Estate of Jonathan V. Manolios et al v. Wickersham et al

Filing 34

OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ESTATE OF JONATHAN MANOLIOS,
GEORGE MANOLIOS, and SUSAN MANOLIOS,
Plaintiffs,
Civil Case No. 17-12277
Honorable Linda V. Parker

v.

MACOMB COUNTY,
ANTHONY WICKERSHAM, DAVID KENNEDY,
JASON ABRO, RENEE YAX, and
DAVID CRABRTREE,
Defendants.
__________________________________________/
OPINION AND ORDER
Introduction
This matter is before the Court on motions for judgment on the pleadings
filed by Defendants, except Macomb County, pursuant to Federal Rule of Civil
Procedure 12(c). (ECF Nos. 13, 15, 21, 24, 25.) Plaintiffs filed responses to the
motions. (ECF Nos. 17, 19, 22, 28, 29.) No reply briefs were filed. On April 25,
2018, the Court held a hearing with respect to the pending motions. Thereafter,
Plaintiffs filed a supplemental brief regarding the issue of whether a defamation
claim survives the death of a minor, to which Defendants filed a response brief.
(ECF Nos. 32, 33.)

Background1
This lawsuit arises from Defendants’ investigation of a May 8, 2015
accident involving a 2008 Jaguar, in which three of the five occupants died. The
occupants were all teenaged boys. The accident occurred in Stoney Creek Metro
Park, where the driver lost control of the vehicle, causing the vehicle to leave the
roadway, flip, and land in a river. Four of the five occupants were ejected from the
vehicle, including Jonathan Manolios. Three of the ejected occupants (Jonathan
Manolios, Emmanual Malaj, and Michael Wells) were killed. One of the boys,
Gregory Bobchick, who was wearing a seat belt, was found alive inside the
vehicle. The two surviving boys, Bobchick and Joseph Narra, were transported to
the hospital.
All of the boys had consumed alcohol before the accident, with blood
alcohol levels recorded after the accident ranging from .024 and .086. Jonathan
Manolios had the lowest blood alcohol. However, because his name was
incorrectly placed on the vial of blood that tested at .086, his level was inaccurately
reported initially. Plaintiffs only obtained the documentation reflecting the correct
blood alcohol level for Manolios in late May 2017. (Compl. ¶ 45, ECF No. 1 at Pg
ID 17.) Marijuana also was detected in Bobchick’s system and a small amount of
benzodiazepine was found in Narra’s system.
Unless noted otherwise, the facts are gleaned from the allegations in Plaintiffs’
Complaint.
2

1

Plaintiffs are the estate and parents of Jonathan Manolios, one of the ejected
occupants who was killed. Defendants are Macomb County, Macomb County
Sheriff Anthony Wickersham, and Macomb County police officers Jason Abro,
David Kennedy, Renee Yax, and David Crabtree.
The Macomb County Sheriff’s Department concluded from their
investigation that Manolios was driving the Jaguar when it crashed. Sheriff
Wickersham identified Manolios as the driver during a press conference
concerning the accident. He also reported the incorrect blood alcohol level for
Manolios during this press conference. Plaintiffs allege that, as a result of this
misinformation, they were denied the benefits of a Prudential Life Insurance policy
which excludes from coverage death caused by the driving of a motor vehicle
while under the influence of liquor. (Id. ¶ 46, Pg ID 18.)
Coverage under the Prudential Life Insurance policy was the subject matter
of another federal lawsuit: Brosnan v. The Prudential Life Insurance Co. of Am.,
Civil Case No. 17-10364 (E.D. Mich. filed Feb. 3, 2017) (“the insurance dispute”).
In their Complaint in the present matter, Plaintiffs indicate that the insurance
dispute was dismissed without prejudice to allow Plaintiffs the opportunity to
present additional evidence to Prudential to prove that Jonathan Manolios was not
the driver of the vehicle. (Compl. at 18 n.6, ECF No. 1 at Pg ID 18.) At the
motion hearing, Plaintiffs’ counsel informed the Court that Prudential ultimately
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concluded that Jonathan was not the driver of the Jaguar when it crashed and
provided coverage under the life insurance policy.
Plaintiffs contend that Joseph Narra was driving the Jaguar when the
accident occurred. They assert that Defendants conspired to conceal this fact
because Defendant Abro is, “upon information and belief”, a family friend of the
Narra family. Plaintiffs allege that Defendants ignored evidence indicating that
Narra was the driver, tampered with evidence that would have helped identify the
driver, and refused to investigate the accident or turn the matter over to the
Michigan State Police to correctly identify the driver.
After the accident, Jonathan Manolios’ parents asked Defendants where their
son’s body was found in relation to the crash scene. According to Plaintiffs, they
sought this information because their religious beliefs required them to
memorialize the location. Plaintiffs allege that Defendant Kennedy initially
refused to provide this information, but then inaccurately identified the location
(identifying instead where Emmanual Malaj’s body was recovered).2

Although not properly considered in deciding a Rule 12(c) motion, Defendant
Kennedy asserts in his motion that the incorrect location was provided because
Jonathan Manolios’ father, Plaintiff George Manolios, identified the wrong body
as his son’s at the morgue. (See ECF No. 15 at Pg ID 164.) As a result, Kennedy
provided Jonathan’s parents with the location where Emmanual Malaj’s body was
found. (Id.) Apparently, this misidentification also resulted in Malaj’s body being
sent to the Manolios’ funeral home in lieu of Manolios’ body. (See ECF No. 19 at
Pg ID 242.) Plaintiffs contend that Defendant Kennedy’s assertion is false and that
Manolios’ mother “vehemently told Defendant Kennedy that the boy Kennedy
4
2

