Hency et al v. St. Clair County et al
Filing
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OPINION and ORDER Granting Defendant Keyes's 6 Motion to Dismiss; Granting in part and Denying in part Defendants' 5 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GINNIFER HENCY, et al.,
Plaintiffs,
v.
Case No. 2:17-cv-12040
HONORABLE STEPHEN J. MURPHY, III
ST. CLAIR COUNTY, et al.,
Defendants.
______________________________/
OPINION AND ORDER GRANTING DEFENDANT
KEYES'S MOTION TO DISMISS [6] AND GRANTING IN
PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [5]
The case arises from a failed marijuana prosecution by St. Clair County. Three of
the Plaintiffs were running what they thought were lawful medical marijuana enterprises.
St. Clair County disagreed, and raided the homes and business of the Plaintiffs. The
Plaintiffs' children were present for the raids, and the officers conducting the search
allegedly went too far in their destruction and seizure of property. The Plaintiffs running
the operation, and their children, brought suit against the county, a prosecutor, and the
officers involved.
Two motions to dismiss are now before the Court. Defendant Keyes seeks to
dismiss all counts against her on immunity grounds. The remaining Defendants' motion
seeks to dismiss only two counts: Count Five and Count Nine.1 The Court held a
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Count Five alleges assault and battery, and Count Nine seeks to bar Defendants from receiving
federal funds under 42 U.S.C. § 3751(b).
hearing on the motions. For the reasons below, the Court will grant Keyes's motion, and
partially grant the other Defendants' motion.
BACKGROUND
The St. Clair County Prosecutor's Office suspected illegal marijuana sales were
occurring at DNA Wellness, a "medical marijuana alternative wellness center" in
Kimball, MI owned by Dale and Annette Shattuck. To establish probable cause for a
search, the County used confidential informants, who posed as buyers and purchased
marijuana at the store. On July 27, 2014, the St. Clair County Drug Task Force (DTF)
used the informants' information to secure narcotics search warrants for three locations:
(1) the DNA Wellness Center; (2) the associated growing facility down the street, and
(3) the Shattucks' home in Port Huron. DTF executed the three search warrants the
next day.
At DNA, DTF took the Shattucks into custody and questioned them in the
backroom of the store. One of the officers then "removed his police markings and
assumed the role of an employee manning the reception desk." ECF 1, PgID 12. When
Ginnifer Hency arrived at the store, the officer struck up a conversation, during which
she explained that she was a medical marijuana caregiver. The officers searched
Hency's backpack, found six ounces of marijuana, and placed her under arrest. The
disguised officer also spoke with four other customers who came into the store and sold
marijuana to them. One of the other customers was arrested, while the other three had
their medical marijuana cards confiscated.
Following Hency's arrest, DTF sought a search warrant for her home. When DTF
arrived at the home, Mr. Hency was there with his children. They were allowed to leave
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before DTF searched the home. During the search, DTF seized a host of items,
including a car and personal effects. Hency's and her daughter's underwear were also
strewn about their respective rooms.
Around that time, DTF also searched the Shattucks' home, where children were
present. Here, however, DTF allegedly had more contact with the children before they
left. DTF seized a wide swath of items at the Shattuck home and left it damaged and in
disarray.
The St. Clair County prosecutor brought charges against the Shattucks and
Hency, but the circuit court dismissed the case on the grounds of entrapment by
estoppel. The instant suit followed.
STANDARD OF REVIEW
The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to
allege facts "sufficient 'to raise a right to relief above the speculative level,' and to 'state
a claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc., 579 F.3d
603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007)). The Court views the complaint in the light most favorable to the plaintiff,
presumes the truth of all well-pled factual assertions, and draws every reasonable
inference in favor of the non-moving party. Bassett v. Nat'l Collegiate Athletic Ass'n, 528
F.3d 426, 430 (6th Cir. 2008). If "a cause of action fails as a matter of law, regardless of
whether the plaintiff's factual allegations are true or not," then the Court must dismiss.
Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
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DISCUSSION
I.
