Reid Cowan v. State of Michigan

Opinion

STATE OF MICHIGAN

COURT OF APPEALS

REID COWAN, UNPUBLISHED May 22, 2018

Plaintiff-Appellant,

v No. 339618 Court of Claims

STATE OF MICHIGAN, DEPARTMENT OF LC No. 17-000091-MM CORRECTIONS, and EDWARD BARBER

Defendants-Appellees.

Before: SHAPIRO, P.J., and M.J. KELLY and O’BRIEN, JJ.

O’BRIEN, J. (concurring in part and dissenting in part).

I agree with the majority that plaintiff’s state law claims should be dismissed for failure to provide timely notice as required by MCL 600.6431. However, I disagree that it is appropriate to remand plaintiff’s federal constitutional claim based on Felder v Casey, 487 US 131; 108 S Ct 2302; 101 L Ed 2d 123 (1988). Plaintiff did not raise this argument at trial or on appeal. Therefore, I would adhere to the general “raise or waive” rule and hold that plaintiff waived this issue by failing to raise it. Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008); Baxter v Geurink, 493 Mich 924, 924 (2013).

/s/ Colleen A. O'Brien