Plaintiffs do not allege any further actions by Kennedy, specifically, in their
Complaint. They do allege, however, that he and Sheriff Wickersham “were at all
relevant times supervisory personnel with (or acting for) oversight responsibility
for, and personal involvement in, the training, hiring, screening, instruction,
supervision, and discipline of individual law enforcement Defendants.” (Compl
¶ 78, ECF No. 1 at Pg ID 26.) The only specific conduct Plaintiffs allege
Wickersham engaged in is the press conference concerning the accident where
Jonathan Manolios was identified as the driver and his blood alcohol level was
incorrectly stated. (Id. at Pg ID 4-5.)
Aside from identifying him as a Macomb County police officer (see id. ¶ 4,
Pg ID 8), Plaintiffs refer specifically to Defendant Abro only four times in their
Complaint. First, they allege that because of his purported relationship with the
Narra family, “Abro inserted himself in this matter (even though the crash was not
in his bailiwick) so as to ensure that the actual driver of the automobile (Joseph
Narra) … was not prosecuted for the serious crimes that were committed that
evening.” (Id. ¶ 2, Pg ID 3.) Similarly, they allege that Abro appeared at the
hospital the night of the accident even though he was not on duty. (Id. ¶ 29, Pg ID
12.) According to Plaintiffs, that evening, Abro had Joseph Narra’s mother sign a

presented as Jonathan Manolios was not her son.” (Id. at Pg ID 244.) Plaintiffs
also state: “Despite this protestation, Defendant Kennedy signed the identification
notification form.” (Id.)
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Consent to Search form to allow the hospital to release Narra’s toxicology results
to the sheriff’s office, even though Narra had turned 18 years of age the day before
the release was signed. (Id. ¶ 2, Pg ID 3; see also Pg ID 4 at n.1) Finally,
Plaintiffs allege that Defendant Abro ordered the roof of the Jaguar cut-off, “[w]ith
no legitimate purpose other than to destroy the deployed air bags so that DNA
testing could not be performed ….” (Id. ¶ 33, Pg ID 14.)
With respect to Defendant Yax, aside from identifying his employment with
the Macomb County Sheriff’s Department (id. ¶ 7, Pg ID 9), Plaintiffs specifically
allege only that he and Defendant Crabtree failed to question two individuals who
last saw the occupants of the vehicle before the crash and that Yax withheld the
witnesses’ statements from the official case file and only turned them over in
October 2016 pursuant to a show cause order. (Id. ¶ 35, Pg ID 15.) According to
Plaintiffs, one of these witnesses described the driver as having a dark complexion
and dark hair and of Chaldean ancestry (like Narra). (Id.) Plaintiffs further allege
that the other witness described seeing “a very happy young man in the back seat
wearing a white shirt (Manolios was the only occupant with a white shirt).” (Id.)
The allegation concerning the failure to personally interview the two witnesses is
the only specific allegation Plaintiffs assert as to Crabtree, aside from referencing
his employment as a county police officer. (Id. ¶¶8, 35.)

6

Plaintiffs list fifteen counts in their Complaint alleging violations of their
constitutional rights under 42 U.S.C § 1983 and state law. Generally, Plaintiffs
state:
It is alleged that Defendants framed the Plaintiff’s [sic]
decedent for causing this tragic motor vehicle accident on May 8,
2015. Although declared to be so, the decedent was not the driver of
the vehicle. Defendants acted with gross negligent conduct toward
Plaintiff [sic], and/or violated their rights under United States law,
Michigan statutory law and common law. It is further alleged that
these Defendants, while acting under color of law and in the scope of
their employment as police officers, deprived Plaintiff [sic] of the
right to be free from malicious prosecution, deprived Plaintiff [sic] of
their right to due process, deprived Plaintiff [sic] of their right to trial,
deprived Plaintiff [sic] of their right to free speech and religious
practices as well as depriving Plaintiff [sic] of their access to Court;
all of which thereby violates their Constitutional rights.
(Compl. ¶ 2, ECF No. 1 at Pg ID 7.) Plaintiffs label the counts of their Complaint
as follows:
(I) Violations of procedural and substantive due process under 42
U.S.C. § 1983 against all individual defendants;
(II) Violation of equal protection of laws of the Fourteenth
Amendment;
(III)3 Failure to intervene under 42 U.S.C. § 1983;
(IV) Claim for supervisory liability against named supervisors under
42 U.S.C. § 1983;
(V) Conspiracy to deprive plaintiffs of constitutional rights under 42
U.S.C. § 1983;

