Holland v. Macomb, County of et al

Filing 20

ORDER Granting 15 Motion to Dismiss. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Cory Holland, Sr.,
Plaintiff,
v.

Case No. 15-12849

Macomb, County of, et. al.

Sean F. Cox
United States District Court Judge

Defendants,
___________________________/
ORDER GRANTING DEFENDANTS’ MOTION FOR DISMISSAL AND FOR
SUMMARY JUDGMENT IN PART AND DENYING IN PART
Plaintiff Cory Holland, Sr. (“Plaintiff”) has filed a pro se civil rights complaint pursuant
to 42 U.S.C. § 1983. Plaintiff is proceeding without prepayment of the filing fee for civil actions
under 28 U.S.C. § 1915(a)(1). Plaintiff names the following as Defendants in this action: (1)
Macomb County; (2) Macomb County Prosecutor, Eric Smith; (3) Macomb County Executive,
Mark Hackel; (4) Macomb County Sheriff Anthony Wickersham; and (5) Macomb County
Deputy Sheriff Gregory Shell (collectively, “Defendants”). (Doc. #1, Compl.).
Plaintiff’s complaint, which is a bit difficult to follow, relates to Plaintiff’s 2014 criminal
conviction for Disorderly Person.1 Plaintiff alleges a string of factual allegations recounting
misconduct on the part of Defendants, which Plaintiff claims eventually led to his 2014
conviction of Disorderly Person. Plaintiff asserts that he was set up by Defendants based upon
their racial animus toward him. Plaintiff seeks to have the Court vacate his 2014 Disorderly

1

Plaintiff was originally charged with violating M.C.L. 750.157n(1) Financial
Transaction Device - Steal/Retain Without Consent, but he later plead guilty to a reduced
misdemeanor charge of Disorderly Person, in violation of M.C.L. 750.167.
1

Person conviction and he seeks monetary damages in the amount of one billion dollars.
This matter is currently before the Court on Defendants’ Motion for Dismissal and for
Summary Judgment. (Doc. #15, Def.s’ Br.). Defendants seek dismissal on six alternative
grounds: (1) the doctrine of Heck v. Humphrey; (2) the doctrine of prosecutorial immunity; (3)
failure to state a claim under Rule 8(a)(2); (4) the doctrine of qualified immunity; (5) failure to
state a claim of municipal liability; and (6) statute of limitations. Id. at 2. Defendants also ask
that the Court award attorney fees for having to defend against this action. The motion has been
fully briefed by the parties. Because oral argument would not significantly aid in the decisional
process, the Court orders that the motion shall be decided upon the briefs. See E.D. Mich. LR
7.1(f).
For the reasons below, Defendants’ motion shall be GRANTED IN PART and
DENIED IN PART. Defendants’ motion shall be GRANTED to the extent that it seeks
dismissal of Plaintiff’s claims under the doctrines of Heck v. Humphrey, prosecutorial immunity
and for failing to state a claim upon which relief may be granted. Defendants’ motion shall be
DENIED to the extent that it seeks an award of attorney fees.
BACKGROUND
A.

Factual Background
1.

Plaintiff’s 2014 Criminal Conviction

On August 1, 2013, the Macomb County Sheriff’s Department received a complaint from
Paige Presswood (“Presswood”) regarding Plaintiff.2 Presswood claimed that Plaintiff had
fraudulently obtained and used their disabled son’s Social Security Insurance debit card to

2

Presswood and Plaintiff have two children together.
2

withdraw $450 from a Comerica Bank account. (Compl. ¶18; Ex. 1 to Def.s’ Br.). Upon further
investigation, the Macomb County Prosecutor’s office approved a warrant. (Compl. ¶28; Ex. 1
to Def.’s Br.). Plaintiff was charged with the felony of “stealing, removing, retaining, or
secreting another’s financial transaction device without consent,” in violation of M.C.L.A.
750.157n. (Ex. 2 to Def.s’ Br.).
On January 15, 2014, Plaintiff plead guilty to a reduced misdemeanor charge of
“Disorderly Person,” in violation of M.C.L.A. 750.167. (Compl. ¶ 28; Ex. 3 to Def.s’ Br.).
Plaintiff was sentenced to one year of non-reporting probation and ordered to pay restitution of
$473.34, a fine of $170, and court costs. (Compl. ¶ 29; Ex. 2 to Def.’s Br.). It appears that
Plaintiff’s guilty plea and sentence were not appealed and the criminal matter against him has
since been closed.
2.

