Carroll v. Oakland County Sheriff et al

Filing 79

ORDER Accepting In Part and Adopting In Part November 17, 2014 Report and Recommendation 69 and Order Dismissing Action. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL J. CARROLL,
Plaintiff,

Case No. 13-15281
Honorable Denise Page Hood

v.
OAKLAND COUNTY POLICE DEPARTMENT,
AUBURN HILLS POLICE DEPARTMENT,
BLUE CROSS BLUE SHIELD, OFFICER ZORA,
OFFICER GARCIA, OFFICER GRACEY, and
JOHN DOES (1-7),
Defendants.
_________________________________________/
ORDER ACCEPTING IN PART AND ADOPTING IN PART
NOVEMBER 17, 2014 REPORT AND RECOMMENDATION
and
ORDER DISMISSING ACTION
This matter is before the Court on a Report and Recommendation (Doc. No. 69)
filed by Magistrate Judge Mona K. Majzoub. On November 25, 2014, Defendants
filed Objections to the Report and Recommendation. (Doc. No. 71) Plaintiff filed his
Objections to the Report and Recommendation on December 1, 2014 to the Report
and Recommendation filed December 30, 2014 (Doc. No. 74).
The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C.§ 636. This Court “shall make a de novo
determination of those portions of the report or the specified proposed findings or

