govinfo:USCOURTS-miwd-1_26-cv-01610-1

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
JONATHAN DAVID DEAK,     )  
  P l a i n t i f f ,     )  
       )  N o .  1 : 2 6 - c v - 1 6 1 0  
v .        )  
       )  H o n o r a b l e  P a u l  L .  M a l o n e y  
M
IKE SCHUITEMA, ET AL.,     )  
  D e f e n d a n t s .     )  
       )  
 
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION   
 
This matter comes before the Court on Magistrate Judge Green’s Report and 
Recommendation (R&R), (ECF No. 8), in which he recommended that Plaintiff’s complaint 
be dismissed for failure to state a claim. Plaintiff, proceeding in forma pauperis in this case, 
objected to the R&R. (ECF No. 9). Plaintiff sugge sts that the “core question” in this case is 
whether “the State of Michigan [may] criminally  prosecute” him “for failing to comply with 
a civil child support order that was entered without the appointment of counsel.” (ECF No. 
2). The answer to that question, based on bind ing legal authority, is straightforwardly yes, 
and Plaintiff’s contrary conclusion relies on misrepresentations of the few cases he cites. The 
R&R will thus be adopted, and Plaintiff’s complaint will be dismissed. 
I.  
After being served with a report and recommendation issued by a magistrate judge, a 
party has fourteen days to file written objections to the pr oposed findings and 
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge 
reviews de novo the portions of the R&R to wh ich objections have been filed. 28 U.S.C. § 
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636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a de 
novo review under the statute. Mira v. Marshall , 806 F.2d 636, 637 (6th Cir. 1986) (per 
curiam). An “objection does not oblige the district court to ignore the report and 
recommendation.” Fharmacy Recs. v. Nassar, 465 F. App’x 448, 456 (6th Cir. 2012). Our 
Local Rules require any party objecting to a report and recommendat ion to “specifically 
identify the portions of th e proposed findings, recommen dations or report to which 
objections are made and the basis for such objections.”  W.D. Mich. LCivR 72.3(b); see also 
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (holdi ng that “objections disput[ing] the 
correctness of the magistrate’s  recommendation but fail[ing] to specify the findings . . . 
believed [to be] in error” are too general). 
In cases where the plaintiff proceeds in forma pauperis, courts must dismiss the case 
if they determine that the plaintiff fails to state a claim on which relief may be granted. U.S.C. 
§ 1915(e)(2). To state a claim, “a complaint must contain sufficient factual matter, accepted 
as true” to plausibly suggest that the plai ntiff is entitled to the relief requested. Ashcroft v. 
Iqbal, 556 U.S. 662, 678 (2009). Facts “merely co nsistent with” the defendant’s liability 
suggest only possibility, not plau sibility, and thus  fail this test. Id. In assessing whether the 
complaint contains sufficient fact ual matter, courts need only accept factual allegations as 
true and not legal conclusions or unwarranted inferences. Kottmayer v. Maas, 436 F.3d 684, 
688 (6th Cir. 2006). 
II.  
Plaintiff seeks an injunction preventing Defendants, a local prosecutor and Michigan’s 
Attorney General, from enforcing a criminal statute against him. The statute in question 
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allows criminal charges “[i]f the court orders an individual to pay support for the individual's 
former or current spouse, or for a child of th e individual, and the individual does not pay 
the support in the amount or at the time stated in the order.” Mich. Comp. Laws § 750.165. 
Plaintiff alleges that an order to pay chil d support was entered against him in civil 
proceedings. During those proceedings, he requested the appointment of counsel, and that 
request was denied. He alleges that he is in arrears on his child support payments and argues 
that any criminal prosecution of  him for failure to pay would be constitutionally defective 
because he was denied appointed counsel in the civil proceeding. 
