Mayberry v. Ann Arbor et al

Filing 17

ORDER Denying Defendants' Motion to Dismiss 9 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODNEY MAYBERRY,
Plaintiff,
Case No. 16-14063
HON. DENISE PAGE HOOD

v.
CITY OF ANN ARBOR, MICHAEL
FECHIK, and MARK KELSO,

Defendants.
______________________________________/
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS [#9]
I.

INTRODUCTION
Plaintiff Rodney Mayberry filed this 42 U.S.C. § 1983 action on November 16,

2017, alleging that Defendants violated his constitutional rights when they
unreasonably seized him, searched his vehicle, and ticketed him after falsely claiming
that he was driving on a suspended license. Plaintiff amended his complaint on
January 6, 2017 (the “Complaint”). [Dkt. No. 3] On March 16, 2107, Defendants filed
a Rule 12(c) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can
be Granted (“Motion to Dismiss”). [Dkt. No. 9] The Motion to Dismiss was fully
briefed, and the Court held a hearing regarding the Motion to Dismiss on July 12,
2017.
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For the reasons that follow, the Court denies Defendants’ Motion to Dismiss.
II.

BACKGROUND
On November 16, 2014, Defendants Michael Fechik and Mark Kelso, both of

whom were City of Ann Arbor (the “City”) police officers, made a traffic stop of
Plaintiff. When Plaintiff asked Defendant Fechik why Plaintiff had been stopped,
Defendant Fechik stated that Plaintiff was stopped because Plaintiff’s vehicle had
tinted windows. [Dkt. No. 3, ¶ 16] Defendant Kelso opened the back door of
Plaintiff’s vehicle, without notice or consent. Id. at ¶ 17. When Plaintiff inquired why
Defendant Kelso did so, Defendant Kelso stated that he was making sure nobody was
pointing a gun at him. Id. Defendant Kelso closed the back door after Plaintiff asked
him a second time what Defendant Kelso was doing. Id. at ¶ 18. Defendant Kelso
then asked Plaintiff to roll down his back window. Id. Plaintiff complied with
Defendant Kelso’s request and rolled down the back window. Id. at ¶ 19. Plaintiff
alleges the rolled down window enabled Defendant Kelso to look into Plaintiff’s car.
Id.
At that point, Defendant Fechik asked Plaintiff’s permission to search the
vehicle, but Plaintiff declined to give that consent. Id. at ¶ 20. Defendant Fechik then
told Plaintiff that Defendant Fechik did not care if there was weed in the car, as
Defendant Fechik “was looking for weapons and hard drugs.” Id. at ¶ 21. Plaintiff
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again refused to give consent to search his vehicle. Id. at ¶ 22. Defendants Kelso and
Fechik walked back to their police vehicle and when they returned to talk to Plaintiff,
they advised Plaintiff that his driver license was suspended. Id. at ¶¶ 23-24.
Defendant Fechik asked Plaintiff a third time for permission to search the car. Id. at
¶ 25. Plaintiff denied consent to search his car for a third time and stated that he did
nothing wrong because his license was not suspended. Id.
After Plaintiff denied consent to search the vehicle for a third time, Defendant
Fechik allegedly replied, “I tried to give you a break and you wouldn’t cooperate”
before ordering Plaintiff to get out of the vehicle. Id. at ¶¶ 26-27. Plaintiff got out of
the vehicle, was handcuffed, and was seated on the ground. Id. at ¶¶ 28-29.
Defendants Fechik and Kelso then began searching Plaintiff’s vehicle based on
Plaintiff’s allegedly suspended license. Id. at ¶ 30. When a third City of Ann Arbor
police officer (Defendant John Doe) arrived, Defendant Fechik advised Defendant
Doe to continue searching the vehicle while Defendant Fechik wrote the ticket. Id. at
¶ 37. When Plaintiff asked why a tow truck was there to take his vehicle, Defendant
Kelso allegedly stated to Plaintiff, “you want to be an asshole, I can be one to[o].” Id.
at ¶ 38. After the search of Plaintiff’s vehicle was complete (and no contraband was
found) and Plaintiff’s vehicle was towed, Defendant Fechik removed the handcuffs

