Schlussel v. City of Dearborn Heights et al
Filing
13
OPINION AND ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS 4 9 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEBORAH SCHLUSSEL
Plaintiff,
Case No. 17-cv-11546
v.
UNITED STATES DISTRICT COURT
JUDGE
GERSHWIN A. DRAIN
CITY OF DEARBORN HEIGHTS, ET AL.
Defendants.
______________ /
OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
[4][9]
I. INTRODUCTION
Presently before the Court is Defendant Gary T. Miotke’s Motion to
Dismiss and Defendants City of Dearborn Heights, Dearborn Heights Police
Department, Dan Paletko, and Lee Gavin’s Motion to Dismiss. All
Defendants seek to dismiss the nine counts that Plaintiff has filed against
them. For the reasons that follow, the Court will grant Defendant Miotke’s
and Defendants Paletko, Gavin, City of Dearborn Heights, and Dearborn
Heights Police Department’s Motions to Dismiss. Counts one, four, eight,
and nine are dismissed without prejudice. Counts two, three, five, six, and
seven are dismissed with prejudice.
1
II. FACTUAL BACKGROUND
This suit originates from a request by Plaintiff Deborah Schlussel for
booking photographs and videos that the Defendants denied. On June 8,
2015, The City of Dearborn Heights (“the City”) promulgated a “Policy
Regarding Booking Procedure for Females Wearing a Hijab, Burka, or Other
Religious Head Covering” (“Hijab Policy”). Dkt. No. 1-7, pg. 2 (Pg. ID 44).
The policy states that the City will not take booking photographs of women
who wear hijabs or burkas with their head coverings off. Id. at 2–3 (Pg. ID
44–45). If there are any identifying marks present, the officer taking the
photographs will photograph the identifying mark only. Id. On March 24,
2016, Plaintiff sent the Dearborn Heights Police Department a request for
information pursuant to the Michigan Freedom of Information Act (FOIA).
Dkt. No. 1, pg. 5 (Pg. ID 5). Plaintiff requested booking photos and videos
of an arrestee, Ms. Kazan, without her hijab on, which were taken before the
City enacted the Hijab Policy. See id. On April 22, 2016, Defendant Gary T.
Miotke wrote Plaintiff on behalf of the City of Dearborn Heights, granting in
part and denying in part the request, and charging Plaintiff twenty-four
dollars for the information. Pl.’s Ex. B. Miotke’s denial was pursuant to the
privacy exemption of the Michigan FOIA. Id. Plaintiff appealed the decision
to partially deny her request on October 16, 2016. Pl.’s Ex. E. In her appeal,
2
Plaintiff cited the November 14, 2014 request of Mr. Amir Makled, an Arab
Muslim male born in Lebanon, for booking photos and videos of the same
arrestee that was granted in its entirety for fifteen dollars. Id. The City of
Dearborn Heights made a final determination to deny her request on
November 16, 2016. Pl.’s Ex. F.
Plaintiff then filed a complaint against the City of Dearborn Heights,
et al., including Miotke, on May 15, 2017. See Dkt. No. 1. Plaintiff alleged
nine counts against all of the defendants. Count I alleges a violation of the
Michigan Freedom of Information Act by denying Schlussel access to all of
the booking photos she requested. Dkt. No. 1, pg. 9 (Pg. ID 9).Count I also
alleges that the Hijab Policy adopted by Defendants violates the Michigan
FOIA. Id. at 11 (Pg. ID 11). Count II is a 42 U.S.C. §1983 Equal Protection
claim alleging that Defendant denied her requests because of her gender,
Jewish ethnicity/religion, and United States national origin. Dkt. No. 1, pg.
13 (Pg. ID 13). Count III alleges a conspiracy by all of the Defendants to
deprive Plaintiff of her Equal Protection rights. Dkt. No. 1, pg. 15 (Pg. ID
15). Count IV alleges a violation of the Michigan Elliott-Larsen Civil Rights
Act, which states, “a person shall not deny an individual the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or
accommodation of a place of public accommodation or public service
3
because of religion, race, color, national origin, age, sex, or marital status.”
