D&N Garage, Inc. et al v. Ogemaw County Board of Commissioners et al

Filing 59

ORDER Granting in Part and Denying in Part Defendants' 53 Motion to Dismiss. Signed by District Judge Matthew F. Leitman. (HRya)

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Case 1:21-cv-10440-MFL-PTM ECF No. 59, PageID.836 Filed 11/21/22 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION D&N GARAGE, INC. et al., Plaintiffs, Case No. 21-cv-10440 Hon. Matthew F. Leitman v. OGEMAW COUNTY BOARD OF COMMISSIONERS, et al., Defendants. __________________________________________________________________/ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS (ECF No. 53) On November 21, 2022, the Court held a hearing on a motion to dismiss filed by Defendants the County of Ogemaw, the Ogemaw County Board of Commissioners, current Ogemaw County Sheriff Brian Gilbert, Sr., Sheriff’s Deputies Brian Gilbert, Jr., Justin Noffsinger, Mike O’Dell, Dalton Worthy, and Robert Weishuhn, former Ogemaw County Sheriff Howard Hanft, former Ogemaw County Undersheriff Leigh David, and Ogemaw County Prosecutor LaDonna Shultz (collectively, “Defendants”). (See Mot., ECF No. 53.) For the reasons explained on the record during the motion hearing, IT IS HEREBY ORDERED as follows: 1 Case 1:21-cv-10440-MFL-PTM ECF No. 59, PageID.837 Filed 11/21/22 Page 2 of 3  Defendants’ motion to dismiss Plaintiffs’ claims against Defendants Ogemaw County, the Ogemaw County Board of Commissioners, and Shultz pursuant to Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978) is DENIED;  Defendants’ motion to dismiss Plaintiffs’ First Amendment retaliation claims as pleaded in Count II of the Amended Complaint is GRANTED. Count II of the Amended Complaint is DISMISSED. However, the Court grants Plaintiffs leave to amend to re-plead these claims in a Second Amended Complaint. If Plaintiffs re-plead these claims, they shall, on a Defendant by Defendant basis, specifically identify (1) what protected activity each Defendant was aware of and (2) what conduct each Defendant took as a result of that knowledge.  Defendants’ motion to dismiss Plaintiffs’ due process claim is DENIED;  Defendants’ motion to dismiss Plaintiffs’ claims brought under 42 U.S.C. §§ 1985 and 1986 as pleaded in Counts IV and V of the Amended Complaint is GRANTED. Counts IV and V of the Amended Complaint are DISMISSED.  Defendants’ motion to dismiss Plaintiffs’ supervisory liability claims against Defendants Gilbert, Sr. and Hanft is GRANTED. DISMISSED; and 2 Those claims are Case 1:21-cv-10440-MFL-PTM ECF No. 59, PageID.838 Filed 11/21/22 Page 3 of 3  Defendants’ motion to dismiss Plaintiffs’ request for injunctive relief against Defendants Hanft and David as pleaded in Count IV of the Amended Complaint is GRANTED. The claim for injunctive relief in Count IV is DISMISSED as to Defendants Hanft and David. IT IS SO ORDERED. s/Matthew F. Leitman MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE Dated: November 21, 2022 I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on November 21, 2022, by electronic means and/or ordinary mail. s/Holly A. Ryan Case Manager (313) 234-5126 3

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