Hinds v. Unknown Detroit Police Officers et al

Filing 9

OPINION AND ORDER of Summary Dismissal and Vacating 8 Order Directing Service by the U.S. Marshal. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CARL HINDS, Jr.,
Plaintiff,

Civil Action No. 2:18-CV-10356
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
UNKNOWN NAME POLICE
OFFICER et. al.,
Defendants.
/

OPINION AND ORDER OF SUMMARY DISMISSAL AND
ORDER VACATING THE ORDER DIRECTING SERVICE
The Court has before it Plaintiff Michael Carl Hinds’ pro se civil rights
complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate
currently confined at the Beaver County Jail in Aliquippa, Pennsylvania.
For the reasons that follow, the complaint is DISMISSED IN PART WITH
PREJUDICE for failing to state a claim upon which relief can be granted
and DISMISSED IN PART WITHOUT PREJUDICE for failure to comply
with a deficiency order.
II. Standard of Review
Plaintiff has been allowed to proceed without prepayment of fees.
See 28 § U.S.C. 1915(a); McGore v. Wrigglesworth, 114 F. 3d 601, 604

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(6th Cir. 1997). However, 28 U.S.C. § 1915(e)(2)(B) states:
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if
the court determines that:
(B) the action or appeal:
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is
immune from such relief.
A complaint is frivolous if it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v.
Hernandez, 504 U.S. 25, 32 (1992). A complaint lacks an arguable basis
in law or fact if it contains factual allegations that are “fantastic or
delusional” or if it is based on legal theories that are indisputably meritless.
See Brown v. Bargery, 207 F.3d 863, 866 (6th Cir.2000)(citing Neitzke, 490
U.S. at 327–28); See also Lawler v. Marshall, 898 F.2d 1196, 1198–99 (6th
Cir.1990). Sua sponte dismissal is appropriate if the complaint lacks an
arguable basis when filed. McGore, 114 F. 3d at 612; Goodell v. Anthony,
157 F. Supp. 2d 796, 799 (E.D. Mich. 2001).
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.
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544, 555 (2007)(footnote and citations omitted). Stated differently, “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).
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights
plaintiff must establish that: (1) the defendant acted under color of state
law; and (2) the offending conduct deprived the plaintiff of rights secured
by federal law. West v. Atkins, 487 U.S. 42, 48 (1988). “If a plaintiff fails to
make a showing on any essential element of a § 1983 claim, it must fail.”
Redding v. St. Eward, 241 F. 3d 530, 532 (6th Cir. 2001).
III. Complaint
Plaintiff sues the Detroit Police Department and a police officer whom
he has identified only as “Unknown Police Officer.” Plaintiff claims that on
November 23, 2017, this police officer arrested him on Ellsworth Street in
the City of Detroit. The officer moved plaintiff towards the back of his
police car and asked plaintiff “Where’s your money?” The officer said
something to the effect of “we could do this the easy way or the hard way.”
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Plaintiff claims that the officer then sexually assaulted him by undoing
plaintiff’s pants and putting his hand under plaintiff’s underwear and
grabbing plaintiff’s penis. Plaintiff requests monetary damages.
IV. Discussion
A.

The lawsuit must be dismissed against the Detroit Police
Department.

A police department is not a legal entity that can be sued as separate
defendant in a § 1983 civil rights action, because it is an agent of a city,
township or village. See Boykin v. Van Buren Twp., 479 F.3d 444, 450 (6th
Cir. 2007); See also Khaled v. Dearborn Heights Police Dep’t, 711 F.
App’x. 766, 772, n. 4 (6th Cir. 2017); Laise v. City of Utica, 970 F. Supp.
605, 608 (E.D. Mich. 1997); Pierzynowski v. Police Department City of
Detroit, 941 F. Supp. 633, 637, n. 4 (E.D. Mich. 1996). Plaintiff cannot
maintain an action against the Detroit Police Department.
Moreover, even if the lawsuit could be construed as being against the
City of Detroit, plaintiff would still be unable to maintain an action against
the city. A plaintiff who sues a city and its police department for
constitutional violations under 42 U.S.C. § 1983 must establish that a
government policy or custom caused the alleged injury. Sova v. City of
Mount Pleasant, 142 F. 3d 898, 904 (6th Cir. 1998)(citing Monnell v. Dept.

