Ludi et al v. Maylone et al
Filing
9
OPINION and ORDER Granting Defendants' 2 Motion to Dismiss. Signed by District Judge Nancy G. Edmunds. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Musleh Ludi and Nargis Sultana,
Case No. 16-14410
Plaintiffs,
Honorable Nancy G. Edmunds
v.
Theresa Maylone and Jerome Wren.
Defendants.
/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [2]
This matter is before the Court on Defendants’ motion to dismiss. (Docket 2.) Plaintiffs
bring claims for violation of their civil rights pursuant to 42 U.S.C. section 1983, and the
Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs also
brought state law claims for common law and statutory conversion. This action was
removed from state court and the Court remanded Plaintiffs’ state law claims. (Dkt. 4.)
Plaintiffs filed a response to Defendant’s motion and Defendant filed a reply. (Dkts. 7, 8.)
In their response, Plaintiffs “abandoned” their procedural due process claims. (Pls.’ Resp.
10, dkt. 7.) Thus, the only issues remaining in the current motion are Plaintiffs’ Fourth
Amendment claim and Defendants’ claim of qualified immunity. The Court heard
Defendants’ motion on April 12, 2017.
I.
FACTS
The actions at issue in this case arose during the investigation of a store known as
Surma Grocery for alleged bridge card fraud in violation of the Supplemental Nutrition
Assistance Program (SNAP). (Compl. ¶ 11; Defs.’ Mot. Dismiss, Ex. A, dkt. 2-2.) Plaintiffs
Musleh Ludi and Nargis Sultana are a married couple. (Compl. ¶ 5.) Although neither
Plaintiff was ever involved in the operation of Surma Grocery and Plaintiff Musleh Ludi is
employed full time working for a hotel, Plaintiff Ludi’s brothers, Mukim Ludi and Mahtab
Ludi, were involved in the operation of the grocerystore. (Compl. ¶¶ 9, 10, 16.)
On September 23, 2014, the Michigan State Police executed a search warrant at
12237 Gallagher, Detroit, Michigan 48212 (the “Gallagher home”), in connection with the
investigation of Surma Grocery, Mukim Ludi and others involved in operating the grocery
store. (Compl. ¶¶ 6, 12.) The Gallagher home is owned by Plaintiff Musleh Ludi’s nephew
and at the time the warrant was executed, Plaintiffs were renting a portion of the Gallagher
home and resided there. (Compl. ¶¶ 6, 7.) Other relatives of Plaintiffs resided there as well,
including Mukim Ludi. (Compl. ¶¶ 8, 9.) Neither Plaintiff was the subject of the investigation
for which the search warrant was issued. (Compl. ¶ 17.)
Defendants Theresa Maylone and Jerome Wren are employed by the Michigan State
Police Department and were involved in executing the search warrant at the Gallagher
property. (Compl. ¶¶ 2, 12.) When the search took place, both Plaintiffs and Mukim Ludi
were present at the Gallagher home. (Compl. ¶ 13.) Plaintiffs allege that during the search,
Defendants wrongfully seized property belonging to Plaintiffs that was located in rooms that
“Defendants knew were rooms used/rented by Plaintiffs.” (Compl. ¶ 18.) This property
included currency of approximately $16,000 to $17,000, and other property owned by
Plaintiffs. (Compl. ¶¶ 18, 19.) Plaintiffs allege that despite their protests, Defendants have
not returned their property. (Compl. ¶ 20.)
Plaintiffs allege that at all relevant times, Defendants knew that Plaintiffs had never
been involved in any way with the operation of Surma Grocery. (Compl. ¶ 10.) Plaintiffs
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also allege that Defendants were advised by Plaintiff Ludi that certain rooms in the house
were used and occupied by Plaintiffs, and that Defendant Maylone interviewed Plaintiff Ludi
during the execution of the search warrant, and Plaintiff Ludi advised her that he had
nothing to do with Surma Grocery and was not affiliated with it in any way. (Compl. ¶¶ 14,
15.) Plaintiffs allege that during this search, “Defendants wrongfully seized property
belonging to the Plaintiffs located in rooms that the Defendants knew were rooms
used/rented by Plaintiffs (and so designated by the Defendants on their tabulation form),
specifically the rooms designated in the evidence tabulation sheet as rooms ‘B’ and ‘G.’”1
(Compl. ¶ 18.) Plaintiffs ultimately allege that “there was nothing in the search warrant or
warrants executed at the Gallagher property that authorized the Defendants to take
property belonging to the Plaintiffs, who were not mentioned in the search warrant and the
search warrant affidavits and were not the subject of the criminal investigation.” (Compl.
