Opposition Brief — Banks v. Granholm (No. 06-825)

2 FILED

No. 06-825

| JAN _1 5 2007

3n The OFFICE OF THE CLERK

Supreme Court of the Anited States

S

STARLETTA L. BANKS,

Petitioner,

Vv.

JENNIFER GRANHOLM, et al.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI ON BEHALF

OF RESPONDENTS, ANNAMARIA CHURCH,

VINCENT PALUSCI, AND THOMAS SLOVIS

+

DAVID M. OTTENWESS MARK D. WILLMARTH

OTTENWESS, MALIS & WILLMARTH, RAMAR &

MORAN, P.L.C. PARADISO, P.C.

Attorney for Thomas Slovis Attorney for

535 Griswold Street, Annamaria Church

Suite 850 535 Griswold Street,

Detroit, MI 48226 Suite 2550

(313) 965-2121 Detroit, MI 48226

EDWARD R. STEIN (313) 965-4560

RICHARD C. KRAUS

SMITH HAUGHEY RICE

& ROEGGE

Attorney for Vincent

Palusci and co-counsel

for Annamaria Church

3497 Coolidge Road

East Lansing, MI 48823

(517) 332-3030

COCKLE LAW BRIEF PRINTING CO. / #00 225-6904

OR CALL COLLECT (402) 342-2331

OBJECTIONS TO PETITIONER’S

QUESTIONS PRESENTED

These Respondents submit that Ms. Banks has

improperly framed the relevant questions presented for

review. Drs. Slovis, Church and Palusci hereby object to

Ms. Banks’ questions presented contained in her Petition

for Writ of Certiorari, except for numeral 2 of her Ques-

tions Presented, which at least arguably sets forth, the

relevant inquiry at issue in this case, i.e., whether her

claim was untimely filed. °

The issue is not whether Ms. Banks was “injured”

under 42 USC § 1983 [Petition, Questions Presented 1],

nor does it involve any inquiry into Ms. Banks’ appeals

from the state court’s termination of her parental rights to

the Michigan Court of Appeals or the Michigan Supreme

Court and the propriety of the procedure followed in the

state courts. Ms. Banks did not appeal the disposition of

her child protective proceedings in federal court on the

basis of alleged violations of her federal constitutional

rights following the Michigan Supreme Court’s denial of

her application for leave to appeal. To the contrary, she

filed suit in federal district court some two years after that

late date alleging a “conspiracy” by the State of Michigan

to fraudulently misappropriate federal funding earmarked

for programs aimed at the protection and aid of abused

and neglected children.

Ms. Banks’ attempt to re-litigate the state court child

protective proceedings via the instant petition is mis-

placed. Significantly, the issues regarding the “parent/

agency agreement” [Petition, Questions Presented 3, 4,

and 5) which Ms. Banks raises in her petition were not

li

OBJECTIONS TO PETITIONER’S

QUESTIONS PRESENTED - Continued

raised at all in the courts below. Similarly, Ms. Banks did

not raise the issue of the lawfulness of the alleged adop-

tion of her children while her state law appeal was pend-

ing in either court below [Petition, Questions Presented 7}

The sole issue under the circumstances is the propriety of

the District Court’s dismissal of Ms. Banks’ complaint on

the grounds of untimeliness and the Sixth Circuit’s deci-

sion to affirm the district court on the grounds that Ms.

Banks failed to comply with the relevant statutes of

limitations in filing her claim.

Ms. Banks has only alleged that the lower courts have

erred in their factual findings and misapplied properly

stated rules of law. Despite her assertion, as explained

more fully below, the lower courts did not misapply the

law nor err in their factual findings. Moreover, Ms. Banks’

petition does not establish that the courts below departed

from the accepted and usual course of judicial proceedings,

or sanctioned such a departure by a lower court as to call

for an exercise of the United States Supreme Court’s

supervisory power; nor that the Sixth Circuit’s decision is

in conflict with another circuit’s decision on the same

matter; nor that the Sixth Circuit has decided an impor-

tant question o¢ federal law that has not been settled or

that conflicts with relevant decisions of the United States

Supreme Court. Rule 10(a) and (c). Therefore, granting of

Ms. Banks’ Petition for a writ of certiorari is not war-

ranted by the circumstances.

iil

LIST OF PARTIES

STARLETTA L. BANKS,

Petitioner,

Vv.

JENNIFER GRANHOLM, in her official, corporate and

individual capacity. MICHAEL COX, in his official,

corporate and individual capacity, RICHARD KAROUB,

in his official, corporate and individual capacity,

ANNAMARIA CHURCH, in her official, corporate and

individual capacity, VINCENT PALUSC, in his official,

corporate and individual capacity, THOMAS SLOVIS, in

his official,corporate and individual capacity, MARIANNE

UDOW, in her official, corporate and individual capacity,

JUDY HARTSFIELD, in her official, corporate and

individual capacity, KATHLEEN JANSEN, in her official,

corporate and individual capacity, HILDA GAGE, in her

official, corporate and individual capacity TED FORREST,

in his official, corporate and individual capacity,

PATRICIA CAMPBELL, in her official, corporate and

individual capacity, and DOES 1-1000,

Respondents.