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of Social Services of the City of New York, 436 U.S. 658, 690-691(1978)).
A municipality can be liable under § 1983 only where its policies are the
“moving force” behind the constitutional violation. Monnell, 436 U.S. at 694.
Plaintiff’s complaint must be dismissed against the City of Detroit
because he has failed to allege any facts that show that the City of Detroit
maintains a policy or practice which encourages or allows its police officers
to sexually assault arrestees. A single incident of unconstitutional activity
does not establish an official policy or practice of a municipality sufficient to
render a municipality liable for damages under 42 U.S.C. § 1983. See City
of Oklahoma City v. Tuttle, 471 U.S. 808, 821(1985); Hooper v. City of
Detroit, 50 F. Supp. 2d 689, 691 (E.D. Mich. 1999); Sewell by Sewell v.
Van Buren Twp. Police Dept., 806 F. Supp. 1315, 1321 (E.D. Mich. 1992).
Because plaintiff has failed to allege any facts which would show that the
City of Detroit maintains a policy or custom of encouraging its police
officers to sexually assault persons arrested by that department, he has
failed to state a claim upon which relief can be granted against the City of
Detroit.
B. The lawsuit is dismissed without prejudice against the
Unknown Name Police Officer.
On February 8, 2018, Magistrate Judge R. Steven Whalen signed an

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order of deficiency, which required plaintiff to provide the names and the
addresses of the defendants whom he wished to sue within sixty days of
the date of the order or the complaint would be dismissed without prejudice
against these defendants. Plaintiff was specifically ordered to provide the
name of the defendant identified only as “Unknown Name Police Officer.”
To date, plaintiff has not complied with the Court’s order by providing this
information.
An inmate bringing a civil rights complaint must specifically identify
each defendant against whom relief is sought, and must give each
defendant notice of the action by serving upon him or her a summons and
copy of the complaint. Feliciano v. DuBois, 846 F. Supp. 1033, 1048 (D.
Mass. 1994). Where a plaintiff is proceeding in forma pauperis, the district
court must bear the responsibility for issuing the plaintiff’s process to a
United States Marshal’s Office, who must effect service upon the
defendants once the plaintiff has properly identified the defendants in the
complaint. Williams v. McLemore, 10 F. App’x. 241, 243 (6th Cir. 2001);
Byrd v. Stone, 94 F. 3d 217, 219 (6th Cir. 1996); Fed. R. Civ. P. 4(c)(2); 28
U.S.C. § 1915(d).
In the present case, the “Unknown Name Police Officer” defendant
has never been identified by plaintiff or served with process, thus, plaintiff’s
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civil rights action shall be dismissed without prejudice against this
defendant. See Awdish v. Pappas, 159 F. Supp. 2d 672, 673, n. 1 (E.D.
Mich. 2001); Johnson v. City of Ecorse, 137 F.Supp.2d 886, 892
(E.D.Mich. 2001); Taylor v. Foltz, 803 F. Supp. 1261, 1267 (E.D. Mich.
1992). Plaintiff is free to file a new complaint under a new case number
against this police officer if and when he discovers his identity.
IT IS HEREBY ORDERED that Plaintiff’s complaint is DISMISSED
WITH PREJUDICE against the Detroit Police Department.
IT IS FURTHER ORDERED that the complaint IS DISMISSED
WITHOUT PREJUDICE against defendant “Unknown Name Police
Officer.” The dismissal is without prejudice to plaintiff filing a new complaint
under a new case number with the proper information concerning this
defendant.
IT IS FURTHER ORDERED that the Order Directing Service (Doc. 8)
IS VACATED.
Dated: April 12, 2018
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
April 12, 2018, by electronic and/or ordinary mail and also on
Michael Hinds #17-02283, Beaver County Jail,
6000 Woodlawn Blvd., Aliquippa, PA 15001.
s/Marcia Beauchemin
Deputy Clerk

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