3

This count is mislabeled as a second “Count II”.
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(VI) Claims against Macomb County for unconstitutional policies/
customs/practices, and/or failure to act/train under 42 U.S.C. § 1983;
(VII) Violation of Plaintiffs’ access to court under the First, Sixth, and
Fourteenth Amendment[s];
(VIII) False light--invasion of privacy violation of constitutional right
of privacy;
(IX) Violation of Plaintiffs’ First Amendment right to practice their
religion;
(X) Defamation/Defamation per se;
(XI) Neglect of Duty-Defendant Wickersham;
(XII) Intentional, reckless, or negligent infliction of emotional distress
against all individual defendants;
(XIII) Civil conspiracy under Michigan common law;
(XIV) Abuse of process under Michigan common law; and
(XV) Negligence/gross negligence/recklessness against all individual
defendants.
(ECF No. 1, capitalization removed.)
Defendants’ Motions to Dismiss & Plaintiffs’ Responses
In each of their Rule 12(c) motions, Defendants raise many of the same
arguments. First, Defendants point out that the allegations in Plaintiffs’ Complaint
concerning each individual defendant’s involvement in any conduct is limited and
that Plaintiffs instead refer improperly to “Defendants” generically to set forth the
basis for their claims. Second, Defendants assert that qualified immunity shields
8

them from liability for the claims asserted against them. Third, to the extent they
are sued in their official capacities, Defendants argue that they are the alter-ego of
Defendant Macomb County and thus the claims are duplicitous. Finally, to the
extent Plaintiffs’ Complaint pleads any particularized factual basis to assert a claim
against them, Defendants argue that those claims fail to state a claim upon which
relief may be granted.
In response, Plaintiffs first argue that Defendants’ motions are untimely
because they were filed after Defendants filed Answers to the Complaint.
Plaintiffs next argue—presumably to excuse their failure to allege each
individual’s actions causing the alleged constitutional violations—that each of the
defendants was part of a conspiracy to deprive Plaintiffs of their constitutionally
protected rights. Plaintiffs argue that the Court must look at the Complaint in its
totality and that the individual defendants would have “specific involvement or
culpability in this actions” for the averments relating generally to “Defendants”.
(See, e.g., ECF No. 17 at Pg ID 200.) Plaintiffs contend that their official capacity
claims remain viable against the individual defendants as supervisors or official
policymakers. Lastly, Plaintiffs assert arguments for why the claims attacked by
Defendants have merit.

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Standard of Review
A Rule 12(c) motion for judgment on the pleadings is subject to the same
standards of review as a Rule 12(b)(6) motion to dismiss for failure to state a claim
upon which relief can be granted. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.
1998). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of
the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134
(6th Cir. 1996).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, a complaint need not contain “detailed
factual allegations,” but it must contain more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action . . .” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007). A complaint does
not “suffice if it tenders ‘naked assertions’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 , 129 S. Ct. 1937, 1949
(2009) (quoting Twombly, 550 U.S. at 557, 127 S. Ct at 1966).
As the Supreme Court provided in Iqbal and Twombly, “[t]o 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.’” Id. (quoting Twombly,
550 U.S. at 570, 127 S. Ct. at 1974). “A claim has facial plausibility when the
10

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, 127 S. Ct. at 1965). The plausibility standard “does not
impose a probability requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of illegal
[conduct].” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.
In deciding whether the plaintiff has set forth a “plausible” claim, the court
must accept the factual allegations in the complaint as true. Id.; see also Erickson
v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007). This presumption,
however, is not applicable to legal conclusions. Iqbal, 556 U.S. at 668, 129 S. Ct.
at 1949. Therefore, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Twombly,
550 U.S. at 555, 127 S. Ct. at 1965-66). Although a court ruling on a Rule
12(b)(6) motion “primarily considers the allegations in the complaint,” matters of
public record, orders, items appearing in the record of the case, and exhibits
attached to the complaint may also be considered. Amini v. Oberlin Coll., 259 F.3d
493, 502 (6th Cir. 2001) (citation omitted).
Timeliness of Defendants’ Motions
Contrary to Plaintiffs’ argument, Defendants’ motions to dismiss are timely
filed as they are not brought pursuant to Federal Rule of Civil Procedure 12(b)(6).
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Instead, Defendants expressly cite Rule 12(c). Rule 12(c) motions may be filed
“[a]fter the pleadings are closed ….” Fed. R. Civ. P. 12(c). As such, the motions
did not need to be filed before a responsive pleading.
Constitutional Violations
To establish personal liability under § 1983, the plaintiff must show that
each defendant charged “caused the deprivation of a federal right.” Kentucky v.
Graham, 473 U.S. 159, 166 (1985). Stated differently, “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.” Iqbal, 556 U.S. at 676; Copeland v. Machulis, 57
F.3d 476, 481 (6th Cir. 1995) (personal involvement by the defendant is an
essential element in a § 1983 cause of action asserting a constitutional deprivation).
Plaintiffs attempt to avoid this requirement by asserting that Defendants
were engaged in a conspiracy to violate their constitutional rights. A conspiracy
claim, however, “must be pled with some degree of specificity” and “vague and
conclusory allegations unsupported by material facts will not be sufficient to state
such a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.
1987) (citing Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984) (upholding the
district court’s dismissal of the plaintiff’s conspiracy claim where the “complaint
merely alleged broad conclusory negligence language void of the factual

12

allegations necessary to support a conspiracy theory”)). Evidence of a conspiracy
requires the following proof:
(1) a “single plan” existed, (2) [the defendants] “shared in the general
conspiratorial objective” to deprive [the plaintiff] of his constitutional
(or federal statutory) rights, and (3) “an overt act was committed in
furtherance of the conspiracy that caused injury to [the plaintiff].”
Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (quoting Hooks v.
Hooks, 771 F.2d 935, 944 (6th Cir. 1985)).
Plaintiffs’ allegations in support of their conspiracy claim are vague and
conclusory. (See Compl. ¶¶ 86-89, ECF No. 1 at Pg ID 28-29.) While Plaintiffs
allege that Abro was friends with Narra’s family, they allege no facts to suggest
that the remaining Defendants were part of a plan to conceal Narra’s identity as the
driver of the Jaguar. In fact, Plaintiffs do not allege that the remaining defendants
were aware of Abro’s relationship with Narra’s family. Further, Plaintiffs fail to
identify the individual(s) responsible for many of the acts they list to demonstrate
circumstantial evidence of an agreement to misidentify the driver. Plaintiffs allege
nothing more than naked assertions of an agreement to deprive them of their
constitutional rights. But even if Plaintiffs adequately alleged a conspiracy, they
fail to allege facts to establish a viable violation of their federal constitutional or
statutory rights.

