Detroit, Michigan

Tuesday, May 15, 1995

12:00 o’clock noon

THE COURT: Let’s see. Mr. McHugh, right?

MR. McHUGH: Yes.

THE COURT: Mr. Scudi?

MR.SCUDI: Yes, your Honor.

THE COURT: Did I mispronounce it? That is your most

precious thing that you have.

Mr. Grifka and Mr. Olson.

Well, this is a little bit different than usual than what we have

in the system.

Earlier today I was trying to think that after 46 years in the

business as a lawyer and Judge, how many times that it has happened

to me that the Court has in effect, sua sponte, come up with a motion

or an Order to Show Cause sua sponte as to why a plaintiff's case

should be or should not be dismissed.

Frankly, I am having difficulty trying to remember it ever

3

having happened. I suppose perhaps other Judges have had it happen,

I am sure they have. But it doesn’t happen too often I gather in the

scheme of things.

One of the reasons being, of course, that merely because a

complaint is filed in the Clerk’s Office, whether we are talking about

state or Federal Court, it doesn’t mean that the Court should

immediately assume in effect the role of co-counsel for the defense,

and certainly not the plaintiff as well, as the case may be.

Let me go into the background of this case a little bit.

By the way, Counsel, you have, after this shotgun blast at you,

you have both responded promptly in well-written briefs, and the

Court is appreciative of that.

The plaintiff in this case is the personal representative of the

estate of the decedent, a gentleman by the name of Amold Swekel.

This gentleman was killed as a pedestrian in an accident involving

either one or two cars, as it turns out.

The defendants here were police officers when this accident

took place and during all other relevant times.

The plaintiff filed suit in, I think, 1988, pursuant to Section

4

1983 of Title 42 of the United States Code, alleging at least in part

that the defendants violated her right to access to the courts by in

effect consciously, as a matter of conspiracy, concealing the identity

of the driver of one of two cars that might have been involved killing

this decedent.

The Court, as you are aware, of course, earlier remanded the

plaintiff's state law claims and has granted summary judgment on all

other claims except for the claim that Defendants violated Plaintiff s

right of access to the courts by conducting a coverup. Pure and

simple.

The plaintiff filed a motion in limine to exclude the defense of

qualified governmental immunity on the 9th of May, 1995, a week

ago. Then, as the way the ball bounced or the cookie crumbled, as

they say, the Court in researching that motion first became aware of

the potentially dispositive precedent of Joyce v. Mavromatis,

M-A-V-R-O-M-A-T-I-S out of the Sixth Circuit in 1986.

So, then the Court, sua sponte, issued on May 12 an Order to

show cause why the plaintiff's case should not be dismissed in light

of the Joyce opinion.

The Court contacted all counsel here involved by telephone,

requested written briefs to be filed by one o’clock p.m. on May 15,

1995, and informed counsel of the instant hearing here today. They

have done so and it’s a matter of yeoman services.

Clearly the plaintiff, without any question, enjoys a

constitutional right of access to the courts. The precise issue before

the court is whether the Sixth Circuit has defined that right to

narrowly that, under the particular circumstances of this case, Plaintiff

does not have a cause of action because Defendants could not have

violated her right of access to the courts.

In the Joyce case, the Sixth Circuit indicated that it strictly

interpreted the right of access to the courts. The plaintiff in that case,

it is the Joyce case, claimed that she had been injured in an

automobile accident caused by the local police chief's son. It rings a

bell, doesn’t it?

And that in the Joyce case, the police conspired to defeat her

state court damage suit against the son by revoking a traffic citation

issued to the son, altering the police report for the accident, and

painting new lines on the street at the accident scene.

6

es th ede ee ee

The Joyce Court upheld a dismissal of Plaintiff's First

Amendment claim that Defendants had violated her right of access to

the courts, stating as follows, and the Court quotes:

"The plaintiff has the right under Ohio law to file her damage

suit and to offer proof about the accident and the alleged destruction

of relevant evidence. If she is able to prove that the Police Chief's

son and his confederates undertook to destroy evidence of the son’s

negligence as a driver, there is no reason to believe that an Ohio court

and jury would be unavailabie and would not do justice between the

parties. Rather than having denied access, the defendants have

opened themselves to punitive damages and converted a small claims

matter into a significant case, albeit not a federal one."

The Joyce court added that Plaintiff should have an

opportunity to pursue her claim in state court.

