PER CURIAM.

In this constitutional-tort case, plaintiff, Edward Pinkney, appeals as of right an order granting summary disposition to the State of Michigan (SOM) and the Department of Corrections (DOC)1 under MCR 2.116(C)(8) and (10) and denying plaintiff’s request to amend his complaint. Plaintiff also challenges an earlier grant of summary disposition to defendant Berrien County Prosecutor’s Office (BCPO) under MCR 2.116(I)(2). The crux of plaintiff’s claims is that his due process rights under the Michigan Constitution were violated when he was charged, convicted, imprisoned, and subject to parole supervision for a violation of MCL 168.937[2] because the Michigan Supreme Court later concluded that this statute does not, in fact, create a substantive crime. We affirm.

I. BACKGROUND AND BASIC FACTS

Pertinent background facts for the present case are set forth in People v Pinkney, 501 Mich 259, 264; 912 NW2d 535 (2018) (Pinkney II):

Defendant [i.e., plaintiff in the present case] was charged with five counts of election-law forgery under MCL 168.937 and six counts of making a false statement in a certificate-of-recall petition under MCL 168.957. After being bound over to the Berrien Circuit Court on these charges, defendant filed a motion to quash arguing, inter alia, that § 937 is a penalty provision, not a substantive, chargeable offense. The circuit court denied the motion to quash, and the case proceeded to trial. After an eight-day trial, the jury returned verdicts of guilty on the five felony counts and not guilty on the six misdemeanor counts. In a motion for a directed verdict, defendant again argued that § 937 is a penalty provision and not a substantive offense. The circuit court denied the motion and sentenced defendant to concurrent prison terms of 30 to 120 months.

After plaintiff appealed, this Court engaged in statutory construction and looked favorably to an unpublished opinion—People v Hall, unpublished per curiam opinion of the Court of Appeals, issued October 23, 2014 (Docket No. 321045), rev’d on other grounds 449 Mich 446 (2016)—and concluded that § 937 sets forth a substantive offense. People v Pinkney, 316 Mich App 450, 462- 465; 891 NW2d 891 (2016) (Pinkney I), rev’d by Pinkney II.^[3] The Supreme Court disagreed, concluding that § 937 is a penalty provision and that the Legislature appeared to have inadvertently left it in—without a corresponding substantive offense—when amending the statutory scheme. Pinkney II, 501 Mich at 285-287. The Supreme Court stated, “After focusing on the plain language, context, and history of § 937, we conclude that it is nothing more than an inoperative penalty provision,” adding, “[W]e recognize that our conclusion that § 937 is an inoperative penalty provision is an unusual one, and it is not one that we reach lightly.” Id. at 287.

After the vacating of his convictions by the Michigan Supreme Court, plaintiff filed the present lawsuit on the basis of a theory with roots in the United States Supreme Court case of Monell v Dep’t of Social Servs of City of New York, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978). In Monell, id. at 690, the Court stated:

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom [42 USC] 1983[4] applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels.

After the issuance of Monell, this Court indicated that a Monell-type claim can be made against the state—not just local government units—for violations of the Michigan Constitution. For example, in Carlton v Dep’t of Corrections, 215 Mich App 490, 504-505; 546 NW2d 671 (1996), the Court stated:

A claim for damages against the state arising from a violation by the state of the Michigan Constitution may be recognized in appropriate cases. Liability for a violation of the state constitution should be imposed on the state only in those cases in which the state’s liability would, but for the Eleventh Amendment,[5] render it liable under the 42 USC § 1983 standard for local governments articulated in Monell[.]

In Monell, the United States Supreme Court held that a local government would be liable under § 1983 only when the execution of an official policy or custom caused a person to be deprived of federal constitutional rights. The policy or custom must be the moving force behind the constitutional violation in order to establish liability.

Thus, the state will be liable for a violation of the state constitution only in cases where a state custom or policy mandated the official or employee’s actions. [Quotation marks and citations omitted.]

