Plummer v. Detroit Police Department et al
OPINION AND ORDER Summarily Dismissing Complaint. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
LEROY PEE WEE PLUMMER,
CASE NO. 2:17-cv-10457
HONORABLE SEAN F. COX
DETROIT POLICE DEPARTMENT,
GENE’S TOWING, MICHIGAN DEPARTMENT
OF STATE, and 36TH DISTRICT COURT,
OPINION AND ORDER SUMMARILY DISMISSING THE COMPLAINT
This matter has come before the Court on plaintiff Leroy Pee Wee Plummer’s pro
se civil rights complaint under 42 U.S.C. § 1983.
Plaintiff is an inmate at the
Cumberland Federal Correctional Institution in Cumberland, Maryland. The defendants
are the Detroit (Michigan) Police Department, a Detroit towing company known as
Gene’s Towing, the Michigan Department of State in Lansing, Michigan, and the 36th
District Court in Detroit.
The complaint and exhibits allege that Plaintiff has been incarcerated since
November 10, 2012. On July 23, 2014, the Detroit Police Department took custody of
Plaintiff’s vehicle on Bedford Street in Detroit and then transferred custody of the vehicle
to Gene’s Towing. On August 14, 2014, the Michigan Department of State notified
Lawrence Kroh, who was the titled owner of the vehicle and the first secured party, that
the vehicle was taken into custody as an abandoned vehicle and that Kroh had twenty
days in which to redeem the vehicle by paying the fees and accrued charges to the
custodian of the vehicle, which was Gene’s Towing.
Plaintiff alleges that, when his wife and Kroh went to retrieve the vehicle, the
towing company no longer had custody of the vehicle, and the company would not
provide any information regarding the location of the vehicle. Plaintiff subsequently
received a collection notice for unpaid citations on his vehicle. He claims that no one
can tell him where his vehicle is, and without the vehicle, his wife has no transportation
to her appointments for the treatment of cancer. He seeks $2.5 million in damages.
II. Legal Framework
The Court recently granted Plaintiff’s application to proceed without prepayment
of the fees and costs for this action. Under the Prison Litigation Reform Act of 1996,
federal district courts must screen an indigent prisoner’s complaint and dismiss the
complaint if it is frivolous, malicious, fails to state a claim for which relief can be granted,
or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A; Flanory v. Bonn, 604 F.3d 249, 252 (6th Cir. 2010); Smith
v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001); see also Mattox v. Edelman, et al., __
F.3d __, __, No. 16-1412, 2017 WL 992510, at *3 n.3 (6th Cir. Mar. 15, 2017) (stating
that “28 U.S.C. § 1915(e)(2)(B)(ii) requires a district court to dismiss an [in forma
pauperis] complaint if at any point it determines that the complaint ‘fails to state a claim
on which relief may be granted’ ”).
A complaint is frivolous if it lacks an arguable basis in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). “A complaint is subject to dismissal for failure to
state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.”
Jones v. Bock, 549 U.S. 199, 215 (2007).
While a complaint “does not need detailed factual allegations,” the “[f]actual
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citations
omitted). In other words, “a complaint must contain sufficient factual matter, accepted
as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“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.” Id. (citing
Twombly, 550 U.S. at 556). Finally, to prevail on a claim under § 1983, a plaintiff must
prove two elements:
“(1) that he or she was deprived of a right secured by the
Constitution or laws of the United States; and (2) that the deprivation was caused by a
person acting under color of law.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir.
Plaintiff’s complaint is frivolous and fails to state a plausible claim for relief
because it does not allege any violation of federal law. Moreover, for the following
reasons, the defendants are not proper parties to this action.
A. The Michigan Department of State and the 36th District Court
Although the Michigan Department of State issued the abandoned-vehicle notice
regarding Plaintiff’s vehicle, the Eleventh Amendment bars suits against a state or one
of its agencies or departments unless the state has consented to suit. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “Eleventh Amendment immunity
‘bars all suits, whether for injunctive, declaratory or monetary relief, against the state
and its departments, by citizens of another state, foreigners or its own citizens.’ ”
McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012) (quoting Thiokol Corp. v.
Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993)).
“The state of Michigan . . . has not consented to being sued in civil rights actions
in the federal courts,” Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004),
and “Congress did not intend to abrogate the states’ Eleventh Amendment immunity by
passing section 1983.” Thiokol Corp., 987 F.2d at 383 (citing Quern v. Jordan, 440 U.S.
332 (1979)). Consequently, the Michigan Department of State is immune from suit.
The State also is not a “person” under § 1983, Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989), and the United States Court of Appeals for the Sixth
Circuit has held that a state court likewise is not a “person,” as that term is used in §
1983. Mumford v. Zieba, 4 F.3d 429, 435 (6th Cir. 1993). The State of Michigan and
the 36th District Court must be dismissed.
B. The Detroit Police Department
Municipal police departments also are not legal entities that may be sued under §
1983. Laise v. City of Utica, 970 F. Supp. 605, 608 (E.D. Mich. 1997) (citing Haverstick
Enterprises v. Financial Fed. Credit, 803 F. Supp. 1251 (E.D. Mich. 1992), and
Pierzynowski v. Police Dep’t City of Detroit, 941 F. Supp. 633, 637 n.4 (E.D. Mich.
1996)). Thus, the Detroit Police Department is not a proper defendant here.