iv

TABLE OF CONTENTS

Page

Objections to Petitioner’s Questions Presented ............ i

RA Ge SCD sists saicninescecevatubauvcissessadetcbinenocemencccmmineaeias iii

ee I aie sinsncenderehcbinecieiitiniGecekcniodasoeias iv

ee i avis ioiieshthenicccrniesidecacstanccencsaanenamsanes Vv

EINES siccicbinvsintatoruissoncintnctapievontibesiiiciepannabacietadelnbial 1

I 6 BE siticninvvsthierncictesiniignterenioniniiaisiainain 1

Statement of the Case and Statement of Facts............ 1

SY OF AP RURIIEE oacccesincensctaserncarvisvnesisaserntiietenitits 4

RE nrisiceriktietrininibbtiviniieeimnianaicile 5

I. THE COMPLAINT WAS PROPERLY DIS-

MISSED ON THE BASIS OF THE EXPIRA-

TION OF THE STATUTE OF LIMITATIONS

PEER EF CE PARI iinieoviexonniatnavhseiie 5

Il. THE RICO CLAIMS WERE PROPERLY DIS-

MISSED AS THEY WERE CONCLUSORY AT

BEST, IN ADDITION TO BEING UNTIMELY... 13

III. THE DISMISSAL OF THE ENTIRE CASE BY

THE DISTRICT COURT ON MOTION BY

SOME DEFENDANTS WAS PROPER AND

DID NOT AFFORD PETITIONER AN OP-

PORTUNITY TO FILE A DEFAULT AGAINST

RESPONDENTS CHURCH AND PALUSCI...... 17

CII a oicciccticicicaninttretccinsiecuieitilihilbiaetdstdan ete eae te 19

v

TABLE OF AUTHORITIES

Page

CASES

Adickes v. S.H. Kress & Company, 393 U.S. 144, 90

Rg EEE See eens an oe ee 12

Advocacy Organization for Patients and Providers

v. Auto Club Insurance Association, 176 F.3d 315

EE IS SOE eathonatvccstncdincennieseiciienmuieasiadapioinis 13, 15, 16

Agency Holding Corp. v. Malley-Duff Assoc. Inc.,

483 U.S. 143, 107 S. Ct. 2759 (1987) ...........csecsesesecereees 9

Blackburn v. Fisk University, 443 F.2d 121 (6th Cir.

SESE achcchdietncilainietaisnaptesnscttideisTletcadeeshdaiagendiniinigi dein dbaircietiniiipeetitn 16

Board of Regents of University of State of N. Y. v. |

Tomanio, 446 U.S. 478, 100 S. Ct. 1790 (1980).............. 7

Central Bank of Denver v. First Interstate Bank of

Denver, N.A., 511 U.S. 164, 114 S. Ct. 1439, 128

is ek GEE Ee TE coiacdcititevintdlgnndunceincanabaninbinadinnabeniias 5

Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99 (1957)........... 13

Duignan v. United States, 274 U.S. 195, 47 S. Ct.

Sy Fae tlk Eis COE ervinscivtnaictviniececiteuitenintannciune 12

Federal Land Bank of Omaha v. Gibbs, 809 F.2d

ee SANE Fe icasiisnbiadntintatnnnniinasinncichdtdapininipantidabeiaiiinndints 16

Kurzawa v. Mueller, 545 F. Supp. 1254 (E.D. Mich.

1982), aff’d, 732 F.2d 1456 (6th Cir. 1984)................. 7,8

L’Orange v. Medical Protective Co., 394 F.2d 57 (6th

ante UE iansebsincdiiubsinssisnslbatsiiheiiaeteniaiehiiagpdepcaiiaannatibnicinteibeimiis 16

McCune v. City of Grand Rapids, 842 F.2d 903 (6th

ants ITED iiissiaedcdhbstdenniedeeiieliindcladniendeiiabilentibeenddechiaceuiensdnnennete 10

vi

TABLE OF AUTHORITIES -— Continued

: Page

Morganroth & Morganroth v. DeLorean, 123 F.3d

Fe ee a eaiadincaicisiniiiceieiacuiteaninniaaieeonaticepsintioatdianieit 5

Quinn v. Shirey, 293 F.3d 315 (6th Cir. 2002) .........e.s0:.0e- 17

Roberson v. Tennessee, 399 F.3d 792 (6th Cir. 2005).......... 8

Rotella v. Wood, 528 U.S. 549, 120 S. Ct. 1075, 145

Gi le SE ET GE cccicrcnnipsiicinisttinhithinsctitiniinnciaemese 9,10

Ryan v. Ohio Edison Co., 611 F.2d 1170 (6th Cir.

UD sitstiisichaeitiiiicinintiigsahaiiaiiiatasiniitinataitcsaliatiliiaddldbaiinnldisduniapuntdeis 5

Sevier v. Turner, 742 F.2d 262 (6th Cir. 1984)................ 5,6

Sexion v. Barry, 233 F.2d 220 (6th Cir. 1956)................... 16

Singleton v. City of New York, 632 F.2d 185 (2nd

CE UD ntsesentehegsccmnssibaiaitihinsiscicicsitiaaihinnasiniighinanceiisiniieianiontts 10

Slaney v. The Intern Amateur Athletic Federation,

ee Fe, Ss, | RR eee 16

Trezbuckowksi v. City of Cleveland, 319 F.3d 853

Sy Se SID viciceccnnnscinceinncenenioniatntnamndignbieemiiitinamanimnceitbe 8

Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938

Ce teccnepecinnvecrectenianssaensthsunpninesininnnmensenitinttatpeenesemieninints 5