¶ 21.)
II. LEGAL STANDARD
Plaintiffs bring this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), alleging the
"failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The
Sixth Circuit noted that under the United States Supreme Court's heightened pleading
standard laid out in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009), “a complaint only survives a motion to dismiss if it contains sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
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At the hearing, Plaintiffs’ counsel confirmed that these were misidentified in at least
one place in the brief and/or complaint and that the rooms designated as Musleh Ludi’s
were “D” and “G”. (Pl.’s Br. in Opposition Ex. 2, dkt. 7-3.)
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Estate of Barney v. PNC Bank, Nat'l Ass’n, 714 F.3d 920, 924 (6th Cir. 2013) (internal
quotations and citations omitted). The court in Estate of Barney goes on to state that under
Iqbal, “[a] claim is plausible when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (internal quotations and citations omitted). Furthermore, while the "plausibility standard
is not akin to a ‘probability requirement,’ . . . it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Estate of
Barney, 714 F.3d at 924 (citing Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). If
the plaintiffs do "not nudge[ ] their claims across the line from conceivable to plausible, their
complaint must be dismissed." Twombly, 550 U.S. at 570. Finally, the Court must keep in
mind that “on a motion to dismiss, courts are not bound to accept as true a legal conclusion
couched as a factual allegation.” Id. at 555 (citation omitted).
“[D]ocuments attached to the pleadings become part of the pleadings and may be
considered on a motion to dismiss.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508
F.3d 327, 335 (6th Cir. 2007) (citing Fed.R.Civ.P. 10(c)). "A court may consider matters of
public record in deciding a motion to dismiss without converting the motion to one for
summary judgment.” Id. at 336. "In addition, when a document is referred to in the
pleadings and is integral to the claims, it may be considered without converting a motion
to dismiss into one for summary judgment." Id. at 335-36; see also Greenberg v. Life Ins.
Co. of Va., 177 F.3d 507, 514 (6th Cir.1999)(documents not attached to the pleadings may
still be considered part of the pleadings when the “document is referred to in the complaint
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and is central to the plaintiff's claim”) (internal quotation marks and citations omitted).
III.
ANALYSIS
A. Whether Plaintiffs’ Fourth Amendment Claim Fails As A Matter Of Law
Defendants argue that because the seizure of the currency was authorized by a valid
judicial warrant, Plaintiffs cannot claim a Fourth Amendment violation. Defendants point out
that Plaintiffs do not claim that the warrant was not supported by probable cause. Instead,
Plaintiffs appear to argue that the currency was not subject to seizure because Plaintiffs
were not a subject of the investigation or warrant, the Defendants knew the currency
belonged to Plaintiffs, and the currency was located in rooms Defendants knew were
“used/rented” by Plaintiffs. (Compl. ¶¶ 14, 15, 18, 19, 37, 40.)
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “In general, like seizures of the person, seizures of personal property
require probable cause.” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d
523, 543 (6th Cir. 2002). “In the ordinary case, the Court has viewed a seizure of personal
property as per se unreasonable within the meaning of the Fourth Amendment unless it is
accomplished pursuant to a judicial warrant issued upon probable cause and particularly
describing the items to be seized.” Id. (quoting United States v. Place, 462 U.S. 696, 701
(1983)).