Allegations Contained In Plaintiff’s Complaint

Plaintiff’s complaint recounts a string of convoluted facts, which Plaintiff claims
demonstrate violations of his constitutional rights. Plaintiff’s complaint contains allegations
against Defendants Smith, Wickersham, Shell, and Macomb County. Plaintiff’s complaint fails
to allege any facts as to Defendant Hackel.
Plaintiff summarily alleges that he is suing Defendant Eric Smith for “political
corruption, malicious prosecution, targeting me for speaking out against them ... retaliation,
slander, [and] discrimination.” (Compl. at 2). It appears that Plaintiff is suing Defendant Smith
in his individual capacity. (See Doc. #17, Pl.’s Resp. at Pg ID 115).
Plaintiff alleges that he is suing Defendant Anthony Wickersham for “allowing several
illegal raids to happen to my ... home (88 Parkview St), allowing his officers to stalk, harass,

3

threaten me, and smash windows in front of my home, vandalize my truck, slice the tires, and
commit hate crimes on me and my property.” Id. It appears that Plaintiff is suing Defendant
Wickersham in his individual capacity. (See Doc. #17, Pl.’s Resp. at Pg ID 115).
Plaintiff alleges that he is suing Defendant Gregory Shell for “threats, discrimination,
property damage, stalking, intimidation ... falsifying criminal reports, assault, emotional distress,
corruption, and harassment...” Id. at 3. It appears that Plaintiff is suing Defendant Shell in his
individual capacity. (See Doc. #17, Pl.’s Resp. at Pg ID 115).
Plaintiff alleges that he is suing Defendant Macomb County for “ignoring my several
complaints about the ... hate crimes that happen to me, and leaving in place officials who are
corrupt, and their positions of power to intimidate, retaliate and falsely imprison and arrest
political enemies. Who treat minorities like [second-]class citizens and abuse their ‘discretion,’
then invoke ‘immunity’ use coercion to get false information and confession to justify baseless
charges...” Id. It appears that Plaintiff is suing Defendant Macomb County under a theory of
municipal liability.
To provide the court with a “more detailed account,” Plaintiff attaches a document to his
complaint, containing 34 typed paragraphs.
In the first 16 paragraphs, he alleges various altercations with racist neighbors,
Presswood, unnamed officials from the Macomb County Sheriff’s Department, Defendant Shell,
and Defendant Smith. (Doc. #1, Compl. ¶¶ 1-16). Plaintiff alleges that Defendants continually
failed to follow up on charges he would bring against individuals for ethnic intimidation.
Plaintiff also alleges that unidentified individuals from the Sheriff’s Department began to raid
his home and that the raids continued until he “had a sit down with Sheriff Wickersham, and

4

made the raids stop...” Id. ¶ 6. He alleges that Defendant Wickersham advised that Plaintiff was
“blacklisted” and that, no matter the charge, Defendant Smith refused to prosecute Plaintiff’s
offenders. Id. ¶ 14.
Plaintiff appears to be claiming that his altercations with Defendants caused Plaintiff to
be the subject of some sort of “set up.” Id. ¶¶ 24-28, 34. This set up allegedly resulted in
Plaintiff’s 2014 Disorderly Person conviction. Id. The set up manifested itself after Plaintiff and
Presswood were involved in a dispute over the welfare of their son. Id. ¶ 17. Plaintiff had called
authorities and claimed that Presswood’s partner was abusing their disabled son. Id. Presswood
allegedly retaliated by filing a false report accusing Plaintiff of using their son’s debit card
without authorization. Id. ¶ 18.
Plaintiff alleges that Defendants kept Presswood from dropping the false charges against
him. Defendants allegedly harassed and threatened Presswood into maintaining her false
statement in the debit card fraud case against Plaintiff.3 Id. ¶¶ 18, 24, 27-28, 30, 34. Plaintiff
eventually plead to a lesser charge despite being “set up” by a “corrupt” prosecution. Id. ¶¶ 2829.
B.