Dkt. No. 1, pg. 16 (Pg. ID 16). Count V alleges that Defendant violated the
Establishment Clause of the United States Constitution by denying her the
requested material and by adopting a policy exempting Muslim women from
FOIA laws. Dkt. No. 1, pg. 17 (Pg. ID 17). Count VI alleges Defendants
violated Plaintiff’s federal First Amendment rights of free speech and
freedom of the press. Dkt. No. 1, pg. 18 (Pg. ID 18). Count VII alleges that
Defendants violated Plaintiff’s federal Freedom of Religion rights by
denying her request for materials but granting the request to a party of the
Muslim faith. Dkt. No. 1, pg. 19–20 (Pg. ID 19–20). Counts VIII and IX
allege that Defendants violated the Equal Protection Clause of the Michigan
Constitution by denying Plaintiff’s request for materials. Dkt. No. 1, pg. 21–
24 (Pg. ID 21–24).
Defendant Miotke filed a motion to dismiss all nine counts against
him on July 17, 2017. See Dkt. No. 4. Plaintiff opposed the motion and
responded on August 7, 2017 conceding that Count I should be dismissed.
See Dkt. No. 6, pg. 5 (Pg. ID 106). Defendant replied on August 14, 2017.
See Dkt. No. 7. Defendants City of Dearborn Height, Dearborn Heights
Police Department, Dan Paletko, and Lee Gavin filed a motion to dismiss on
August 24, 2017. Dkt. No. 9. Plaintiff responded on September 14, 2017,
4
opposing the motion, but conceding that Count I should be dropped against
Paletko and Gavin, and Defendant Dearborn Heights Police Department
should be dismissed. Dkt. No. 11, pg. 4 (Pg. ID 175). Defendants replied on
September 20, 2017. Dkt. No. 12.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss.
The court must construe the complaint in favor of the plaintiff, accept the
allegations of the complaint as true, and determine whether plaintiff's factual
allegations present plausible claims. See Fed. R. Civ. P. 12(b)(6). To survive
a motion to dismiss, a complaint must “allege enough facts to make it
plausible that the defendant bears legal liability.” Agema v. City of Allegan,
826 F.3d 326, 331 (6th Cir. 2016). The facts need to make it more than
“merely possible that the defendant is liable; they must make it plausible.”
Id. “Bare assertions of legal liability absent some corresponding facts are
insufficient to state a claim.” Id. A claim will be dismissed “if the facts as
alleged are insufficient to make a valid claim or if the claim shows on its
face that relief is barred by an affirmative defense.” Riverview Health Inst.,
LLC v. Med. Mut. Of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
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IV. DISCUSSION
Federal Law Claims
Defendant Dearborn Heights Police Department
Michigan law states that a municipal police department is a “creature
of the municipality.” See Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc.,
32 F.3d 989, 992 n.1 (6th Cir. 1994). Therefore, a suit against a municipal
police department is a suit against the municipality itself. Plaintiff concedes
that Defendant Dearborn Heights Police Department is an improper
defendant. Dkt. No. 11, pg. 4 (Pg. ID 175). The Court dismisses all of the
federal claims against Defendant Dearborn Heights Police Department.
Count II
Count II is a 42. U.S.C. § 1983 claim that alleges Defendants denied
Plaintiff Equal Protection of the law under the United States Constitution
based on her gender as a woman, ethnicity/religion as Jewish, and
nationality as a United States national. Dkt. No. 1, pg. 13 (Pg. ID 13).
City of Dearborn Heights
“To prevail in a 42 U.S.C. § 1983 suit against a municipality, a
litigant must show a constitutional deprivation that was due to a municipal
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policy or custom.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir.
2016) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.
2005)). “To state a claim under the Equal Protection Clause, a § 1983
plaintiff must allege that a state actor intentionally discriminated against the
plaintiff because of membership in a protected class.” LRL Props. V.