Plaintiff filed his complaint “against the State of Michigan, the Michigan Department of Corrections and Berrien County Prosecutor’s Office (a Sub-Entity, Arm and/or Agency of the State of Michigan for Purposes of the Claims Herein) due to violations of the Plaintiff’s constitutional rights.” Plaintiff stated that “Defendant Berrien County Prosecutor is a subentity, arm and/or agency of the State of Michigan and is being sued in order to hold this subentity, arm and/or agency of the State of Michigan liable for the constitutional violation(s) herein as opposed to Michael Sepic [who held the position of Berrien County Prosecutor at the time of defendant’s trial and conviction] being held personally liable for damages in his individual capacity.” Plaintiff alleged that Sepic was a policymaker for purposes of holding the state liable under a Monell-type theory and violated plaintiff’s constitutional rights by prosecuting plaintiff and convicting him of a nonexistent crime. He also alleged that the SOM/DOC had a policy of incarcerating and paroling convicted persons and that this policy rendered the state liable for violating plaintiff’s constitutional rights.

After plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(10), the lower court granted summary disposition to the BCPO under MCR 2.116(I)(2), concluding that the Court of Claims lacked subject-matter jurisdiction for a claim against the BCPO because it was a county office.^[6] Later, the court granted the SOM/DOC’s motion for summary disposition under MCR 2.116(C)(8) and (10), concluding that no state policy was at issue for a claim such as that discussed in Carlton because the BCPO was a local—not a state—office. The court concluded that an additional basis for dismissal was the fact that plaintiff had not alleged a constitutional due- process violation because he in fact received due process throughout the criminal proceedings. The court also denied as futile plaintiff’s attempt to amend the complaint.

II. STANDARDS OF REVIEW

As stated in Stehlik v Johnson, 206 Mich App 83, 85; 520 NW2d 633 (1994):

Summary disposition is reviewed de novo, because this Court must review the record to determine whether the moving party was entitled to judgment as a matter of law. MCR 2.116(C)(8) permits summary disposition when the opposing party has failed to state a claim upon which relief can be granted. A motion under this subsection determines whether the opposing party’s pleadings allege a prima facie case. The court must accept as true all well-pleaded facts. Only if the allegations fail to state a legal claim is summary disposition pursuant to MCR 2.116(C)(8) valid. A motion pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff’s claim. MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to damages as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Citations omitted.]7

This Court reviews for an abuse of discretion a trial court’s ruling regarding a motion to amend a complaint. Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 215-216; 859 NW2d 238 (2014). “[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of reasonable and principled outcomes.” In re Kostin, 278 Mich App 47, 51; 748 NW2d 583 (2008).

III. ANALYSIS

“Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action.” Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987), aff’d sub nom Will v Mich Dep’t of State Police, 491 US 58 (1989). There is authority for concluding that the decision to charge and prosecute plaintiff for a crime under the ostensible authority of MCL 168.937 was a “policy” for purposes of a Monell-type analysis. See, e.g., Pembaur v City of Cincinnati, 475 US 469, 480-481; 106 S Ct 1292; 89 L Ed 2d 452 (1986), superseded in part by statute as recognized by Francis v Carroll, 659 F Supp 2d 619, 626 (Del, 2009); see also Mays v Snyder, 323 Mich App 1, 63-64; 916 NW2d 227 (2018), aff’d 506 Mich 157 (2020). The parties hotly dispute, however, whether the BCPO was acting as an arm of the county or an arm of the state in prosecuting plaintiff. Ultimately, we need not resolve this question because even if the Court of Claims erred regarding the “state actor” issue, dismissal was nevertheless warranted on the basis of plaintiff’s failure to allege or support any viable constitutional violation. See, e.g., Mays, 323 Mich App at 58 (noting that a threshold question in determining the availability of a damages remedy was whether the plaintiffs had “alleged facts that, if proved true, are sufficient to establish . . . a [constitutional] violation”).