Procedural Background
Plaintiff filed this pro se action on August 12, 2015. Plaintiff’s Complaint purports to

allege violations of Plaintiff’s constitutional rights. Plaintiff names the following as Defendants

3

See Compl. ¶ 24 (“... then a few weeks later all of a sudden my kids mother calls me
crying and really upset, telling me I was being set up by Eric Smith and the Sheriff Dept...”; see
also Id. ¶ 27 (“The next day cps visit my kids mother and applied pressure on her about moving
fwd on the criminal, they forced her to take a on the spot drug test, and numerous other things,
two days later my kids mother decides to cooperate with the criminal investigation after refusing
to for over a month, she went in and gave them a false statement.”).
5

in this action: (1) Macomb County; (2) Macomb County Prosecutor, Eric Smith; (3) Macomb
County Executive, Mark Hackel; (4) Macomb County Sheriff Anthony Wickersham; and (5)
Macomb County Deputy Sheriff Gregory Shell. Plaintiff seeks to have his 2014 criminal
conviction vacated and seeks monetary damages in the amount of one billion dollars, along with
attorney fees.
On August 12, 2015, Plaintiff filed a Motion for Appointment of Counsel (Doc. #3),
which the Court denied on August 26, 2015. (Doc. #8).
On September 21, 2015, Defendants filed a Motion for Dismissal and for Summary
Judgment. (Doc. #15). Defendants offer six alternative reasons for dismissal of Plaintiff’s
claims. Defendants also ask for an award of attorney fees. The motion has been fully briefed by
the parties.
STANDARDS OF DECISION
A.

Pro Se Standards
When reviewing the allegations contained in a pro se complaint, the Court must employ a

standard less stringent than if the complaint had been drafted by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972). Despite this liberal standard, however, the Court “need not accept as
true conclusions or unwarranted factual inferences.” Montgomery v. Huntington Bank, 346 F.3d
693, 698 (6th Cir. 2003) (quoting Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.
1987)). To put it differently, “the lenient treatment generally accorded to pro se litigants has
limits,” and such litigants are “not automatically entitled to take every case to trial.” Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). Moreover, “courts should not have to guess at the
nature of the claim asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir.

6

2012).
B.

Standard Pursuant to Rule 12(b)(6)
When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the Court must construe the complaint in the light most favorable to the plaintiff and
must accept all the factual allegations contained in the complaint as true. Lambert v. Hartman,
517 F.3d 433, 439 (6th Cir. 2008).
In order to survive a Rule 12(b)(6) motion to dismiss, Plaintiff’s complaint needs to
contain only “enough facts to state a claim for relief that is plausible on its face.” See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing
Twombly, 550 U.S. at 557. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
“When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint
and any exhibits attached thereto, public records, items appearing in the record of the case and
exhibits attached to defendant’s motion to dismiss so long as they are referred to in the
Complaint and are central to the claims contained therein.”4 Weiner v. Klais & Co., 108 F.3d 86,
89 (6th Cir. 1997); see also Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443, 445 (6th
Cir. 1997) (finding that the consideration of other materials that “simply filled in the contours

4

The exhibits attached to Defendants’ motion may be considered by the Court because
they are either referenced in Plaintiff’s Complaint or are central to the claims alleged therein.
7

and details of the plaintiff’s [second amended] complaint, and added nothing new” did not
convert motion to dismiss into a motion for summary judgment).
C.