Plaintiff’s claim fails even if the Court were to construe his pro se complaint
liberally, as it must,1 to name the City of Detroit as a defendant.
governing bodies . . . can be sued directly under § 1983,” the plaintiff must establish that
the action which is alleged to be unconstitutional “implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers.” Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658,
Stated differently, “a municipality is liable under § 1983 only if the challenged
conduct occurs pursuant to a municipality’s ‘official policy,’ such that the municipality’s
promulgation or adoption of the policy can be said to have ‘cause[d]’ one of its
employees to violate the plaintiff’s constitutional rights.” D’Ambrosio v. Marino, 747
F.3d 378, 386 (6th Cir. 2014) (citing Monell, 436 U.S. at 692). Local governments “are
not vicariously liable under § 1983 for their employees’ actions.” Connick v. Thompson,
563 U.S. 51, 60 (2011).
Plaintiff has not identified a municipal policy or legislative enactment. He also
has not alleged that some custom, policy, legislative enactment, or decision adopted
See Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting that the Supreme Court holds
the allegations of pro se complaints “to less stringent standards than formal pleadings
drafted by lawyers”); Luis v. Zang, 833 F.3d 619, 630 (6th Cir. 2016) (noting that the
three-judge panel was required to “liberally construe [the plaintiff’s] pro se complaint”);
Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (stating that “[p]ro se plaintiffs enjoy
the benefit of a liberal construction of their pleadings and filings”).
and promulgated by Detroit officials caused a municipal employee to violate his
constitutional rights. For this reason, the City of Detroit cannot be held liable.
C. Gene’s Towing
The remaining question is whether Gene’s Towing is a state actor subject to suit.
The towing company is a private party, and the conduct of private parties can be
considered state action only when the conduct is “fairly attributable to the state.” Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). In this circuit, there are
three tests for determining whether private conduct is fairly attributable to
the state: the public function test, the state compulsion test, and the
The public function test “requires that the private entity
exercise powers which are traditionally exclusively reserved
to the state . . . .” The typical examples are running
elections or eminent domain. The state compulsion test
requires proof that the state significantly encouraged or
somehow coerced the private party, either overtly or
covertly, to take a particular action so that the choice is really
that of the state.
Finally, the nexus test requires a
sufficiently close relationship (i.e. through state regulation or
contract) between the state and the private actor so that the
action may be attributed to the state.
Moldowan v. Warren, 578 F.3d 351, 399 (6th Cir. 2009) (quoting Ellison v. Garbarino,
48 F.3d 192, 195 (6th Cir. 1995)). The appropriate test here is the nexus text, but
[a] plaintiff must show more than joint activity with the state to prove that a
private party working for the government is a state actor. In particular,
she must demonstrate “pervasive entwinement” between the two entities
surpassing that of a mere contractual relationship. McCarthy v. Middle
Tenn. Elec. Membership Corp., 466 F.3d 399, 412 (6th Cir. 2006) (quoting
Brentwood Acad. [v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288,
298-302 (2001)]. Similarly, the Supreme Court has held that even “[a]cts
of . . . private contractors do not become acts of the government by
reason of their significant or even total engagement in performing public
contracts.” Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73
L.Ed.2d 418 (1982).
Partin v. Davis, __ F. App’x __, __ No. 16-5811, 2017 WL 128559, at *10 (6th Cir. Jan.
Gene’s Towing apparently had some kind of a relationship with the City of Detroit
or the State of Michigan, because it is listed on the State’s Notice of Abandoned Vehicle
as the custodian or location where the vehicle was being held. Compl., docket no. 1, Pg
ID 14. Nevertheless, the facts, as alleged in the complaint, indicate that the towing
company played no role in determining that Plaintiff’s vehicle was abandoned or in
deciding to seize Plaintiff’s vehicle.
Even if the police directed the company to tow Plaintiff’s vehicle to the company’s
storage facility, the company’s involvement falls short of demonstrating the kind of close
nexus with government officials that is necessary to expose it to § 1983 liability. Partin,
2017 WL 128559, at *10; cf. Smith v. Insley’s Inc., 499 F.3d 875, 880 (8th Cir. 2007)
(concluding that a private towing corporation “was a state actor when it initially towed
and stored the vehicle at the behest of the sheriff’s office as part of an official criminal
Here, as in Partin, Plaintiff has not demonstrated that the towing
company and the police or the State of Michigan were “pervasive[ly] entwin[ed]” with
each other, such that the towing company’s relationship with the police or the State
surpassed that of a mere contractual relationship and made it a state actor.
To summarize, Gene’s Towing is not a state actor, the Detroit Police Department
is not a legal entity that can be sued under § 1983, the 36th District Court is not a
“person” for purposes of § 1983, and the Michigan Department of State is immune from
suit. In addition, Plaintiff has not alleged that the defendants deprived him of a right
secured by the Constitution or laws of the United States. As such, Plaintiff’s complaint
is frivolous and fails to state a plausible claim for which relief may be granted. The
Court therefore summarily dismisses the complaint under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b). The Court also certifies that an appeal from this order would be frivolous
and could not be taken in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United
States, 369 U.S. 438, 445 (1962).
Dated: March 23, 2017
s/ Sean F. Cox
Sean F. Cox
United States District Judge
I hereby certify that on March 23, 2017, the document above was served on counsel of
record via electronic means and upon LeRoy Plummer via First Class Mail at the
Cumberland Federal Correctional Institution
P.O. Box 1000,
Cumberland, MD 21501-039
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