Wolfe v. Perry, 412 F.3d 707 (6th Cir. 2005)..............ceeeeeeeee 5

FEDERAL STATUTES

eas ae EG ae dsidiciipicsbeienetecteniicardommpinnabigunianineinns 14

EEE et Tate dictaiienicbiidid igltaiddchctnbcuneepenmalindeambemmenmesanaiald 1

te We ED snehnieceivetncbiiiniesanncaiierinidepstaaneincaaidian 13

Se ee ED cisithiusciiteniciecesiecensiiocannsdeiaaniciniabnaiiis 13, 15

ee Bee cattcniicnkcsntcdnnsescnsantciiitintaliiabidastpieaeains 14

vii

TABLE OF AUTHORITIES — Continued

Page

BO UB. 9 RDI) encsevssesesseccrcipissesvitactenennnviasicinionnmsaninn 14

BB UBD, 8 TDG icvivescccateninvindiniicnpigeaninnnaiiies 14, 16

GB UG © SEB cvevensccicrsavenicensstnsptndeienitcnniteactaiiceingan passim

STATE STATUTES

Mich. Comp. Laws § 600.5805(10)..........::ssscssseseeceeserseeeeeees 5

Mich. Comp. Laws § 600.5807 ............sssccccscsssssccseseresssenses 12

Mich. Comp. Laws § 600.5856 ............ccsccssesssssecessesseeseceeees 7

Mich. Comp. Laws § 712A.13a(d) .......ccccccccccsesscsesseverceeeers 12

Mich. Comp. Laws § 712A.18f(2).........ccccccssscsecccsssessseeeeees 12

RULES

Rules of the Supreme Court of the United States

WRU TDD... scicvscsitnscbinnininhatonuiaiacgndiaiaunigtiniimcmiaeamsanemanae 1

Peds BR: Cae Fe Be vecevenieraisnsinnienvesintinianeal 15, 16

Fred. BR. Cav, BP. UDG) cocccorreccevcscccscscesesoesosvessensovsecvenss 4,5,13

1

INTRODUCTION

Respondents, Dr. Slovis, Dr. Church and Dr. Palusci

respectfully submit that Petitioner (Ms. Banks) has failed

to articulate a compelling reason for the United States

Supreme Court to grant her request for a writ of certiorari.

Not only has she failed to articulate a reason that fits

generally within the guidelines of subsections (a)-(c) of

Rule 10, supra, but she has also failed to plead any other

compelling reason warranting review by this Court.

@

v

STANDARD OF REVIEW

Rule 10 of the Rules of the Supreme Court of the

United States states that “[a] petition for writ of certiorari

will be granted only for compelling reasons .. . [a] petition

for writ of certiorari is rarely granted when the asserted

error consists of erroneous factual findings or the misap-

plication of a properly stated rule of law.”

+

STATEMENT OF THE CASE

AND STATEMENT OF FACTS

Petitioner filed a Complaint in this matter on June 6,

2005 alleging numerous federal statutes were violated,

including 42 U.S.C. §1983 and 18 U.S.C. § 1962. She

alleged the State of Michigan, by its elected officials or

employees, and others violated her rights by kidnapping

her children on October 21, 1998. [R. 1 Complaint J 23] The

child custody proceedings, to which Petitioner refers,

resulted in an Order terminating her parental rights on

January 12, 2001. [R. 1 Complaint { 29] Petitioner’s claims

are that state procedures were abused or misused or that

2

state officials abused their positions of authority when her

children were removed from her custody and her parental

rights were ultimately terminated. [R. 1 Complaint J 22}

Respondents, Annamaria Church, M.D., Vincent

Palusci, M.D., and Thomas Slovis, M.D., are not employees

or elected officials of the State of Michigan. Respondent

Church was a staff pediatrician and a forensic child abuse

expert at Henry Ford Hospital, Detroit, Michigan, in

October, 1998. Plaintiff alleged that Dr. Church initiated a

report to Child Protective Services regarding suspected

child abuse of one of appellant’s children. [R. 1 Complaint

4 23} Dr. Church also testified in the custody proceedings.

[R. 1 Complaint J 30] In October, 1998, Respondent Slovis

had medical staff privileges at Children’s Hospital of

Michigan in Detroit, Michigan, where he worked as a

radiologist. It appears the only allegation against him is

that he may have participated in a radiologic study relat-

ing to Petitioner or her children and may have testified in

the child custody proceedings involving Petitioner. [R. 1

Complaint 7 24] Respondent Palusci is not alleged to have

had any participation in the child custody proceedings

involving Petitioner, at all. Rather, the sole allegation

against him is that he was associated with DeVos Chil-

dren’s Hospital in Grand Rapids, Michigan, is somehow

associated with the Children’s Trust Fund and works with

Dr. Church at DeVos Children’s Hospital. [R. 1 Complaint

{ 34, 47) It should be noted that Petitioner is alleged to be

a resident of Detroit, Michigan. [R. 1 Complaint { 7]

Respondent Slovis answered the Complaint. [R. 6]

Respondents Church and Palusci’s request for an extension

to answer the Complaint was granted by the Court by its

Order of July 15, 2005. Their answer was not due to be filed

until August 3, 2005. [R. 20]

