Collins v. City of Detroit et al
Filing
72
OPINION and ORDER Granting the 60 Motion of Defendants Godbee, Lewis, Walton, Svenkensen, Williams, Moore, and Lever to Dismiss. Signed by District Judge Bernard A. Friedman. (JCur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEROME COLLINS,
Plaintiff,
vs.
Civil Action No. 15-CV-11756
HON. BERNARD A. FRIEDMAN
RALPH GODBEE, et al.,
Defendants.
_____________________/
OPINION AND ORDER GRANTING THE MOTION OF DEFENDANTS GODBEE,
LEWIS, WALTON, SVENKENSEN, WILLIAMS, MOORE, AND LEVER TO DISMISS
This matter is presently before the Court on the motion of defendants Godbee, Lewis,
Walton, Svenkensen, Williams, Moore, and Lever for judgment on the pleadings or to dismiss1
[docket entry 60]. Plaintiff has filed a response in opposition. Pursuant to E.D. Mich. 7.1(f)(2), the
Court shall decide this motion without a hearing.
Plaintiff, a former Detroit police officer, alleges that he was wrongfully suspended
(in 2010), prosecuted (in 2011), and discharged (in 2013) after being falsely accused of receiving
pay for hours he had not worked. He also alleges that certain of the defendants withheld information
that would have enabled him to disprove this accusation. Plaintiff asserts claims against defendants,
nine current and former members of the Detroit Police Department, for violation of his due process
and equal protection rights, treating him differently than similarly situated female police officers,
negligence, tortious interference with his rights under a collective bargaining agreement, fraud,
emotional distress, and malicious prosecution.
1
The title of the motion indicates that defendants seek “judgment on the pleadings in lieu
of an answer,” but the body of the motion states that defendants also seek dismissal for failure to
state a claim. As noted below, the same legal standards apply in deciding both types of motions.
Defendants make a number of arguments in their motion, but the Court finds one to
be dispositive: “Plaintiff’s claims against Defendants fail to state a claim upon which relief can be
granted where [plaintiff] fails to establish any connection between any Defendant and the allegations
in his Second Amended Complaint” (“SAC”). Defs.’ Mot. at 2. Plaintiff’s response does not
address this aspect of defendants’ motion. While plaintiff addresses defendants’ other arguments
(e.g., whether the complaint complies with the Bankruptcy Court’s order, whether the complaint is
timely, and whether the claims relate back under Fed. R. Civ. P. 15(c)), he says nothing in response
to defendants’ argument that the SAC fails to state a claim.
The Court has searched the SAC and can find no substantive allegations directed
specifically to any of the defendants. Defendants are identified in the “Parties” section of the SAC
¶¶ 5-13, but specific allegations as to particular defendants are all but non-existent. The only
allegations naming particular defendants are the following. The SAC alleges that defendant Lewis
was plaintiff’s supervisor at the Ninth Precinct beginning in 2006, id. ¶ 21-22; that Lewis posted
plaintiff’s schedule and provided copies to defendants Godbee, Moore, and Dolunt, id. ¶ 25; that
Lewis gave a Garrity2 statement in July 2010, id. ¶ 36; that defendant Svenkensen took Lewis’
statement, id. ¶ 37; that “Moore, Walton, Serta,3 Dolunt, Lewis, and Williams are liable to Plaintiff
for violating his Constitutional rights . . . by withholding material exculpatory evidence, e.g., Lewis’
Garrity” and by violating his due process rights and his “right to equal treatment without regard to
gender,” id. ¶ 49; that “Godbee, Craig, Lever, Lewis, Dolunt, Moore, Walton, Sevenkesen [sic], and
Williams” violated his rights under the Michigan Constitution “by denying him fair and just
2
See Garrity v. State of N.J., 385 U.S. 493 (1967).
3
Serta is not listed as a defendant and he/she is not mentioned anywhere in the SAC.
2
treatment in the investigation which resulted in his wrongful termination,” id. ¶ 55; and that
“Godbee, Lewis, Dolunt, Moore, Walton, Sevenkesen [sic], and Defendants, [sic] Hall and Lever
. . . unjustly instigated DPD’s breach of its contract with Plaintiff, based on allegations that they
knew or should have known to be false and pursued on [sic] investigatory/hearing procedures they
knew to be partisan and inadequate . . . when they caused DPD to terminate Plaintiff,” id. ¶ 73.