recommendations to which an objection is made.” 28 U.S.C. § 636(B)(1)(c). The
Court “may accept, reject or modify, in whole or in part, the findings or
recommendations made by the Magistrate.” Id. In order to preserve the right to appeal
the Magistrate Judge’s recommendation, a party must file objections to the Report and
Recommendation within fourteen (14) days of service of the Report and
Recommendation. Fed. R. Civ. P 72(b)(2). Failure to file specific objections
constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140
(1985); Howard v. Secretary of Health and Human Servs., 932 F2d 505 (6th Cir.
1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
After review of the November 17, 2014 Report and Recommendation and the
Objections thereto, the Court agrees with the Magistrate Judge that Plaintiff’s claim
of pre-arrest excessive force must be dismissed against the individual Oakland
County Sheriff Department’s officers. As to the post-arrest excessive force claims,
the Magistrate Judge recommended that Defendants Sergeant Yassir Zora, Deputy
Ruben Garcia and Deputy Ronald Gracey’s Motion for Summary Judgment on this
claim should be denied and that Plaintiff’s Motion to Amend with regard to these
claims against these three Defendants should be granted. However, the Court’s
review of the proposed Amended Complaint (Doc. No. 41) finds that Plaintiff did not
set forth any factual allegations as to any post-arrest excessive force claim against the
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individual Defendants Zora, Garcia and Gracey. Specifically addressing the postarrest excessive force claim, in paragraph 8, Plaintiff alleges, “As plaintiff lay on the
ground handcuffed plaintiff was still being assaulted without reason by unknown
polices (sic) (will have to review camera) while other deputies and officers stood by
not intervening at all.” (Doc. No. 41, pg ID 208) Paragraph 9 further states, “After
being lifted off the ground and being escorted by Sgt. Zora’s cruiser another unknown
deputy or officer (review camera’s) came and punched the plaintiff in the ribs.” (Doc.
NO. 41, Pg ID 208) Based on the proposed Amended Complaint, Plaintiff fails to state
any factual allegations to support his post-arrest excessive force claims against
Defendants Zora, Garcia and Gracey. The Oakland County individual Defendants
Zora, Garcia, and Gracey are dismissed from the Complaint and Amended Complaint
as to Plaintiff’s excessive force claim and related assault and battery claim.
The Court agrees with the Magistrate Judge that the claims against the Auburn
Hills Police Department and the Oakland County Sheriff’s Department are dismissed
because these entities are not separate legal entities that can be sued. As to the
proposed claims against the municipalities the City of Auburn Hills and Oakland
County, the Court agrees with the Magistrate Judge that there are no plausible factual
allegations as to Defendants City of Auburn Hills and Oakland County relating to the
claims based on unconstitutional customs, policy and practice and failure to provide
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adequate training.
The Court also agrees with the Magistrate Judge that Plaintiff has failed to state
a claim under the Eighth Amendment since the excessive force claims during an arrest
are properly addressed under the Fourth Amendment.
Regarding the proposed claims against Detective Marougi and Deputies Garza
and Dennis alleged in the Amended Complaint asserting they committed perjury
during the prosecution of the underlying state criminal action, the Court agrees with
the Magistrate Judge that these claims are barred by Heck, since any finding in favor
of Plaintiff “would necessarily imply the invalidity of his conviction.” Heck v.
Humphrey, 512 U.S. 477, 487 (1990).
The Court agrees with the Magistrate Judge that Plaintiff’s state-law claims
against the individual Defendants must be dismissed. However, as to Plaintiff’s postarrest assault and battery claim alleged in his proposed Amended Complaint, that
claim remains, but as to the “unknown deputy or officer” since Plaintiff’s post-arrest
excessive force claim remains. Because Plaintiff has not identified the unnamed
defendants in this case and the time to serve process has passed, the Court will not
allow the claims against the unknown defendants to move forward. Fed. R. Civ. P.
4(m); Petty v. County of Franklin, Ohio, 478 F.3d 341, 346 n. 3 (6th Cir. 2007).
Plaintiff was given the opportunity to identify the unnamed defendants by the
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Magistrate Judge when an Order to Show Cause was issued why the unnamed
defendants should not be dismissed for failure to effect timely service of process.
(Doc. No. 36) Plaintiff responded that he had submitted the proposed Amended
Complaint indicating he had received the information required to amend his complaint
including the names of the deputies and officers involved. (Doc. No. 39) Plaintiff did
not indicate in his response that he required further information as to any other
unnamed defendants.
The Magistrate Judge recommends that the claims and proposed claims against
the Auburn Hills Police Department officers should be dismissed since there is no
genuine issue of material fact that these officers had any contact with Plaintiff and
there are no factual allegations as to these Defendants. The Magistrate Judge also
recommends that the proposed claims against Oakland County Sheriff Deputies
Wheatcroft, Ginnel, Sharma, Miller and Sergeants Ramsey and Miller should be
dismissed since there are no factual allegations as to these Defendants in the proposed
Amended Complaint. The Magistrate Judge further recommends that the proposed
claims against Sheriff Bouchard should be denied since there are no factual allegations
against him and the theory of respondeat superior does not apply. As to Plaintiff’s
proposed conspiracy claim, the Magistrate Judge recommends that the proposed
Amended Complaint fails to state such a claim. After review of the Complaint and
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the proposed Amended Complaint, the Court agrees with the Magistrate Judge that
there are no plausible factual claims against these Defendants and that there are no
facts to support a conspiracy claim.
For the reasons set forth above,
IT IS ORDERED that Magistrate Judge Mona K. Majzoub’s Report and
Recommendation (No. 69) is ACCEPTED AND ADOPTED IN PART, as more fully
set forth above, except for the recommendation that the post-arrest excessive force and
post-arrest assault and battery claims against Defendants Zora, Garcia and Gracey
remain. These Defendants must be dismissed since there are no factual allegations
against them in the proposed Amended Complaint as to the post-arrest excessive force
and post-arrest assault and battery claims.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Complaint (No.
40) is DENIED since Plaintiff failed to identify the “unknown” deputies and officers
as alleged in Paragraphs 8 and 9 of the Amended Complaint (Doc. No. 41) and the rest
of the proposed claims against the proposed named-Defendants fail to state a claim
upon which relief may be granted and such claims would be futile.
IT IS FURTHER ORDERED that Defendants Garcia, Gracey, Zora, Oakland
County Police Department, Oakland County Sheriff’s Motion for Summary Judgment
(No. 43) is GRANTED.
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IT IS FURTHER ORDERED that Defendant Auburn Hills Police Department’s
Motion for Summary Judgment (Doc. No. 56) is GRANTED.
IT IS FURTHER ORDERED that the following Defendants are DISMISSED
with prejudice: Oakland County Sheriff, Oakland County Police Department, Auburn
Hills Police Department, Blue Cross Blue Shield (see Order No. 45), Officer Zora,
Officer Garcia, and Officer Gracey. John Does 1-7 are DISMISSED without
prejudice since the time to serve these Defendants has passed. (See Order Nos. 36 and
42; Fed. R. Civ. P. 4(m); Petty v. County of Franklin, Ohio, 478 F.3d 341, 346 n. 3
(6th Cir. 2007)).
IT IS FURTHER ORDERED that Defendants’ Objection to the Report and
Recommendation (Doc. No. 71) is SUSTAINED.
IT IS FURTHER ORDERED that Plaintiff’s Objection to the Report and
Recommendation (Doc. No. 73) is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of Time
(Doc. No. 58), Motion for Extension to File to File Answer (Doc. No. 59), Plaintiff’s
Motion to Stay (Doc. No. 65), Plaintiff’s Requests for subpoena records and for
appointment of counsel (Doc. Nos. 76, 77, 78) are DENIED as MOOT.
IT IS FURTHER ORDERED and certified that any appeal from this decision
would be frivolous and not taken in good faith, except for the post-arrest excessive
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force and assault and battery claim. An appeal may not be taken in forma pauperis
under 28 U.S.C. § 1915(a)(3) unless certified. Coppedge v. United States, 369 U.S.
438, 445 (1962), McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir.
1997)(overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). The Court
certifies for appeal purposes only the claims for the post-arrest excessive force and
assault and battery.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice as
to the named-Defendants and without prejudice as to John Does 1-7.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 31, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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