Portage Metro Hous. Auth., 55 F.3d 1097, 1111 (6th Cir. 1995) (quoting
Henry v. Metro. Sewer Dist., 992 F.2d 332, 341 (6th Cir. 1990)). An Equal
Protection claim must also show that differential treatment resulted from
discriminatory intent. See Ryan v. City of Detroit, 174 F. Supp. 3d 964, 972
(E.D. Mich. 2016).
Here, Plaintiff’s complaint and attached exhibits fail to allege
sufficient facts that show Defendants had discriminatory intent. Plaintiff’s
complaint states several times that Defendants discriminated against her
based on her gender/sex, ethnicity/religion, and national origin, without
stating any facts that support discriminatory intent. In paragraph 51 of her
complaint, Plaintiff states that “Defendants, acting under color of law,
intentionally singled out and treated Plaintiff less favorably than a similarly
situated male Muslim of Arabic descent.” Dkt. No. 1, pg. 12 (Pg. ID 12). In
paragraph 57 of her complaint, Plaintiff states that “Defendants targeted
Plaintiff for discriminatory and arbitrary treatment on account of her
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sex/gender, religion, ethnicity, and national origin, thereby infringing on her
fundamental rights.” Dkt. No. 1, pg. 13 (Pg. ID 1). In paragraph 58 of her
complaint, Plaintiff states that “Defendants granted the FOIA rights . . .
when it granted a similarly situated male Muslim of Arabic descent . . . the
same FOIA materials it denied to Schlussel and manufactured a pretextual
‘right to privacy’ which does not exist, as an excuse to deny Schlussel the
FOIA materials.” Id. In paragraph 60 of her complaint, Plaintiff states,
“Defendants treated Schlussel differently than Mr. Makled, despite her
FOIA request being virtually identical to his, because unlike him, she is
female not male; Jewish not Arab and Muslim; and born in the United
States, not . . . Lebanon—thus, depriving her of her Constitutionally
protected rights to equal treatment and equal protection under the law.” Id. at
pg. 14 (Pg ID 14). In paragraph 61 of her complaint, Plaintiff states that
“Defendants’ FOIA policy and discriminatory FOIA responses to the same
requests for the same information discriminates against, violates, and
deprives Plaintiff and the class of similarly situated non-male, non-Muslim,
native-born Americans of equal privileges of obtaining information under
FOIA, based on their sex/gender, religious, ethnic, and national origin
statuses” Id. Besides these assertions, Plaintiff otherwise presents no facts to
plausibly show that Defendants intended to discriminate against Plaintiff
8
based on her protected identities. Plaintiff makes no claims of any
statements or conduct directed towards her by Defendants that would
suggest discriminatory intent. The exhibits Plaintiff attached to her
complaint do not make any statements that suggest discriminatory intent. See
Pl.’s Exs. B & F.
Plaintiff attempts to show intent by alleging disparate treatment
between her request and the request of Mr. Makled. To prove disparate
treatment, a movant must show that she was “treated different than those
similarly situated in all material respects.” Loesel v. City of Frankenmuth,
692 F. 3d 452, 462 (6th Cir. 2012). However, Plaintiff fails to show that she
was similarly situated to Mr. Makled. Mr. Makled was the Ms. Kazan’s
hired lawyer who represented her in her suit against the City. Dkt. No. 9, pg.
23 (Pg. ID 156). Plaintiff was a journalist with no connection to Ms. Kazan
at the time she made her request. Mr. Makled made his request to the City on
November 5, 2014. See Pl.’s Ex. C. Plaintiff made her request to the City on
March 24, 2016. See Pl.’s Ex. A. Plaintiff’s request came after the City had
enacted the Hijab Policy on June 8, 2015, and Mr. Makled’s request came
before the City enacted the Hijab Policy. Therefore, Plaintiff was not
similarly situated and there are plausible reasons besides discriminatory
intent—like the Hijab Policy and the privacy exemption of the Michigan
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FOIA—that the City partially denied Plaintiff’s request for information.
