Kelmendi v. Pacito et al
Filing
53
OPINION AND ORDER granting 47 defendants' Motion to Dismiss; denying 48 Motion for Sanctions. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN KELMENDI,
Plaintiff,
Case No. 17-12325
v.
HON. GEORGE CARAM STEEH
BETH WALSH, individually and in
her official capacity as a Detective
of the SHELBY TOWNSHIP POLICE
DEPARTMENT, and SHELBY
TOWNSHIP, jointly and severally,
Defendants.
_______________________________/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS (DOC. 47)
AND DENYING MOTION FOR SANCTIONS (DOC. 48)
Before the court are Defendants’ motions to dismiss and for
sanctions. Pursuant to L.R. 7.1(f)(2), the court finds that the resolution of
this matter will not be aided by oral argument.
BACKGROUND FACTS
Appearing pro se, Plaintiff John Kelmendi filed this action on July 17,
2017, and filed an amended complaint on October 17, 2017. Plaintiff
alleged claims of false arrest, malicious prosecution, and intentional
infliction of emotional distress. Counsel appeared on his behalf on January
29, 2018. The defendants moved to dismiss the complaint and for
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summary judgment, which was granted by the court on August 27, 2018.
The court dismissed the complaint as to Bruno Pacito, Steve Klein-Knecht,
Robert Sizemore, DTE Energy Company, and the Shelby Township Police
Department. Doc. 39. The court granted Plaintiff leave to amend his
complaint to state a claim under 42 U.S.C. § 1983 against Shelby
Township Police Officer Beth Walsh and Shelby Township. Id.
Plaintiff filed his second amended complaint on September 7, 2018.
Doc. 41. Plaintiff alleges that his claims arise under the Fourth Amendment
and § 1983. According to the complaint, Bruno Pacito and Steve KleinKnecht wanted to “get him” and falsely accused him of stealing the electric
meters attached to his residence. Pacito is the father of Plaintiff’s former
spouse, whom Plaintiff had recently divorced. See Doc. 41 at ¶¶ 11,13, 1516. Plaintiff contends that he did not steal the electric meters, which were
later found on the premises “in a patch of weeds.” Id. at ¶ 20.
Plaintiff alleges that Officer Walsh violated his constitutional rights
and that Shelby Township enabled the violation by failing to train or
discipline her. Id. at ¶¶ 28-30. The complaint contains one count, a § 1983
claim against Shelby Township for “reckless indifference to Plaintiff’s
clearly established constitutional rights.” Id.
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According to the police report, Officer Walsh was dispatched to
Pacito’s home, at his request, on June 4, 2014. Doc. 34-2. Pacito stated
that Kelmendi had recently been evicted from the home. Following the
eviction, Pacito discovered that the home had no electricity and observed
that the DTE electric meters were missing. Pacito told Walsh that he spoke
to his next-door neighbor, Klein-Knecht. Klein-Knecht’s home has a clear
view of the north side of Pacito’s home where the electric meters were
located. Pacito told Walsh that Klein-Knecht saw Kelmendi take the
meters.
Walsh attempted to confirm these details with Klein-Knecht on the
morning of June 4, but he was unavailable. Walsh left a business card at
Klein-Knecht’s home and stated her intent to follow up with him. She
directed an evidence technician to respond to the scene and take
photographs. Seven photographs appear in the police report.
Walsh called Kelmendi and left a voice message on June 4, 2014.
Kelmendi alleges that he attempted to return Walsh’s call, without success.
Doc. 41 at ¶ 15. Walsh also called DTE and spoke with corporate security
employee Robert Sizemore. Walsh’s notes indicate that Sizemore advised
that DTE would prosecute the missing electric meters. Later that
afternoon, Walsh was able to make contact with Klein-Knecht, who said
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that he was “reluctant to get involved,” but gave a witness statement.
Klein-Knecht said that he saw Kelmendi exit his vehicle with a pair of pliers,
pry the electrical meters off the side of the home, place them in his car, and
leave. Walsh’s report stated her intent to submit a warrant request for
larceny under $200.00.
A criminal complaint was filed against Kelmendi on June 18, 2014.
