Hart v. Hillsdale, County of et al
ORDER Granting Defendants Marinoff's and Kelley's Motion to Dismiss 27 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-10253
HONORABLE DENISE PAGE HOOD
COUNTY OF HILLSDALE, et al.,
ORDER GRANTING DEFENDANTS MARINOFF’S
AND KELLEY’S MOTION TO DISMISS [#27]
This matter is before the Court on Plaintiff Anthony Hart’s (“Hart”) complaint
that he was wrongfully convicted for failing to register his proper residency with the
Michigan Sex Offender Registry (“SOR”). Defendants Marci Kelley (“Kelley”) and
Melissa Marinoff (“Marinoff”) have filed a motion to dismiss based on qualified
immunity. The motion to dismiss was fully briefed, and the Court held a hearing on
the motion to dismiss on September 14, 2016.
In 2001, Hart violated MCL § 750.520(e) and was convicted of fourth degree
criminal sexual conduct. At the time of the crime, Plaintiff was 17 years old, and the
Michigan Sex Offender Registration Act, MCL § 28.721 (“SORA”), required that he
register his address bi-annually for 25 years due to his offense. SORA was amended
as of July 1, 2011, and offenders adjudicated of that offense as juveniles were no
longer required to register. It is undisputed that, because Hart was 17 years old at the
time of his crime, as of July 1, 2011, he no longer had an obligation to register his
residency with the SOR.
Michigan State Police (“MSP”) employees were required to remove Hart from
the SOR following the 2011 SORA amendment. MSP employees did not properly
remove Hart’s name from the list, nor did anyone from the MSP inform Hart that he
was no longer legally required to register his residency. The Hillsdale County Sheriff
Department also did not remove Hart’s information from the SOR or take any action
to cause such a removal. From July 2011 through July 2013, Hart continued to
register on the SOR, including identifying his address. On July 5, 2013, unaware that
he was no longer required to register his address with the SOR, Hart erroneously
registered his address as “79 Bulldog” in Hillsdale. Hart’s actual address was “76
Bulldog” in Hillsdale.
On July 17, 2013, Hillsdale County Sheriff Deputy Lieutenant Timothy Parker
(“Lieutenant Parker”) arrested Hart for violating SORA by listing an incorrect
address. Lieutenant Parker had examined Hart’s criminal history and the SOR
documents, all of which indicated Hart was 17 years old in 2001. Although this meant
that Hart no longer needed to register his residency with the SOR (because of the 2011
SORA amendment), Lieutenant Parker signed a warrant request charging a violation
of SORA and sent it to the Hillsdale County Prosecutor’s Office. The warrant was
approved by the Hillsdale County Prosecutor’s Office on July 18, 2013. On August
14, 2013, Hart entered a plea of nolo contendere, was found guilty of one count of
failure to register pursuant to SORA (MCL § 28.279), and was placed on probation.
From July 2013 through December 2013, Hart continued to register as a sex offender
with local registering authorities (Hillsdale County).
On January 23, 2014, Lieutenant Parker advised Defendant Shelby Rathbun
(“Rathbun”) that Hart failed to verify his address and falsely accused Hart of criminal
acts. On February 18, 2014, pursuant to the advice of his attorney (Defendant
Kimberly Burger), Hart pled guilty to the felony of failure to register. On March 17,
2014, Hart was sentenced to 16-24 months in state prison and ordered to pay
$1,026.94 in fines, costs, and restitution. Hart served 19 months at the Jackson state
prison before someone realized that Hart should not have been charged with failing
to register in 2013 and 2014.
On April 26, 2016, Plaintiff filed his First Amended Complaint (“Complaint”).
III. APPLICABLE LAW & ANALYSIS
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s
complaint. Accepting all factual allegations as true, the court will review the
complaint in the light most favorable to the plaintiff. Eidson v. Tennessee Dep’t of
Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). As a general rule, to survive a
motion to dismiss, the complaint must state sufficient “facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint must demonstrate more than a sheer possibility that the
defendant’s conduct was unlawful. Id. at 556. Claims comprised of “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555. Rather, “[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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
Plaintiff’s Claims Against Kelley and Marinoff
Hart first claims the State Defendants were responsible for the Hillsdale
officials falsely arresting him, in violation of his Fourth Amendment rights. For a
Plaintiff to have a viable false arrest claim under Section 1983, he must prove that the
arresting officer lacked probable cause for the arrest.