Keyes's Motion to Dismiss All Counts (ECF 6)
Melissa Keyes is a St. Clair County Assistant Prosecuting Attorney. She did not
prosecute the criminal case against the Plaintiffs, but allegedly communicated with the
police, in advance of the raids, and made two statements: (1) she instructed the deputy
"not to perform an inspection" of the Wellness Center, ECF 1, PgID 11, ¶ 49, and (2)
she recommended that the police use confidential informants, posing as patients with
medical marijuana cards, to establish the probable cause necessary to secure a
narcotics search warrant, id. at ¶ 51. Other than these two paragraphs, Keyes is never
again mentioned in the Complaint. She moves to dismiss the counts against her as
failing to state a claim. She relies for authority on theories of sovereign and
prosecutorial immunity.
To the extent Keyes is sued for damages concerning actions she took in her role
as prosecutor, she is protected by both forms of immunity. The Eleventh Amendment
"bars § 1983 suits against a state, its agencies, and its officials sued in their official
capacities for damages," and, in Michigan, a prosecutor is a state agent when she
prosecutes state criminal charges. Cady v. Arenac Cty., 574 F.3d 334, 342–43 (6th Cir.
2009). If Keyes was functioning as a prosecutor, the damages claims against her in her
official capacity are barred. She is likewise protected in her personal capacity by
prosecutorial immunity because a prosecutor is entitled to absolute immunity when she
"acts as an advocate for the State and engages in activity that is intimately associated
with the judicial phase of the criminal process." Prince v. Hicks, 198 F.3d 607, 611 (6th
Cir. 1999) (quoting Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)) (quotation marks
omitted).
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But when a prosecutor performs functions unrelated to the preparation of a
prosecution or judicial proceedings, she is not entitled to absolute immunity. Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993). When a prosecutor who performs the work of a
detective or police officer—for instance, searching for the clues to give her probable
cause to recommend an arrest—she is entitled to "at most" qualified immunity. Prince,
198 F.3d at 611. Keyes's alleged recommendations concerning inspections and
confidential informants occurred before the existence of probable cause, so as for
liability arising from those statements, the most she is entitled to is qualified immunity.
The Supreme Court has encouraged courts to evaluate qualified immunity under
a two-step approach. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (noting that
although the protocol set forth in Saucier v. Katz, 533 U.S. 194 (2001) is not mandatory,
"it is often beneficial"). First, the Court decides whether the facts that a plaintiff has
alleged amount to a violation of a constitutional right, and second, the Court decides
"whether the right at issue was 'clearly established' at the time of defendant's alleged
misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009). "A defendant bears the
initial burden of putting forth facts that suggest that he was acting within the scope of his
discretionary authority" but ultimately, "the burden of proof is on the plaintiff to show that
the defendants are not entitled to qualified immunity." Stoudemire v. Michigan Dep't of
Corr., 705 F.3d 560, 568 (6th Cir. 2013) (internal citation and quotation marks omitted).
At the outset, some clarification of the alleged constitutional violations is
necessary. Defendants insist that there was no clearly established right "to an
inspection of [a] facility that was selling an illegal Schedule I drug" or "to be free from a
criminal investigation with the use of confidential informants," so even if Keyes made the
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alleged recommendations to the police, she cannot be liable. ECF 6, PgID 121. But
Plaintiffs do not argue that these actions, in and of themselves, violated the
Constitution. Rather, they proceed on a chain-of-causation theory: the raids and
prosecution violated Plaintiffs' rights and they would not have occurred had Keyes not
advised the police as she did. And under § 1983, an official can cause a constitutional
violation if she "sets in motion a series of events" that she knew or reasonably should
have known would cause others to deprive plaintiff of constitutional rights. Jenkins v.
Rock Hill Local Sch. Dist., 513 F.3d 580, 589–90 (6th Cir. 2008). The analysis,
therefore, must focus on the alleged violations that occurred subsequent to Keyes'
direct involvement, and her anticipation of those violations.