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from Plaintiff, handed Plaintiff the ticket, and told Plaintiff that he was lucky he did
not get arrested. Id. at ¶ 40.
Plaintiff twice went to court regarding the ticket before the ticket was dismissed
because there was no record of Plaintiff’s license being suspended on November 16,
2014. Id. at ¶ 42. Plaintiff filed a formal complaint with the City, wherein he: (1)
complained of Defendants Fechik’s and Kelso’s conduct at the time of his arrest; and
(2) sought reimbursement for the costs and damages incurred in conjunction with
getting his car out of towing and damages to his dashboard and other parts of his car.
Id. at ¶ 43. Plaintiff was reimbursed for the tow cost, but he did not receive any
reimbursement for damage to his vehicle or any information regarding discipline or
actions taken regarding Defendants Fechik and Kelso. Id. at ¶ 44.
Plaintiff’s seven-count Complaint includes the following claims: (1)
unreasonable search and seizure in violation of the Fourth Amendment; (2) malicious
prosecution under the Fourth Amendment; (3) malicious prosecution under Michigan
law; (4) unlawful detention in violation of the Fourth Amendment; (5) intentional
infliction of emotional distress under Michigan law; (6) gross negligence under
Michigan law; and (7) a Monell claim pursuant to Section 1983. The first six claims
are against Defendants Fechik, Kelso, and Doe, and the Monell claim is against the
City.
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III.

APPLICABLE LAW & ANALYSIS

A.

Rule 12(c)
In deciding a motion brought pursuant to Rule 12(c), the standard is the same

as that used in evaluating a motion brought under Fed.Civ.P. 12(b)(6). See, e.g., Stein
v U.S. Bancorp, et. al, 2011 U.S. Dist. LEXIS 18357, at *9 (E.D. Mich. February 24,
2011). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s
complaint. The Court must accept all well-pleaded factual allegations as true and
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); Kottmyer v. Maas, 436
F.3d 684, 688 (6th Cir. 2006).
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 (2009).
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B.

Qualified Immunity
As recently stated by the Supreme Court:
The doctrine of qualified immunity shields officials from civil liability
so long as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known. A clearly established right is one that is sufficiently clear that
every reasonable official would have understood that what he is doing
violates that right. We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional
question beyond debate. Put simply, qualified immunity protects all
but the plainly incompetent or those who knowingly violate the law.

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and quotation marks omitted).
Qualified immunity is a two-step process. Saucier v. Katz, 533 U.S. 194 (2001). First,
the Court determines whether, based upon the applicable law, the facts viewed in a
light most favorable to the plaintiff show that a constitutional violation has occurred.
Second, the Court considers whether the violation involved a clearly established
constitutional right of which a reasonable person would have known. Saucier v. Katz,
supra.; Sample v. Bailey, 409 F.3d 689 (6th Cir. 2005). Only if the undisputed facts,
or the evidence viewed in a light most favorable to the plaintiff, fail to establish a
prima facie violation of clear constitutional law can this court find that the defendants
are entitled to qualified immunity. Turner v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
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
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not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468 F. App'x 491,
494 (6th Cir. 2012) (citation omitted). A plaintiff also must 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”).
IV.

ANALYSIS
Defendants contend they are entitled to qualified immunity on all claims

because Plaintiff’s allegations do not amount to a violation of a clearly established
constitutional right that is actionable pursuant to 42 U.S.C. § 1983. Defendants’
argument is based on the premise that the Defendants honestly, albeit erroneously,
believed that Plaintiff’s license was suspended on November 16, 2014, the day of the
traffic stop. Defendants argue that, in reviewing the results of a “customary roadside
LEIN investigation,” they made a mistake because Plaintiff had multiple license
suspensions prior to that date.
Defendants’ argument likely would entitle them to qualified immunity if there
was nothing more. But, for purposes of a Rule 12(c) motion, the Court must not rely
simply on Defendants’ stated beliefs about the circumstances. The Court must look
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to the allegations of Plaintiff’s Complaint, and Defendants’ arguments ignore
numerous allegations set forth in the Complaint. Most significantly, Plaintiff alleges
that Defendants came up with the “driving with suspended license” charge only after
Plaintiff twice refused to consent to a search of his car. Plaintiff also alleges that, after
Defendants first falsely claimed that Plaintiff’s driver license was suspended: (1)
Defendant Fechik stated, “I tried to give you a break and you wouldn’t cooperate;”
and (2) Defendant Kelso said to Plaintiff, “you want to be an asshole, I can be one
to[o]” (hereinafter, these two comments shall be referred to as “Defendants’
Comments”).
A.

