Bergeron et al v. Cole et al

Filing 22

ORDER GRANTING 11 Defendants' Motion to Dismiss and DENYING 10 Plaintiffs' Motion for Discovery. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL DWAYNE BERGERON, et al.,
Plaintiffs,
v.

Case No. 13-11771

ROBERT COLE, et al.,

HON. TERRENCE G. BERG
HON. PAUL J. KOMIVES

Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
AND DENYING PLAINTIFFS’ MOTION FOR DISCOVERY
Now before the Court is Defendants’ September 17, 2013 motion to
dismiss (Dkt. 11). Having reviewed the motion and the remainder of the
record, the Court finds that these documents adequately present the
issues now before the Court, and that oral argument would not aid the
decision. Accordingly, the Court will decide the motion without a
hearing. E.D. Mich. LR 7.1(f)(2).
Plaintiffs have also moved for discovery and disclosure. (Dkt. 10.)
For the reasons set forth below, the Defendants’ motion to dismiss
(Dkt. 11) is GRANTED, and Plaintiffs’ motion for discovery (Dkt. 10) is
DENIED as moot.

I.

BACKGROUND

On March 21, 2013, Plaintiffs filed their pro se complaint in
Michigan’s 7th Circuit Court, Genesee County, against Defendants, who
are all employees of Genesee County 911, Argentine Township, or the
Argentine Township Police Department. (Dkt. 1 at 8–17.) Plaintiffs
claim that Defendants violated (1) their right to equal protection of the
laws under “the Fourth and Fourteenth Amendments” to the United
States Constitution, and (2) Michigan Compiled Laws 764.15c and
776.22(1). (Dkt. 1 at 10.) All the claims appear to stem from one
incident in which the Defendants allegedly failed to adequately
investigate an incident of violence, specifically an assault in which “the
cable guy” allegedly punched Plaintiff Daniel Bergeron. (Dkt. 1 at 13.)
Defendants removed the case to this Court on April 19, 2013, under
28 U.S.C. §1441 and 28 U.S.C. §1331. (Dkt 1.)
On August 21, 2013, the parties agreed to dismiss Defendants
Fayling, Ferguson, and Seyfried, leaving only Defendants Allen and
Cole. (Dkt. 9.) Defendants Allen and Cole have now moved to dismiss
the complaint. (Dkt. 11.) Plaintiffs did not file a response to Defendants’
motion to dismiss.
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II.

LEGAL STANDARD

A Rule 12(c) motion tests whether a legally sufficient claim has been
pleaded, and provides for dismissal when a plaintiff fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(c); see
Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007). “To survive a
motion to dismiss, 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 Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a
plaintiff pleads factual content that permits a court to reasonably infer
that the defendant is liable for the alleged misconduct. Id. (citing
Twombly, 550 U.S. at 556). When assessing whether a plaintiff has set
forth a “plausible” claim, the district court must accept all of the
complaint’s factual allegations as true. See Ziegler v. IBP Hog Mkt.,
Inc., 249 F.3d 509, 512 (6th Cir. 2001). “Mere conclusions,” however,
“are not entitled to the assumption of truth. While legal conclusions can
provide the complaint’s framework, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 664. A plaintiff must provide “more than
labels and conclusions,” or “a formulaic recitation of the elements of a
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cause of action.” Twombly, 550 U.S. at 556. Therefore, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
In ruling on a motion to dismiss, the Court may consider the
complaint as well as (1) documents that are referenced in the plaintiff’s
complaint or that are central to plaintiff’s claims, (2) matters of which a
court may take judicial notice, and (3) documents that are a matter of
public record. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007); see also Greenberg v. Life Ins. Co. of Virginia, 177 F.3d
507, 514 (6th Cir. 1999) (finding that documents attached to a motion to
dismiss that are referred to in the complaint and central to the claim
are deemed part of the pleadings).
III.

ANALYSIS

Defendants have moved to dismiss the complaint, asserting both that
it fails to state a claim on its face and that their conduct is protected by
qualified immunity. (Dkt. 11 at 3–14.)
The Equal Protection Clause of the Fourteenth Amendment forbids a
state from denying “to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. “To state an equal
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protection claim, a plaintiff must adequately plead that the government
treated the plaintiff ‘disparately as compared to similarly situated
persons and that such disparate treatment either burdens a
fundamental right, targets a suspect class, or has no rational basis.’”
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th
Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter
Twp. of Shelby, Mich., 470 F.3d 286, 299 (6th Cir. 2006)).
When a defendant raises a defense of qualified immunity, the
plaintiff bears the burden of pleading facts that would be sufficient to
show that the defendant is not entitled to its protection. See Reilly v.
Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012). “Qualified immunity
shields federal and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at
the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Plaintiffs’ complaint plainly fails to state a claim upon which relief
can be granted. While the complaint invokes the Fourth Amendment to
the Constitution, there is no allegation of any fact that could possibly be
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a violation of that Amendment—there is no suggestion at all of an
unreasonable search or seizure. See U.S. Const. amend. XIV, § 1. As to
the Fourteenth Amendment, the factual allegations do not establish or
support an Equal Protection claim, most notably because there is no
allegation of disparate treatment—there is no suggestion whatsoever
that Plaintiffs have been treated any differently from other similarly
situated persons or that such disparate treatment either burdened a
fundamental right, targeted a suspect class, or lacked any rational
basis. As to the question of whether defendants are entitled to qualified
immunity, there is no need to address this issue because the complaint
does not adequately allege a constitutional violation.
Therefore, Count I must be dismissed for failure to state a claim
upon which relief can be granted. In the absence of any viable federal
claims, the Court declines to retain jurisdiction over the remaining
state claim, 28 U.S.C. § 1367(c), and Count II is therefore also
dismissed.1

1 Plaintiffs sent a letter to the Court on May 5, 2014, which the Clerk’s Office entered on the docket
as Document 19, informing the Court that the Court’s November 8, 2013 order requiring a response
from Defendants “has not been followed to the best of our knowledge, as we have not received a
response from either the honorable court nor the Defendants . . . .” (Dkt. 19.) The Court notes that
the Defendants responded to the November 8, 2013 order on November 12, 2013. (Dkt. 18.) The
Defendants’ response was filed with the Court and docketed. Defendants also attested that they
mailed a copy of the response to Plaintiffs. (Dkt. 18 at 4.)

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IV.

CONCLUSION

For the reasons set forth above, it is hereby ORDERED that the
Defendants’ motion to dismiss (Dkt. 11) is GRANTED and the
complaint is DISMISSED WITHOUT PREJUDICE. It is FURTHER
ORDERED that Plaintiffs’ motion for discovery (Dkt. 10) is DENIED as
moot.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: May 30, 2014
Certificate of Service
I hereby certify that this Order was served upon parties of record on
May 30, 2014, via the CM/ECF system and/or ordinary mail.
By: s/A. Chubb
Case Manager

Plaintiffs also submitted to the Court on May 5, 2014, an “addendum to the original complaint,”
which the Clerk’s Office entered on the docket as Document 20. (Dkt. 20.) This addendum is
untimely under the Federal Rules of Civil Procedure, but even if it were considered, it does not alter
the Court’s determination on the motion to dismiss.

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