Further, this Court has previously noted that “the mere existence of disparate
treatment . . . does not furnish adequate basis for an inference that the
discrimination was impermissibly motivated.” Ryan v. City of Detroit, 174
F. Supp. 3d 964, 973 (E.D. Mich. 2016) (quoting Soto v. Flores, 103 F.3d
1056, 1067 (1st Cir. 1997)).
For the above reasons, the Court finds that Plaintiff’s Equal Protection
claim, Count II, fails against the City of Dearborn Heights because it does
not allege sufficient facts to support an inference of discriminatory intent.
Count II is therefore dismissed against the City.
Defendants Miotke, Paletko, and Gavin
For the reasons discussed above for the City of Dearborn Heights,
Plaintiff’s Count II is dismissed against Defendants Miotke, Paletko, and
Gavin. The Court finds that Plaintiff did not allege sufficient facts to support
a showing of discriminatory intent.
Count II is also dismissed against these individual defendants under
the doctrine of qualified immunity. There is a two-part test to determine if a
defendant is entitled to qualified immunity. Sumpter v. Wayne County, 868
F.3d 473, 480 (6th Cir. 2017). Courts ask “whether the facts alleged or
10
shown make out a violation of a constitutional right and whether the right at
issue was clearly established at the time of the incident.” Id. To be clearly
established, “the case law must dictate, that is, truly compel (not just suggest
or allow or raise a question about), the conclusion for every like-situated,
reasonable government agent that what defendant is doing violates federal
law in the circumstances.” Clemente v. Vaslo, 679 F.3d 482, 490 (6th Cir.
2012) (quoting Saylor v. Bd. Of Educ. Of Harlan Cty., 118 F.3d 507, 515 6th
Cir. 1997)).
Here, the Court finds that Plaintiff does not allege facts that make out
a violation of equal protection. As discussed above, Plaintiff’s complaint
does not sufficiently allege a violation of equal protection because Plaintiff
does not show Defendants acted with discriminatory intent. Nor does
Plaintiff show that she and Mr. Makled were similarly situated. Defendants
Miotke, Paletko, and Gavin also did not violate a clearly established right.
This suit stems from distinctive facts that implicate the Hijab Policy, which
is a policy unique to the City of Dearborn Heights. Case law does not
establish that the partial denial of Plaintiff’s FOIA request was clearly a
violation of Equal Protection. Case law has not yet addressed this specific
issue, so officials could not be on notice that their actions would violate the
Equal Protection Clause.
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In conclusion, Plaintiff has failed to allege sufficient facts against
Miotke, Paletko, and Gavin to establish there was a violation of Equal
Protection. These defendants are also immune from suit under the doctrine
of qualified immunity.
Count III
In Count III, Plaintiff alleges a Conspiracy to Deprive Equal
Protection Rights Guaranteed by the United States Constitution, in violation
of 42 U.S.C. § 1985(3). Dkt. No. 1, pg. 15 (Pg. ID 15). A plaintiff “cannot
succeed on a conspiracy claim [if] there was no underlying constitutional
violation that injured her.” Rapp v. Dutcher, 557 Fed. App’x 444, 450 (6th
Cir. 2014) (quoting Wiley v. Oberlin Police Dep’t, 330 Fed. App’x 524, 530
(6th Cir. 2009)). Because the Court finds that the Plaintiff does not have a
viable Equal Protection Claim, her Conspiracy to Deprive Equal Protection
claim must also fail. The Court dismisses Count III as to all Defendants.
Count V
Count V alleges that the Defendants violated the Establishment
Clause of the United States Constitution by denying in part Plaintiff’s FOIA
request for information and granting the same request to a party of the
Muslim faith. Dkt. No. 1, pg. 17 (Pg. ID 17). Plaintiff claims that granting
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Mr. Makled’s request established Islam as a favored religion. See id.
Plaintiff also alleges that the Hijab Policy violates the Establishment Clause
by favoring Islam over all other religions. See id.