Standard Pursuant to Rule 56
Under Fed. R. Civ. P. 56(c), summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1984), quoting FED.
R. CIV. P. 56(c).
“The party that moves for summary judgment has the burden of showing that there are no
genuine issues of material fact in the case.” LaPointe v. United Autoworkers Local 600, 8 F.3d
376, 378 (6th Cir. 1993). “The moving party may meet its burden by showing that the
nonmoving party lacks evidence to support an essential element of its case.” Barnhart v.
Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1389 (6th Cir. 1993). The plaintiff must come
forth with more than a “mere scintilla of evidence” in support of his or her position in order to
survive summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). “The
court must view the evidence, all facts, and any inferences that may permissibly be drawn from
the facts in the light most favorable to the nonmoving party.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
ANALYSIS
As previously mentioned, Defendants advance alternative reasons in support of their

8

motion: (1) the doctrine of Heck v. Humphrey5; (2) the doctrine of prosecutorial immunity; (3)
failure to state a claim under Rule 8(a)(2); (4) the doctrine of qualified immunity; (5) failure to
state a claim of municipal liability; and (6) statute of limitations.
The Court shall dismiss Plaintiff’s § 1983 claims because: (1) the claims relating to the
validity of Plaintiff’s 2014 conviction are barred by the doctrine of Heck v. Humphrey; (2) the
claims against Defendant Smith relating to his decision to prosecute cases are barred by the
doctrine of prosecutorial immunity; and (3) Plaintiff’s remaining federal claims fail to state a
claim upon which relief can be granted.
A.

Construed Liberally, Plaintiff’s Complaint Appears To Assert Seven Federal
Claims
The first four pages of Plaintiff’s complaint identify the Defendants and summarily state

a number of claims against them. (Pl.’s Compl. at 1-4). Plaintiff supplements these conclusory
claims with 34 typed paragraphs of alleged facts–reading more like a story, than a
complaint–which Plaintiff believes entitle him to relief under § 1983.
To the best the Court can discern6, Plaintiff’s complaint arguably alleges the following §
1983 claims: (1) substantive due process claim; (2) conspiracy claim7; (3) race discrimination
claim against Defendant Smith; (4) malicious prosecution claim against Defendant Smith; (5)
First Amendment retaliation claim; (6) failure to intervene claim against Defendant Wickersham;

5

Defendants argue that Plaintiff’s complaint, in its entirety, is barred by the doctrine
Heck v. Humphrey. The Court does not agree. Some of Plaintiff’s claims are unrelated to his
2014 criminal conviction and, therefore, escape the Heck bar.
6

Based upon a review of Plaintiff’s complaint and responsive pleadings.

7

The Court construes Plaintiff’s allegations as to being “set up” by defendants as
alleging a claim for conspiracy.
9

and (7) municipal liability claim against Macomb County.
To the extent that Plaintiff is attempting to assert other § 1983 violations, these claims
were not adequately alleged in his complaint.
1.

Claims Relating to Validity of 2014 Conviction Are Barred By Heck v.
Humphrey

To the extent that Plaintiff’s claims call into question his 2014 criminal conviction, they
are subject to dismissal because Plaintiff has not alleged that his conviction has been overturned.
Based upon a review of Plaintiff’s complaint, the following claims relate to the validity of his
2014 criminal conviction: (1) the substantive due process claim against Defendants;8 (2) the
conspiracy claim against Defendants;9 and (3) the malicious prosecution claim against Defendant
Smith.10
Under the doctrine of Heck v. Humphrey, a § 1983 plaintiff may not file suit for damages
or equitable relief challenging his conviction or sentence if a ruling on the claim would render
the conviction or sentence invalid, until and unless the conviction or sentence has been reversed
8

Plaintiff’s complaint states that Defendants are being sued pursuant to “USC 42 ‘1983
section’ due process...” (Compl. at 1). In his sur-reply, Plaintiff asserts that “he just knows
illegal raids, retaliation, corruption, threats and intimidation, and malicious destruction of
property, being held at gunpoint with his two year old in his arm/around, was used to deprive
him of is Constitutional rights, and was used to get a fabricated statement, that lead to him
being falsely arrested and convicted, because of politics and racism. (Doc. #19, Pl.’s Sur-reply
at Pg ID 157) (emphasis added). Plaintiff further concludes that “all the allegations against the
Defendants are arbitrary, and definitely ‘shock the conscience’, of any reasonable person, and
violate the plaintiff’s due process rights.” Id.
9

Plaintiff alleges that his 2014 criminal conviction was the result of a “set up” between
Defendant Smith and the Macomb County Sheriff’s Department.
10

