Tlapanco v. Elges et al

Filing 102

ORDER denying 85 Motion to Dismiss; granting 87 Motion for Summary Judgment; denying 89 Motion for Order; denying 90 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNY TLAPANCO,
Case No. 16-13465
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
JONATHAN ELGES, ET AL.,

U.S. MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendants.
/
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS [85], PLAINTIFF’S MOTION
FOR LEAVE TO AMEND [89], AND PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT [90], AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [87]
This action arises from the wrongful arrest of Plaintiff, Johnny Tlapanco, for
allegedly blackmailing a fourteen-year-old student in Michigan using the messaging
app, “Kik.” Plaintiff, at the time a twenty-year-old resident of New York, spent two
weeks in a New York jail before being extradited to Michigan, where he spent an
additional three weeks in custody. Eventually, the prosecuting attorney discovered
that the investigating officer had mistakenly conflated Plaintiff’s username,
“anonymous,” with the username of the alleged blackmailer, “anonymousfl.” The
criminal charges against Plaintiff were dropped and his seized devices returned, but
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not before the Oakland County Sheriff’s Office created forensic mirrors of Plaintiff’s
devices.
Before the Court are four Motions [85, 87, 89, 90], each of which stem from
an oral pronouncement the Court made at the March 12, 2019, summary judgment
hearing relating to the retention of Plaintiff’s mirrored data. On July 7, 2021, the
Court set a hearing for August 5, 2021. (ECF No. 100). The Court has now
determined, however, that the instant Motions [85, 87, 89, 90] are appropriate for
determination without a hearing pursuant to L.R. 7.1(f)(2). Accordingly, for the
reasons articulated below, Defendants’ Motion to Dismiss [85], Plaintiff’s Motion
for Leave to Amend [89], and Plaintiff’s Motion for Summary Judgment [90] will
be DENIED, while Defendants’ Motion for Summary Judgment [87] will be
GRANTED.
BACKGROUND
Plaintiff initially brought suit in the Southern District of New York against
Oakland County, Oakland County Sheriff Michael J. Bouchard, and Oakland County
Deputies Jonathan Elges and Carol Liposky, however, the case was transferred to
the Eastern District of Michigan on September 26, 2016. (ECF No. 1); Tlapanco v.
Elges (Tlapanco I), 207 F. Supp. 3d 324 (S.D.N.Y. 2016). Over the course of several
amendments, Plaintiff dropped Defendants Bouchard and Liposky and added
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Oakland County Undersheriff Michael McCabe, the New York Police Department
(“NYPD”), and NYPD Officer Gregory Thornton. (Fourth Am. Compl. ¶ 1).
On March 12, 2019, the Court heard arguments on the parties’ cross Motions