Before discussing the R&R an d Plaintiff’s objections, some  legal background is in 
order. In Michigan, child support orders emerge from adversarial civil proceedings in which 
defendants have “the opportunit y to voice any objections,” dire ct appeal is available, and 
“there are ample statutory prov isions under which a party can seek to have [a] judgment 
revised to take into consideration changing financial circumstances.” People v. Adams, 683 
N.W.2d 729, 735 (Mich. Ct. App. 2004). In these civil proceedings, no person can be jailed 
or imprisoned—the Court determines a financial obligation. But if a child support order is 
entered in those proceedings and the person does not pay, the government may prosecute 
the person, and to convict, it must prove beyond a reasonable doubt “that (1) the defendant 
was required by a divorce order to support a child, (2) the defendant appeared in or received 
notice of the action in which the order was issued, and (3) th e defendant failed to pay the 
required support at the time ordered or in the amount ordered.” 
People v. Iannucci , 887 
N.W.2d 817, 818-19 (Mich. Ct. App. 2016). The civil proceeding in which the child support 
order is entered and the criminal proceedings for failure to pay are separate proceedings in 
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separate courts with different parties. See People v. Likine, 823 N.W.2d 50, 73 (Mich. 2012). 
“Neither the support order nor evidence of a defendant’s failure to pay introduced in the 
family court proceedings, singly or together, establishes proof beyond a reasonable doubt 
that a defendant is guilty of felony nonsupport.” Id. “[D]ifferent procedural safeguards exist 
in family court proceedings than in the crimin al proceedings” in a felony nonsupport case, 
and in the criminal case, the defendant main tains “the full panoply of constitutional 
protections that inhere in any criminal prosec ution, which are simply inapplicable in civil 
family court proceedings,” including the righ t to counsel and present defenses which may 
not be relevant in a civil case. Id.  
Indigent defendants have a Sixth Amendment right to counsel in criminal cases. See 
Gideon v. Wainwright, 372 U.S. 335 (1963). This right of an indigent litigant to counsel does 
not extend to all civil proceedings: an indigent litigant might have that right in a civil case 
“only when, if he loses, he may be deprived of his physical liberty,” and even then, not in “all 
such cases.” Turner v. Rogers, 564 U.S. 431, 443 (2011). In Turner, the Court held that “the 
Due Process Clause does not automatically require the provision of counsel at civil contempt 
proceedings to an indigent individual who is su bject to a child support order, even if that 
individual faces incarceration.” Id. at 448. The Court held that because an indigent, 
unrepresented person was deprived of liberty without either counsel or adequate procedural 
safeguards, the proceeding resulting in his incarceration was in violation of the Due Process 
Clause. See id. at 448-49. In a case where the party claiming a right to counsel did not face a 
deprivation of physical liberty, but rather a te rmination of parental rights, the Court found 
that the Constitution did not require “the appointment of counsel in every parental 
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termination proceeding,” and left decisions about “whether due process calls for the 
appointment of counsel for indigent parents in  termination proceedings” to trial courts. 
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31-32 (1981). 
Turning back to this case, Plaintiff argues that in the civil proceedings where his child 
support obligations were determined—where he  never faced the possibi l i t y  o f  l o s i n g  h i s  
physical liberty—he had a right to counsel, and relies on Turner and Lassiter, two cases where 
the Court held that there was not a right to counsel. ( See ECF No. 2 at PageID.24-27). To 
the extent that Turner and Lassiter are informative, they ar e so for civil contempt 
proceedings based on failure to pay a chil d support obligation and proceedings where 
parental rights could be terminat ed. This case involves neither. Turner is closer, but the 
suggested, non-necessary safeguards in Turner would apply in a proceeding where a person 
could be deprived of his liberty. See 564 U.S. at 447-48 (suggesting four safeguards in civil 
contempt proceedings and explaining that others might be sufficient). Here, that proceeding 
is a yet-to-begin criminal one with greater safeguards. Plaintiff was never proceeding on a firm 
foundation; no wonder, then, that the Magistra te Judge recommended finding that Plaintiff 
failed to state a claim. (See ECF No. 8 at PageID.49-52). The Court now addresses Plaintiff’s 
objections. 