To determine if government action violates the Establishment Clause,
the Sixth Circuit uses the Lemon test, endorsement analysis, and may also
consider history. Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 788 F.3d 580,
586–87 (6th Cir. 2015). Under the Lemon test, government action must have
a secular legislative purpose, its primary effect cannot be to advance or
inhibit religion, and it cannot foster an excessive entanglement with religion.
Id. Under the endorsement analysis, the court asks if the government’s
purpose is to endorse or disapprove of religion. Id. at 587. The endorsement
analysis is sometimes treated like a clarification of the Lemon test. Id. The
historical inquiry tends to validate government acts where it is shown that a
specific practice has been permitted throughout history. See id.
Hijab Policy
Under Count V, Plaintiff alleges the Hijab Policy violates the
Establishment Clause because it specifically exempts Muslim women from
the FOIA laws. Dkt. No. 1, pg. 17 (Pg. ID 17). As noted above, for this
claim to be valid, Plaintiff must allege sufficient facts to satisfy the Lemon
13
or endorsement test. Plaintiff’s complaint states, “[b]y making a policy
specifically exempting only Muslim women from the FOIA laws,
Defendants further violated the Establishment Clause by favoring one
religion over all others.” Id. This Court must determine if having a policy
specifically exempting Muslim women from booking photos sans head
coverings and/or FOIA requests of their photos without a head covering on
plausibly violates the Establishment Clause.
Primary Purpose
In determining the government’s primary purpose, the Sixth Circuit
typically gives deference to the government’s stated reasons for taking the
opposed action. ACLU v. McCreary Cty., 607 F.3d 439, 445 (6th Cir. 2010).
But the secular purpose must be genuine. Id. The Court takes an objective
approach when considering why the objectionable government action was
made. ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 430–35 (6th
Cir. 2011).
The Hijab Policy was created in order to comply with the Religious
Land Use and Institutionalized Persons Act. See Kazan v. City of Dearborn
Heights, et al., 15-cv-10250; Dkt. No. 9, pg. 14 (Pg. ID 147). Therefore, it
was not created to promote Islam, but to accommodate the Islamic practice
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of wearing a hijab or burka. Plaintiff has not alleged any other facts to
support her claim that Defendants instituted the Hijab Policy for the primary
purpose of promoting Islam.
Endorsement
The next prong of the Lemon test asks if the government action has
the purpose or effect of endorsing religion. ACLU v. Mercer Cty., 432 F.3d
624, 635 (6th Cir. 2005). Government action violates the Establishment
Clause if a reasonable person would view the action as an endorsement of
religion. Id. at 636. Courts within the Sixth Circuit have held prisons that
eliminated pork and chicken from their meals, even when the prisons
eliminated the meat after complaints by Muslim inmates, did not violate the
Establishment Clause. See Balcar v. Smith, No. 3:16-cv-P428-DJH, 2017
WL 380931, at *6 (W.D. Ky. 2017); Rivers v. Mohr, No. 1:12-CV-00027,
2012 WL 1155101, at *1–2 (N.D. Ohio 2012). The court in Balcar held that
several faiths prohibit the consumption of pork, so a reasonable person could
not conclude that the meal change was an endorsement of Islam. Balcar, No.
3:16-cv-P428-DJH, 2017 WL 380931, at *6. Additionally, the court said,
“the [state] has not become involved in the actual practice of a religion, nor
is there any indication that it intends to take on a more active role in
religious observations.” Id.
15
In this case, Plaintiff’s complaint states that the Hijab Policy
specifically excludes Muslim women from the FOIA laws. Dkt. No. 1, pg.
17 (Pg. ID 17). Plaintiff’s Exhibit G is a copy of the Hijab Policy, which
states that it applies to females of the Muslim faith only. See Dkt. No. 1-7,
pg. 2 (Pg. ID 44). It is clear that the Hijab Policy only applies to Muslims.