3

Meanwhile, a Motion to Dismiss was filed on June 28,

2005 by Defendants Judy Hartsfield, Kathleen Jansen,

Hilda Gage, Ted Forrest, Jennifer Granholm, Richard

Karoub and Marrianne Udow (the “State Defendants”). It

asserted the Complaint was barred by the applicable

statute of limitations. [R. 8]

The district court granted the motion by its Opinion

and Order on July 27, 2005 and dismissed the case in its

entirety on that date. [R. 21 and 23]

Petitioner filed a Request for Reconsideration of the

dismissai on August 5, 2005. [R. 24] She also filed a

Motion to Vacate on August 25, 2005. The district court

entered its Order denying both requests on September 28,

2005. [R. 31]

Petitioner filed a Notice of Appeal as to the dismissal

on August 25, 2005. [R. 26] Petitioner also filed a Request

for Clerk’s Entry of Default in the district court on Septem-

ber 28, 2005 [R. 34 and 35] Respondents Church and

Palusci filed a response to that request. [R. 33] A notice of

denial of clerk’s entry of default was entered on October 4,

2005. [R. 36] No notice of appeal was filed from that denial.

The Sixth Circuit Court of Appeals issued its Order

affirming the district court’s dismissal of the Complaint on

June 19, 2005. [Petition, Appendix A] Petitioner filed a

Motion for Reconsideration and a Motion for Recusal and

for removal of the Michigan Attorney General as counsel in

the appeal. Those requests were denied by Order of the

Sixth Circuit on September 11, 2005. (Petition, Appendix D]

This Petition for a Writ of Certiorari ensued.

®

4

SUMMARY OF ARGUMENT

I. The Complaint was properly dismissed on the basis of

the Statute of Limitations. Considering either the three-

year statute applicable to claims under 42 U.S.C. § 1983 or

the four-year statute of limitations applicable to 18 U.S.C.

§ 1962 (RICO) claims, the case was untimely filed. Under

either theory, the cause of action accrued when Petitioner

alleged that her children were “kidnapped” on October 21,

1998. Even construing the Complaint liberally, as the

district court did, it is clear the last action complained of

occurred on January 12, 2001, when the custody proceed-

ings resulted in an order terminating Petitioner’s parental

rights. Subsequent appeals from that order do not toll the

statute of limitations. The Complaint was filed on June 6,

2005, nearly four and one half years after that date, and is

barred by the statute of limitations.

II. Even if the Complaint was considered to have been

filed timely as to the RICO claim, it was properly dis-

missed under Fed. R. Civ. P. 12(b)(6) for the reason that it

failed to state a valid claim for relief. The Complaint made

only conclusory allegations of a “pattern of racketeering

activity” without alleging facts sufficient to state a valid

claim for relief under that provision.

III. Finally, the dismissal of the entire case.on motion by

some, but less than all the defendants, was appropriate

because the basis for the dismissal was equally appropri-

ate as to all the defendants. As to the attempted default of

Respondents Church and Palusci, two further points are

clear. First, there was no notice of appeal filed as to that

request, so it is not before the court. Secondly, they were

not in default. Ey Order of the court, their answers were

5

not due until August 3, 2005. The entire case was dis-

missed on July 27, 2005.

+

ARGUMENT

I. THE COMPLAINT WAS PROPERLY DISMISSED

ON THE BASIS OF THE EXPIRATION OF THE

STATUTE OF LIMITATIONS PRIOR TO ITS

FILING.

Even though the Petitioner’s Complaint contains

many counts, the Sixth Circuit correctly addressed the

substance of her claims: 42 U.S.C. § 1983 and 18 U.S.C.

§ 1962 (civil RICO) in its de novo review of the dismissal

under Rule 12(b)(6) of the Complaint.’ The Complaint was

untimely filed under either theory.

When Congress enacted 42 U.S.C. § 1983, no statute

of limitations was included. Wilson v. Garcia, 471 U.S.

261, 266, 105 S. Ct. 1938 (1985). It is well settled that

state law will supply the statute of limitations for § 1983

claims, but federal law will determine when a federal claim

accrues. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984).

The statute of limitations for filing a § 1983 claim in Michi-

gan is three years. Mich. Comp. Laws § 600.5805(10); Wolfe

v. Perry, 412 F.3d 707 (6th Cir. 2005). A claim accrues under

§ 1983 when the plaintiff “knows or has reason to know” of

' For example, Petitioner asserted 21 counts of alleged violations of

federal criminal statutes. As a general rule, there is no private right of

action based on violation of federal criminal statutes. Central Bank of

Denver v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S. Ct.

1439, 128 L. Ed. 2d 119 (1994). See also, Ryan v. Ohio Edison Co., 611

F.2d 1170 (6th Cir. 1979); Morganroth & Morganroth v. DeLorean, 123

F.3d 374 (6th Cir. 1997).

6

the injury which is the basis of her action. Sevier uv.

Turner, 742 F.2d at 273. The statute of limitations begins

to accrue when the plaintiff has knowledge of the injury so

a claim will not be extended indefinitely to defeat the

purpose of the statute of limitations. Jd. at 273.

The Complaint alleges Petitioner’s children were

taken into protective custody by the State of Michigan on

October 21, 1998. Thus, on October 21, 1998, Petitioner

had knowledge of, or should have known of, her injury.

