Craft et al v. Billingslea et al

Filing 16

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' RENEWED MOTION TO DISMISS 8 , AND SETTING DEADLINE FOR ANSWER TO PLAINTIFFS' AMENDED COMPLAINT 7 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D’MARCO CRAFT AND MICHAELE
JACKSON,
Plaintiffs,

Case No. 17-cv-12752

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

RICHARD BILLINGSLEA, HAKEEM
PATTERSON, CITY OF DETROIT,
MANA YOSSIF, JOHN DOE
PONYTAIL, JOHN DOE PHONETAKER, AND ANTOINE HILL,
Defendants.
__________________________/

UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
RENEWED MOTION TO DISMISS [8], AND SETTING DEADLINE FOR ANSWER TO
PLAINTIFFS’ AMENDED COMPLAINT [7]
I.
Plaintiffs D’Marco Craft and Michaele Jackson filed an initial Complaint on
August 22, 2017, and amended their Complaint on September 28, 2017. Dkt. Nos.
1, 7. The Defendants in this action are the City of Detroit, Michigan and Detroit
police officers Richard Billingslea, Antoine Hill, Hakeem Patterson, Mana Yossif,
John Doe Ponytail, and John Doe Phone-Taker. Dkt. No. 7, pp. 2–3 (Pg. ID 55–56).
Plaintiffs assert fourteen causes of action against the Defendants, which are
as follows:

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• Use of excessive force against Jackson in violation of 42 U.S.C. § 1983
and the Fourth and Fourteenth Amendments (Count I);
• Unlawful arrest of both Plaintiffs on May 31, 2017 under 42 U.S.C. §
1983 and the Fourth and Fourteenth Amendments (Count II);
• Unlawful seizure of Craft’s cell phone under 42 U.S.C. § 1983 and the
Fourth and Fourteenth Amendments (Count III);
• Unlawful search of Craft’s cell phone under 42 U.S.C. § 1983 and the
Fourth and Fourteenth Amendments (Count IV);
• Unlawful prevention of Craft from exercising his First Amendment
right to record the police in a public place, under 42 U.S.C. § 1983 and
the First and Fourteenth Amendments (Count V);
• Conversion of Craft’s cell phone under Michigan Compiled Laws
600.2919a (Count VI);
• Assault and battery of both Plaintiffs under Michigan law (Count VII);
• Unlawful search and arrest of Craft on April 27, 2016, under 42 U.S.C.
§ 1983 and the Fourth and Fourteenth Amendments (Count VIII);
• Malicious prosecution of Craft regarding his April 27, 2016 arrest
(Count IX);
• Unlawful detention and search of Craft in June or July 2016, under 42
U.S.C. § 1983 and the Fourth and Fourteenth Amendments (Count X);
• Unlawful arrest of Craft in December 2016, under 42 U.S.C. § 1983
and the Fourth and Fourteenth Amendments (Count XI);
• Unlawful search and arrest of Craft on March 14, 2017, under 42 U.S.C.
§ 1983 and the Fourth and Fourteenth Amendments (Count XII);
• Malicious prosecution of Craft regarding his March 14, 2017 arrest
(Count XIII); and
• Violation of 42 U.S.C. § 1983 and the First, Fourth and Fourteenth
Amendments as against the City of Detroit (Count XIV).
Defendant City of Detroit and Defendants Billingslea and Patterson filed on
September 30, 2017 a Renewed Motion to Dismiss Plaintiffs’ Amended Complaint.
Dkt. No. 8. On October 23, 2017, Plaintiffs responded to the motion, and the
Defendants have not filed a reply to Plaintiffs’ response. See Dkt. No. 15.

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Presently before the Court is the Defendants’ Renewed Motion to Dismiss
Counts VIII, IX, XII and XIII of the Complaint [8]. Pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2), the Court has determined this motion without a
hearing. For the reasons that follow, the Court GRANTS IN PART and DENIES IN
PART Defendants’ Motion to Dismiss [8]. The Court GRANTS Defendants’ motion
on Counts IX and XIII, and DENIES Defendants’ motion on Counts VIII and XII.
II.
Plaintiffs are D’Marco Craft and Michaele Jackson. The issues relevant to the
present motion, however, only pertain to Plaintiff Craft. Defendants are the City of
Detroit, Michigan and several Detroit police officers. The Defendant police officers
relevant to this motion are Defendants Richard Billingslea, Hakeem Patterson, Mana
Yossif, and Antoine Hill.
Craft’s claims here relate to two incidents in which he was arrested by certain
Defendant police officers. First, around April 27, 2016, Plaintiff claims he was
standing in the driveway of a relative’s home when suddenly Defendants Billingslea,
Patterson, and Yossif detained him. Dkt. No. 7, p. 13 (Pg. ID 66). Craft asserts that
the officers physically assaulted him and “told [him] that he was inciting a riot.” Id.
As a result of this incident, Craft was charged with disorderly person and inciting a
riot. Id. at 14; see also Dkt. No. 15-2, p. 1 (Pg. ID 159).