This is unlike the elimination of meat in the prisons, which the Balcar court
stated was not an endorsement of religion because other religions besides
Islam do not eat pork. However, although the Hijab Policy only applies to
Muslims, it cannot be said that the City has become involved in the actual
practice of Islam by adopting the Hijab Policy. Nor does the Hijab Policy
indicate that the City intends to take on a more active role in Islamic
religious observations. The City only implemented the policy in June of
2015 after a Muslim woman filed a lawsuit against the City. See Kazan v.
City of Dearborn Heights, et al., 15-cv-10250; Dkt. No. 9, pg. 14 (Pg. ID
147). An objective person would not conclude the Hijab Policy is an
endorsement of Islam. The City adopted the Hijab Policy in order to comply
with the Religious Land Use and Institutionalized Persons Act only after
someone filed a lawsuit.
16
Entanglement
Lastly, the Lemon test considers whether the government action
fosters an excessive entanglement with religion. Smith v. Jefferson Cty. Bd.
of Sch. Comm’rs, 788 F.3d 580, 586–87 (6th Cir. 2015). To determine if
there is excessive entanglement, the Sixth Circuit looks at the institution that
benefits from the action, the nature of what the state provides, and the
resulting relationship between the government and the religious authority.
Johnson v. Dev. Corp. of Cty. Of Oakland, 241 F.3d 501, 515 (6th Cir.
2001).
Here, the City’s Hijab Policy is not excessively entangled with the
Islamic faith. The City has not become involved in the actual practice of
Islam. There is nothing to suggest the City is going to take a more active role
in the Islamic religion. Plaintiff has not pled sufficient facts to show that the
Hijab Policy constitutes excessive entanglement with religion. Further, the
United States Supreme Court “has long recognized that the government may
. . . accommodate religious practices . . . without violating the Establishment
Clause.” Cutter v. Wilkinson, 544 U.S. 709, 713 (2005).
In conclusion, Plaintiff has failed to plead facts sufficient to satisfy
any of the prongs of the Lemon test or endorsement analysis. Therefore, her
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Count V claim that the Hijab Policy violates the Establishment Clause must
be dismissed against all Defendants.
In addition, Defendants Miotke, Paletko, and Gavin are immune from
suit under the doctrine of qualified immunity. The Court must ask “whether
the facts alleged or shown make out a violation of a constitutional right and
whether the right at issue was clearly established as the time of the incident.”
Id. To be clearly established, “the case law must dictate, that is, truly compel
(not just suggest or allow or raise a question about), the conclusion for every
like-situated, reasonable government agent that what defendant is doing
violates federal law in the circumstances.” Clemente v. Vaslo, 679 F.3d 482,
490 (6th Cir. 2012) (quoting Saylor v. Bd. Of Educ. Of Harlan Cty., 118
F.3d 507, 515 6th Cir. 1997)).
Here, the Court has found that Plaintiff did not allege facts sufficient
to show the Hijab Policy is a violation of the Establishment Clause. The
Hijab Policy also does not violate a clearly established right. There is no
case law that addresses the Hijab Policy’s constitutional validity. So case
law does not dictate that the Hijab Policy violates federal law. The Court
finds that the individual defendants are immune from suit for creating the
Hijab Policy under the doctrine of qualified immunity.
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Partial Denial of Schlussel’s FOIA Request
Applying the Lemon test, Plaintiff fails to allege sufficient facts to
support a plausible showing that granting Mr. Makled’s FOIA request and
denying in part her request constituted an establishment of religion. Plaintiff
alleges no facts that tend to show that the City’s acts had a religious purpose.
Plaintiff alleges no facts that tend to show that the primary effect of the
City’s actions was to advance the Muslim faith and/or inhibit the Jewish
faith. Plaintiff also alleges no facts to support a showing that granting Mr.