Therefore, this is when the statute of limitations accrued.

Petitioner filed this Complaint on June 6, 2005, almost

seven years after the three-year statute of limitations had

accrued,

The district court observed that the case was time-

barred even if the Complaint was liberally construed so

that the accrual date was the date of the order granting

full custody of her children to her grandparents, i.e.,

January 12, 2001.

Petitioner asserts that the accrual date should have

been postponed until the conclusion of the state court

appeals. Thus, she contends that her cause of action did

not accrue until April 29, 2003, when the Michigan Su-

preme Court denied her motion for reconsideration of her

earlier untimely application for leave to appeal. However,

her position is unfounded. Her subsequent state court

appeal of the order terminating her parental rights did not

prevent or delay the accrual of her claim based on the

allegedly unconstitutional interference with her parental

rights. As the Sixth Circuit observed in its June 19, 2006

Order in this case;

Moreover, a plaintiff is not entitled to toll the

statute of limitations in a § 1983 action during

7

the time a related state court action is pending

unless provided for by state tolling rules. Board of

Regents of University of State of N. Y. v. Tomanio,

446 U.S. 478, 490-91 (1980). Finally, a plaintiff

can file a § 1983 claim in federal court without

first resorting to state judicial remedies. Jd. [Pe-

tition, Appendix A, p. 3]

The court went on to note that Petitioner had not asserted

that the statute of limitations should be tolled under

Michigan law. Jd. Indeed, there is no such tolling provi-

sion. See, Mich. Comp. Laws § 600.5856.

In Kurzawa v. Mueller, 545 F. Supp. 1254 (E.D. Mich.

1982), aff'd, 732 F.2d 1456 (6th Cir. 1984), an action was

brought under § 1983 arising from the termination of

parental rights in a Michigan probate court. As in this

case, the plaintiff-parents asserted their cause of action

accrued when the appellate proceedings concluded rather

than when their parental rights were terminated in the

state court proceedings. The district court determined that

the complaint was barred by the statute of limitations. In

so ruling, the court reasoned that since the plaintiffs’

claim was for the loss of the custody of their child without

due process of law, then the latest date when they knew or

should have known of the injury which was the basis for

their claim was the date on which the state probate court

terminated their parental rights. Since the case was filed

more than three years after that date, it was barred by the

statute of limitations. Jd., 545 F. Supp. at 1260.

The Sixth Circuit affirmed, but also held the physician

defendants that examined the child as part of the proceed-

ings were entitled to immunity. Jd., 732 F.2d at 1458.

8

Specifically, the contention that accrual of a § 1983

claim is delayed until the completion of the state court

appellate proceedings was rejected in Kurzawa v. Mueller,

supra. See, also, Roberson v. Tennessee, 399 F.3d 792, 794

(6th Cir. 2005). In Roberson, a § 1983 claim by a medical

school student accrued when promotions committee

recommended he not be readmitted to school, not when

that determination was formally accepted. He was aware

of an alleged denial of rights as of the earlier date. The

same is true in the instant case.

Petitioner’s Complaint alleges that her children were

“kidnapped” by the police on October 21, 1998, when they

came to her house without a warrant but with a petition

from Child Protective Services. [R. 1 Complaint { 23] In

addition to the interference with her parental rights, she

alleges that she was forced to attend many court hearings

which hindered her ability to work and led to the loss of

her employment in 1998-1999. [R. 1 Complaint { 28]

Further, she alleges that “[oJn January 21, 2001, the court

granted full custody of plaintiff’s children to plaintiff’s

parents ...” [R. 1 Complaint § 29] Under any conceivable

interpretation of her allegations, the removal of one’s

children from the family home and court-ordered termina-

tion of parental rights are events “ ... that should have

alerted the typical lay person to protect his or her rights.”

Trezbuckowksi v. City of Cleveland, 319 F.3d 853, 856 (6th

Cir. 2003). She plainly knew of the injury alleged, i.e.,

interference with her constitutional right to custody of her

children, by at least January, 2001 when the state court

terminated her custodial rights. The appellate proceedings

did not affect the accrual of her cause of action based upon

the unconstitutional termination of her parental rights.

Kurzawa, supra. Even if the state appellate courts had

9

reversed the probate court and restored her parental

rights and custody, her claims had already accrued as the

alleged injury occurred no later than January 12, 2001.

As to the 18 U.S.C. § 1962 (civil RICO) claim, it is clear

that it is time barred for the same reason the § 1983 claim

is barred, although the limitations period for a RICO claim

is four years, not three. Agency Holding Corp. v. Malley-

Duff Assoc. Inc., 483 U.S. 143, 156, 107 S. Ct. 2759, 97 L.

Ed. 2d 121 (1987). The Sixth Circuit-so ruled in its Order

affirming the district court dismissal. It held that Petitioner

failed to file the Complaint within four years of when she

knew or should have known about her claim. [Petition,

Appendix A, p. 4] In so ruling, it relied on Rotella v. Wood,

528 U.S. 549, 120 S. Ct. 1075, 145 L. Ed. 2d 1047 (2000).

In Rotella, the court determined that a RICO claim

accrues when the plaintiff knows or should have known of

the injury for which the claim is made. Jd. 528 U.S. at 553.