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42 U.S.C. § 1983 Generally and Qualified Immunity
Section 1983 is a remedial statute which does not itself create independent
substantive legal rights. Section 1983 simply provides a vehicle by which a person
may recover damages for a violation of his rights secured to him by federal law.
Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995). To state a viable claim under
§ 1983, a plaintiff must allege: (1) he was deprived of a right, privilege, or
immunity secured by the Constitution or laws of the United States; and (2) the
deprivation was caused by a person while acting under color of state law. Flagg
Bros. Inc. v. Brooks, 436 U.S. 149, 155-156 (1978); Handy-Clay v. City of
Memphis, 695 F.3d 531, 539 (6th Cir. 2012); Brock v. McWherter, 94 F.3d 242,
244 (6th Cir. 1996). To maintain a cause of action for damages under the statute, a
plaintiff must also allege that the defendant caused the plaintiff an injury and show
actual damages. See Carey v. Piphus, 435 U.S. 247, 255 (1978); Chatman v.
Slagle, 107 F.3d 380, 384 (6th Cir. 1997); Horn v. Madison Cty. Fiscal Court, 22
F.3d 653, 659 (6th Cir. 1994).
Qualified immunity “shields ‘government officials performing discretionary
functions … from civil damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.’”
Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004) (quoting
Anderson v. Creighton, 483 U.S. 635, 638 (1987)). Once raised, the plaintiff bears
14

the burden of showing that a defendant is not entitled to qualified immunity.
Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006).
A court makes two inquiries when determining whether a defendant is
entitled to qualified immunity: (1) “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s conduct violated a
constitutional right[,]” and (2) was the right “clearly established” to the extent that
“it would be clear to a reasonable official that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201-02 (2001), overruled
on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Although the
Saucier Court mandated that these questions be addressed in order, that
requirement has since been relaxed. See Pearson, 555 U.S. at 236 (“On
reconsidering the procedure required in Saucier, we conclude that, while the
sequence set forth there is often appropriate, it should no longer be regarded as
mandatory.”).
With regard to the second step,
[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held
unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Anderson, 483 U.S. at 640 (citations omitted). When deciding whether a
constitutional right is clearly established, a court in the Sixth Circuit must “‘look
15

first to decisions of the Supreme Court, then to decisions of th[e Sixth Circuit] and
other courts within [the] circuit, and finally to decisions of other circuits.’” Walton
v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993) (quoting Daugherty v.
Campbell, 935 F.2d 780, 784 (6th Cir. 1991)). The court must “examine the
asserted right at a relatively high level of specificity[,]” and “on a fact-specific,
case-by-case basis[.]” Cope v. Heltsley, 128 F.3d 452, 458–59 (6th Cir. 1997)
(citations and internal quotation marks omitted). When deciding whether officers
are entitled to qualified immunity, “the [c]ourt considers only the facts that were
knowable to the defendant officers.” White v. Pauly, -- U.S. --, 137 S. Ct. 548, 550
(2018) (citing Kingsley v. Henrickson, 576 U.S. --, --, 135 S. Ct. 2466, 2474
(2015)).
Due Process
In Count I of their Complaint, Plaintiffs assert substantive and procedural
due process violations. Plaintiffs must establish the existence of a constitutionally
protected life, liberty, or property interest to prove either violation.4 Pratter v. City

To state a substantive due process claim under § 1983, the plaintiff must allege
facts establishing that “(1) a constitutionally protected property or liberty interest
exists, and (2) the constitutionally protected interest has been deprived through
arbitrary and capricious action.” Braun v. Ann Arbor Charter Twp., 519 F.3d 564,
573 (6th Cir. 2008). To establish a procedural due process violation, the plaintiff
must satisfy three elements: (1) “a life, liberty, or property interest protected by the
Due Process Clause of the Fourteenth Amendment”; (2) the “depriv[ation] of that
protected interest within the meaning of the due process clause”; and (3)
Defendants’ failure to afford “adequate procedural rights before [the deprivation].”
16

4

of Burnside, Ky., 289 F.3d 417, 431 (6th Cir. 2002); see also Bertovich v. Vill. of
Valley View, Ohio, 431 F. App’x 455, 459-60 (6th Cir. 2011) (stating elements of a
substantive due process claim); Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio,
610 F.3d 340, 349 (6th Cir. 2010) (stating elements of a procedural due process
claim). While Plaintiffs do not specifically identify in their Complaint the
“liberty” and “property” interests they assert Defendants violated, they refer in
Count I to the adequacy of Defendants’ investigation of the accident, harm to
Plaintiffs’ reputations, and “their right to a fair trial before being wrongfully
accused of having committed serious felonies.” (Compl. ¶¶ 54, 56, 58, ECF No. 1
at Pg ID 20-21.) When the Court asked Plaintiffs’ counsel at the motion hearing to
explain the basis of Plaintiffs’ due process claims, counsel responded that it
“would be a personal animus towards the plaintiffs, pinning this accident on the
decedent versus the driver that night.”
Plaintiffs’ due process claims cannot survive Defendants’ motions to dismiss
to the extent they are premised on Defendants’ alleged improper investigation. See
Mitchell v. McNeil, 487 F.3d 374, 376-77 (6th Cir. 2007); Bertovich, 431 F. App’x
at 456, 459-60. In Mitchell, the court held that the plaintiff could not state a viable
substantive due process claim based on the defendant officers’ alleged failure to
adequately investigate an accident in which the plaintiff’s child died after being
Wedgewood Ltd. P’ship I v. Twp. of Liberty, Ohio, 610 F.3d 340, 349 (6th Cir.
2010) (citing Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002)).
17