Plaintiff’s first objection relates to stan ding. The Magistrate Judge recommended 
finding that Plaintiff lacked standing becaus e the prospect of his prosecution was merely 
speculative. (Id. at PageID.47-48). Plaintiff argues that there is a history of “past enforcement 
against the same conduct” establ ishing that “the threat of en forcement is not chimerical.” 
Susan B. Anthony List v. Driehaus , 573 U.S. 149, 164 (2014) (c itation modified). But the 
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history to which Plaintiff alludes is  not presented in the complaint. ( See ECF No. 1 at 
PageID.3-5 ¶¶ 10-21). Instead, it is presented for the first time in the objections to the R&R: 
Plaintiff represents that felony  arrest warrants have issued ag ainst him before for failing to 
pay his child support obligations. (ECF No. 9 at PageID.55). They cannot have been 
“pleaded with sufficient specificity in the original complaint,” (id. at PageID.56), because they 
were not referenced at all. Plaintiff argues that he should be granted leave to amend his 
complaint rather than having it dismissed on standing grounds. ( See id.). Amendments to 
the complaint must be made under Federal Rule of Civil Procedure 15, not through 
objections to an R&R. Even if the Court were amenable to breaking with normal procedure 
and allowing amendment to cure the stan ding issue, amendment would be futile 
substantively, as discussed below.  
Plaintiff’s second objection contains several distinct claims, none of which have merit. 
First, Plaintiff argues that th e R&R contains references to child custody proceedings, when 
Plaintiff’s argument is about determinations of child support. (ECF No. 9 at PageID.57). But 
the points made in  the R&R are that Turner was about what due process required in civil 
contempt proceedings rather than prior child custody or child support proceedings, and that 
Lassiter was about cases where parental rights could be terminated . (ECF No. 8 at 
PageID.50-51). Second, Plaintiff argues that Turner entitled him to the suggested safeguards 
in the civil proceeding in which his child supp ort obligations were determined. It did not: 
Turner applied safeguards only because the ci vil contempt proceeding resulted in 
incarceration. Plaintiff never argues that a potential criminal proceeding would have 
insufficient safeguards nor th at he was ordered incarcerated during the child support 
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proceeding. That the existence of the child suppo rt order is a pertinent fact in a potential 
subsequent prosecution does not retroactiv ely transform the inde pendent family court 
proceeding into a part of the criminal proceeding. See Likine, 823 N.W.2d at 73. Third, 
Plaintiff argues that the R&R is circular. (ECF  No. 9 at PageID.58-59). This argument rests 
on Plaintiff’s confusion of the recommendation on standing and the recommendation on the 
merits and reveals no problems with either. 
Plaintiff’s third objection is that any criminal prosecution of him would be 
constitutionally defective because “the criminal offense is wholly derivative of the civil order,” 
and he contends the R&R did not address this argument sufficiently. (Id. at PageID.59). But 
Plaintiff’s argument on this score rests on hi s having a right to co unsel during the civil 
proceeding, which the R&R did ad dress. Further, Plaintiff’s central contention that “the 
criminal offense is wholly derivative of the civil order” is incorrect. “Neither the support 
order nor evidence of a defendant’s failure to pay introduced in the family court proceedings, 
singly or together, establishes proof beyond a reasonable doubt that a defendant is guilty of 
felony nonsupport.” Likine, 823 N.W.2d at 73. Prosecutors in § 700.165 cases must prove 
beyond a reasonable doubt that the child su pport order exists, that the defendant was 
involved in the proceedings or was on notice, and that the defendant failed to pay. Iannucci, 
887 N.W.2d at 818-19. Further, defendants ma y defeat a § 700.165 ch arge by raising an 
impossibility defense and presenting evidence that they could not pay despite reasonable 
efforts. Likine, 823 N.W.2d at 70. And people subjec t to child support orders may appeal 
in their civil proceedings and seek  modifications of those orders. Adams, 683 N.W.2d at 
735. The initial issuance of a child support order does not make criminal liability for failure 
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to follow it a fait accompli, as Plaintiff suggests. There is no authority suggesting that an 
independent civil proceeding can ever retroactiv ely become part of a criminal proceeding, 
and Plaintiff’s argument that there is even a robust connect ion between the two rests on a 
misstatement of the law. For Turner to apply, the child support proceeding would need to, 
alone, result in a deprivation of physical liber ty. That simply is not the case, so Plaintiff’s 
objection has no merit. 