Plaintiff alleges that “a lot of politics and corruption” were involved in Plaintiff’s
criminal case. Plaintiff alleges that Defendant Smith knowingly fabricated evidence in the 2014
criminal case against Plaintiff by procuring a false statement from Presswood regarding the use
of his son’s debit card.
10

on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into
question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). A § 1983 suit in which a plaintiff seeks damages in connection with
proceedings leading to his allegedly wrongful conviction is not cognizable where the plaintiff’s
conviction has never been reversed or otherwise invalidated. See Patrick v. Laskaris, 25 F.
Supp. 2d 432, 433 (S.D.N.Y. 1998). 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.
Here, Plaintiff has not alleged that his conviction has been overturned, expunged, or
called into question. Thus, the claims relating to Plaintiff’s criminal prosecution and conviction
fail to state a claim for which relief may be granted and must be dismissed. See Adams v.
Morris, 90 Fed. App’x 856, 858 (6th Cir. 2004). If Plaintiff were to prevail on his conspiracy
and substantive due process claims against Defendants or his malicious prosecution claim
against Defendant Smith, then his 2014 conviction would undoubtedly be called into question.
Consequently, such claims are barred by the favorable-termination requirement set forth in Heck
v. Humphrey.
2.

Malicious Prosecution and Discrimination Claims Against Defendant Smith
Are Barred by Prosecutorial Immunity

To the extent that Plaintiff’s malicious prosecution and discrimination claims against
Defendant Smith pertain to Smith’s decision to prosecute Plaintiff’s case as opposed to other
cases, (See Pl.’s Compl. ¶¶3-5,10-11, 14), these claims must be dismissed because prosecutors
are immune from suit for actions taken during the prosecution of a plaintiff.
“Absolute prosecutorial immunity ... is a common law principle that shields a prosecutor
11

from § 1983 liability.” Cooper v. Parrish, 203 F.3d 937, 946 (6th Cir. 2000) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976)). A prosecutor has absolute immunity for all acts
“intimately associated with the judicial phase of the criminal process, such as “initiating a
prosecution and ... presenting the State’s case.” Imbler, 424 U.S. at 430-31. “Absolute
immunity allows a prosecutor to exercise his independent judgment in ‘deciding which suits to
bring and in conducting them in court’ based on his duty to the public rather than on a fear of
potential liability in a suit for damages.” Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir.
1989) (quoting Imbler, 424 U.S. at 424-25). The motives of a prosecutor are irrelevant for
purposes of immunity. Eldridge v. Gibson, 332 F.3d 1019, 1021 (6th Cir. 2003).
Here, any decision by Defendant Smith to Prosecute Plaintiff’s case as opposed to other
cases, his communication with witnesses, and his decisions regarding the disposition of cases,
are all a part of his role as advocate, which entitle him to absolute prosecutorial immunity.
3.

Plaintiff’s Remaining Claims Against Defendants Fail To State A Federal
Claim Upon Which Relief May Be Granted

Even with the more liberal construction accorded to a pro se litigant’s complaint, it is
well established that the complaint must still set forth some cognizable claim and that conclusory
pleadings are insufficient and will be dismissed. Chapman v. Tennessee Dept. of Corrections,
817 F.2d 104, *1 (6th Cir. 1987). A complaint fails to state a claim where it lacks “either direct
or inferential allegations respecting all material elements to sustain recovery under some legal
theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988).
Basic pleading requirements are not abrogated in pro se suits. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1990). Even pro se litigants must meet minimum standards, which include
pleading their claims with requisite specificity so as to give defendants notice of the claims
12

asserted against them. Id.
Plaintiff brings his federal law claims against Defendants pursuant to 42 U.S.C. § 1983.
In order to proceed under Section 1983, a plaintiff must prove that: (1) the perpetrator acted
under color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981).
i.

Plaintiff Fails To State Any Claim Against Defendant Hackel

Plaintiff has failed to assert any federal claim against Defendant Hackel. Where, as here,
“a complaint alleges no specific act or conduct on the part of the defendant and the complaint is
silent as to the defendant except for his name appearing in the caption, the complaint is properly
dismissed, even under the liberal construction to be given pro se complaints.” Baker v.
Noronha, 2013 WL 639336, *3 (E.D. Mich. Jan. 8, 2013) (internal citations and quotations
omitted); see also Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004)
(dismissing a complaint where the plaintiff failed to allege how any named defendant was
involved in or responsible for each alleged violation of rights).
ii.