Roadside Detention - Counts I and IV
Defendants accurately note that Plaintiff does not plead that the basis for the

traffic stop (the tinted windows on his vehicle) was improper or that Defendants
lacked probable cause for stopping Plaintiff’s vehicle. Defendants state that Plaintiff
appears to be arguing that his “brief” roadside detention during the traffic
investigation was an “arrest” without probable cause. A roadside detention is lawful
so long as the officer has probable cause to believe that the motorist has violated the
traffic laws. United States v. Burton, 334 F.3d 514, 516 (6th Cir. 2003) (“The Fourth
Amendment . . . permits an officer who has probable cause to believe that a traffic
violation is occurring to detain the automobile, regardless of the officer’s subjective
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motivation for the stop.”). Defendants’ argument ignores that the Complaint is not
limited to, nor does it focus on, the detention of Plaintiff’s vehicle. The Complaint
centers on the fact that Defendants detained Plaintiff in handcuffs and confiscated his
vehicle.
Defendants argue that a “valid arrest based upon then-existing probable cause
is not vitiated if the suspect is later found innocent.” Criss v. City of Kent, 867 F.2d
259, 262 (6th Cir. 1988); Kinlin v. Kline, 749 F.3d 573, 578 (6th Cir. 2014). This
argument is inadequate because it fails to take into account that the issue before the
Court is whether there was probable cause to arrest Plaintiff. For the same reason,
Defendants are mistaken when they contend that the Court must consider only the
arresting officer’s subjective knowledge of the facts at the time of the arrest, even if
it is later known that some of the officer’s beliefs were mistaken. Klein v. Long, 275
F.3d 544, 549-50 (6th Cir. 2001); Brinegar v. United States, 338 U.S. 160, 175-76
(1949) (the probable cause standard allows for mistakes if they are objectively
reasonable under the circumstances).
The circumstances surrounding the assertion by Defendants Fechik and Kelso
that Plaintiff was driving on a suspended sentence create a genuine dispute of material
fact as to whether they had reason to believe – or even believed – that Plaintiff’s
license was suspended at the time of the stop. Specifically, Defendants’ Comments,
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together with Plaintiff’s refusal to consent to a search of his vehicle, create a genuine
dispute of material fact regarding Defendants Fechik’s and Kelso’s motivation for
searching Plaintiff’s vehicle, possibly undermining their asserted “honest belief” that
Plaintiff’s license was suspended. Based on those circumstances. a reasonable fact
finder could conclude that Defendant Fechik and Kelso made up that claim to form
a probable cause basis upon which they could justify ordering Plaintiff out of his
vehicle and conduct an inventory search of the vehicle – after Plaintiff repeatedly had
refused to allow a search of his vehicle.
Defendants contend, “‘A [police officer] is entitled to qualified immunity’ on
a false arrest and false imprisonment claim ‘if he or she could reasonably (even if
erroneously) have believed that the arrest was lawful, in light of clearly established
law and the information possessed at the time by the [police officer].’” Kennedy v.
City of Vila Hills, 635 F.3d 210, 214 (6th Cir. 2011). Defendants do not contemplate
or address the fact that Plaintiff’s allegations challenge that Defendants Fechik and
Kelso “could reasonably . . . have believed that the arrest was lawful[.]” Id. Plaintiff
pleads that no reasonable officer could have believed that his license was suspended
because the LEIN investigation report reflects otherwise. Plaintiff also pleads that
Defendants Fechik and Kelso were motivated to search Plaintiff’s car one way or