Under Fed. R. Civ. P. 12(c),
[j]udgment on the pleadings is proper “when no material issue of fact
exists and the party making the motion is entitled to judgment as a
matter of law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946
F.2d 1233, 1235 (6th Cir. 1991). The “complaint must contain direct
or inferential allegations respecting all the material elements under
some viable legal theory.” Commercial Money Ctr., Inc. v. Ill. Union
Ins., 508 F.3d 327, 336 (6th Cir. 2007). Accordingly, the court
construes the complaint in the light most favorable to the nonmoving
party, accepts the well-pled factual allegations as true, and
determines whether the complaint contains enough facts to make the
legal claims facially plausible. Id. (citing United States v. Moriarty,
8 F.3d 329, 332 (6th Cir. 1993)).
Arsan v. Keller, No. 18-3858, 2019 WL 3494330, at *5 (6th Cir. Aug. 1, 2019). Similarly, under
Fed. R. Civ. P. 12(b)(6), dismissal for failure to state a claim is proper if the complaint does not
“contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “Threadbare recitals of all the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. “Factual allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555.
Going through the defendants one by one, plainly no claim is stated as to Lewis, as
3
the only substantive allegation as to her is that she supervised plaintiff, posted his schedule, shared
the schedule with other defendants, and gave a Garrity statement. No claim is stated as to
Svenkensen, as plaintiff’s only substantive allegation as to him is that he took Lewis’ statement. No
claim is stated as to Godbee or Moore, as plaintiff’s only substantive allegation as to them is that
they were aware of plaintiff’s schedule.
The only mention of the other defendants (Walton, Williams, and Lever) appears in
¶¶ 55 and 73, where plaintiff claims that all of the defendants violated his constitutional and
collective bargaining rights. But these allegations, as noted above, provide no specific information
as to what each defendant allegedly did. Rather, these are precisely the sort of “unadorned,
the-defendant-unlawfully-harmed-me accusation[s],” Iqbal, 556 U.S. at 678, that fail to satisfy basic
pleading requirements. This failure occurs repeatedly under every count of the SAC: “Defendants
. . . depriv[ed] Plaintiff of his liberty and property interests,” SAC ¶ 48; “defendants, in their
arbitrary and capricious actions, treated plaintiff differently than other persons who were similarly
situated,” id. ¶ 51; “Defendants Godbee, Craig, Lever, Lewis, Dolunt, Moore, Walton, Sevenkesen
[sic], and Williams . . . deprived plaintiff of his liberty and property interests,” id. ¶ 55; “Defendants
. . . discriminatorily determined that unlawful discrepancies existed between Plaintiff’s daily activity
logs and his official schedule,” id. ¶ 60; “Defendants . . . discriminatorily revoked Plaintiff’s law
enforcement certification as a police officer,” id. ¶ 61; “As a . . . result of Defendants’ policies,
practices, customs, failure to train or improperly-provided training, Plaintiff was deprived of his
constitutionally protected rights,” id. ¶ 64; “Defendants breached their duties . . . by their refusal
after being requested repeatedly to provide to Plaintiff or his attorneys copies of all documents . .
. that were pertinent to the disciplinary charges against him,” id. ¶ 67; “Defendants . . . unjustly
4
instigated DPD’s breach of its contract with Plaintiff, based on allegations that they knew or should
have known to be false,” id. ¶ 73; “Defendants . . . wrongly terminated Plaintiff,” id. ¶ 78;
“Defendants[] treated similarly situated female employees . . . differently by according them lesser
punishments for similar infractions,” id. ¶ 79; “Defendants . . . suppress[ed] Sgt. Lewis Garrity’s
[sic] which contained sworn testimony that was directly exculpatory as to Plaintiff,”4 id. ¶ 83;
“Defendants . . . acted in an extreme and outrageous manner when . . . they haphazardly . . . imposed
on Plaintiff a series of disciplinary measures that culminated in his wrongful discharge,” id. ¶ 85;
and “Defendants were actively instrumental in causing Plaintiff to be prosecuted . . . by withholding
exculpatory evidence,” id. ¶ 90.