The case did not proceed to trial, but was resolved on July 17, 2015, when
Kelmendi paid restitution. Kelmendi maintains that he did not steal the
electric meters.
LAW AND ANALYSIS
I.
Standard of Review
Defendants seek dismissal of Plaintiff’s amended complaint pursuant
to Federal Rules of Civil Procedure 12(b)(6) and 56. A court confronted
with a motion to dismiss under Rule 12(b)(6) must construe the complaint
in favor of the plaintiff, accept the allegations of the complaint as true, and
determine whether the plaintiff's factual allegations present plausible
claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56 (2007).
“[N]aked assertions devoid of further factual enhancement” and
“unadorned, the-defendant-unlawfully-harmed-me accusation[s]” are
insufficient to “state a claim to relief that is plausible on its face.” Ashcroft
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v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain
“detailed” factual allegations, but its “factual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all
of the allegations in the complaint are true.” Ass’n of Cleveland Fire
Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).
A court may grant summary judgment pursuant to Rule 56 “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.” Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en
banc) (citing Fed. R. Civ. P. 56(c)). The standard for determining whether
summary judgment is appropriate is “‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Amway Distrib.
Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
Mere allegations or denials in the non-movant’s pleadings will not meet this
burden, nor will a mere scintilla of evidence supporting the non-moving
party. Anderson, 477 U.S. at 248, 252. There must instead be evidence
from which a jury could reasonably find for the non-movant. McLean v.
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988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000) (citing Anderson,
477 U.S. at 252). The evidence and all reasonable inferences must be
construed in the light most favorable to the non-moving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
II.
Claim against Walsh
The amended complaint is devoid of factual allegations of
wrongdoing against Walsh and does not set forth a legal claim against her.
At a status conference with the court on November 6, 2018, this deficiency
was addressed. The court permitted Plaintiff to amend his complaint by
November 20, 2018. Doc. 45. The court cautioned Plaintiff that “[f]urther
requests to amend will not be granted.” Id. Plaintiff did not file an
amended complaint.
In his response brief, Plaintiff argues that his complaint adequately
pleads that Walsh made materially false statements or omissions in
obtaining the arrest warrant. Doc. 49 at 8. Plaintiff contends that Walsh
did not answer his calls and conducted a “sham investigation,” thus
creating a misleading warrant application. Id. Contrary to Plaintiff’s
argument, the complaint contains no such allegations. See Doc. 41.
Rather, the complaint contends that Pacito and Klein-Knecht made false
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accusations, which were pursued by Walsh. Id. at ¶ 17. Although Plaintiff
states that Walsh violated his constitutional rights, he provides no factual
basis for these allegations in the complaint. Plaintiff’s bare allegations are
insufficient to survive a Rule 12(b)(6) motion.
To the extent Plaintiff again seeks to amend his complaint, leave is
denied. The court has permitted Plaintiff repeated opportunities to state a
viable constitutional claim. Moreover, it is clear that any attempt to amend
would be futile. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417,
420 (6th Cir. 2000) (“A proposed amendment is futile if the amendment
could not withstand a Rule 12(b)(6) motion to dismiss.”).
Based upon his response, Plaintiff appears to assert that he can state
a false arrest or malicious prosecution claim under the Fourth Amendment
against Walsh. Both claims require a showing that “there is no probable
cause to justify an arrest or a prosecution.” Voyticky v. Village of
Timberlake, Ohio, 412 F.3d 669, 675, 677 (6th Cir. 2005). “A police officer
violates a suspect’s clearly established right to freedom from malicious
prosecution under the Fourth Amendment ‘only when his deliberate or
reckless falsehoods result in arrest and prosecution without probable
cause.’” Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir. 2015) (citation
omitted). “[E]ven false testimony is not actionable as malicious prosecution
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unless deliberate—i.e., given with knowledge of, or reckless disregard for,
its falsity. ‘Allegations of negligence or innocent mistake are insufficient.’”
Id. (quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)).
Here, Plaintiff has not alleged that Walsh lacked probable cause to
seek a warrant against him. Nor has he alleged that Walsh made false
statements or intentional omissions that were material to a finding of
probable cause. See Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010).