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another, as evidenced by Defendants’ Comments after Plaintiff repeatedly refused to
consent to a search of his vehicle.
Defendants assert the impoundment of the vehicle was legal. Under existing
law, their argument is accurate – if the driver has a suspended license (or, even if
Defendants in good faith believed the driver had a suspended license). See, e.g.,
United States v. Ballard, 432 F. App’x 553, 556-57 (6th Cir. 2011); United States v.
Rose, 1993 WL 539248, at **1, 3 (6 th Cir. Dec. 29, 1993). For the reasons stated
above, this analysis only applies if the Court accepts as true the assertion by
Defendants that Defendants Fechik and Kelso had a good faith belief that Plaintiff’s
license was suspended on November 16, 2014.
Defendants also suggest that they had the right to detain Plaintiff for a short
time for investigatory purposes because, under the totality of the circumstances, they
had “reasonable suspicion” or “a particularized and objective basis for suspecting the
particular person [Plaintiff] . . . of criminal activity based on specific and articulable
facts.” Hoover v. Walsh, 682 F.3d 481, 494 (6th Cir. 2012). “[T]he degree of
intrusion into the suspect’s personal security [must be] reasonably related in scope to
the situation at hand.” Smoak v. Hall, 460 F.3d 768, 779 (6th Cir. 2006); Houston v.
Clark Cty. Sheriff Deputy John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999) (if the
“length and manner” of the stop, including any force used, are not “reasonably related
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to the basis for the initial intrusion,” then the stop ripens into an arrest for which the
officers must show probable cause).
Defendants argue that Plaintiff’s detention never ripened into an arrest, as the
detention was brief and only for the period of time necessary to impound the vehicle.
Defendants further state that Plaintiff was released from the scene of the traffic stop,
even though he could have been arrested, transported and fingerprinted. Again,
Defendants rely on their position that they, honestly and in good faith, believed
Plaintiff’s license was suspended. Ironically, in making this argument, Defendants
identify one of the key allegations in the Complaint that precludes a finding of
qualified immunity or demonstrates why their motion to dismiss must be denied.
Defendants states:
In Paragraph 49 of his Complaint, Plaintiff alleges that: “Defendants
then made up a lie and falsely claimed that Plaintiff was driving on a
suspended license . . .”
[Dkt. No. 9, PgID 84]
Defendants suggest that the Court should discard Plaintiff’s allegations because
Plaintiff offers no facts to support this conclusory claim that Defendants deliberately
lied about Plaintiff’s license being suspended. Defendants ignore that Plaintiff alleged
the following facts, each of which supports his claim that Defendants deliberately lied
about the suspension of his license: (1) after the incident, Plaintiff confirmed with the
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Michigan Department of State Bureau of Branch Office Services that his license was
not suspended when he was stopped on November 16, 2014 (Complaint at ¶ 24); (2)
on November 26, 2014, he obtained documentation from the Michigan Department
of State Bureau of Branch Office Services that his license was not suspended (Id.); (3)
Defendant Fechik said to Plaintiff: “I tried to give you a break and you wouldn’t
cooperate” and then ordered Plaintiff to get out of the vehicle (Complaint at ¶¶ 26-27);
and (4) Defendant Kelso stated to Plaintiff, “you want to be an asshole, I can be one
to[o].” (Complaint at ¶ 38).
Exhibit 1 to Defendants’ Motion to Dismiss further supports Plaintiff’s claim
that Defendants deliberately lied about the suspension of his license on November 16,
2014. In Exhibit 1 (the LEIN investigation report), the Court notes that immediately
below each of the four places that the report identifies a driver license
“SUSPENSION,” there is the following terminology: “SUSP TERMINATED.” [Dkt.
No. 9-2, PgID 97] Contrary to Defendants’ argument, the foregoing allegations
exhibit possible motivation of – and overt acts taken by – Defendants that establish
an intent to deceive Plaintiff about his license being suspended.1
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None of this takes into consideration that the Defendant officers presumably are trained
to be able to accurately read a LEIN investigation report so that citizens are not detained or
arrested in violation of their constitutional rights. Defendants’ contention that the officers’
“mistake was understandable in light of four prior instances of suspension and many convictions
. . .” is puzzling, in that it suggests that police officers should be excused from having to be able
to read and understand the LEIN investigation reports.
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As Defendants acknowledge, “those who knowingly violate the law” are not
afforded the protections of qualified immunity. Malley v. Briggs, 475 U.S. 335, 341
(1986). Plaintiff has alleged that Defendants’ Fechik and Kelso have knowingly
violated the law. The Court concludes that Defendants Fechik and Kelso are not
entitled to qualified immunity because their alleged conduct (fabricating that
Plaintiff’s driver license was suspended) would violate a clearly established
constitutional right of which a reasonable officer would have known. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). The Court denies the Motion to Dismiss with
respect to Counts I and IV.
B.

