Braxton v. Heritier et al
Filing
43
MEMORANDUM AND ORDER OVERRULING DEFENDANTS' OBJECTIONS AND ADOPTING 27 REPORT AND RECOMMENDATION AND DENYING DEFENDANTS' 13 MOTION TO DISMISS Signed by District Judge Avern Cohn. (SCha)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSES BRAXTON,
Plaintiff,
v.
Case No. 14-12054
TOM HERITIER and
MICHAEL MURPHY
HON. AVERN COHN
Defendants.
__________________________________________/
MEMORANDUM AND ORDER
OVERRULING DEFENDANTS’ OBJECTIONS (Doc. 31)
AND
ADOPTING REPORT AND RECOMMENDATION (Doc. 27)
AND
DENYING DEFENDANTS’ MOTION TO DISMISS (Doc. 13)
I.
This is a civil rights case under 42 U.S.C. § 1983. Plaintiff Joses Braxton,
proceeding pro se,1 filed a complaint against defendants Tom Heritier and Michael
Murphy, officers with the Saginaw police department, claiming, in part, that defendants
falsely arrested and maliciously prosecuted him. Plaintiff’s claims stem from his
operation of a towing company and the seizure of allegedly stolen vehicles which
plaintiff had towed and which resulted in charges against plaintiff for larceny by
1
At the time the complaint was filed, plaintiff was incarcerated on charges
unrelated to the events in this case. Plaintiff also filled out a form complaint for prisoner
civil rights cases, although his claims do not pertain to prison conditions or events.
According to Michigan’s Offender Tracking System, plaintiff was discharged on June 1,
2015.
conversion and receiving and concealing stolen property. The charges were later
dismissed. The matter has been referred to a magistrate judge for pretrial proceedings.
(Doc. 6). Defendants filed a motion to dismiss plaintiff’s false arrest and malicious
prosecution claims on the grounds they are barred by the statute of limitations and
otherwise fail to state a claim. (Doc. 13). The magistrate judge issued a report and
recommendation (MJRR), recommending that the motion be denied. (Doc. 27).
Before the Court are defendants’ objections to the MJRR. (Doc. 31). For the
reasons that follow, the objections will be overruled, the MJRR will be adopted, and
defendants’ motion will be denied.
II.
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1).
The district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
A general objection, or one that merely restates the arguments previously
presented, is not sufficient to alert the court to alleged errors on the part of the
magistrate judge. An "objection" that does nothing more than state a disagreement with
a magistrate judge's suggested resolution, or simply summarizes what has been
presented before, is not an objection as that term is used in this context. Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991) (“It is arguable in
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this case that Howard’s counsel did not file objections at all.... [I]t is hard to see how a
district court reading [the ‘objections’] would know what Howard thought the magistrate
had done wrong.”).
Moreover, the failure to file objections to the MJRR waives any further right to
appeal. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th
Cir. 1987). Likewise, the failure to object to the MJRR releases the Court from its duty
to independently review the motions. Thomas v. Arn, 474 U.S. 140, 149 (1985).
III.
A.
Defendants raise two objections to the MJRR. Defendants first object to the
magistrate judge’s characterization of plaintiff’s claims as claiming not only false arrest
and malicious prosecution but also civil conspiracy to subject him to an unreasonable
search and seizure in violation of the 4th Amendment. Defendants object to the extent
that the magistrate judge implied that defendants agreed that plaintiff was also asserting
a civil conspiracy claim. This objection over form, not substance, does not carry the
day. Regardless of whether defendants agree that the complaint asserts a civil
conspiracy claim, the complaint, liberally construed, asserts a claim for civil conspiracy.
See Doc. 1 at p. 6, ¶¶ 1-3.
In their second objection, defendants say that the magistrate judge erred in
concluding that plaintiff’s section 1983 claims claiming false arrest and malicious
prosecution claims are not barred by the statute of limitations. The magistrate judge
found that the applicable statute of limitations is three years; defendants contend it is
two years.
3
If the statute of limitations is two years, then the claims are time barred. Plaintiff
was arrested in March of 2012. The charges against him were dismissed in March and
later in April of 2012. Plaintiff did not file suit until May 22, 2014. If, however, the
statute of limitations is three years, the complaint is timely.
To determine the length of the period of limitations, “federal law looks to the law
of the State in which the cause of action arose.” Wallace v. Kato, 549 U.S. 384, 387,
(2007). Defendants contend that a two-year limitations period applies to the plaintiff's
1983–based false arrest and malicious prosecution claims because under Michigan law,
the statute of limitations for assault and battery, false arrest, and malicious prosecution
is two years. See M.C.L. § 600.5805(2), (5); Wolfe v. Perry, 412 F.3d 707, 715 (6th Cir.
2005) (citing M.C.L. § 600.5805(2) as the statute of limitations for false arrest claims).
However, “it is well settled that the statute of limitations for claims filed in
Michigan based on 42 U.S.C. § 1983 is three years.” Searcy v. County of Oakland, 735
F. Supp. 2d 759, 765 (E.D. Mich. 2010) (citing McCune v. City of Grand Rapids, 842
F.2d 903 (6th Cir. 1988)). In McCune, the Court of Appeals for the Sixth Circuit
explained that “the appropriate statute of limitations to be applied in all section 1983
actions is the state statute of limitations governing actions for personal injury. . . .
Michigan’s three year statute of limitations for personal injury claims . . . governs section
1983 actions when the cause of action arises in Michigan.” Id. at 905 (emphasis
added). Thus, the magistrate judge correctly concluded that plaintiff’s claims are not
time barred.
IV.
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Accordingly, for the reasons stated above, defendants’ objections are
OVERRULED. The MJRR is ADOPTED as the findings and conclusions of the Court.
Defendants’ motion to dismiss is DENIED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: June 25, 2015
Detroit, Michigan
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