Plaintiffs allege that constitutional violations occurred at three points: (1) when
certain "Government officials . . . affirmatively assured the Plaintiffs that the[ir] conduct
was legal," thereby entrapping them by estoppel in violation of the 14th Amendment's
Due Process Clause, ECF 1, PgID 23; (2) when DTF "utilized unnecessary, unjustified,
unreasonable and excessive force" in violation of the Fourth Amendment, id. at 20; and
(3) when Defendants seized and retained property in the course of their searches,
thereby depriving Plaintiffs of their right "to a fair and impartial administration of justice
guaranteed by the Due Process Clause of the Fourteenth Amendment," id. at 29.
The latter two violations immediately fall by the wayside. Even taking every
allegation of the Complaint as true, there is nothing to suggest that Keyes knew or
reasonably could have known the manner by which DTF would conduct the raids or
what it would do with items seized. Plaintiffs are left to show that Keyes knew or
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reasonably could have known that government officials would pursue Plaintiffs through
entrapment by estoppel.
Again, the Complaint makes scant mention of Keyes. Concerning Keyes's
knowledge, the Complaint states only that Keyes knew the Shattucks had invited the
police to "do a walk through" of their facilities and that the police had informed the
Shattucks that "they had nothing to worry about" since a police deputy would be in
touch "if there were any issues." ECF 1, PgID 11. Concerning her actions, the
Complaint states only that she advised the police against doing an inspection and
recommended the use of confidential informants. The Complaint is otherwise silent on
what Keyes knew about investigations of Plaintiffs, much less that she knew or should
have known that a prosecution would follow. Moreover, entrapment by estoppel is not a
foregone conclusion even when a person is misadvised, for "when a citizen who should
know better unreasonably relies on the agent's erroneous statement, or when the
'statement' is not truly erroneous, but just vague or contradictory, the defense is not
applicable." People v. Woods, 241 Mich. App. 545, 548–49 (2000).
Plaintiffs have not alleged facts above the speculative level that support the claim
that Keyes, while acting in a non-prosecutorial capacity, knew or should have known
that government officials would violate Plaintiffs' clearly established constitutional rights.
She is therefore entitled to qualified immunity as to her alleged non-prosecutorial
actions.
That still leaves the claim for injunctive relief against Keyes in her official
capacity, because the Eleventh Amendment does not categorically bar such a claim.
See Papasan v. Allain, 478 U.S. 265, 278 (1986). But merely styling the claim as
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"injunctive" does not guarantee its actionability; the plaintiff must be seeking relief from
a continuing violation of federal law. Id. Although such actions may proceed "even
though accompanied by a substantial ancillary effect on the state treasury," an action is
barred when the relief sought "in essence serves to compensate a party injured in the
past by an action of a state official in his official capacity that was illegal under federal
law[.]" Id.
Plaintiffs claim they "are seeking to enjoin the prosecutor from participating with
federal agents in medical marijuana cases," ECF 9, PgID 177, and the Complaint
requests "[i]njunctive relief precluding the Defendants from engaging in the conduct
herein and [in] the future and requiring the County, the Sheriff's Department, and the
DTF to provide proper policy, training and supervision of its officers and to them
accountable for their misconduct," ECF 1, PgID 21. But Plaintiffs have not shown how
Keyes's actions violated federal law. See infra. Consequently, they have not shown why
or how enjoining Keyes would prevent the continuing violation of federal law.
Accordingly, all claims against her will be dismissed in their entirety.
II.
Defendants' Motion to Dismiss Counts Five and Nine (ECF 5)
The rest of the Defendants move to dismiss only two of the twelve counts. They
argue that the statute of limitations has run on the assault and battery claims in Count
Five and that the federal law asserted in Count Nine does not provide a private cause of
action. At the motion hearing, Plaintiffs agreed to voluntarily dismiss Count Nine in its
entirety, so the Court will consider here only Count Five.
The statute of limitations for assault and battery is two years. Mich. Comp. Laws
§ 600.5805(2). The alleged acts in the case occurred three years ago. Nevertheless,
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Plaintiff insists that the assault-and-battery count (Count Five) is not time-barred
because § 1983 actions are governed by the statute of limitations for personal injury,
which is three years. This argument falls flat as to Count Five, however, because that
count is merely a tort claim; it does not rely on § 1983.