Malicious Prosecution - Counts II and III
To establish a malicious prosecution claim under the Fourth Amendment,

Plaintiff must show: (1) a criminal prosecution was initiated against him and
Defendants made, influenced, or participated in the decision to prosecute; (2) there
was a lack of probable cause for the prosecution; (3) as a consequence of the legal
proceeding, Plaintiff suffered a deprivation of liberty, apart from the initial seizure;
and (4) the criminal proceeding was resolved in Plaintiff's favor. Sykes v. Anderson,
625 F.3d 294, 308 (6th Cir. 2010).
Under Michigan law, to support a malicious prosecution claim, Plaintiff “must
show an absence of probable cause, and he must show ‘malice.’” Newman v. Twp. of
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Hamburg, 773 F.3d 769, 773 (6th Cir. 2014) (quoting Matthews v. Blue Cross & Blue
Shield of Mich., 572 N.W.3d 603, 609-10 (Mich. 1998)). Malice requires “evidence
that the officer ‘knowingly sw[ore] to false facts ... without which there is no probable
cause.” Id. (quoting Payton v. City of Detroit, 536 N.W.2d 233, 242 (Mich. 1995)).
It is more demanding than establishing mere recklessness. Joy v. Godair, No.
1:16-CV-187, 2016 WL 7334837, at *5 (W.D. Mich. Dec. 19, 2016).
Under Michigan law, Defendants would be entitled to governmental immunity
if:
(a)

(b)
(c)

The acts were undertaken during the course of employment and the
employee was acting, or reasonably believed he was acting, within the
scope of his authority,
The acts were undertaken in good faith, or were not undertaken with
malice, and
The acts were discretionary as opposed to ministerial.

Odom v. Wayne Cty., 482 Mich. 459, 480 (2008).
For the reasons stated above, the Court finds that Plaintiff has alleged that
Defendants Fechik and Kelso had malice and acted in bad faith because they
knowingly fabricated a traffic offense, swore to false facts and, absent those
falsifications, they lacked probable cause to detain and ticket Plaintiff for driving with
a suspended license. The Court denies Defendants’ Motion to Dismiss as it relates to
Plaintiff’s malicious prosecution claims at Counts II and III of his Complaint.
C.

Intentional Infliction of Emotional Distress - Count V
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In Michigan, the elements of an intentional infliction of emotional distress
claim are: (1) extreme or outrageous conduct; (2) intent or recklessness; (3) causation;
and (4) severe emotional distress. Webster v. United Auto Workers, Local 51, 394 F.3d
436, 442 (6th Cir. 2005). “In ruling on such a claim, it is initially for the trial court to
determine whether the defendant’s conduct reasonably may be regarded as so extreme
and outrageous as to permit recovery.” Id.
The Court finds that the alleged conduct of Defendants Fechik and Kelso
(fabricating a charge of driving on a suspended license) may constitute extreme and
outrageous conduct that was intentional (because the LEIN investigation report
indicated that Plaintiff’s license was not suspended) and the cause of Plaintiff’s
injuries (which included being detained, incurring unreimbursed costs, having to go
to court twice, and other indignities). The average member of the community would
have a resentment against the Defendant officers that would lead such community
member to exclaim that the officers’ conduct was outrageous. Lewis v. LeGrow, 258
Mich.App. 175, 196 (2003). For the same reasons discussed with regard to the
malicious prosecution claim, governmental immunity does not bar Plaintiff’s
intentional infliction of emotional distress claim. The Court denies the Motion to
Dismiss with respect to Count V.
D.