As is apparent, plaintiff alleges almost exclusively that “defendants,” collectively,
violated his rights without alleging specifically how each defendant did so. In Marcilis v. Twp. of
Redford, 693 F.3d 589 (6th Cir. 2012), the Sixth Circuit affirmed the partial dismissal of the
complaint due to plaintiff’s similarly general pleading style:
On appeal, Doyle and Livingston argue that the Marcilises’
complaint fails because it is a generalized pleading that refers to all
defendants generally and categorically. Though we have not yet
addressed this issue in a published opinion, we have found, in an
unpublished opinion, that a complaint failed where a plaintiff “did
not allege that particular defendants performed the acts that resulted
in a deprivation of [plaintiff’s] constitutional rights. This is a
requirement in Bivens actions such as this one.” Kesterson v.
Moritsugu, 149 F.3d 1183, No. 96-5898, 1998 WL 321008, at *4 (6th
4
The allegation that defendants “withheld” or “suppressed” or “concealed” Lewis’
Garrity statement is, in addition to being vague and insufficiently specific as to each defendant,
contradicted by the three letters plaintiff has attached to the SAC as Ex. 5 (PageID.1025-28).
Plaintiff submits these letters to show his repeated requests for Lewis’ statement, but these letters
are not addressed to defendants and only one of the letters (addressed to Sergeant Johnny
Thomas, Internal Affairs Section, Detroit Police Department) requested a copy of Lewis’ Garrity
interview.
5
Cir. June 3, 1998) (unpublished table decision). The Tenth Circuit
has found that a complaint containing only collective references to
defendants does not adequately state a Bivens claim. See Robbins v.
Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the
complaint’s use of either the collective term ‘Defendants’ or a list of
the defendants named individually but with no distinction as to what
acts are attributable to whom, it is impossible for any of these
individuals to ascertain what particular unconstitutional acts they are
alleged to have committed.”); see also Atuahene v. City of Hartford,
10 Fed.Appx. 33, 34 (2d Cir. 2001) (“By lumping all the defendants
together in each claim and providing no factual basis to distinguish
their conduct, [the plaintiff’s] complaint failed to satisfy [the]
minimum standard” that “a complaint give each defendant fair notice
of what the plaintiff’s claim is and the ground upon which it rests.”
(internal quotation marks omitted)). We have made similar statements
in the context of non-Bivens constitutional tort claims against
government actors. See, e.g., Lanman v. Hinson, 529 F.3d 673, 684
(6th Cir. 2008) (“This Court has consistently held that damage claims
against government officials arising from alleged violations of
constitutional rights must allege, with particularity, facts that
demonstrate what each defendant did to violate the asserted
constitutional right.”). Requiring that federal defendants be identified
with particularity is also in accord with how the Supreme Court
discussed Bivens liability in Iqbal: “Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for
his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The complaint mentions Doyle and Livingston only in
paragraph six, for the purposes of identifying them as employees of
the Drug Enforcement Administration. Otherwise, the complaint
makes only categorical references to “Defendants.” We conclude that
the district court did not err in dismissing the claims against Doyle
and Livingston for failing to “allege, with particularity, facts that
demonstrate what each defendant did to violate the asserted
constitutional right.” Lanman, 529 F.3d at 684.
Id. at 596-97. This Court, following Marcilis, has also dismissed the complaint where “the
complaint consists almost entirely of generalized allegations against ‘defendants’ collectively, as
opposed to specific allegations as to ‘what each defendant did to violate the asserted constitutional
right.’” Campbell v. Worthy, No. 12-CV-11496, 2013 WL 2446287, at *2 (E.D. Mich. June 5,
6
2013).
The SAC in this case suffers from the same infirmity as the complaints in Marcilis
and Campbell. It alleges that “defendants” violated his rights without alleging how each defendant
did so personally. The Court concludes that the SAC fails to state a claim upon which relief may
be granted. Accordingly,
IT IS ORDERED that defendants’ motion to dismiss is granted. The complaint is
dismissed as to defendants Godbee, Lewis, Walton, Svenkensen, Williams, Moore, and Lever.
Dated: August 27, 2019
Detroit, Michigan
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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