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On June 6, 2016, Craft pled not guilty to these charges, and on June 27, 2016,
the charges were dismissed. Dkt. No. 7, p. 14 (Pg. ID 67). His case was dismissed
as no arresting police officer appeared at the trial. Id.
Craft was again arrested by Officers Billingslea and Patterson, and also
Officer Hill, around March 14, 2017. Id. at 15. This time, Craft had just entered his
vehicle—which was parked in front of his mother’s home—when the officers
instructed him to exit the car. Id. Without justification, according to Craft, the
officers put him in handcuffs and searched his car. Id. Although the officers did not
identify anything illegal on his person or in the vehicle, the officers arrested and
jailed Craft. Id. He was later charged with disorderly conduct. Id.
Based on a request and motion by a City prosecutor, the disorderly conduct
charge was dismissed voluntarily on April 21, 2017. Id.
III.
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to determine
whether a plaintiff has stated a claim upon which relief may be granted. See FED. R.
CIV. P. 12(b)(6). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and
plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). “[E]ven though the complaint need not contain
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‘detailed’ factual allegations, 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) (quoting Twombly, 550 U.S. at 555).
A 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. Twombly, 550 U.S. at 570. To survive a Rule
12(b)(6) motion to dismiss, a plaintiff’s pleading for relief must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Ass’n of Cleveland Fire Fighters, 502 F.3d at 548 (quoting Twombly,
550 U.S. at 553–54). “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft
v. Iqbal, 556 U.S. 662, 668 (2009). “Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Id. (alteration in original)
(internal citations and quotations omitted). Instead, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Id. (internal citations and quotations omitted). The plausibility standard
requires “more than a sheer possibility that a defendant has acted unlawfully.” Id.
“[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
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pleader is entitled to relief.” Id. (alteration in original) (internal citations and
quotations omitted).
IV.
Plaintiff Craft asserts claims of malicious prosecution under the Fourth
Amendment and 42 U.S.C. § 1983 based on arrests in April 2016 and March 2017.
The Court finds that Craft has not adequately alleged these claims, and thus, the
Court GRANTS Defendants’ Motion to Dismiss these claims, which are Counts IX
and XIII.
Craft also alleges that his April 2016 and March 2017 arrests violated his
rights under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments. The
Court DENIES Defendants’ Motion to Dismiss these claims, which are Counts VIII
and XII.
A.
The Court will first turn to Craft’s claims regarding malicious prosecution,
Counts IX and XIII. As the charges stemming from the April 2016 and March 2017
incidents were dismissed without prejudice, Craft asserts that he has properly pled
the elements of malicious prosecution. Dkt. No. 8-2, p. 4 (Pg. ID 95). The City
responds that a dismissal without prejudice is not success as defined by Heck v.
Humprey, 512 U.S. 477, 487 (1994), and therefore, Craft cannot adequately allege
his malicious prosecution claims. Instead, according to the City, the resolution of
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the charges must indicate that Craft is innocent, and this standard has not been met.
The Court agrees with the Defendant and finds that Craft has not adequately pled a
claim for malicious prosecution under Section 1983.
The Fourth Amendment authorizes malicious prosecution claims, and
malicious prosecution “ ‘encompasses wrongful investigation, prosecution,
conviction, and incarceration.’ ” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir.
2010) (quoting Barnes v. Wright, 449 F.3d 709, 715–16 (6th Cir. 2006)). Malicious
prosecution is not tantamount to false arrest; it addresses detention associated with
“wrongful institution of legal process.” Id. (quoting Wallace v. Kato, 549 U.S. 384,
390 (2007)). False arrest, on the other hand, remedies detention caused “by absence
of legal process.” Id. (quoting Wallace, 549 U.S. at 390).
A malicious prosecution claim under the Fourth Amendment and Section
1983 requires that a plaintiff sufficiently allege that:
(1) a criminal prosecution was initiated against the plaintiff, and the
defendant made influenced, or participated in the decision to prosecute;
(2) there was a lack of probable cause for the criminal prosecution; (3)
the plaintiff suffered a deprivation of liberty, as understood under
Fourth Amendment jurisprudence, apart from the initial seizure; and (4)
the criminal proceeding was resolved in the plaintiff’s favor.
Sanders v. Jones, 845 F.3d 721, 728 (6th Cir. 2017) (citing Sykes, 625 F.3d at 308–
09).