Plaintiff Fails To State A § 1983 Claim For First Amendment
Retaliation

Construing Plaintiff’s complaint liberally, the Court finds that he has failed to state a
claim for First Amendment Retaliation. Here, Plaintiff’s complaint alleges that Plaintiff took his
grievances regarding ethnic intimidation and racism to the public, i.e. Plaintiff spoke at
community hearings and was featured on Channel 7 News. (Compl. ¶¶ 5, 7). After speaking at
community hearings, Plaintiff alleges that the Sheriff’s department suddenly began raiding his
home. Id. ¶ 6. Plaintiff further alleges that “cops became very aggressive after the news clip,
13

driving by my home real slow at night, or just sitting there for awhile before pulling off.” Id. ¶ 7.
Plaintiff’s complaint also states, in a conclusory fashion, that Plaintiff was targeted by Defendant
Smith for speaking out against Defendants.
To establish a First Amendment retaliation claim, a plaintiff must prove the following:
(1) the plaintiff engaged in protected speech or conduct; (2) an adverse action was taken against
the plaintiff that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) “that the adverse action was motivated at least in part by the plaintiff’s
protected conduct.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 25 (6th Cir. 2006)
(internal citations omitted).
Plaintiff’s complaint fails to allege any fact from which the Court could plausibly infer a
causal connection between Plaintiff’s protected speech and the allegations of “retaliatory”
conduct. Moreover, Plaintiff’s allegations of retaliatory conduct are speculative and vague.
They refer largely to unnamed officers and unnamed neighbors, and are based primarily on
Plaintiff’s own conjecture. See Compl. ¶¶ 1-3, 6-9, 11. Plaintiff fails to allege how Defendant
Smith–or any of the named defendants–retaliated against Plaintiff for exercising his First
Amendment rights. Moreover, Plaintiff fails to allege that any of the named defendants were
aware that he spoke at neighborhood meetings or that he spoke to Channel 7 News.

iii.

Plaintiff Fails To State A § 1983 Claim Against Defendant
Wickersham

Defendant Wickersham is being sued in his individual capacity for failing to intervene
when deputies allegedly raided Plaintiff’s home. (Pl.’s Resp. at Pg ID 119-120). The Court
finds that Plaintiff has not sufficiently stated this claim against Defendant Wickersham.
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As a threshold matter, for a defendant to be held individually liable under 42 U.S.C. §
1983, a plaintiff must allege personal involvement of the defendant in causing plaintiff’s injury.
Hardin v. Straub, 954 F.2d 1193, 1196 (6th Cir. 1992). A defendant may not be held liable
under Section 1983 unless he personally participated in, or otherwise authorized, approved or
knowingly acquiesced in, the allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff,
891 F.2d 1241, 1246 (6th Cir. 1989). A plaintiff must demonstrate that a supervisory official
“did more than play a passive role in the alleged violation or showed mere tacit approval of the
goings on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Notably, supervisory
liability cannot be based upon the failure to act. Summers v. Leis, 368 F.3d 881, 888 (6th Cir.
2004).
Here, Plaintiff fails to assert facts demonstrating that Defendant Wickersham was
personally involved in the alleged raids of Plaintiff’s home. In fact, Defendant Wickersham is
only mentioned in Plaintiff’s complaint three times. (Compl. at p. 2, ¶¶ 6, 14). Plaintiff alleges
that the “raids continued [un]til [Plaintiff] had a sit down with Sheriff Wickersham, and made
the raids stop...” (Compl. ¶ 6). Based on Plaintiff’s own complaint, Defendant Wickersham
intervened upon being made aware of the alleged misconduct.

iv.