Plaintiffs argue that the Fourth Amendment demands that a warrant specify which
portions of a building are to be searched and they rely on an Eastern District of New York
case to argue that “[i]f the officer knew, or should have known, that the building was a multi-
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occupancy structure, the warrant must specify which unit is to be searched.” United States
v. Wiggins, 298 F.R.D. 75, 79 (E.D.N.Y. 2014) (citing Maryland v. Garrison, 480 U.S. 79,
86 (1987)). Yet Plaintiffs’ claims do not contain allegations that the Defendants knew or
should have known about the multiple residents at the Gallagher home prior to the actual
execution of the search warrant.
As the Supreme Court explained in Maryland v. Garrison, “we must judge the
constitutionality of [the officers’] conduct in light of the information available to them at the
time they acted. Those items of evidence that emerge after the warrant is issued have no
bearing on whether or not a warrant was validly issued. . . . [T]he discovery of facts
demonstrating that a valid warrant was unnecessarily broad does not retroactively
invalidate the warrant.” Garrison, 480 U.S. at 85. The warrant at issue identifies both the
Gallagher residence and specifically identifies “[a]ny and all negotiable instruments
including EBT cards, food stamp coupons, United States Currency, money orders, travelers
cheques, bills of exchange, promissory notes and postal remittances.” among the property
to be searched for and seized. (Search Warrant, Defs.’ Mot. Ex. B, dkt. 2-3 (emphasis
added).) The Court finds that the warrant as issued was valid- indeed there is no claim that
the warrant was not valid when issued.
The issue then is “whether the warrant was overbroad because it authorized the
search of the entire premises” at 12237 Gallagher. See Mena v. City of Simi Valley, 226
F.3d 1031, 1036 (9th Cir. 2000) (emphasis in original). “[A] search does not become invalid
merely because some items not covered by a warrant are seized. Rather, an otherwise
valid search becomes an impermissible general search only where the searching officers
demonstrate a flagrant disregard for the limitations of a search warrant.” Marcilis v. Twp.
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of Redford, 693 F.3d 589, 602 (6th Cir. 2012). The Court in Garrison noted that “the validity
of the search of respondent’s apartment pursuant to a warrant authorizing the search of the
entire third floor depends on whether the officers’ failure to realize the overbreadth of the
warrant was objectively understandable and reasonable.” Garrison, 480 U.S. at 88.
Plaintiffs rely on several cases to argue that “[a]n officer must conduct a reasonable
inquiry to determine if a building is a multi-occupancy structure.” Wiggins, 298 F.R.D. at 8081 (Multiple inquiries demonstrated that multiple families were living at the address, and
a report “showing that the address was the probable current address of a family other than
the defendant’s, should have alerted the police to the fact that the house was a multioccupancy structure.”). In Wiggins, the court found that the “officers were or should have
been on notice that the building had multiple apartments,” the officers failed to “show
probable cause to search the entire house” or “specify that probable cause existed to
search defendant’s apartment in particular,” and ultimately held that the search warrant was
invalid. Id. at 81. Yet even Wiggins points out that “[i]ndicia of whether a building is single
or multi-resident includes visual surveillance, police records, public records, and utility
company records.” Wiggins, 298 F.R.D. at 78-79 (“Inside the hallway, [the officer]
encountered a locked door to his left, leading to the first floor apartment, and a locked door
in front of him, leading to the second floor apartment. These doors required a key of the
type normally used in New York City to obtain entry to a private apartment in a multi-family
residence.”); see also Garrison, 480 U.S. at 85 n.10 (“Arguments can certainly be made
that the police in this case should have been able to ascertain that there was more than
one apartment on the third floor of this building. It contained seven separate dwelling units
and it was surely possible that two of them might be on the third floor.”).
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The cases on which Plaintiff relies involved warrants for entire buildings, yet the
buildings were divided into separate apartment or dwelling units. Plaintiffs’ allegations do
not contain similar indicia to those of the cases on which they rely. Plaintiffs’ claims rely on
allegations (some conclusory) that Defendants knew or should have know that multiple
residents occupied the Gallagher house, such as:
That the Defendants were advised by Plaintiff Ludi that certain rooms in the
house were rooms used and occupied by the Plaintiffs and those rooms were
designated on the Evidence Tabulation Sheet as rooms B and G. (Compl. ¶
14.)