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1.
The City argues that Craft has not adequately alleged elements one and four.
First, according to the City, Craft has not plausibly alleged that Defendant police
officers “participated” in the decision to prosecute him because the Defendant police
officers had no involvement in the prosecution outside of arresting Craft. Dkt. No.
8-2, p. 5 (Pg. ID 96). The City acknowledges that in bringing charges against Craft
its prosecutors likely relied upon the Defendant officers’ arrest and incident reports.
Id. But as the prosecution was not continued, Defendants reason, Craft cannot
adequately allege participation. Id. The Court disagrees.
“ ‘To be liable for ‘participating’ in the decision to prosecute, the officer must
participate in a way that aids in the decision, as opposed to passively or neutrally
participating.’ ” Sanders, 845 F.3d at 728 (quoting Webb v. United States, 789 F.3d
647, 660 (6th Cir. 2015)).

That is, “[t]here must be ‘some element of

blameworthiness or culpability in the participation,’ as ‘truthful participation in the
prosecution decision is not actionable.’ ” Id. (quoting Johnson v. Moseley, 790 F.3d
649, 655 (6th Cir. 2015)).
For example, a police officer “participates” in a prosecutorial decision if he
(1) testifies falsely at a preliminary hearing and was the only person to testify,
meaning his false testimony was material; or (2) omits and misrepresents important

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facts in an incident report and request for an arrest warrant, which prosecutors then
rely upon to initiate criminal proceedings. See Sykes, 625 F.3d at 312–17.
Even if an officer does not discuss a case with a prosecutor, he may still
influence or participate in a criminal proceeding; for example, where the bases of a
criminal prosecution are his false representations in a warrant affidavit and false
testimony at a preliminary hearing, where he was the only testifying witness. Miller
v. Maddox, 866 F.3d 386, 390–91 (6th Cir. 2017).
Here, Craft has plausibly alleged that the Defendant police officers influenced
or participated in the prosecutorial decision to initiate criminal proceedings. He
pleads that Defendant police officers’ assertions were the sole basis of the
prosecutor’s decision to file charges, and the City does not assert that the prosecutor
considered any other evidence.
The City’s counter—that “Plaintiffs’ [sic] must establish that the word or [sic]
the officer was relied upon not only in charging Plaintiff with a crime, but also in
deciding to continue the prosecution”—misstates the law. Dkt. No. 8-2, p. 5 (Pg. ID
96). Craft is only required to adequately allege “that a criminal prosecution was
initiated against [him] and that [the Defendant police officers] made, influenced, or
participated in the prosecution decision.” Maddox, 866 F.3d at 390 (citing Sykes,
625 F.3d at 308). This, Craft has done. This case, then, is similar to Sykes and

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Maddox where officers’ representations formed the principal, if not sole, basis for
bring criminal charges.
Additionally, Craft alleges that the officers’ representations were false, which
again tracks the allegations in Sykes and Maddox. “[A]n officer will not be deemed
to have commenced a criminal proceeding against a person when the claim is
predicated on the mere fact that the officer turned over to the prosecution the
officer’s truthful materials.” Sykes, 625 F.3d at 314. Rather, Craft must allege that
the Defendant police officers “ ‘(1) stated a deliberate falsehood or showed reckless
disregard for the truth [in their incident reports] and (2) that the allegedly false or
omitted information was material to the [court’s] finding of probable cause.’ ” Id.
at 312 (quoting Gregory v. City of Louisville, 444 F.3d 725, 758 (6th Cir. 2006)).
Craft specifically alleges the necessary facts as he contends that the officers’ incident
reports for each encounter contained omissions and misrepresentations. See Dkt.
No. 15, p. 8 (Pg. ID 151).
Accordingly, Craft has plausibly alleged that the Defendant police officers
participated in the decision to prosecute him.
2.
Turning to the fourth element, the parties vigorously dispute whether the
prosecutions for Craft’s April 2016 and March 2017 arrests were resolved in Craft’s
favor. Both prosecutions were dismissed without prejudice: The 2016 prosecution
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because no police officer appeared at the judicial hearing, and the March 2017
charges by motion of a City prosecutor. Dkt. No. 7, pp. 14–15 (Pg. ID 67–68). In
support of their arguments, both parties cite Heck v. Humprey, 512 U.S. 477, 487
(1994). The Court finds persuasive, however, Defendants’ argument that a dismissal
without prejudice is not a favorable termination under Heck.
Heck establishes a general principle that where a plaintiff asserts a malicious
prosecution claim under Section 1983, “[a] district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Heck, 512 U.S. at 487. Heck also provides the rationale for the
favorable termination requirement, specifically that it:
avoids parallel litigation over the issues of probable cause and guilt . . .
and it precludes the possibility of the claimant [sic] succeeding in the
tort action after having been convicted in the underlying criminal
prosecution, in contravention of a strong judicial policy against the
creation of two conflicting resolutions arising out of the same or
identical transaction.
Id. at 484. (alteration in original) (internal citations and quotations omitted).
Purportedly applying Heck, Craft contends that the April 2016 and March
2017 charges were terminated in his favor because they did not end in a compromise
or settlement. Dkt. No. 15, pp. 11–12 (Pg. ID 154–55). This argument is unavailing.