A false arrest claim under federal law requires a plaintiff to prove that
the arresting officer lacked probable cause to arrest the plaintiff. Fridley
v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002) (citing Painter v.
Robertson, 185 F.3d 557, 569 (6th Cir.1999)). An arrest pursuant to a
facially valid warrant is normally a complete defense to a federal
constitutional claim for false arrest or false imprisonment made pursuant
to § 1983.
Voticky v. Village of Timberlake, OH, 412 F.3d 669, 677 (6th Cir. 2005). A
government official who applies the means by which a person is seized in violation
of the Fourth Amendment can be held liable under Section 1983. See, e.g., Berg v.
City of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) (“a government official’s liability
for causing an arrest is the same as for carrying it out”). See also Malley v. Briggs, 475
U.S. 335, 344 n.7 (1986) (an individual is “responsible for the natural consequences
of his actions”).
It is undisputed that neither Kelley nor Marinoff had a direct role in Hart’s
arrest, and the Complaint states that Hart was arrested by Lieutenant Parker. Hart
alleges that the State Defendants (namely Kelley) provided inaccurate information to
Hillsdale officials. The only specific allegations against Marinoff are that she was an
employee of the MSP and that she had some responsibity for maintaining the SOR.
Hart’s second claim is that the State Defendants were involved in a malicious
prosecution against him, in violation of his Fourth Amendment rights. To succeed on
a malicious prosecution claim, Hart must satisfy four elements:
(1) a criminal prosecution was initiated against the plaintiff and the
defendant made, influenced, or participated in the decision to prosecute;
(2) there was no probable cause for the criminal prosecution; (3) as a
consequence of the legal proceeding, the plaintiff suffered a deprivation
of liberty apart from the initial seizure; and (4) the criminal proceeding
was resolved in the plaintiff’s favor.
Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014). As the Sixth Circuit recently
stated, a police officer violates a person’s clearly established right to freedom from
malicious prosecution under the Fourth Amendment “only when his deliberate or
reckless falsehoods result in arrest and prosecution without probable cause.” Johnson
v. Mosely, 790 F.3d 649, 654-55 (6th Cir. 2015) (citing Newman v. Township of
Hamburg, 773 F.3d 769, 772 (6th Cir. 2014)).
Hart’s third claim against the State Defendants is for defamation, in violation
of his Fourteenth Amendment substantive or procedural due process rights. The
Supreme Court has held that a plaintiff may not recover under Section 1983 for
damages to reputation if the alleged defamatory acts did not also result in the
deprivation of a constitutionally protected right or interest. See Paul v. Davis, 424
U.S. 693, 701 (1976).
The State Defendants assert that they are entitled to qualified immunity with
respect to the Section 1983 claims Hart filed against them. Qualified immunity is an
affirmative defense against a Section 1983 claim. Noble v. Schmitt, 87 F.3d 157, 160
(6th Cir. 1996). The doctrine of qualified immunity “shields ‘governmental officials
performing discretionary functions . . . from civil damages liability as long as their
actions could reasonably have been thought consistent with the rights they are alleged
to have violated.’” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir.
2004) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). See also Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982) (government officials performing
discretionary functions are shielded from liability for civil damages to the extent that
“their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”).
“[T]he test for qualified immunity has only two prongs—whether the defendant
violated a constitutional right and whether the right at issue was clearly established.”
Brown v. Lewis, 779 F.3d 401, 417 (6th Cir. 2015) (citing Plumhoff v. Rickard, —
U.S. —, 134 S. Ct. 2012, 2020 (2014), and Pearson v. Callahan, 555 U.S. 223, 232,
236 (2009)). For a constitutional right to be clearly established, its contours “must be
sufficiently clear that a reasonable official would understand that what he [or she] is
doing violates that right.” Creighton, 483 U.S. at 640. This standard does not require
the very action in question to have previously been held unlawful, only that its
unlawfulness be apparent in light of pre-existing law. Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 535 n.12, (1985)).
Once a government official has raised the defense of qualified immunity, the
plaintiff “bears the ultimate burden of proof to show that the individual officers are
not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468 F. App'x 491,
494 (6th Cir. 2012) (citation omitted). A plaintiff must also establish that each
individual defendant was “personally involved” in the specific constitutional violation.