Now, next, we have a federal district court in the Southern

District of Ohio who distinguished Joyce when it held that police

could have violated a plaintiff's right of access by intentionally

concealing the intoxication of an off-duty police officer who had

7

struck the plaintiff in an automobile accident. Referencing the Fisher

v. City of Cincinnati case, in 753 F.Supp., a 1990 case.

The Fisher Court found the Joyce case inapplicable for three

reasons:

In the first place, in Graham v, National Collegiate Athletic

Association out of the Sixth Circuit, 1986, 804 F.2d, the Sixth

Circuit recognized a claim and cause for action for a violation of the

right of access.

Second, other circuits have recognized a cause of action

specifically for police coverups, and the Graham opinion cited, of

course, those cases.

Third, the Fisher court implied that the Joyce Court

improperly analyzed the right of access claim as a procedural due

process claim, rather than as a claimed violation of a specific

constitutional guarantee.

Well, Counsel, this Court declines to follow the Fisher

opinion for the simple reason it fails to adequately distinguish itself

from the Joyce case. Although the Sixth Circuit acknowledged the

abstract right of access to the courts in Graham, the facts of Graham

U0

certainly did not concern a government coverup that was designed to

shield a person from tort liability. The Graham Court instead allowed

a plaintiff to pursue a right of access claim against state actors

because they had retaliated against the plaintiff for having exercised

his right of access to the courts.

| Quoting that case:

"Plaintiff cannot claim, however, that

Defendants completely denied him access to the

courts, since he successfully pursued his state court

action. . . Graham’s claim is therefore not the typical

right of access claim. Rather, it is more accurately

characterized as a claim of retaliation for the exercise

of a First Amendment right. That is, [plaintiff] is

claiming that he was kicked off the University football

team in retaliation for filing the state court action."

Citing the Graham case. Graham, therefore, did not overrule,

either explicitly or by implication, the precise holding that we find in

the Joyce case out of the Sixth Circuit.

Further, although the Graham Court cited opinions from other

9

circuits which reached the opposite conclusion as the Joyce Court, it

cited those opinions without discussion and merely for the

proposition that an abstract right of access to the courts exists.

Well, regardless of the persuasiveness of opinions from other

circuits, neither Graham nor any other Sixth Circuit case suggests that

Joyce is no longer controlling precedent.

Finally, the Fisher case is simply incorrect when it suggests

that Joyce analyzed the right of access to the Courts only as a due

process violation, because Joyce explicitly analyzed the right of

access claim as an independent violation of the First Amendment.

The plaintiff here has ably argued that the existence of a state-

tort remedy is irrelevant when state actors violate a specific

constitutional guarantee such as the right of access to the courts. This

truth does not undermine the holding in the Joyce case.

As we have noted, Joyce did not rely exclusively on a due

process analysis. The opinion also did not rest on the assumption that

state tort remedies can cure an admitted violation of the Constitution.

Joyce instead held that no underlying constitutional violation ever

occurs when a police cover-up fails to prevent a plaintiff from filing a

10

SIRE REEDS LEDER ORG Te "ea a tee oe cseamntay

suit. There is the crux of it.

The Sixth Circuit therefore requires the plaintiffs to

demonstrate a high degree of actual impairment of access before it

will find that a plaintiff's right of access to the courts has been

violated.

Then, lo and behold, we have yet another opinion from the

Southern District of Ohio, and it has distinguished Joyce on more

compelling grounds than that set forth in the Fisher opinion.

The Court in the Cincinnati Radiation Litigation case out of

874 Fed., Southern District of Ohio, acknowledged that Joyce

dismissed a plaintiff's right of access to the court’s claim because she

still had the ability to file her damages suit under state law, despite

the conduct of the police officers.

The Cincinnati Radiation Court nonetheless refused to dismiss

an access to the court’s claim because, unlike in the Joyce case, the

alleged cover-up had prevented Plaintiffs from suing for over 20

years after the injury occurred. Extraordinary on the facts. The

decision in Cincinnati Radiation therefore turned o how long the

defendants succeeded I concealing facts and preventing Plaintiffs

1]

from pursuing possible tort claims.

Accordingly, this Court interprets Joyce and Cincinnati

Radiation to hold that whether Defendants could have violated

Plaintiff's right of access depends upon when Plaintiff became aware

of the particular identity or the existence of the alleged second driver.

The fact that Plaintiff never has filed a state wrongful death

suit against a particular individual alleged to be the second driver is

not dispositive: the relevant inquiry is whether the plaintiff could

have filed such a suit, if she had wanted to.

In this case, the decedent was struck on September 30, 1988.