Gross Negligence - Count VI
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Under Michigan law, an employee of a governmental agency is immune from
a tort sounding in negligence if: (a) the governmental agency was discharging a
governmental function; (b) the employee was acting on behalf of the agency; (c) the
employee was acting (or believed he was acting) in the scope of his authority; and (d)
the employee’s “conduct does not amount to gross negligence that is the proximate
cause of the injury or damage.” M.C.L. § 691.1407(2); see also Odom, 760 N.W.2d
at 228 and Scott v. City of Port Huron, No. 15-11773, 2017 WL 877317, at *12 (E.D.
Mich. Mar. 6, 2017). Michigan’s governmental-immunity statute defines “gross
negligence” as “conduct so reckless as to demonstrate a substantial lack of concern
for whether an injury results.” M.C.L. § 691.1407(8).
In this case, Plaintiff has alleged that intentional wrongdoing by Defendants
Fechik and Kelso caused Plaintiff’s injuries. The Court concludes Plaintiff has
satisfied his burden of pleading that Defendants engaged in conduct that amounts to
gross negligence (as Plaintiff has alleged that they intentionally lied to create a basis
to detain him and search and confiscate his vehicle), and that their conduct was the
proximate cause of his injury and damages. The Court denies the Motion to Dismiss
Count VI.
E.

Monell Claim - Count VII

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A municipal defendant can only be subject to direct liability if it causes a
constitutional violation and harm to the plaintiff because it “implements or executes
a policy statement, ordinance, regulation or decision officially adopted and
promulgated by” that body’s officers. Monell v. New York City Dep’t of Social Servs.,
436 U.S. 658, 690 (1978).

“[I]t is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the government as an entity
is responsible under Section 1983.” Id. at 694. A plaintiff cannot allege a viable claim
based solely on vicarious liability or respondeat superior. Id. at 691.

The

municipality’s policy (or absence of one) must be a “moving force” in the deprivation
of the plaintiff’s constitutional rights and such policy must have arisen from
“deliberate indifference” to the rights of its citizens. Doe v. Claiborne Cty., Tenn., 103
F.3d 495, 508 (6th Cir. 1996).
In addition to policy or custom, the inadequacy of police training may serve as
a basis for Section 1983 liability where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact. Canton
v. Harris, 489 U.S. 378, 388 (1989). The question is “whether the training program
is adequate; and if it is not, the question becomes whether such inadequate training
can justifiably be said to represent ‘city policy.’” Id. at 390.
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Defendants argue that Plaintiff does not allege any wrongful conduct regarding
the traffic stop, brief detention, or vehicle impoundment. Defendants suggest that
Plaintiff alleges that the City is constitutionally liable because the City did not respond
to or resolve his formal written complaint after the incident. (Citing Complaint at ¶
90). Defendants contend that the allegations that the City has a policy or custom of
“inadequately and improperly investigat[ing] citizen complaints” are wrong and do
not give rise to Monell liability.
Plaintiff contends that his allegations are sufficient, specifically citing the
following language:
It could be inferred that it was the policy and/or custom of the CITY of
ANN ARBOR to inadequately and improperly investigate citizen
complaints of police misconduct, and these acts were instead tolerated
by the CITY OF ANN ARBOR, including, but not limited to Plaintiff’s
complaint concerning not receiving any meaningful correspondence
from the CITY OF ANN ARBOR after submitting a written complaint
directly to the CITY OF ANN ARBOR . . .
[Complaint at ¶ 94] The Court notes that Plaintiff also alleged that the “past act or
acts of the final policymaker [the City] were a direct and proximate cause of Plaintiff’s
damages and injuries complained of herein, by not effectively albeit [sic] ignoring
written complaint(s) made by Plaintiff and victims of police misconduct resulting in
Constitutional violations committed by officers of the CITY OF ANN ARBOR due

19

to unaccountability, which could tend to a culture of lawlessness within the Ann Arbor
Police Department.” Id. at ¶ 91 (emphasis added).
At the pleading stage of this case, the Court determines that Plaintiff has
sufficiently alleged a Monell claim and denies Defendants’ Motion to Dismiss Count
VII of the Complaint.
IV.

CONCLUSION
For the reasons stated above,
IT IS ORDERED that Defendants’ Motion to Dismiss [Dkt. No. 9] is DENIED.
IT IS ORDERED.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court

Dated: February 7, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 7, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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