struck by the personal vehicle of a police officer being driven by a police
informant. Id. at 378-79. The court reasoned: “There is no statutory or common
law right, much less a constitutional right, to an investigation.” Id. at 378 (citing
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (observing that a “private
citizen lacks a judicially cognizable interest in the prosecution or nonprosecution
of another”)). The Mitchell court further reasoned that “even if there was such a
right,” the plaintiffs’ claim would fail because they could not show that “the
absence of an investigation after the accident” caused injury to their decedent. Id.
at 379.
The Sixth Circuit reached a similar conclusion in Bertovich, where the
plaintiff alleged that officers “deliberately failed to conduct a proper investigation”
of a bar fight when they learned that the assailant was an auxiliary police officer.
431 F. App’x at 456, 459-60. The court reasoned that “individuals have no
‘judicially cognizable interest in the prosecution or nonprosecution of another[,]’”
id. at 460 (quoting Diamond v. Charles, 476 U.S. 54, 64 (1986)), and “‘no
statutory or common law right, much less a constitutional right, to an
investigation.’” Id. (quoting Mitchell, 487 F.3d at 378). The court found that the
plaintiff had no liberty or property interest impaired as a result of the defendants’
failure to properly investigate the incident. Id. at 459 n. 7. Similarly here,

18

Plaintiffs identify no liberty or property interest impaired as a result of Defendants’
alleged improper investigation of the accident.
Plaintiffs cite a number of cases to show that their due process claims are
viable. (See, e.g., ECF No. 29 at Pg ID 449-453.) However, in the cases Plaintiffs
cite, the defendants’ alleged improper investigation led to the prosecution and/or
detention of the plaintiff. For example, in King v. Harwood, 852 F.3d 568 (6th Cir.
2017), the plaintiff asserted a malicious prosecution claim against the defendants,
asserting that their improper investigation led to his wrongful murder conviction.
Id. at 579 (recognizing that the plaintiff’s claim was “based upon a malicious
prosecution claim”). Similarly, in Wilson v. Lawrence County, 260 F.3d 946 (8th
Cir. 2001), although evaluated as a substantive due process claim under the
Fourteenth Amendment rather than a Fourth Amendment malicious prosecution
claim, the plaintiff was complaining about the defendants’ improper investigation
that led to his arrest and conviction for murder.
The Eighth Circuit’s decision in Wilson makes clear that the viability of the
plaintiff’s claim turned not simply on the failure of the defendants to investigate
other leads or the use of false evidence, but the resulting injury to the plaintiff’s
liberty interest. See id. at 956 n. 8. As the court explained:
It almost goes without saying that the liberty interest involved
here is the interest in obtaining fair criminal proceedings before being
denied one’s liberty in the most traditional sense. See Brady v.
Maryland, 474 U.S. 83, 87 … (1963) (holding that suppression by the
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prosecution of evidence favorable to the defendant material to either
guilt or punishment violates due process); Napue [v. Illinois, 360 U.S.
264, 269 (1959)] (holding that the use of false evidence against a
criminal defendant violates due process and this principle is inherent
in any concept of ordered liberty). “Society wins not only when the
guilty are convicted but when criminal trials are fair; our system of the
administration of justice suffers when any accused is treated unfairly.”
Brady, 373 U.S. at 87 ….
Wilson, 260 F.3d at 955 n.8.
The remaining cases Plaintiffs cite are similar. See Winslow v. Smith, 696
F.3d 716 (8th Cir. 2012) (after the plaintiffs received pardons for their murder
convictions, they filed due process claims alleging that the defendants used false
evidence, manufactured false evidence, and otherwise coerced them to plead
guilty); Amrine v. Brooks, 522 F.3d 823 (8th Cir. 2008) (prisoner sued prison
investigator and deputy sheriff under § 1983, alleging that they violated his
constitutional rights during their investigation of a prison stabbing, for which the
prisoner was convicted and sentenced, but later exonerated); Morales v. Busbee,
927 F. Supp. 254 (D.N.J. 1997) (plaintiff brought § 1983 malicious prosecution
action against the defendant officers after dismissal of charges against the plaintiff
“based upon mistaken identification”); Schiller v. Strangis, 540 F. Supp. 605 (D.
Mass. 1982) (analyzing the plaintiff’s substantive due process claim arising from
his unlawful arrest in which excessive force was used); Bullard v. City of New
York, 240 F. Supp. 2d 292 (S.D.N.Y. 2003) (plaintiffs brought suit for false arrest
and malicious prosecution); Maher v. Town of Ayer, 463 F. Supp. 2d 117 (D. Mass.
20