Plaintiff's second argument is that the Plaintiff children's infancy tolled the statute
of limitations. The time to file the assault and battery counts would indeed be tolled by
infancy, but it is not instantly clear whether Plaintiffs have actually pled assault and
battery against the minor Plaintiffs. Count Five simply reads:
125. The Individual Defendants acted with the intent to cause harmful or
offensive contact to plaintiffs and acted with the intent to create
apprehension of some harmful or offensive contact with them.
126. Harmful or offensive contact with plaintiffs resulted.
127. As a result of the Individual Defendants outrageous conduct plaintiffs
have been directly and proximately harmed.
ECF 1, PgID 24. And the Complaint only references the children a few times:
¶ 62–63. "When the police arrived at the Hency residence Ginnifer
Hency's husband . . . was given the option of leaving with the children for
the next few hours, while the raid was performed, or being driven to the
police department to wait. Dean Hency decided to pile his children . . . into
his vehicle and ended up waiting with them at a nearby McDonalds. While
waiting at the McDonalds, [his daughter] . . . experienced complications
from a recent surgery involving a blood clot [and] suffered severe physical
and emotional trauma when blood began to seep out of her bandage in
the McDonalds restaurant."
¶ 72. "Upon entry, DTF came into contact with Lori Lee and the children,
and while armed and wearing ski masks, the officers kept the children
separated from their grandmother at gunpoint."
¶ 73. "DTF proceeded to lineup the five children on the couch with guns
drawn, all the while refusing to even remove their masks to help calm the
terrified children down, which included two three-year-old toddlers,
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refusing their requests to see their grandma. During the same time span
DTF threatened to kill the Shattuck[s's] pet dog."
Id. at 13–15. Defendants contend that these passages do not contain an "allegation that
there was any physical 'contact' between Defendants and any of the minor Plaintiffs."
ECF 10, PgID 221.
In Michigan, an assault is "any intentional unlawful offer of corporal injury to
another person by force, or force unlawfully directed toward the person of another,
under circumstances which create a well-founded apprehension of imminent contact,
coupled with the apparent present ability to accomplish the contact." Smith v. Stolberg,
231 Mich. App. 256, 260 (1998) (quoting Espinoza v. Thomas, 189 Mich. App. 110, 119
(1991)). A battery is "the wilful and harmful or offensive touching of another person
which results from an act intended to cause such contact." Id.
Legal conclusions, such as the occurrence of battery, can provide the complaint's
framework, but "they must be supported by factual allegations." Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Plaintiffs' singular reference to actual contact is paragraph 126,
which is a mere conclusory statement. All of the minor Plaintiffs' battery claims will be
dismissed.
The allegation of assault, on the other hand, is sufficiently pled by four of the
minor Plaintiffs. In the Complaint, Plaintiffs allege that the DTF officers ordered Keaton,
Talan, Gavin, and Kaley about at gunpoint, and threatened to kill their dog. ECF 1, PgID
15. A child faced with these circumstances would have a well-founded apprehension of
imminent contact and would reasonably perceive the officers' present ability to
accomplish the contact. The other minor Plaintiffs, however, have not pled particularized
facts, so their assault claims will be dismissed.
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The non-minor Plaintiffs' assault and battery claims will be dismissed because
the statute of limitations has run as to them.
ORDER
WHEREFORE, it is hereby ORDERED that Defendant Keyes's Motion to Dismiss
[6] is GRANTED.
IT IS FURTHER ORDERED that the other Defendants' Motion to Dismiss [5] is
GRANTED IN PART AND DENIED IN PART:
Count Nine is DISMISSED as to all Defendants.
The claims in Count Five of Ginnifer Hency, Dean Hency, Stephanie
Jones, Jason Jones, Lauren Jones, Mackenzie Jones, and Lori Lee in
their personal and representative capacities, and the claims of Dale and
Annette Shattuck in their personal capacities are DISMISSED.
All Plaintiffs' battery claims in Count Five are DISMISSED.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: December 12, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on December 12, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager
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