Cosgrove v. Corrunna Police Department et al

Filing 10

OPINION and ORDER Summarily Dismissing 1 Complaint Without Prejudice and Denying 6 Motion to Suspend as Moot. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARY COSGROVE,
Plaintiff,

Civil Action No. 2:15-cv-11418
Honorable Gerald E. Rosen
Chief United States District
Judge

v.

CORRUNNA POLICE DEPARTMENT,
AND OWOSSO POLICE DEPARTMENT
Defendants.
____________________________________/
OPINION AND ORDER SUMMARILY DISMISSING COMPLAINT
WITHOUT PREJUDICE AND DENYING MOTION TO SUSPEND AS
MOOT
I.
Before the Court is Plaintiff Cary Cosgrove’s pro se civil rights complaint filed
pursuant to 42 U.S.C. § 1983. Plaintiff states that he is currently confined at the
Cooper Street Correctional Facility. Plaintiff has been granted leave to proceed
without prepayment of the filing fee for this action. In his complaint, Plaintiff names
the Corrunna Police Department and the Owosso Police Department as defendants.
Plaintiff’s first complaint was illegible. His corrected complaint, filed at ECF No. 8,
alleges: 1) there were false allegations made against Plaintiff in police reports, 2)
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police officers treated Plaintiff with brutality, 3) the Defendants failed to record
Plaintiff’s statements, and 4) Plaintiff was falsely charged. Plaintiff seeks a judgment
reprimanding the police officers and seeks $75,000 in damages.
Having reviewed the complaint, the Court now dismisses it pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to name a proper defendant and
for failure to state a claim upon which relief may be granted.
II.
Under the Prison Litigation Reform Act of 1996 ("PLRA"), the Court is
required to sua sponte dismiss an in forma pauperis complaint before service on a
defendant if it determines that the action is frivolous or malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief against a defendant who
is immune from such relief. 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). The
Court is similarly required to dismiss a complaint seeking redress against government
entities, officers, and employees which it finds to be frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A. A complaint is
frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez,
504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was
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deprived of a right, privilege, or immunity secured by the federal Constitution or laws
of the United States; and (2) the deprivation was caused by a person acting under color
of state law. See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Brock v.
McWherter, 94 F.3d 242, 244 (6th Cir. 1996).
A pro se civil rights complaint is to be construed liberally. Haines v. Kerner,
404 U.S. 519, 520-21 (1972). A complaint "shall contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.
8(a). "Rule 8 requires only that the complaint give the defendant fair notice of the
claim and its supporting facts." E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850,
854 (6th Cir. 2001). Despite this relatively low threshold, a complaint must
nevertheless contain more than legal labels, conclusions, and a recitation of the
elements of a cause of action; it must also contain "enough facts to state a claim to
relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007).
III.
Plaintiff's complaint is subject to summary dismissal for two reasons. First,
most of Plaintiff’s claims attack the validity of the criminal proceedings that resulted
in a conviction. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme
Court held that a state prisoner does not state a cognizable civil rights claim
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challenging his imprisonment if a ruling on his claim would necessarily render his
continuing confinement invalid, until and unless the reason for his continued
confinement has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal, or has been called into question by a federal
court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. This holds true
regardless of the relief sought by the plaintiff. Id. at 487-89.
Heck and other Supreme Court cases, when "taken together, indicate that a state
prisoner's § 1983 action is barred (absent prior invalidation) — no matter the relief
sought (damages or equitable relief), no matter the target of the prisoner's suit (state
conduct leading to conviction or internal prison proceedings) — if success in that
action would necessarily demonstrate the invalidity of confinement or its duration."
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). The underlying basis for the holding
in Heck is that "civil tort actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments." Heck, 512 U.S. at 486. Plaintiff’s claims
regarding the Defendants’ pursuing false allegations, failing to record his exculpatory
statements, and falsely charging him, are all challenges to the validity of his
conviction. For the Court to accept these claims it would demonstrate the invalidity
of Plaintiff's confinement, contrary to Heck.
Next, it is well-settled that a police department is not a not a legal entity capable
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of being sued, nor is it a "person" for purposes of a § 1983 action. "A suit against a
city police department in Michigan is one against the city itself, because the city is the
real party in interest." Haverstick Enters. v. Fin. Fed. Credit, 32 F.3d 989, 992, n.1
(6th Cir. 1994). See also MICH. COMP. LAWS § 92.1; Laise v. City of Utica, 970 F.
Supp. 605, 608 (E.D. Mich. 1997) ("the police department is not a legal entity against
whom a suit can be directed"); Pierzynowski v. City of Detroit Police Dep't, 941 F.
Supp 633, 637 (E.D. Mich. 1996); Moomey v. Holland, 490 F. Supp. 188, 190 (W.D.
Mich. 1980).
To the extent the complaint can be construed as a suit against the municipalities
themselves, a city government is not responsible for "every misdeed of [its] employees
and agents." Garner v. Memphis Police Dep't, 8 F.3d 358, 363 (6th Cir. 1993). A
municipality is only liable when the custom or policy is the "moving force" behind the
alleged deprivation of constitutional rights. Bd. Of County Comm'rs v. Brown, 520
U.S. 397, 404 (1997). In order to prove municipal liability, the Sixth Circuit requires
a plaintiff to: (1) identify the municipal policy or custom, (2) connect the policy or
custom to the municipality, and (3) show that his particular injury was caused by
execution of that policy or custom. Turner v. City of Taylor, 412 F.3d 629, 639 (6th
Cir. 2005).
Plaintiff's complaint does not identify a policy or custom, connect any policy
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to the city, or allege the requisite causal connection between any municipal policy or
custom and the alleged violation of constitutional rights. Id. See also Stemler v. City
of Florence, 126 F.3d 856, 865 (6th Cir. 1997); Doe v. Claiborne County, Tenn., 103
F.3d 495, 507 (6th Cir. 1996).
Accordingly, the case is subject to sua sponte dismissal under 28 U.S.C. §
1915(e)(2)(B) because neither the of the named police departments are entities subject
to suit and, even construing Plaintiff's complaint liberally, it does not state a claim
against the corresponding municipalities.
Lastly, the Court notes that on June 18, 2015, Plaintiff filed a “Motion to
Suspend.” Dkt. No. 6. In the motion Plaintiff requests additional time to correct his
filing deficiency regarding the legibility of his complaint. Plaintiff then filed his new
complaint on July 2, 2015, a date that still fell within the time for correction outlined
in the deficiency order. Accordingly, the Motion to Suspend is denied as moot.
IV.
For the reasons stated, the Court concludes that Plaintiff has failed state a claim
upon which relief may be granted under 42 U.S.C. § 1983. Accordingly, the Court
DISMISSES Plaintiff's civil rights complaint. This dismissal is without prejudice to
the filing of a new complaint naming one or more proper defendants. The Court makes
no determination as to the merits of any such complaint.
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Lastly, the Court concludes that an appeal from this order would be frivolous
and therefore cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); see also
McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997).
IT IS SO ORDERED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: July 13, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 13, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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