for Summary Judgment [42, 44, 51]. (ECF No. 71). During the hearing, the Court
directed Defendants “to return [Plaintiff’s] mirrored stuff.” (Id. at 1881). At the same
time, however, the Court denied Plaintiff’s Motion for Summary Judgment [42],
which sought that exact relief, and granted Defendants’ Motions for Summary
Judgment [44, 51]. (Id. at 1886; ECF No. 63). Notwithstanding the confusion created
by these seemingly contradictory actions, Plaintiff appealed. (ECF No. 69).
While the appeal was pending, Plaintiff filed a second lawsuit against Oakland
County, Bouchard, and McCabe. Complaint and Demand for Jury Trial, Tlapanco
v. Bouchard (Tlapanco II), No. 20-10483 (E.D. Mich. Feb. 25, 2020). Unlike the
first lawsuit, which involved alleged Fourth Amendment violations, the second
action concerned alleged due process violations under the Fourteenth Amendment.
Id. Defendants moved to dismiss Tlapanco II on preclusion grounds, arguing that
Plaintiff should have brought his Fourteenth Amendment claim in Tlapanco I.
Defendants Oakland County, Michael J. Bouchard and Michael McCabe’s Motion
to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6), Tlapanco II, No.
20-10483 (E.D. Mich. Apr. 24, 2020). Plaintiff responded by filing an Amended
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Complaint [6], which clarified that “[t]his lawsuit only pertains to the deprivation of
Plaintiff’s due process rights AFTER the dismissal of his first lawsuit.” First
Amended Complaint and Demand for Jury Trial ¶ 23, Tlapanco II, No. 20-10483
(E.D. Mich. May 15, 2020).
On June 25, 2020, a little over a month after Plaintiff amended his complaint
in Tlapanco II, the Court clarified in Tlapanco I that Defendants’ victory at summary
judgment had not been “complete,” and that Plaintiff had prevailed “on the matter
of the return of the mirrored copies of the electronic devices.” (ECF No. 72,
PageID.1889). Defendants’ counsel mailed Plaintiff’s mirrored data to Plaintiff’s
counsel that same day. (ECF No. 87-1, PageID.2214). Attached was a letter stating
that “[a]ll other copies in Defendant’s [sic] possession ha[d] been deleted.” (Id.).
On August 12, 2020, the Sixth Circuit affirmed this Court’s summary
judgment decision in part and reversed in part, holding that Defendant Elges was not
entitled to qualified immunity on Plaintiff’s claims for unlawful search and seizure,
unlawful arrest, and malicious prosecution. Tlapanco v. Elges, 969 F.3d 638, 644
(6th Cir. 2020). The appellate court did not address Defendants’ alleged lack of
compliance with this Court’s directive that Plaintiff’s mirrored data be returned,
however, it did hold that it was not a violation of clearly established law for
Plaintiff’s data to have been mirrored in the first place. Id. at 657.
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On October 9, 2020, with the parties’ agreement, the Court consolidated
Tlapanco I and Tlapanco II. (ECF No. 81).
I.