See Salehphour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998); Bennett
v. Schroeder, 99 F. App’x 707, 712-13 (6th Cir. 2004) (unpublished) (“It is wellsettled that to state a cognizable Section 1983 claim, the plaintiff must allege some
personal involvement by the each of the named defendants”).
In this case, to establish the violation of a constitutional right, Hart must
establish: (1) the State Defendants stated a deliberate falsehood or showed reckless
disregard for the truth, and (2) the allegedly false or omitted information was material
to the finding of probable cause. Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003)
(citations omitted). There is no dispute that Hart has alleged that the false information
was material to the finding of probable cause, but the Court finds that Plaintiff has
failed to allege that the State Defendants stated a deliberate falsehood or showed
reckless disregard for the truth.
In the Complaint, Hart alleged that both of the State Defendants are employees
of the Michigan State Police and that, pursuant to MCL 28.728, they “were
responsible for accurately maintaining the” Michigan SOR. Dkt. No. 22, Para. 21.
Hart makes no further allegations against Marinoff1 and alleges only that Kelley
“falsely attested that [Hart] was required to register” until 2054. Dkt. No. 22, Para. 70.
The Court finds that those allegations fail to demonstrate that either of the State
Defendants made a statement of deliberate falsehood or with reckless disregard for the
truth. The Court concludes that Hart has not sufficiently alleged in his Complaint that
either of the State Defendants violated any of his constitutional rights.
In his brief, Hart argues that Kelley and Marinoff are not entitled to qualified
immunity because they violated his constitutional right to be free from arrest and
detention based on materially false information provided by a public official.2 Hart
states that it was the obligation of Defendants Kelley and Marinoff to properly remove
his name from the SOR following the June 1, 2011 amendment. Hart argues that the
State Defendants’ failure to remove his name from the SOR constituted a reckless
The Court also finds that Hart did not allege that Marinoff was “personally
involved” in the alleged constitutional violation, which requires a finding that he
failed to state a cognizable Section 1983 claim against Marinoff. See Salehphour,
159 F.3d at 206; Bennett, 99 F. App’x at 712-13.
After the State Defendants filed their Motion to Dismiss, Hart also filed a
Motion for Leave to File a Second Amended Complaint. In the proposed Second
Amended Complaint, Hart attempted to buttress his claims against the State
Defendants by alleging that they acted deliberately or with a reckless disregard for
disregard for his rights and that they exercised a reckless disregard for the truth when
providing false information regarding the SOR to the Hillsdale officials.
The Court finds that, even if Hart’s arguments in his brief (or the conclusory
allegations in the proposed Second Amended Complaint) would satisfy the first prong
of overcoming qualified immunity by alleging reckless conduct by Kelley and
Marinoff in failing to maintain the SOR registry, Hart has not – and cannot –
demonstrate that there was a constitutional right that was “sufficiently clear that
[either of the State Defendants] would understand that what [she] [wa]s doing
violate[d] that right.” See Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (although a
case directly on point is not required, the “existing precedent must have placed the
statutory or constitutional question beyond debate.”).
Hart cites a number of cases to support his contention that his constitutional
rights were clearly established, but the cases he cites involve situations where persons
supplied false information for the very purpose of establishing probable cause. There
has been no allegation or suggestion that either of the State Defendants “left” Hart’s
name on the SOR for the purpose of establishing probable cause or so that arrest
warrants could be issued for him or that he could be prosecuted or detained. The
Court also finds that, although Hart was not required to identify cases that involve the
very same conduct or inaction attributable to the State Defendants, Hart did have the
burden of submitting authority that clearly established that the State Defendants
conduct was prohibited in the context of the situation with which they were presented.
Mellenix, 136 S.Ct. at 309. None of the cases cited by Hart establish that the State
Defendants’ alleged conduct was unlawful “beyond debate” in light of pre-existing
law. Creighton, 483 U.S. at 640 (citing Mitchell v. Forsyth, 472 U.S. 511 (1985);
Mullenix, 136 S.Ct. at 308.
For the reasons stated above, the Court finds that Hart has not met his burden
of overcoming the State Defendants’ assertion that they are entitled to qualified
immunity with respect to his claims against them. The Court grants the State
Defendants’ Motion to Dismiss.
IT IS ORDERED that the Motion to Dismiss filed by Marinoff and Kelley [#27]
is GRANTED .
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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