Siner v. Detroit, City of et al

Filing 38

OPINION and ORDER (1) Accepting 28 Report and Recommendation; (2) Granting Defendants' 22 Motion for Summary Judgment; (3) Dismissing Plaintiff's Complaint Against the City of Detroit; (4) Dismissing Plaintiff's Complaint Against the City of Detroit Police Officers in their Official Capacities; and (5) Dismissing Plaintiff's Complaint Against John Does 2-4 in their Individual Capacities. Signed by District Judge Gershwin A. Drain. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODRICK SINER,
Case No. 15-cv-13532

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITY OF DETROIT, ET AL.,
Defendants.
__________________________/

UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB

OPINION AND ORDER: (1) ACCEPTING REPORT AND RECOMMENDATION [28]; (2)
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [22]; (3)
DISMISSING PLAINTIFF’S COMPLAINT AGAINST THE CITY OF DETROIT; (4)
DISMISSING PLAINTIFF’S COMPLAINT AGAINST THE CITY OF DETROIT POLICE
OFFICERS IN THEIR OFFICIAL CAPACITIES; AND (5) DISMISSING PLAINTIFF’S
COMPLAINT AGAINST JOHN DOES 2-4 IN THEIR INDIVIDUAL CAPACITIES
I. Introduction
This is a pro se civil rights action against the City of Detroit and four
employees of the City of Detroit Police Department. Pending before the Court is
Defendants’ Motion for Summary Judgment. Dkt No. 22. This matter was referred
to Magistrate Judge Mona Majzoub, who issued a Report and Recommendation
advising the Court to grant Defendants’ Motion for Summary Judgment. See Dkt.
No. 28. Plaintiff objects to the Report and Recommendation. Dkt. No. 31. For the
following reasons the Court will ACCEPT the Report and Recommendation.

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II. Facts
Plaintiff brought this action on October 8, 2015, asserting that the Defendants
violated his constitutional rights by arresting, incarcerating, and prosecuting him on
false assault and weapons charges, which were ultimately dismissed.1 At the time of
filing, Plaintiff did not know the names of the City of Detroit employees involved.
Instead, he filed against four unknown “John Doe” Defendants.
On April 12, 2016, Magistrate Judge Majzoub ordered the Plaintiff to show
cause why the “John Doe” Defendants had not been named or served. Dkt. No. 16.
Plaintiff responded, asking the Court to extend the time for service and
simultaneously filing a Motion for Discovery. Dkt. Nos. 18, 19. On August 26, 2016,
Defendant City of Detroit filed a Motion for Summary Judgment, which the Plaintiff
responded to. On November 9, 2016, and over the Defendant City of Detroit’s
objection, the Court granted Plaintiff’s Motion for Discovery and extended the time
of service. Dkt. No. 26. On January 4, 2017, Plaintiff amended his Complaint,
identifying John Doe # 1 as Cregg Hughes. Dkt. No. 27. On January 19, 2017,
Magistrate Judge Majzoub issued a Report and Recommendation, urging the Court
to grant the Defendant City of Detroit’s Motion for Summary Judgment on two
grounds. Dkt. No. 28.