DEFENDANTS’ MOTION TO DISMISS [85]
Defendants move to dismiss on the basis of “claim preclusion” and “res

judicata.” Specifically, they contend that Plaintiff could have brought his Fourteenth
Amendment claim in the prior action, and that judgment has already been granted to
Oakland County.
Claim preclusion [or res judicata] mandates that if an action results in
a judgment on the merits, that judgment operates as an absolute bar to
any subsequent action on the same cause between the same parties or
their privies—not only with respect to every matter that was actually
litigated in the first matter, but also as to every ground of recovery that
might have been presented.
Action Distrib. Co. v. Int’l Bhd. of Teamsters Local 1038, 977 F.2d 1021, 1026 (6th
Cir. 1992) (citing White v. Colgan Elec. Co., 781 F.2d 1214, 1216 (6th Cir. 1986)).
See generally Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 88 n.1
(1984) (explaining the “seemingly conflicting terminology” used to describe
preclusion doctrines).
To establish claim preclusion, [a] defendant[] need[s] to show (1) “a
final judgment on the merits” in a prior action; (2) “a subsequent suit
between the same parties or their privies”; (3) an issue in the second
lawsuit that should have been raised in the first; and (4) that the claims
in both lawsuits arise from the same transaction.

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Wheeler v. Dayton Police Dep’t, 807 F.3d 764, 766 (6th Cir. 2015) (quoting
Montana v. United States, 440 U.S. 147, 153 (1979)) (citing Wilkins v. Jakeway, 183
F.3d 528, 532, 535 (6th Cir. 1999)).
Although Defendants are correct that a final Judgment [64] on the merits was
issued in Tlapanco I and that Tlapanco II involves the same parties or their privies,
see Pittman v. Mich. Corr. Org., SEIU, Local 526, 123 F. App’x 637, 640-41 (6th
Cir. 2005); Vulcan, Inc. v. Fordees Corp., 658 F.2d 1106, 1111 (6th Cir. 1981), the
other requirements have not been satisfied. The sole claim Plaintiff asserts in the
second action is a violation of the Fourteenth Amendment for Defendants’ failure to
comply with the Court’s verbal pronouncement that Plaintiffs’ mirrored data be
returned. First Am. Compl. ¶¶ 20-23, Tlapanco II.
This was not a claim that could have been brought at the time of the first
action. See Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955) (“While
the [earlier] judgment precludes recovery on claims arising prior to its entry, it
cannot be given the effect of extinguishing claims which did not even then exist and
which could not possibly have been sued upon in the previous case.”). The
transaction giving rise to the first action was the initial copying and retention of
Plaintiff’s data, whereas the transaction giving rise to the second action was
Defendants’ alleged failure to obey the Court. Accordingly, although Plaintiff might
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have been able to bring some Fourteenth Amendment claim in the first action, he
could not have brought this Fourteenth Amendment claim, and therefore cannot be
precluded from doing so now.
Plaintiff’s municipal liability claim against Oakland County, though similar
to the Fourth Amendment claim on which the Court already granted judgment, is
also predicated upon Defendants’ failure to obey the Court. As such, it is also not
precluded.
II.

Plaintiff’s Motion for Leave to Amend [89]
Plaintiff seeks leave to amend the complaint in the first action, which would

have the effect of adding a Fourteenth Amendment claim backdated to August 2014,
when Defendant McCabe initially ordered Plaintiffs’ electronics to be mirrored and
retained. But for the very reasons Defendants’ res judicata arguments fail with
respect to Plaintiff’s second action, Plaintiff’s Motion to Amend [89] fails with
respect to his first action.
Put simply, Plaintiff could have brought a Fourteenth Amendment claim for
the initial mirroring of his electronics at the time he filed the first action, but did not.
Accordingly, he is precluded from bringing one now.
Plaintiff cannot rely upon the Court’s recent consolidation to make an end-run
around preclusion. As the Supreme Court recently reiterated, “consolidation is
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permitted as a matter of convenience and economy in administration, but [it] does
not merge the suits into a single cause, . . . change the rights of the parties, or make
those who are parties in one suit parties in another.” Hall v. Hall, 138 S. Ct. 1118,
1127 (2018) (quoting Johnson v. Manhattan R. Co., 289 U.S. 479, 496-97 (1933));
see, e.g., Beil v. Lakewood Eng’g & Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994)
(explaining “that consolidated cases remain separate actions”). Thus, Plaintiff is
wholly incorrect “that since the cases are now combined . . . , there is no ‘subsequent
suit,’ ‘first case,’ or ‘second case’” for preclusion purposes. Cf. GMAC Mortg., LLC
v. McKeever, 651 F. App’x 332, 340 (6th Cir. 2016) (holding that a district court
erred by construing consolidated cases as “the same case” for purposes of the lawof-the-case doctrine). Accordingly, the amendments Plaintiff seeks would be futile,
and Plaintiff’s Motion to Amend [89] must therefore be denied. Foman v. Davis,
371 U.S. 178, 182 (1962); see Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir.
2005) (“Amendment of a complaint is futile when the proposed amendment would
not permit the complaint to survive a motion to dismiss.” (citing Neighborhood Dev.
Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980))).
III.

Cross Motions for Summary Judgment [87, 90]
It is well-established that courts speak through their written orders, not their