That, additionally, Defendant Maylone, during the execution of the search
warrant, interviewed Plaintiff Ludi, who advised her that he had nothing to do
with Surma Grocery; that he was not affiliated with that store in any way.
(Compl. ¶ 15.)
....
That during the search of the Gallagher home, the Defendants wrongfully
seized property belonging to the Plaintiffs located in rooms that the Defendants
knew were rooms used/rented by Plaintiffs (and so designated by the
Defendants on their tabulation form), specifically the rooms designated in the
evidence tabulation sheet as rooms “B” and “G”. (Compl. ¶ 18.)
That from those rooms of the Plaintiffs (“B” and “G”), the Defendants,
despite protests by the Plaintiffs, seized property belonging to the Plaintiffs,
including currency of approximately $16,000.00 to $17,000.00 and other
property owned by the Plaintiffs. (Compl. ¶ 19.)
....
That while acting under color of state law, the Defendants wrongfully seized
property owned by the Plaintiffs, knowing that they had no lawful right to take
or seize property owned by the Plaintiffs (neither of whom was mentioned in
the search warrant affidavit or search warrant). (Compl. ¶ 37.)
Plaintiffs are unable to provide case law similar to the specific facts here, and argue
that discovery is necessary. Yet Plaintiffs’ allegations lack the kind of indicia of multiple
residences that existed in the cases on which they rely to argue that the search was overly
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broad.
The parties have each submitted documents in support of their pleadings. Those
documents were referenced in the complaint and include hand drawn maps of the
Gallagher house, indicating rooms by letter, including “D” and “G”2 and indicating common
areas, such as bathroom, kitchen, and other areas identified by letter. Plaintiffs describe
the home as “a large living space accommodating several families” (Pls.’ Resp. 3, dkt. 7),
even mentioning in their brief that “although the Gallagher property was not set up as an
apartment building with separate mailboxes and entrances, it nevertheless was a multifamily building,” admitting that “some areas such as kitchens and bathrooms were shared,”
yet “areas of the home such as bedrooms were personal living space for individual
families.” (Pls.’ Resp. 7-8, dkt. 7.) Significant areas were used in common in the Gallagher
home- there is no allegation of locked doors, separate entrances or separate or multiple
kitchens, or any of the kinds of indicia of multiple-resident occupancy that was present in
the cases on which Plaintiffs rely. See e.g. U.S. v. Crumpton, 824 F.3d 593 (6th Cir. 2016)
(“The lack of indicia that the house included any separate living areas, along with the
suggestion that Crumpton [defendant] used the front and back areas of the house, renders
the government’s belief that the house was a single residence reasonable.”)
The Complaint and incorporated documents show the Gallagher home was occupied
in common, and aside from Plaintiffs’ statements that they used and/or occupied certain
rooms and that the currency seized therein belonged to them, there is no indicia of multiple
units that may have rendered the warrant or the search overbroad. See e.g., Mena, 226
2
As mentioned above, misidentified in areas of the Complaint and Plaintiff’s
response as either “B” and “G”, or “D” and “J”. (Compl. ¶¶ 14, 18, 19; Pls.’ Resp. 3.)
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F.3d at 1038 (quoting United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985) (“a
warrant is valid when it authorizes the search of a street address with several dwellings if
the defendants are in control of the whole premises, if the dwellings are occupied in
common, or if the entire property is suspect”)).
The Court will grant Defendants’ motion to dismiss on this issue. Yet even if the Court
were to deny Defendants’ motion on this basis, Plaintiffs have not alleged facts that would
show that Defendants are not entitled to qualified immunity.