The statute of limitations in Michigan for wrongful death action is

three years from the time of the injury. That is old law in the State of

Michigan, as you know. That has been settled by the Hardy case and

others as recently as late in 1987.

The plaintiff has alleged here that during the police

investigation of this accident rumors emerged in the community that

the identity of the second driver was the son of a high-ranking police

officer. If my memory serves me, apparently the second in

command.

12

SARTRE me

Moreover, the plaintiff has asserted that Defendants received

at least two anonymous tips stating that Russell Kulinski, a police

commander at the time of the accident, was one of the drivers who

struck the decedent. Further, the plaintiff has asserted that these

defendants ignored the possibility that Kulinski or his son Todd was

involved in the accident.

When exactly Plaintiff first became aware that either Russell

or Todd Kulinski could have been the second driver is unclear:

although Plaintiff asserts that tips implicating the Kulinskis surfaced

early in the investigation, Plaintiff's complaint states that the identity

of the second driver is or was unknown.

Well, if the plaintiff knew or thought at the time of filing the

instant lawsuit that Defendants engaged in a coverup specifically to

shield one of the Kulinskis, then, under Joyce, Plaintiff could have

pursued a state court claim against the Kulinskis or a John Doe, as

they did later, as I understand it, and any coverup by the defendants

would not have deprived the plaintiff of her right of access to the

courts.

Parenthetically, and just as an open-end question, really, is the

13

actual identity the real question here? I don’t think that it is. This

Court does not feel that it is.

On the other hand, if the plaintiff did not become aware of the

identity of the beneficiaries of the alleged coverup until after the

statute of limitations had run, then Defendants may have violated

Plaintiff's right of access even under Joyce. But that is not our case.

Parenthetically, if it is the plaintiff's position that she does not

and never can know who the second driver is, and that the lack of an

adequate investigation into the possibility of a second driver alone

implies that the police must have been protecting somebody, then

Plaintiff has admitted that she has no case.

The Court denied Defendants’ motion for summary judgment

as to the access to the courts claim in a bench opinion on February 22,

1993, because the deposition testimony of Defendant Cooper

indicated that the defendants may have concealed facts specifically in

order to protect one of the Kulinskis (rather than some mysterious and

unidentified person).

The Court also noted when denying the motion for summary

judgment that plaintiff only had a cause of action for an intentional

14

concealment by Defendants, rather than for a sloppy investigation.

Plaintiff therefore states a valid claim only if an intentional coverup

prevented her from suing Russell or Todd Kulinski before the statute

of limitations expired on a wrongful death claim.

Now, in my years on the bench, I have never addressed by

Court quite like this, but it’s always a first time. So, I will put it this

way:

It may well be that the United States Sixth Circuit Court of

Appeals will hold or find or opine that the Joyce opinion is not

reasoned all that well, but because some might feel it ignores what all

other circuits have stated, or at least other circuits have stated, that is,

access to the courts claim is viable whenever state actors may have

interfered with a plaintiff's ability to pursue a claim. The state actors

do not have to have destroyed the claim to have violated the

Constitution.

Nonetheless, and in spite of those passing observations, Joyce

is still the law as this court feels it is in its considered judgment, even

though other district courts have in effect undermined it when

purporting to have found the opinion factually distinguishable.

15

Now, this Court may suggest that all it lacks is that the Joyce

opinion should be re-examined, but it is not this Court’s function to

throw down the gauntlet and try to set a new precedent: that is one of

the United States District Court’s reversing its own United States

Court of Appeals. I am not that much of an activist, nor that

adventuresome, believe me.

So, then the Court will dismiss this case, and I assume the

plaintiff will promptly appeal, and I think you should; and that is as

far as I can go as being of counsel to you, is to recommend that you

take an appeal on this. Maybe you can get this thing settled in the

Sixth Circuit.

You, Mr. Grifka, will prepare the appropriate Order and have

it in to Ms. Henson at or before one o’clock tomorrow.

MR. GRIFKA: Thank you, your Honor.

THE COURT: Court is in recess.

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REPORTER’S CERTIFICATE

I, BARBARA C. CHATMAN, Official Court Reporter

for the United States District Court of Michigan, appointed pursuant

to the provisions of Title 28, United States Code, Section 753, do

hereby certify that the foregoing proceedings were had in the within-

entitled and numbered cause on the date hereinbefore set forth; and I

do further certify that the foregoing transcript has been prepared by

me or under my direction.

BARBARA C. CHATMAN, CSR-0077

Dated:

Detroit, Michigan

17