oral pronouncements. Cf. Atl. Richfield Co. v. Monarch Leasing Co., 84 F.3d 204,
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207 (6th Cir. 1996) (“[A] federal court judgment is ‘rendered’ only when it is set
forth in writing on a separate, discrete document and entered on the civil docket.”).
Thus, although “[o]ral orders are just as binding on litigants as written orders,”
Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1547 (11th Cir. 1993), “a formal order
[in a civil case] controls over a prior oral statement.” Snow Machs., Inc. v. Hedco,
Inc., 838 F.2d 718, 727 (3d Cir. 1988).
Plaintiff’s alleged injury is the deprivation of his mirrored data following this
Court’s pronouncement at the March 12, 2019, hearing that Defendants will “return
[Plaintiff’s] mirrored stuff.” (ECF No. 71, PageID.1881; ECF No. 90, PageID.2268).
But, as Plaintiff acknowledges, the Court’s verbal directive was at odds with its
subsequent written Order [63], which did not mention the issue of the mirrored hard
drive and denied the entirety of Plaintiff’s Motion for Summary Judgment [42], even
though the return of the mirrored data was part of the relief Plaintiff requested. First
Amended Complaint and Demand for Jury Trial ¶ 22, Tlapanco II, No. 20-10483
(E.D. Mich. May 15, 2020). Despite this apparent contradiction, Plaintiff did not
move for reconsideration or to hold Defendants in contempt.
On June 25, 2020, following a conference, the Court issued a written
clarification addressing Defendants’ continued possession of Plaintiff’s mirrored
data. (ECF No. 72). In that “Notice,” the Court stated that it would “not revisit the
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Judgment while the appeal [was] pending,” but would “clarify that Defendants’
victory was not complete” and that Plaintiff had prevailed “on the matter of the
return of the mirrored copies of the electronic devices.” (Id. at 1889). Defendants’
counsel mailed Plaintiff’s mirrored data to his counsel that same day. (ECF No. 871, PageID.2214).
Given the general principal that a “later written opinion supersedes [an] earlier
oral ruling,” United States v. Ganier, 468 F.3d 920, 928 n.3 (6th Cir. 2006), and the
fact that the Court’s oral pronouncement set no deadline by which Defendants were
required to comply,1 Defendants were not under any obligation to return Plaintiff’s
mirrored data until the Court’s later Notice [72]. Indeed, Plaintiff conceded at the
time he filed his Amended Complaint that there was “no explicit Court Order
ordering the defendants to return Plaintiff’s property to him.” First Amended
Complaint and Demand for Jury Trial ¶ 22, Tlapanco II, No. 20-10483 (E.D. Mich.
May 15, 2020). Moreover, as soon as Defendants were made aware that their
“victory was not complete,” they returned the mirrored data. (ECF No. 72,
PageID.1889; ECF No. 87-1, PageID.2214). Against this backdrop, no reasonable
jury could find that Plaintiff suffered an injury distinct from the initial mirroring and
retention of his data, let alone an injury of constitutional magnitude. Cf. Tlapanco,
1

Indeed, what the Court has thus far described as its “directive” or “pronouncement” might be
more appropriately labeled a “solicited stipulation.”

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969 F.3d at 656 (“Because the electronic devices were returned the same day the
written order was issued, McCabe’s retention of the devices for the two days in
between the pronouncement of the oral decision and filing of the written decision
was not an unreasonable seizure.”).
Plaintiff’s speculative argument that “it is unclear if Defendants still maintain
a copy of the data as they [have] fail[ed] to make a sworn statement or affidavit that
the copy sent to the Plaintiff is the only copy left,” does not save his claims. (ECF
No. 90, PageID.2284). “In order to withstand a motion for summary judgment, the
party opposing the motion must present ‘affirmative evidence’ to support his/her
position; a mere ‘scintilla of evidence’ is insufficient.” Mitchell v. Toledo Hosp., 964
F.2d 577, 584 (6th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 257 (1986)). Plaintiff offers no evidence in support of this “Defendants
might be lying” theory, and the inference Plaintiff asks the Court to draw finds no
support in the record.
Accordingly, not only does Plaintiff fail to present evidence upon which a
reasonable jury could find a due process violation or municipal liability, but his
Amended Complaint fails to even state a claim. Judgment will therefore be granted
in favor of Defendants.

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CONCLUSION
IT IS ORDERED that Defendants’ Motion to Dismiss [85], Plaintiff’s
Motion for Leave to Amend [89], and Plaintiff’s Motion for Summary Judgment
[90] are DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [87] is GRANTED.
SO ORDERED.

Dated: August 2, 2021

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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