These deficiencies are fatal to Plaintiff’s proposed false arrest and
malicious prosecution claims. See id. at 305, 310-11 (both false arrest and
malicious prosecution claims require showing of lack probable cause).
Further, it is undisputed that Walsh relied upon an eyewitness
statement as the basis for the warrant. “[A]n eye witness’ statement that he
or she saw a crime committed or was the victim of a crime is generally
sufficient to establish probable cause.” United States v. Shaw, 464 F.3d
615, 623 (6th Cir. 2006) (citation omitted). At most, Plaintiff alleges that
Walsh’s investigation was not sufficiently thorough, which does not rise to
the level of a constitutional violation. A failure “to conduct a proper
investigation . . . amounts to no more than a charge of negligence or
innocent mistake, not the sort of ‘deliberate or reckless falsehood’ or
otherwise blameworthy conduct required to make out a valid malicious
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prosecution claim.” Johnson, 790 F.3d at 656 (citation omitted). See also
Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (“Once probable cause
is established, an officer is under no duty to investigate further or to look for
additional evidence which may exculpate the accused.”). Accordingly,
Plaintiff’s claim against Walsh is dismissed.
III.
Claim against Shelby Township
Plaintiff also alleges a municipal liability claim against Shelby
Township. Doc. 41 at ¶¶ 28-32. A municipality may be liable for an
individual’s constitutional violation when a municipal policy or custom is the
moving force behind the violation. See Monell v. Dept. of Social Servs. of
the City of New York, 436 U.S. 658, 690 (1978). “For municipal liability to
exist, however, a constitutional violation must take place.” Voyticky, 412
F.3d at 679. Because Plaintiff has not properly alleged or supported a
constitutional claim against Walsh, his municipal liability claim against
Shelby Township must likewise be dismissed.
IV.
Sanctions
Defendants seek sanctions against Plaintiff and his attorney pursuant
to Rule 11, 28 U.S.C. § 1927, and 42 U.S.C. § 1988. Each provision
essentially requires the court to find that a party has unreasonably
presented a frivolous claim in order to impose sanctions. Rule 11 requires
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a party presenting a pleading to the court to certify that it is not being
presented for an improper purpose and that it is not frivolous. Fed. R. Civ.
P. 11(b). “Rule 11 sanctions are appropriate when the district court
determines that an attorney’s conduct is not ‘reasonable under the
circumstances.’” Tahfs v. Proctor, 316 F.3d 584, 594 (6th Cir. 2003).
An attorney “who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct” under 28 U.S.C. § 1927. See WilsonSimmons v. Lake Cty. Sheriff’s Dep’t, 207 F.3d 818, 824 (6th Cir. 2000)
(sanctions under § 1927 appropriate when attorney knows or reasonably
should know claim is frivolous).
Under § 1988, the court may award attorney’s fees to a prevailing
defendant. However, “[a]n award of attorney fees against a losing plaintiff
in a civil rights action is an extreme sanction, and must be limited to truly
egregious cases of misconduct. . . . A prevailing defendant should only
recover upon a finding by the district court that the plaintiff's action was
frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.” Tahfs, 316 F.3d at 596 (citation omitted).
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Although the court finds that Plaintiff did not adequately plead his
claims, the court does not find that Plaintiff’s claims are so frivolous or that
counsel’s conduct is so egregious as to warrant sanctions under Rule 11, §
1927, or § 1988. The court is mindful that Defendant’s motion was brought
in part pursuant to Rule 12(b)(6), and that “as a general proposition, a
district court should be hesitant to determine that a party’s complaint is in
violation of Rule 11(b) when the suit is dismissed pursuant to Rule 12(b)(6)
and there is nothing before the court, save the bare allegations of the
complaint.” Tahfs, 316 F.3d at 594; see also id. at 596 (“Much of what we
have said with regard to the Rule 11 basis for awarding fees as a sanction
applies here [to § 1988], although the criteria for the bases are not
identical.”). The court is not inclined to grant Defendants’ motion for
sanctions at this stage of the proceedings.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ motion to dismiss (Doc.
47) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ motion for sanctions
(Doc. 48) is DENIED.
Dated: May 30, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 30, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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