Accrual of a RICO claim is not dependent upon discovery

of a pattern of racketeering by the plaintiff. The court

reasoned that such a delay in the accrual of the statute of

limitations for RICO claims would undercut policies

surrounding the purposes of the limitations of actions,

including the elimination of stale claims and the need for

certainty as to a plaintiff’s opportunity for recovery and a

defendant’s potential liabilities. Jd. 578 U.S. at 555. In

Rotella, the plaintiff alleged that a group of doctors and

their related business entities were improperly conspiring

to admit, treat, and retain him at Brookhaven Psychiatric

Pavilion for reasons related to their own financial inter-

ests rather than the patient’s psychiatric condition in

violation of civil RICO laws. Rotella was discharged from

Brookhaven Psychiatric Pavilion in 1986, but failed to

bring his RICO claim until 1997. He sought to justify his

10

tardy lawsuit by pointing to a circumstance where a

Brookhaven director pleaded guilty to criminal fraud

perpetrated through improper relationship and illegal

agreements between the company and its doctors in 1994.

The court determined his claim was nevertheless barred

by the statute of limitations. The court reasoned that

Rotella had discovered his injury in 1986 and could have

made an investigation to discover the alleged racketeering.

The four-year statute of limitations began to run when he

was discharged such that he knew or should have known

of his injury and not when he later learned of the guilty

plea which he contended was when he learned of a pattern

of racketeering. Thus, it was proper to dismiss the civil

RICO claims by summary judgment.

Like Rotella, the civil RICO claim here is barred by

the statute of limitations. Even if the court accepted the

allegations made in the complaint as true, it is clear the

RICO claims are time barred just as the § 1983 claim is

barred. Petitioner knew of her injury on October 21, 1998

when her children were taken into protective custody by

the state. Moreover, this claim is barred even if the court

liberally construes her claim to have accrued as of the

order of the state court terminating her parental rights,

January 12, 2001. Computing the time period from that

- date shows that the Complaint was tardy, having been

filed on June 5, 2005.

Moreover, despite Petitioner’s wide ranging allega-

tions of conspiracy to “use the Michigan foster care system

as a ‘child for profit’ machine,” the allegations against

these Respondents, Drs. Church, Slovis and Palusci, must

be viewed separately. McCune v. City of Grand Rapids,

842 F.2d 903, 906 (6th Cir. 1988), approving the holding in

Singleton v. City of New York, 632 F.2d 185, 192 (2nd Cir.

11

1980), that “[t]he existence of a conspiracy-does not gener-

ally postpone accrual of causes of action arising from the

conspirators’ separate wrongs.” Instead, the timeliness of

the specific claims brought against each defendant must

be separately determined.

Here, as to Dr. Church, the allegations are that she

initiated the petition that resulted in the “kidnap” of

Petitioner’s children on October 21, 1998 and testified at

the child custody proceedings. [R. 1 - Complaint J 23 and

30] The latter resulted in the January 21, 2001 Order in

which Petitioner’s parental rights were terminated. [R. 1 -

Complaint § 29] Thus, by any conceivable theory, the

Complaint filed on June 6, 2005, is time barred for the

reasons stated above.

As to Dr. Slovis, it appears the only allegation against

him is that he may have participated in a radiologic study

relating to Petitioner or her children and may have testi-

fied in the child custody proceedings involving Petitioner.

[R. 1 Complaint 9 24] Thus, as with Dr. Church, the

Complaint is time barred as to him as well.

As to Dr. Palusci, there is no allegation that he was

involved in the child custody proceedings at all. However,

there is an allegation that he works with Dr. Church at

DeVos Children’s Hospital [R. 1 Complaint § 47] To the

extent this can be read as asserting some relationship to

this case, we would note that the last act complained of by

Dr. Church was her testimony in the child custody pro-

ceedings which, as noted above, resulted in the January

21, 2005 Order terminating Petitioner’s parental rights.

Thus, the claim against him is time barred for the same

reasons noted above.

"al

12

Finally, the new claim by Petitioner that somehow an

agreement she claims she entered into with the State of

Michigan social workers somehow saves her case because

of the Michigan six-year statute of limitations applicable

to a breach of contract action, Mich. Comp. Laws

§ 600.5807, is not tenable. [Petition, pp. 4, 17] First, the

instant Petition is the first time this theory was ever

mentioned. Where issues are not raised in or considered by

the Court of Appeals below, the Supreme Court will not

ordinarily consider them. Adickes v. S.H. Kress & Com-

pany, 393 U.S. 144, 145 n.2, 90 S. Ct. 1598 (1970). Rather,

only in exceptional cases does the Supreme Court review

issues not raised and not considered by the Court of

Appeals below. Duignan v. United States, 274 U.S. 195,

199, 47 S. Ct. 566, 71 L. Ed. 996 (1927).

This is not an exceptional case, nor does this particu-

lar issue present a compelling reason for review. First, the

“parent/agency agreement” or “case service plan” as it is

statutorily known, is a product of the Michigan Probate

Code and is defined in Mich. Comp: Laws § 712A.13a(d). It

is not a “contract” in the traditional sense of the term as

the case service plan is statutorily required at the disposi-

tional phase of a temporary wardship proceeding and may

be imposed on a respondent parent without an “agree-

ment.” See, Mich. Comp. Laws § 712A.18f(2). Therefore

the principles of contract law do not apply. Secondly, it is

clear from a fair reading of the Petition and the Complaint

that she has not asserted any breach of contract claim

against these Respondents, Drs. Church, Slovis or Palusci,

or that they had anything to do with some supposed

agreement. [R. 1 - Complaint] Thus, her new contention

has no bearing on the dismissal of Respondents Church,

Palusci and Slovis. That ruling should not be disturbed.