B. Whether Defendant Is Entitled To Qualified Immunity
Defendants argue that they are entitled to qualified immunity and that Mena v. City of
Simi Valley, a case on which Plaintiffs rely, supports the application of qualified immunity
in this case. See generally Mena, 226 F.3d 1031. To defeat qualified immunity, Plaintiff
must show both that the official’s conduct violated a constitutional right and that the right
was clearly established. See Saucier v. Katz, 533 U.S. 194, 201 (2001). “The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Silberstein v. City of Dayton, 440 F.3d 306, 310 (6th Cir. 2006) (citing Saucier,
533 U.S. at 201). The two inquiries necessary for a qualified immunity analysis may be
tackled in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). The question of
qualified immunity should be resolved as early as possible in litigation. Id. at 232. Here, the
Court considers “whether the facts alleged show a violation of a clearly established
constitutional law . . . .” Silberstein, 440 F.3d at 310.
As set forth above, there are no allegations that the warrant was not valid when
issued. Plaintiffs’ argument then, includes an allegation that the warrant was overbroad. As
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the court noted in Mena, “Defendants reasonably could have believed, at the time the
warrant was issued that there was probable cause to search the entire premises.” Mena,
226 F.3d at 1037-38 (“[t]here is absolutely no evidence in the record sufficient to create a
genuine issue of material fact that either [officer] . . . knew or should have known prior to
the application for the warrant that the . . . residence was a multi-unit dwelling.”). The Mena
court held “as a matter of law that Defendants are entitled to qualified immunity with regard
to the claim that the search warrant for [that specific address] was overbroad,” and granted
summary judgment in favor of all the defendants. Id. at 1038. The Court finds that
Defendants are entitled to qualified immunity with regard to any claim that the search
warrant was overbroad. Finally, Plaintiffs’ allegations appear to encompass an allegation
that the search itself– the execution of the warrant– was overbroad because “Defendants
wrongfully seized property owned by the Plaintiffs, knowing that they had no lawful right to
take or seize property owned by the Plaintiffs (neither of whom was mentioned in the
search warrant affidavit or search warrant.)” (Compl. ¶ 37.)
Plaintiffs allege that at a point in the execution of the search, Plaintiff Ludi advised
Defendants that “certain rooms in the house were rooms used and occupied by the
Plaintiffs” and that during the search the Defendant seized property belonging to Plaintiffs
that was located in rooms that “Defendants knew were rooms used/rented by Plaintiffs.”
(Compl. ¶ 18.) Plaintiffs have not plead facts to defeat Defendants’ qualified immunity
claim. Plaintiffs have not plead facts from which a reasonable jury could determine that it
was unreasonable for Defendants to continue the search of the areas which were allegedly
in use and occupied by Plaintiffs. Plaintiffs admit that they have been able to find no case
law clearly on point with this set of facts.
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As set forth above, aside from Plaintiffs’ notification to the Defendants that one or
more of the rooms in the Gallagher home “were rooms used and occupied by the Plaintiffs,”
no indicia has been plead from which the officers were put on notice or should have known
that they were searching a multi-family residence or that their searches of rooms “D” and/or
“G”, and subsequent seizure of items identified on the search warrant from those rooms
was unreasonable. Despite the officers’ indication on the Evidence Tabulation Sheet that
the items marked with an asterisk indicate “Musleh Uddin Ludi Room” (Pls.’ Resp. Ex. 2,
dkt. 7-3), this was a response to Plaintiff Ludi advising Defendants “that certain rooms in
the house were rooms used and occupied by the Plaintiffs and those rooms were
designated on the Evidence Tabulation Sheet as rooms B (sic) and G.” (Compl. ¶ 14.)
Again, there is a dearth of allegations from which it may be concluded that this factual
situation is analogous to those cases cited by Plaintiffs, which involved multiple-unit
residences.
The Court cannot find that the officers violated a clearly established constitutional
right. Defendants are entitled to qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above the Court GRANTS Defendants’ motion to dismiss
(dkt. 2) as to Plaintiffs’ Fourth Amendment claim. The Court DISMISSES Plaintiffs’ Fourth
Amendment claims, the procedural due process claims, and Plaintiffs’ Complaint.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: April 25, 2017
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I hereby certify that a copy of the foregoing document was served upon counsel of record
on April 25, 2017, by electronic and/or ordinary mail.
s/Kelly Winslow for
Carol J. Bethel, Case Manager
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