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Plaintiff is currently incarcerated in Alabama on unrelated charges.
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First, Magistrate Judge Majzoub recommends dismissing Plaintiff’s claims
against the City of Detroit in its entirety and against the employees in their official
capacity pursuant to an order from the Bankruptcy Court for the Eastern District of
Michigan. Second, Magistrate Majzoub recommends dismissing the claims against
the unnamed John Does, in their individual capacities, pursuant to Federal Rule of
Civil Procedure 4(m). Plaintiff objects to both recommendations.
III. Discussion
1. Bankruptcy Court Proceedings
The City of Detroit filed for Chapter 9 Bankruptcy in July 2013. See In Re
City of Detroit, Michigan, Case No. 13-53846 (Bankr. E.D. Mich.). Following the
bankruptcy filing, the Bankruptcy Court entered an order establishing Bar Dates for
preserving a law suit against the City of Detroit. On December 10, 2014, the Eighth
Amended Plan for the Adjustment of Debts for the City of Detroit (hereinafter “the
Plan”) became effective. The Plan provides:
Except as provided in the Plan or in the Confirmation Order, the rights
afforded under the Plan and the treatment of Claims under the Plan will
be in exchange for and in complete satisfaction, discharge and release
of all Claims arising on or before the Effective Date, including any
interest accrued on Claims from and after the Petition Date. Except as
provided in the Plan or in the Confirmation Order, Confirmation will,
as of the Effective Date, discharge the City from all Claims or other
debts that arose on or before the Effective Date, and all debts of the
kind specified in section 502(g), 502(h) or 502(i) of the Bankruptcy
Code, whether or not (i) a proof of Claim based on such debt is Filed or
deemed Filed pursuant to section 501 of the Bankruptcy Code, (ii) a
Claim based on such debt is allowed pursuant to section 502 of the
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Bankruptcy Code or (iii) the Holder of a Claim based on such debt has
accepted the Plan.
Id., p. 57.
The events giving rise to this cause of action occurred in 2010. Dkt. No. 1, p.
3 (Pg. ID 3). However, Plaintiff did not file this action until 2015. Id., p. 16 (Pg. ID
16). Therefore, to state a viable claim against the City of Detroit or its officers,
Plaintiff must have preserved this cause of action by filing a proof before the Bar
Date. As best as the Court can tell, Mr. Siner failed to preserve his claim. The City
of Detroit filed a motion to enforce the Bar Date Order against Mr. Siner. Dkt. No.
22-2. On June 29, 2016, Judge Thomas J. Tucker of the United States Bankruptcy
Court for the Eastern District of Michigan ordered Mr. Siner to dismiss his claims
against the city of Detroit and against the John Doe officers in their official capacity.
Id. Mr. Siner did not comply with the bankruptcy court’s order.
In her Report and Recommendation, Magistrate Judge Majzoub took judicial
notice of Bankruptcy Judge Tucker’s order. Mr. Siner objects to taking judicial
notice of the bankruptcy judge’s order. According to Mr. Siner, “[t]wo courts can
not have jurisdiction over the same subject/issue at the same time.” Dkt. No. 31, p.
1 (Pg. ID 232). Instead, Mr. Siner urges the Court to “consider any judgment or order
rendered in the Bankruptcy Court void.” Id., p. 2, (Pg. ID 233). Mr. Siner fails to
cite any authority to support his arguments, perhaps because Sixth Circuit precedent
contradicts Mr. Siner. The Magistrate Judge correctly held that, “it is well-settled
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that federal court may take judicial notice of proceedings in other courts of record.”
Dkt. No. 28, p. 3 (Pg. ID 188); quoting Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th
Cir. 1999); see also In re Hamady Bros. Food Markets, 110 B.R. 815, 817 (E.D.
Mich. 1990) (“[T]here is ample case law authorizing the Court to take judicial notice
of the bankruptcy court’s orders[.]”). Therefore, over Mr. Siner’s objection, the
Court takes judicial notice of Bankruptcy Judge Tucker’s order. This Court
ACCEPTS Magistrate Judge Majzoub’s recommendation and dismisses Plaintiff’s
claims against the City of Detroit and its officers in their official capacities.
2. Federal Rule of Civil Procedure 4(m)
According to Federal Rule of Civil Procedure 4(m),
“If a defendant is not served within [120]2 days after the complaint is
filed, the court--on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.”
FED. R. CIV. P. 4(m).
Magistrate Judge Majzoub recommends that Plaintiff’s claims against the
unknown City of Detroit officers, in their individual capacities, be dismissed
pursuant to Rule 4(m) because Mr. Siner failed to amend his Complaint to name