Makled’s request and denying in part her request fostered an excessive
entanglement with religion. Plaintiff only repeatedly states in her complaint
that Mr. Makled is a Muslim and that she is Jewish. In Count V of her
complaint, Plaintiff states that “Defendants were and are aware that
Schlussel is of the Jewish religion,” and that “[b]y denying Schlussel the
FOIA materials but granting them to a similarly situated party of another
religion (Muslim), Defendants violated Schlussel’s First Amendment Rights
because Defendants established a favored religion . . . .” Dkt. No. 1, pg. 17
(Pg. ID 17). The fact that Defendants knew Schlussel is Jewish is not enough
to establish a plausible Establishment Clause violation. The allegation that
Defendants violated Plaintiff’s rights because they established a favored
religion is a conclusory statement not supported by any other facts in the
19
complaint. Bare assertions of legal liability absent some corresponding facts
are insufficient to state a claim.” Agema v. City of Allegan, 826 F.3d 326,
331 (6th Cir. 2016). Additionally, under the endorsement test, there are no
facts that show Defendants were endorsing or disproving of religion by
partially denying Plaintiff’s request and granting Mr. Makled’s request.
In conclusion, Plaintiff’s allegation that Defendants’ partial denial of
her FOIA request constitutes an establishment of religion is dismissed
against all Defendants for failure to allege facts sufficient to support a
plausible claim.
The individual defendants are also immune from suit under qualified
immunity. The Court has found that the partial denial of Plaintiff’s FOIA
request did not violate a constitutional right, that is, the Establishment
Clause. Nor did the denial violate a clearly established right. There is no
case law that addresses the scenario of whether a partial denial of a FOIA
request violates the Establishment Clause where a city follows the Hijab
Policy. The Court finds that this claim must be dismissed against the
individual defendants under qualified immunity.
20
Count VI
Count VI alleges Defendants violated Plaintiff’s freedom of speech by
partially denying her FOIA request. Dkt. No. 1, pg. 19 (Pg. ID 19). “Free
speech claims require a three-step inquiry.” Bible Believers v. Wayne
County, Mich., 805 F.3d 228, 242 (6th Cir. 2015). First, the speech at issue
must be constitutionally protected speech; second, the court examines the
nature of the forum where the speech was made; and lastly, the court
assesses if the government’s action in shutting off the speech was legitimate.
See id.
Here, Plaintiff does not allege any facts that she engaged in
constitutionally protected speech. Plaintiff’s complaint states, “Defendants
were and are aware that Schlussel maintains a website and is a journalist
whose work frequently appears in the media.” Dkt. No. 1, pg. 19 (Pg. ID
19). However, Plaintiff does not allege specific facts about what type of
speech she was attempting to engage in. Plaintiff alleges no facts to suggest
her FOIA request was partially denied because of the speech she engaged in.
Plaintiff’s allegations in regards to this Count are conclusory and not
sufficiently pled. Therefore, the Court dismisses Count VI as to all
Defendants.
21
The individual defendants are also immune from suit under the
doctrine of qualified immunity. The Court must ask “whether the facts
alleged or shown make out a violation of a constitutional right and whether
the right at issue was clearly established as the time of the incident.” Id. To
be clearly established, “the case law must dictate, that is, truly compel (not
just suggest or allow or raise a question about), the conclusion for every
like-situated, reasonable government agent that what defendant is doing
violates federal law in the circumstances.” Clemente v. Vaslo, 679 F.3d 482,
490 (6th Cir. 2012) (quoting Saylor v. Bd. Of Educ. Of Harlan Cty., 118
F.3d 507, 515 6th Cir. 1997)).
Under this count, there was no violation of Plaintiff’s free speech
rights, as the Court discussed above. The right here was also not clearly
established. Case law does not address whether the specific type of FOIA
request Plaintiff made would violate free speech considering the Hijab
Policy. There is no way that Defendants would be put on notice that their
actions might violate free speech. Therefore, this count is also dismissed
against the individual defendants under qualified immunity.
22
Count VII
Count VII alleges that denying Schlussel the FOIA materials but
granting them to a similarly situated party of another religion, Islam,
violated Plaintiff’s First Amendment rights to worship as she desires and
qualify to receive FOIA documents. Dkt. No. 1, pg. 20, (Pg. ID 20).