13

Il. THE RICO CLAIMS WERE PROPERLY DIS-

MISSED AS THEY WERE CONCLUSORY AT

BEST, IN ADDITION TO BEING UNTIMELY

Leaving aside the untimeliness of her claims, Ms.

Banks’ Complaint pleads insufficient facts to state a claim

upon which relief can be granted and therefore, was

properly dismissed pursuant to Fed. R. Civ. P. 12(b)(6).

“The Federal Rules of Civil Procedure do not require a

claimant to set out in detail the facts upon which he bases

his claim. To the contrary, all the Rules require is a ‘short

and plain statement of the claim’ that will give the Defen-

dant fair notice of what Plaintiff’s claim is and the

grounds upon which it rests.” Conley v. Gibson, 355 U.S.

41, 78 S. Ct. 99 (1957). Ms. Banks’ Complaint is neither

short nor plain. Nevertheless, it failed to give Dr. Slovis,

Dr. Church and Dr. Palusci fair notice of the claims

against them. In addition to being convoluted, nonsensical

and confusing, it states conclusory allegations and legal

conclusions without supporting factual allegations. There-

fore, the lower courts did not err in concluding that Ms.

Banks failed to state a claim upon which relief can be

granted.

In order to state a claim under 18 U.S.C. § 1962(b),

Plaintiff must sufficiently allege that “Defendants (1)

acquired or maintained, (2) through a “pattern of racket-

eering activity” or the “collection of an unlawful debt,” (3)

an interest in, or control of an enterprise, (4) engaged in,

or the activities of which affect, interstate or foreign

commerce.” Advocacy Organization for Patients and

Providers v. Auto Club Insurance Association, 176 F.3d 315

at 321-322 (6th Cir. 1999). The elements of a claim under

18 U.S.C. § 1962(a) are: (1) use or investment of income or

proceeds of such income received or derived from, (2) a

14

pattern of racketeering activity or collection of an unlawful

debt, (3) in acquisition of interest in, or the establishment

or operation of any enterprise, and (4) engaged in, or the

activities of which affect, interstate or foreign commerce.

The elements of a claim under 18 U.S.C. § 1962(c) are: (1)

conduct or, participate in the conduct of, (2) an enterprise

engaged in, or the activities of which affect interstate or

foreign commerce, (3) through a pattern of racketeering

activity or collection of unlawful debt, and (4) being a

person employed by or associated with such an enterprise.

18 U.S.C. § 1962(d) proscribes any conspiracy to violate

§§ 1962(a), (b), and (c).

Further, for a RICO violation, a plaintiff must estab-

lish a “pattern of racketeering activity.” This is defined in

18 U.S.C. § 1961(1) and includes a litany of acts which can

constitute such a pattern. Included are numerous crimes

under both state and federal law. This means that before,

and in addition to, alleging the above elements of the

RICO violations themselves, a plaintiff must first suffi-

ciently state the facts that make up the elements of the

crimes that are alleged to amount to the pattern of racket-

eering activity. Essentially, this is establishing a pattern of

crimes that constitute an element of the larger RICO

offense.

Finally, in order to state a claim under 18 U.S.C.

§ 1964 and recover damages in a civil action, a plaintiff

must allege one of the violations of § 1962, above, and, in

addition, allege the additional element that it injured

them in business or property.

Ms. Banks’ purported claims under 18 U.S.C. § 1962

are contained in Paragraphs 101-107 of Banks’ Complaint.

[R. 1] Ms. Banks stated that, “Defendants’ predicate acts

15

resulted in severe economic, financial, health and job loss

to plaintiff... ”; “Defendants are members and associates

of a ‘racketeering enterprise’ ... ”; “Defendants met,

conspired and engaged in the same pattern and practice

... to operate the Courts as racketeering enterprise and

generate false debts.” In addition to these conclusory

statements, Banks lists the different crimes that she

alleged these Respondents committed as part of the

“pattern of racketeering activity.” However, she failed to

allege facts that would tend to establish the elements of

those crimes as predicate acts. Despite Ms. Banks’ conclu-

sions that the many named defendants, generally, violated

criminal statutes, she states no facts that would tend to

support them. Significantly, this is a prerequisite to

establishing a violation of § 1962. Therefore, Banks’

allegations are insufficient to state a claim for violations of

§ 1962.

In Advocacy Organization for Patients and Providers,

the Sixth Circuit considered the issue of the sufficiency of

pleadings in a civil RICO claim brought under § 1962(b).

In that case, plaintiffs alleged mail and wire fraud, in

addition to extortion as the predicate acts for a pattern of

racketeering activity. As to the mail and wire fraud claims

contained in plaintiffs’ complaint, the court said:

Rule 9(b) of the Federal Rules of Civil Procedure

provides that in a complaint alleging fraud, “the

circumstances constituting fraud ... shall be

stated with particularity.” Fed. R. Civ. P. 9b).