2006) (the plaintiff filed § 1983 action alleging that he was wrongfully convicted
and imprisoned for rapes he did not commit). Here, in comparison, Jonathon
Manolios was never arrested, charged or prosecuted as a result of Defendants’
alleged improper investigation.
The Court therefore concludes that Plaintiffs’ due process claims based on
Defendants’ alleged improper investigation fail to state a claim upon which relief
may be granted.5 Plaintiffs’ due process claims fare no better to the extent they are
based on alleged harm to their reputations or the denial of a fair trial.
As to the latter, because Jonathan was never charged or tried for crimes
arising from the accident, he was never denied a fair trial. Plaintiffs identify no
other trial for which they were denied fair proceedings.
With respect to Plaintiffs’ reputations, “[a]s the Supreme Court made clear
in Paul v. Davis, 424 U.S. 693, 708-09, 96 S. Ct. 1155, 47 L.Ed.2d 405 (1976),
there is no viable, free standing, federal due process claim arising from injury to
one’s reputation.” Jefferson v. Jefferson Cty. Public Sch. Sys., 360 F.3d 583, 586
5

Prior to the motion hearing, the Court contemplated that Plaintiffs’ due process
claims were premised on Prudential’s denial of coverage under the life insurance
policy and their belief that the insurance benefits represented a protectable property
interest for purposes of the Fourteenth Amendment. However, as Prudential in fact
paid benefits to Plaintiffs, this cannot be Plaintiffs’ theory of liability. In any
event, the Court would find this injury too attenuated or unforeseeable for purposes
of § 1983 liability and that Prudential’s decision severed the causation between
Plaintiffs’ injury and Defendants’ alleged wrongdoing. See Powers v. Hamilton
Cty. Public Defender Comm’n, 501 F.3d 592, 609 (6th Cir. 2007).
21

(6th Cir. 2004). “Such a claim is viable only in combination with two other
elements: ‘when there is some injury to employment in addition to damage to
reputation and a subsequent denial of procedural due process to redress that
injury.’” Id. (citing In re Selcraig, 705 F.2d 789, 796 (5th Cir.1983)). As the
Court explained in Paul, defamatory publications alone—there, the public
distribution of flyers titled “Active Shoplifters” that included the plaintiff’s name
and photograph—do not deprive an individual of any “liberty” or “property”
interests protected by the Due Process Clause. 424 U.S. at 711-12.
For these reasons, the Court concludes that Plaintiffs’ substantive and
procedural due process claims must be dismissed.
First Amendment Free Exercise Claim
Plaintiffs allege that their First Amendment right to practice their religion
was violated when Defendants misidentified the location where Jonathon’s body
was found after the accident. The only conduct Plaintiffs allege in support of this
claim, however, relates to Kennedy. Plaintiffs allege no conduct by any other
defendant that interfered with the free exercise of their religion. Kennedy asserts
that he is entitled to qualified immunity with respect to this claim.
Kennedy argues:
Outside of a custodial setting in which government officials are
legally obligated to assist, aid, and accommodate prisoners’ religious
practices . . . no body of law clearly establishes the existence of a duty
under which public officials must affirmatively assist an individual in
22

the practice of his or her religion in the manner he or she chooses by
directing him or her to an appropriate place for such practice.
(ECF No. 15 at Pg ID 163-64.) Kennedy further argues:
[N]either the Constitution nor supporting legal authorities provide a
basis for a [First] Amendment religious practice claim against a police
officer who gives poor directions to the nearest church, temple, or
mosque, or who misreads a calendar and mistakenly advises that
Christmas, Rosh Hashanah, or Eid is on Tuesday of this week rather
than Thursday of next.
(Id. at Pg ID 164.) To show in response that Kennedy’s actions interfered with
their clearly established constitutional rights, Plaintiffs cite to decisions addressing
free exercise claims brought by inmates. (See ECF No. 10 at Pg ID 241-43, citing
Cruz v. Beto, 405 U.S. 319 (1972); Wares v. Vanbebber, 319 F. Supp. 2d 1237 (D.
Kan. 2004).)6
These prisoner cases do not provide clearly established law applicable to the
situation confronted by Defendants. The restriction on inmates’ movement and
access is what requires state actors to provide them with the means to practice their
religious beliefs, although that obligation is limited by “the fact of incarceration”
and “valid penalogical objectives.” O’Lone v. Estate of Shabazz, 482 U.S. 342,
348 (1987). For example, inmates do not control the food they are served and thus
the law imposes a duty on prison authorities to provide meals enabling inmates to
adhere to their religious dietary beliefs. Inmates generally lack the liberty to leave
As a district court case outside the Sixth Circuit, this latter case does not provide
clearly established law for purposes of this case. See Walton, 995 F.2d at 1336.
23

6

prison to attend religious services, and thus the law imposes a duty on prison
authorities to make services available for inmates of varying religious faiths.
There is no clearly established law, however, requiring state actors to provide the
same or similar offerings to non-incarcerated individuals. In other words,
Plaintiffs cite no clearly established law (much less any case law) holding that state
actors are required to affirmatively aid individuals outside the prison setting to
practice their religion. Plaintiffs identify no decisions from the Supreme Court,
Sixth Circuit, or another Circuit clearly establishing that Kennedy violated their
First Amendment rights by failing to accurately identify where Jonathon’s body
was found after the accident.
Instead, what the First Amendment prohibits is the government’s
establishment of religion and interference with the free exercise of religion. See
Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970) (the
determination of whether a particular government action would run afoul of the
First Amendment “turn[s] on whether particular acts in question are intended to
establish or interfere with religious beliefs and practices or have the effect of doing
so”); see also Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,
565 U.S. 171, 183-85 (2012) (explaining the First Amendment’s religion clauses);
Nikolao v. Lyon, 238 F. Supp. 3d 964, 974-75 (E.D. Mich. 2017) (explaining the
First Amendment’s two religion clauses and setting forth the elements required to
24