Plaintiff Fails To State A Claim For Municipal Liability As To
Macomb County

It appears, from Plaintiff’s complaint and responsive pleadings, that Plaintiff is bringing a
municipal liability claim against Macomb County. Liberally construing Plaintiff’s complaint,
the Court concludes that Plaintiff has failed to allege facts sufficient to establish this claim.
15

Presumably, Plaintiff’s claim rests upon the alleged altercations between Plaintiff, his racist
neighbors, and members of the Macomb County Sheriff’s Department.
A plaintiff raising a municipal liability claim under § 1983 must demonstrate that the
alleged federal violation occurred because of a municipal policy or custom. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). A plaintiff can make a showing of an illegal policy or
custom by demonstrating one of the following: (1) the existence of an illegal official policy or
legislative enactment; (2) that an official with final decision making authority ratified illegal
actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of
a custom of tolerance or acquiescence of federal rights violations. See Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). “A municipality may not be held vicariously
liable under § 1983 for the acts of its employees or agents.” Cherrington v. Skeeter, 344 F.3d
631, 645 (6th Cir. 2003).
Plaintiff alleges that Macomb County has ignored Plaintiff’s several complaints
regarding hate crimes and has left corrupt officials in place. (Compl. at 3). In his response brief,
Plaintiff asserts that a municipal policy or custom condoning police misconduct can be inferred
from Macomb County’s failure to train its officers. (Pl.’s Resp. at Pg ID 121).
To the extent that Plaintiff premises his municipal liability claim on a failure-to-train
theory, Plaintiff is required to show “‘prior instances of unconstitutional conduct demonstrating
that the [municipality] ha[d] ignored a history of abuse and was clearly on notice that the training
in this particular area was deficient and likely to cause injury.’” Miller v. Sanilac Cnty., 606
F.3d 240, 255 (6th Cir. 2010) (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)).
Plaintiff’s complaint does not allege that there were prior instances of similar misconduct

16

so as to imply that Macomb County was clearly on notice that its training was deficient. As
such, the Court finds that Plaintiff fails to state a municipal liability against Macomb County.
B.

Plaintiff’s State-Law Claims
To the extent that Plaintiff asserts any state-law claims against Defendants, the Court

shall decline to exercise supplemental jurisdiction over these claims. See 28 U.S.C. § 1367(c)
(“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the
district court has dismissed all claims over which it has original jurisdiction” (emphasis added));
see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (“[W]hen a court grants a motion to
dismiss for failure to state a federal claim, the court generally retains discretion to exercise
supplemental jurisdiction, pursuant to 28 U.S.C. 1367, over pendent state-law claims”).
C.

The Court Shall Not Award Attorney Fees To Defendants
Defendants’ motion additionally seeks an award of attorney fees. Apart from requesting

attorney fees, Defendants do not provide the Court with any analysis as to the issue. 42 U.S.C. §
1988 provides that in actions or proceedings to enforce provisions of certain enumerated statutes,
including § 1983, “the court, in its discretion, may allow a reasonable attorney’s fee as part of
the costs.” 42 U.S.C. § 1988(b) (emphasis added).
The Court shall deny Defendant’s request for attorney fees. In so doing, the Court notes
that this § 1983 complaint was filed by a pro se plaintiff.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for Dismissal and Summary
Judgment shall be GRANTED IN PART AND DENIED IN PART. The motion shall be
GRANTED to the extent that it seeks dismissal of Plaintiff’s complaint. Accordingly, Plaintiff’s

17

claims are DISMISSED WITH PREJUDICE except to the extent that his claims fall under the
rubric of Heck, which such claims are DISMISSED WITHOUT PREJUDICE11 until his
criminal conviction has been invalidated. Defendants’ motion shall be DENIED to the extent
that it seeks an award of attorney fees.
IT IS SO ORDERED.

Dated: July 1, 2016

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on July 1, 2016, the foregoing document was served on counsel of record via
electronic means and upon Cory Holland via First Class mail at the address below:
Cory Holland, Sr
905 E Mapledale Ave
Hazel Park, MI 48030
S/ J. McCoy
Case Manager

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See Hodge v. City of Elyria, 126 F. App’x 222, 223 (6th Cir. 2005) (holding that a case
dismissed pursuant to Heck should be dismissed without prejudice so that plaintiff may re-assert
claims if plaintiff obtains reversal or expungement of convictions).
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