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This citation to Federal Rule of Civil Procedure 4(m) reflects the text of the Rule
in effect at the time that the Complaint was filed. Rule 4(m) has since been amended,
effective December 1, 2015, to allow only 90 days for service.
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“John Does” 2-4. Dkt. No. 28, p. 4 (Pg. ID 189). In her Report and Recommendation,
Magistrate Judge Majzoub assumed that Mr. Siner received discovery from the City
of Detroit, which would allow Mr. Siner to properly name the yet unknown
defendants. Id. Magistrate Judge Majzoub’s assumption was reasonable considering
that on January 4, 2017, Mr. Siner amended his complaint to name Cregg Hughes as
John Doe # 1, seemingly upon receipt of the requested discovery.
Mr. Siner objects, however, claiming that the City of Detroit was “evasive”
and “did not fully cooperate in discovery.” Dkt. No. 31. Based on Mr. Siner’s
objection, the Court issued an order, requiring the City of Detroit to show whether
it cooperated with discovery. Dkt. No. 32. Subsequently, the City of Detroit
produced its responses to Mr. Siner’s interrogatory requests, dated December 2,
2016. Dkt. No. 35.
Mr. Siner’s interrogatories requested “the actual name” of John Does 1-3
“listed in [P]laintiff’s complaint.” Dkt. No. 35, p. 6–7 (Pg. ID 284–85). The
Defendant identified John Doe # 1 as Sergeant Cregg Hughes, the officer in charge
of Mr. Siner’s case. Id. However, the Defendant claimed that it lacked specificity to
identify John Does 2-3. Mr. Siner’s Complaint describes John Doe # 2 as the
“Commander of Police for Detroit City”. Dkt. No. 1, p. 14 (Pg. ID 14). Mr. Siner’s
Complaint describes John Doe # 3 as the “Deputy Chief for the City of Detroit”. Id.,

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p. 15 (Pg. ID 15). For John Does 2-3, Mr. Siner listed the address 11187 Gratiot Ave
Detroit, MI 48213. Id.
Mr. Siner’s Complaint and discovery request proceeds on the assumption that
there is only one Commander and one Deputy Chief located at 11187 Gratiot Ave.
The City of Detroit maintains that such an assumption is untrue. According to the
City of Detroit, “there is no one single commander for the police department, there
are several commanders who serve the City of Detroit Police Department within a
number of different divisions and units.” Dkt. No. 35, p. 7 (Pg. ID 285). Moreover,
the City asserts that it “has several deputy chiefs who serve in various departments
in the City.” Dkt. No. 37, p. 3 (Pg. ID 294). Furthermore, as noted in the City of
Detroit’s response, the Plaintiff failed to describe what role John Does 2-3 had in
relation to Mr. Siner’s case. Dkt. No. 35, p. 7 (Pg. ID 285). Such information could
have better aided in identifying the unknown officers.
With the above-mentioned information in mind, the Court finds that the City
of Detroit reasonably complied with Mr. Siner’s discovery requests. Accordingly,
Mr. Siner has failed to demonstrate good cause for failing to abide by Rule 4(m).
Therefore, over Mr. Siner’s objection, the Court will ACCEPT Magistrate
Majzoub’s recommendation and dismiss Plaintiff’s claims against John Does 2-4 in
their individual capacities.

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IV. Conclusion
For reasons discussed above, the Court ACCEPTS Magistrate Judge
Majzoub’s Report and Recommendation [28]. Defendants’ Motion for Summary
Judgment [22] is GRANTED. Mr. Siner’s claims against the City of Detroit are
DISMISSED. Mr. Siner’s claims against the officers in their official capacities are
DISMISSED. Mr. Siner’s claims against John Does 2-4, in their individual
capacities, are DISMISSED. The only portion of Mr. Siner’s case that remains
viable is his claim against Defendant Cregg Hughes, in his individual capacity.
SO ORDERED.
Dated: March 30, 2017
Detroit, MI

s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, March 30, 2017, by electronic and/or ordinary mail.

/s/Shawna C. Burns
Case Manager Generalist, [phone]

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