Under the Free Exercise Clause of the United States Constitution, the
government cannot place a substantial burden on observation of a religious
belief or practice. Hernandez v. C.I.R., 490 U.S. 680, 699 (1989).
Here, Plaintiff’s complaint does not allege facts sufficient to find a
violation of the Free Exercise Clause. The complaint does not state what
type of substantial religious burden Plaintiff faced by being denied some of
the information she requested.
Additionally, this Court held above that there is no plausible Equal
Protection claim that Defendants denied Plaintiff’s request because of her
Jewish faith. Therefore, Plaintiff cannot plead facts sufficient to support a
claim that the denial of information inhibits her from practicing her religion.
This is because she cannot show that the partial denial of information was
because of her religious beliefs.
23
In conclusion, the Court dismisses this action against all Defendants
because Plaintiff has failed to plead sufficient facts.
Defendants Miotke, Paletko, and Gavin are also immune from suit
under qualified immunity. Here, the Court has found that Defendants’
actions did not violate the Free Exercise Clause. Defendants’ actions also
did not violate a clearly established right. It is not clearly established that the
partial denial of Plaintiff’s FOIA request was a violation of the Free
Exercise Clause. Therefore, this Court finds that this Count should also be
dismissed against the individual defendants because of qualified immunity.
In summary, the Court dismisses all of Plaintiff’s federal law claims
with prejudice. Plaintiff has failed to plead sufficient facts and the individual
defendants cannot be sued under the doctrine of qualified immunity.
State Law Claims
Counts I, IV, VIII and IX
Counts I, IV, VIII, and IX are all state law claims. Count I alleges that
Defendant City of Dearborn Heights violated the Michigan Freedom of
Information Act by denying her some of the information she requested.
Plaintiff also alleges that the Hijab Policy enacted by the City violates the
Michigan FOIA. Count IV alleges that the defendants violated the Michigan
24
Elliott-Larsen Civil Rights Act. Dkt. No. 1, pg. 15 (Pg. ID 15). Counts VIII
and IX allege violations of the Equal Protection Clause of the Michigan
Constitution. Dkt. No. 1, pg. 21–23 (Pg. ID 21–23). Defendants assert that
this Court should refuse to exercise supplemental jurisdiction over these
claims.
Pursuant to 28 U.S.C. § 1367, district courts may exercise
supplemental jurisdiction over state law claims. However, “supplemental
jurisdiction is discretionary, not mandatory.” Charvat v. NMP, LLC, 656
F.3d 440, 446 (6th Cir. 2011). A district court may decline to exercise
supplemental jurisdiction when:
(1) the claim raises a novel or complex issue of state law,
(2) the claim substantially predominates over the claim or claims
over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
28 U.S.C. § 1367(c); Hucul Advert., LLC v. Charter Twp. Of
Gaines, 748 F.3d 273, 281 (6th Cir. 2014).
This Court has previously refused to exercise supplemental jurisdiction over
Michigan FOIA claims. See Parsons v. Caruso, No. 07-13335, 2008 WL
700206, at *2 (E.D. Mich. 2008). Additionally, these claims raise the novel
issue of whether refusing to release booking photographs of Muslim women
25
sans head scarf violates the Michigan FOIA, Michigan Elliott-Larsen Civil
Rights Act, and the Michigan Constitution. These issues are matters of first
impression in the Michigan courts. Michigan courts are best suited to decide
these claims. Therefore, this Court refuses to exercise supplemental
jurisdiction over Plaintiff’s Counts I, IV, VIII, and IX. The Court dismisses
these counts without prejudice.
V. CONCLUSION
For the reasons discussed herein, the Court will grant Defendant
Miotke’s and Defendants Paletko, Gavin, City of Dearborn Heights, and
Dearborn Heights Police Department’s Motions to Dismiss. Counts one, four,
eight, and nine are dismissed without prejudice. Counts two, three, five, six,
and seven are dismissed with prejudice.
IT IS SO ORDERED.
/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICTJUDGE
Dated: October 11, 2017
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