prove a violation of each), aff’d in part and vacated in part, 875 F.3d 310 (6th Cir.
2017). “The Sixth Circuit has held that the Free Exercise Clause is ‘predicated on
coercion.’” Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) (quoting Mozert v.
Hawkins Cty. Bd. of Educ., 827 F.2d 1058, 1066 (6th Cir. 1987) (additional
quotation marks and citation omitted)). “As such, a litigant suffers an injury to her
free exercise rights when the state compels her ‘to do or refrain from doing an act
forbidden or required by one’s religion, or to affirm or disavow a belief forbidden
or required by one’s religion.’” Id. Kennedy’s alleged conduct did nothing to
establish religion or interfere with Plaintiffs’ exercise of their religion.
Rather, the most that can be said of Kennedy’s alleged misconduct is that it
failed to aid Plaintiffs in the practice of their religion. Plaintiffs did not know
where Jonathon’s body was found after the accident regardless of what Kennedy
did or did not do. As such, Plaintiffs could not have followed their religious
obligation to memorialize that location even if Kennedy never provided the
incorrect location.
In short, Plaintiffs identify no clearly establish law that would inform a
reasonable official that the type of conduct alleged here violated Plaintiffs’ right to
freely exercise their religion. For these reasons, the Court holds that Plaintiffs fail
to state a viable First Amendment violation claim.

25

Constitutional Right to Privacy
Plaintiffs’ right to privacy claim is premised on Defendants’ dissemination
of information about Jonathon Manolios after the accident. (See Compl. ¶102,
ECF No. 1 at Pg ID 32.) Specifically, Plaintiffs allege:
By informing the general public that the Plaintiff’s [sic]
decedent had violated numerous and serious criminal laws which lead
[sic] to the death of two of his friends and the injuring of two others,
these Defendants have attributed characteristics or conduct of
Plaintiffs [sic] that were false; i.e., under-aged drinking, intoxication
and having committed the crime of drunk driving causing death.
(Id.) As indicated, Jonathon died in the accident. “A dead man retains no right to
privacy after his death.”7 Kiraly v. FBI, 728 F.2d 273, 280 (6th Cir. 1984) (Merritt,
J., concurring) (citing Cordell v. Detective Publ’ns, Inc., 419 F.2d 989 (6th Cir.
1969) (right of privacy “lapses with the death of the person who enjoyed it.”)). For
that reason alone, Plaintiffs’ privacy claim should be dismissed.
Further, however, the constitutional right to privacy does not extend to the
type of information disseminated by Defendants. See Bloch v. Ribar, 156 F.3d
673, 683-84 (6th Cir. 1998) (describing the limited breadth of the constitutional
right to privacy). As the Bloch court explained:

There is precedent establishing that family members of the deceased have a
privacy interest in controlling the body and death images of the deceased, see e.g.,
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004); however, the
case here does not involve the handling of Jonathon’s body or the dissemination of
photographs of his body.
26

7

The Supreme Court in Whalen v. Roe, 429 U.S. 589, 97 S. Ct.
869, 51 L.Ed.2d 64 (1977), identified two legal principles developing
out of the constitutional right to privacy that is rooted in the
Fourteenth Amendment. The first principle protects an individual’s
right to make certain personal choices. This principle, for example,
underscored the Supreme Court’s rationale in Roe v. Wade, 410 U.S.
113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973). The other principle of
privacy… protects an individual’s right to control the nature and
extent of information released about that individual. See Whalen, 429
U.S. at 599-600, 97 S. Ct. 869; Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 457, 97 S. Ct. 2777, 53 L.Ed.2d 867 (1977) (noting that the
right to privacy includes an “‘individual interest in avoiding
disclosure of personal matters’” (quoting Whalen, 429 U.S. at 599, 97
S. Ct. 869)); Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.
1998) (holding that undercover police officers, whose personal files
had been released to a violent gang which they had infiltrated and
were testifying against, possessed a privacy interest in preserving their
lives, personal security, and bodily integrity).
This latter principle has been coined an informational right to
privacy. Unlike many other circuits, this court has narrowly construed
the holdings of Whalen and Nixon to extend the right to informational
privacy only to interests that implicate a fundamental liberty interest.
J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981); see Kallstrom,
136 F.3d at 1061 (“This circuit has read Whalen and Nixon narrowly,
and will only balance an individual’s interest in nondisclosure of
informational privacy against the public’s interest in and need for the
invasion of privacy where the individual privacy interest is of
constitutional dimension.”). Specifically, DeSanti held the right to
informational privacy will be triggered only when the interest at stake
relates to “those personal rights that can be deemed ‘fundamental’ or
‘implicit in the concept of ordered liberty.’ ” DeSanti, 653 F.2d at
1090.
Accordingly, a constitutional right to nondisclosure of certain
types of private information exists, but not all disclosures of private
information will trigger constitutional protection. DeSanti requires
the following two-step process for analyzing informational right-toprivacy claims: (1) the interest at stake must implicate either a
fundamental right or one implicit in the concept of ordered liberty;
27