Plaintiff’s fourth objection is to the conclusion in the R&R that any appeal “would be 
frivolous and not made in good faith.” (ECF No. 8 at PageID.52). A claim is frivolous “where 
it lacks an arguable basis either in law or in fact.” Neitzke v. Williams , 490 U.S. 319, 325 
(1989). As discussed above, Plaintiff’s legal cl aims rest on foundational misunderstandings 
of Turner and Lassiter and on inaccurate representations of Michigan law, so they lack any 
arguable basis in law. That makes them frivolous, so this objection has no merit. 
Plaintiff’s fifth and final objection is that he should be granted leave to amend rather 
than having his complaint dismis sed. He cites two authorities fo r this claim. First, he cites 
LaFountain v. Harry , 716 F.3d 944, 951 (6th  Cir. 2013). In LaFountain, the Sixth Circuit 
overruled a previous case which required dismissal without leave to amend at the screening 
stage, but left district courts with discretion as to whether to grant leave to amend. See id. So 
courts may still deny leave to  amend based on, for example, “futility of the amendment.” 
Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 
178, 182 (1962)). The second au thority Plaintiff cites is Brown v. Matauszak, 415 F. App’x 
608, 614 (6th Cir. 2011). Unfortunately, the quote that Plaintiff attributes to Brown is not in 
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that case.
1
 In Brown, the court remanded a case, granting the pro se plaintiff leave to amend 
where his complaint failed to specially plead the claims he was allegedly prevented from 
making in his denial of access to courts claim; essentially, he failed to recognize that he “must 
plead a case within a case.” Id. at 612. The court found when dismissal is based on a pro se 
plaintiff’s “ignorance of special pleading requirements,” dismissal without prejudice or leave 
to amend is appropriate. Id. at 615. Brown does not require courts to grant leave to amend 
or dismiss without prejudice if the proposed amendment would be futile. Plaintiff argues that 
in an amended complaint, he would “plead, wi th specificity, the two prior felony arrest 
warrants” and “the absence of each Turner safeguard in the underlying proceeding.” (ECF 
No. 9 at PageID.61). But Plaintiff never had a right to an attorney or the “Turner safeguards” 
in the child support proceeding, as discussed above. The amendment would thus be futile, 
so leave to amend, even if properly requeste d, would have been denied, and dismissal with 
prejudice is appropriate. None of Plaintiff’s objections have merit, so they are overruled. 
III.  
Plaintiff’s core argument, that he had a right to counsel in a civil proceeding where he 
could never have been deprived of his physical liberty, is unsupported by any legal authority. 
The few cases he does cite do not support the propositions for which they are cited, and the 
premise from which he makes his arguments rests on a misstatement of Michigan law. The 
 
1
 The full sentence in Plaintiff’s objection is: “And ‘where  a more carefully drafted complaint might state a claim, a 
plaintiff must be given at least one chan ce to amend the complaint before the di strict court dismisses the action with 
prejudice.’ Brown v. Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011) (citation omitted).” Whether this false quotation 
is the product of an artificial intelligence “hallucination,” United States v. Farris, 171 F.4th 920, 923 (6th Cir. 2026), is 
unclear, though the citation omitted parenthetical suggests that Plaintiff intended to submit at least some quoted language 
from Brown rather than accidentally including quotation marks. 
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Magistrate Judge properly recognized this on the face of Plaintiff’s complaint, so the R&R 
(ECF No. 8) is ADOPTED. Plaintiff’s complaint (ECF No. 1) is DISMISSED. 
IT IS SO ORDERED. 
Date:   June 18, 2026       /s/ Paul L. Maloney                
        P a u l  L .  M a l o n e y  
        U n i t e d  S t a t e s  D i s t r i c t  J u d g e  
 
 
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