The purpose of Rule 9(b) is to provide fair notice

to the defendant so as to allow him to prepare an

informed pleading responsive to the specific alle-

gations of fraud. The Sixth Circuit reads rule

9(b)’s requirements “liberally ... requiring a

plaintiff, at a minimum, to allege the time, place,

16

and content of the alleged misrepresentation on

which he or she relied; the fraudulent scheme;

the fraudulent intent of the defendants; and the

injury resulting from the fraud.”

Advocacy Organization for Patients and Providers, 176

F.3d at 322 (citations omitted). Other circuits are in

agreement with the heightened pleading requirements for

RICO claims. See, e.g., Slaney v. The Intern Amateur

Athletic Federation, 244 F.3d 580 (7th Cir. 2001); Federal

Land Bank of Omaha v. Gibbs, 809 F.2d 493 (8th Cir.

1987).

Here, Ms. Banks failed to allege the time, date, place

and content of the misrepresentations. As described above,

that is the minimum required under Rule 9(b) under the

Sixth Circuit’s reading and the heightened pleading

requirements for RICO endorsed by other Circuits. Any

allegations of fraud must fail to state a claim against Drs.

Slovis, Church and Palusci as to the element of “pattern of

racketeering activity.” Therefore, Ms. Banks did not

sufficiently plead a violation of § 1962.

Finally, Ms. Banks has not shown how these alleged

acts of the Defendants have injured her in business or

property as required by 18 U.S.C. § 1964. Ms. Banks has

made a statement that she has been injured economically,

but has failed to allege exactly how the RICO violation

injured her in that regard.

The courts are “required to accept only well pleaded

facts as true, not the legal conclusions that may be alleged

or that may be drawn from the pleaded facts.” Blackburn

v. Fisk University, 443 F.2d 121 at 124 (6th Cir. 1971),

citing L’Orange v. Medical Protective Co., 394 F.2d 57 (6th

Cir. 1968), and Sexton v. Barry, 233 F.2d 220 (6th Cir.

17

1956). Despite its length, Ms. Banks’ Complaint is almost

devoid of well-pleaded facts. Rather, Ms. Banks has

alleged only legal conclusions in her Complaint. There is a

glaring lack of factual allegations relating to basic infor-

mation that would be known to Ms. Banks such as time,

place, person and content. Ms. Banks’ Complaint did not

allege facts sufficient to support her legal conclusions and

it did not fairly apprise Respondents Slovis, Church and

Palusci of the claims against them. Ms. Banks’ Complaint

did not state a claim upon which relief could be granted.

As the panel of the Sixth Circuit pointed out in affirming

the district court, Ms. Banks made only conclusory allega-

tions of a pattern of racketeering activity that caused

injury to her business or property. Under these circum-

stances, no error was committed by either the district

court dismissing Ms. Banks’ claim or the Sixth Circuit in

affirming the district court.

Ill, THE DISMISSAL OF THE ENTIRE CASE BY

THE DISTRICT COURT ON MOTION BY SOME

DEFENDANTS WAS PROPER AND DID NOT

AFFORD PETITIONER AN OPPORTUNITY TO

FILE A DEFAULT AGAINST RESPONDENTS

CHURCH AND PALUSCI.

As noted by the Sixth Circuit in this case, the district

court’s dismissal of the entire case on motion by less than

all the defendants was proper where the basis for the

dismissal, statute of limitations, applied equally to all

defendants, relying upon Quinn v. Shirey, 293 F.3d 315,

325 n.4 (6th Cir. 2002). [Petition, Appendix A, p. 3] Thus,

the case was properly dismissed as to Respondents

Church, Palusci and Slovis. Further, her argument that

she was entitled to a default as to Respondents Church

eS

18

and Palusci is untenable. Drs. Church and Palusci were

granted an extension to file their answer to the complaint

to a date after the entire case was dismissed. [R. 20 — July

15, 2005 Order Enlarging Time to Answer Complaint]

Their answer to the Complaint was not due until August 3,

2005. The district court dismissed the Complaint with

prejudice on July 27, 2005. This was prior to the due date

for their response to the Complaint, thus making a re-

sponse unnecessary. It was not until several months after

the Complaint was dismissed that plaintiff first sought to

have the clerk enter a default. The clerk properly refused

to enter a default against Respondents Church and

Palusci by a Notice dated October 4, 2005, because the

complaint had already been dismissed by Judgment

entered on July 27, 2005. [R. 36] Thus, they were never in

default. Once the complaint was dismissed with prejudice,

they had no further obligation to submit an answer or file

a motion to dismiss the case.

19

CONCLUSION

WHEREFORE, Respondents, Annamaria Church,

Thomas Slovis, and Vincent Palusci, request this honor-

able court to deny the Petition for Writ of Certiorari.

Respectfully submitted,

Davip M. OTTENWESS

OTTENWESS, MALIS & MORAN, P.L.C.

Attorney for Thomas Slovis

535 Griswold Street, Suite 850

Detroit, MI 48226

(313) 965-2121

MARK D. WILLMARTH

WILLMARTH, RAMAR & PARADISO, P.C.

Attorney for Annamaria Church

535 Griswold Street, Suite 2550

Detroit, MI 48226

(313) 965-4560

EDWARD R. STEIN

RICHARD C. KRAUS

SMITH HAUGHEY RICE & ROEGGE

Attorney for Vincent Palusci

3497 Coolidge Road

East Lansing, MI 488232

(517) 332-3030