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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1887%3A2. Public record. Not legal advice.