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Craft cites no Sixth Circuit decision—and the Court has not identified one—
that establishes a dismissal without prejudice constitutes a favorable termination.
Conversely, Defendants’ argument that a dismissal without prejudice is not a
favorable termination finds ample support from persuasive authorities. In Mobley v.
City of Detroit, for instance, a court in this district dismissed plaintiffs’ malicious
prosecution claims under Section 1983 because the charges against plaintiffs were
dismissed voluntarily. 938 F. Supp. 2d 669, 687 (E.D. Mich. 2012). Likewise,
charges dropped after a hung jury (in favor of acquittal) did not constitute a favorable
termination, and thus, a court dismissed a plaintiff’s malicious prosecution claim.
Thornton v. City of Columbus, 171 F. Supp. 3d 702, 710 (S.D. Ohio 2016) (citing
Singleton v. City of New York, 632 F.2d 185, 193 (2d. Cir. 1980) (concluding that
“[p]roceedings are ‘terminated in favor of the accused’ only when their final
disposition is such as to indicate the accused is not guilty.”))).
As the charges against Craft were not terminated in his favor, his malicious
prosecution claims cannot survive Defendants’ motion to dismiss.
3.
Craft’s malicious prosecution claims also fail because he does not adequately
allege the second element, deprivation of liberty. Craft asserts that he suffered a
deprivation of liberty through his arrests as part of the April 2016 and March 2017
encounters with Defendant police officers.
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Yet Sykes requires that a plaintiff asserting a malicious prosecution claim
plead a deprivation of liberty “apart from the initial seizure.” Sykes, 625 F.3d at 309.
The Sixth Circuit has already rejected contentions similar to those presented by
Craft, for example, a plaintiff’s malicious prosecution claim where he “was never
arrested, incarcerated, or required to post anything other than a personal
recognizance bond.” Noonan v. Cty. of Oakland, 683 F. App’x 455, 462–63 (6th
Cir. 2017).
In addition, to the extent Craft argues that he suffered a deprivation of liberty
through appearances at court proceedings related to these charges, this argument too
fails. Id. (“Given that a summons to appear is even less a deprivation than an arrest,
it stands to reason that it too is insufficient to satisfy this third element of a Fourth
Amendment malicious-prosecution claim under § 1983.”). And, absent from the
Complaint are allegations that Craft was subject to pretrial restrictions. See Miller,
866 F.3d at 393 (noting “that imposing restrictions designed to compel court
appearance, ‘such as obligations to post bond, attend court hearings, and contact
pretrial services’ could constitute a seizure” (quoting Johnson v. City of Cincinnati,
310 F.3d 484, 493 (6th Cir. 2002))).
As Craft has not sufficiently pled his malicious prosecution claims, Counts IX
and XIII, the Court must dismiss these Counts.

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B.
Defendants—devoting just one line of their motion to dismiss—argue that
Counts VIII and XII for unlawful arrest and seizure under the Fourth and Fourteenth
Amendments and Section 1983 are subject to dismissal pursuant to Heck. This
argument is unpersuasive.
“A false arrest claim under federal law requires a plaintiff to prove that the
arresting officer lacked probable cause to arrest the plaintiff.” Jerome v. Crum, 695
F. App’x 935, 940 (6th Cir. 2017). The Complaint contains numerous, specific
allegations that Defendants lacked probable cause in arresting Plaintiff.

For

instance, that the Defendant police officers made false statements and
misrepresentations in their incident reports, and these incident reports were the sole
bases on which the prosecutor decided to press charges. Dkt. No. 15, p. 8–9 (Pg. ID
15–16).
The Court holds, then, that Craft has adequately alleged his unlawful arrest
claims, Counts VIII and XII.
V.
Based on the foregoing analysis, the Court GRANTS IN PART and DENIES
IN PART Defendants’ Motion to Dismiss. The Court GRANTS Defendants’ motion
on Counts IX and XIII, and DENIES Defendants’ motion on Counts VIII and XII.

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In addition, with respect to any claims not dismissed herein, the Court orders
the Defendants to file an Answer to Plaintiffs’ First Amended Complaint within
fourteen (14) days of this Opinion and Order.
IT IS SO ORDERED.
Dated: December 6, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 6, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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