As noted, the Court of Claims indicated that an additional basis for dismissal—beyond the “state actor” issue—was the fact that plaintiff had, in fact, obtained full due process throughout the criminal proceedings.^[8] Indeed, it is not in dispute that plaintiff had traditional notice and an opportunity to be heard; this process was, of course, what led to the ultimate overturning of his convictions. Plaintiff, citing Hurtado v California, 110 US 516; 4 S Ct 111; 28 L Ed 232 (1884) among other cases, suggests that he did not obtain due process because the charging document did not contain a crime, and Hurtado, id. at 525, states that a crime must be set forth in an indictment or other document.9 But an ostensible crime was set forth against plaintiff, and in fact, on the day his trial began, a panel of this Court in Hall concluded that MCL 168.937 set forth a substantive offense. Plaintiff is attempting to analogize the present case to a situation in which an accused received no notice of the offense being alleged, but plaintiff received such notice and had a full, fair, and comprehensive opportunity to defend himself and raise his objections—one of which was ultimately successful. See, generally, In re Rood, 483 Mich 73, 92-93; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.) (discussing requirements for procedural due process).

Statements from the case of Baker v McCollan, 443 US 137; 99 S Ct 2689; 61 L Ed 433 (1979), are also instructive by analogy. In Baker, id. at 145, the Court said, “The [federal] Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.” The Baker Court also stated, “The Fourteenth Amendment [of the United States Constitution] does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished ‘without due process of law.’ ” Id. The fact that plaintiff was successful in vacating his convictions does not automatically mean that his due-process rights were violated.

Defendant also argues that his imprisonment was void—and that the SOM/DOC is liable independent of any actions of the BCPO—because the process he obtained was inadequate. But his process was, in fact, adequate under constitutional standards for procedural due process. Plaintiff further contends that the trial court’s order was erroneous because the lower court considered only procedural due process and not substantive due process. It is true that the court did not undertake an analysis of substantive due process, but we may nevertheless consider it upon our de novo review of the summary-disposition decision. See, e.g., Mays, 323 Mich App at 58 (“[W]e must review the matter de novo, giving no deference to the lower court decision, in order to determine whether defendants were entitled to judgment as a matter of law.”).

In Mays, id., the Court stated, “The due process guarantee of the Michigan Constitution is coextensive with its federal counterpart,” and added, “The doctrine of substantive due process protects unenumerated fundamental rights and liberties under the Due Process Clause of the Fourteenth Amendment.” (Quotation marks and citations omitted.) In Mettler Walloon LLC v Melrose Twp, 281 Mich App 184, 200; 761 NW2d 293 (2008), the Court explained that a viable claim regarding the violation of the right to substantive due process involves an action so arbitrary in the constitutional sense so as to “shock the conscience.” “Michigan courts have acknowledged that the essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests.” Id. at 201. “To state a cognizable substantive due process claim, the plaintiff must allege conduct intended to injure in some way unjustifiable by any government interest and that is conscience-shocking in nature.” Id. at 201-202 (quotation marks and citations omitted). “At a minimum, proof of deliberate indifference is required.” Mays, 323 Mich App at 61.10

The charges against defendant and his convictions, imprisonment, and parole were not arbitrary in the constitutional sense, were not intended to injure in a way unjustifiable by any government interest, and did not shock the conscience. The statute in question was clearly subject to different interpretations by reasonable minds. Recall that in Pinkney II, 501 Mich at 287, the Michigan Supreme Court stated, “[W]e recognize that our conclusion that § 937 is an inoperative penalty provision is an unusual one, and it is not one that we reach lightly.” (Emphasis added.)

The persons or institutions responsible for charging, trying, and imprisoning plaintiff and supervising him on parole were not acting with deliberate indifference but were reasonably attempting to implement an existing statute. Under these circumstances, defendant did not allege or provide evidentiary support for a substantive due-process claim in connection with the actions of the BCPO or the DOC.^[11]

Plaintiff also raises an argument about his attempt to amend the complaint. MCR 2.116(A)(2) states, in part, that “a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.” “Leave to amend should ordinarily be denied only for particularized reasons such as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed, or futility.” In re Kostin, 278 Mich App at 52. “An amendment is futile if it merely restates the allegations already made[.]” Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co, 324 Mich App 182, 209; 920 NW2d 148 (2018) (quotation marks and citation omitted). Plaintiff, in seeking an amendment, was not seeking to raise any new claims but was simply attempting to clarify that he was relying on the Michigan Due Process Clause and Monell. The trial court did not abuse its discretion by denying the motion to amend the complaint.

Affirmed.

/s/ Michael F. Gadola /s/ Deborah A. Servitto /s/ James Robert Redford