and (2) the government’s interest in disseminating the information
must be balanced against the individual’s interest in keeping the
information private. Id. at 1090-91.
Bloch, 156 F.3d at 683-84. The Sixth Circuit has recognized a fundamental liberty
interest of constitutional dimension in only two instances: (1) where the release of
personal information could lead to bodily harm, see Kallstrom, 136 F.3d at 1061;
and (2) where the information released was of a sexual, personal, and humiliating
nature. See Bloch, 156 F.3d at 684; Lambert v. Hartmann, 517 F.3d 443, 440 (6th
Cir. 2008) (affirming the dismissal of the plaintiff’s constitutional right to privacy
claim based on dissemination of personal identifying information (including the
plaintiff’s social security number) on a traffic citation published on the county’s
public website, concluding that no fundamental right was infringed). Neither of
these two types of privacy interests were implicated by Defendants’ alleged
actions.
Accordingly, the Court finds that Defendants are entitled to dismissal of
Plaintiffs’ right of privacy claim.
Equal Protection
In support of their equal protection claim, Plaintiffs allege inter alia:
That based on the personal animus and/or actions or inactions of these
Defendants as outlined above, these Defendants did not apply the
facts of this case equally as to the participants when they steered the
investigation wrongfully towards Jonathan Manolios instead of the
true driver of the vehicle.
28

(Compl. ¶ 67, ECF No. 1 at Pg ID 23.) Asked to clarify the claim at the motion
hearing, Plaintiffs’ counsel explained that Jonathan was not granted the same
protection under the law afforded to Narra.
The Sixth Circuit has held that a plaintiff can state a valid cause of action
under the Fourteenth Amendment’s Equal Protection Clause based on police
officers’ failure to fulfill their duty to enforce the laws equally and fairly. See
Neighborhood Action Coalition v. Canton, Ohio, 882 F.2d 1012, 1017 (6th Cir.
1989); Smith v. Ross, 482 F.2d 33, 36 (6th Cir. 1973). The Sixth Circuit also has
stated, however, that “[t]he failure to conduct a full and fair investigation and
prosecution of an alleged crime does not state a claim unless there is a violation of
another recognized constitutional right.” Smallwood v. McDonald, No. 86-5522,
1986 WL 18183, at *1 (6th Cir. Oct. 9, 1986) (citing Gomez v. Whitney, 757 F.2d
1005, 1006 (9th Cir. 1985) (per curiam)). There must be some unequal or unfair
enforcement of the laws. Neighborhood Action Coalition, 882 F.2d at 1017
(failure to respond to call from a neighborhood because of the racial make-up of
the neighborhood).
Plaintiffs do not allege that Defendants steered their investigation towards
Jonathon based on some suspect classification (e.g., his race or ethnicity). Instead,
Plaintiffs claim Defendants’ investigation was influenced by Abro’s relationship to
the Narra family. In that instance, Plaintiffs must allege some other violation of
29

Jonathon’s constitutional rights, such as wrongful prosecution. See, e.g. Fisher v.
City of Cincinnati, 753 F. Supp. 681, 687 (S.D. Ohio 1990); Mooneyhan v.
Hawkins, No. 96-6135, 1997 WL 685423, at *6 (6th Cir. Oct. 29, 1997)
(dismissing the plaintiff’s § 1983 equal protection claim against defendant-officers
based on their alleged cover-up of the plaintiff’s rape by an off-duty police officer
where the police did not charge the plaintiff with any crime and thus she could not
claim unequal enforcement of the law). They do not.
What Plaintiffs seem to be asserting is an equal protection claim under a
“class-of-one” theory. The Supreme Court laid out the basic requirements for a
valid class-of-one claim in Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam). The plaintiff must allege “that []he has been intentionally
treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Id. The Court finds two reasons why Plaintiffs’
allegations fail to state a viable claim under this theory.
First, Plaintiffs do not allege facts establishing Defendants’ unequal
application of the law to Jonathan. Defendants did not ticket or prosecute Jonathan
and treat the other occupants of the vehicle differently. Second, the facts alleged
reflect that the officers had a rational basis for identifying Jonathon as the driver
during their investigation of the accident. Specifically, as Plaintiffs acknowledge
in their Complaint, Bobchick told the police that Jonathon was driving. (Compl.
30

¶ 31, ECF No. 1 at Pg ID 12-13.) While Plaintiffs question the veracity of
Bobchick’s statement and whether Defendants should have credited it, the
statement does offer a rational basis for Defendants’ investigation of Jonathon as
the driver. See Aldridge v. City of Memphis, 404 F. App’x 29, 43 (6th Cir. 2010)
(quoting TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cty., 430 F.3d 783 (6th Cir.
2005) (“‘governmental action subject to equal protection scrutiny under the
rational basis test must be sustained if any conceivable basis rationally supports
it.’”).
The Supreme Court’s decision in Engquist v. Oregon Department of
Agriculture, 553 U.S. 591 (2008), also supports dismissal of Plaintiffs’ equal
protection claim. In Engquist, the Court held that “the class-of-one theory of equal
protection has no application in the public employment context”, id. at 606,
because the theory was a “poor fit” in a context that involved discretionary
decisionmaking. Id. at 605. The Engquist Court used law enforcement officers to
illustrate the forms of state action that “by their nature involve discretionary
decisionmaking”:
There are some forms of state action, however, which by their
nature involve discretionary decisionmaking based on a vast array of
subjective, individualized assessments. In such cases the rule that
people should be “treated alike, under like circumstances and
conditions” is not violated when one person is treated differently from
others, because treating like individuals differently is an accepted
consequence of the discretion granted. In such situations, allowing a
challenge based on the arbitrary singling out of a particular person
31

would undermine the very discretion that such state officials are
entrusted to exercise.
Suppose, for example, that a traffic officer is stationed on a
busy highway where people often drive above the speed limit, and
there is no basis upon which to distinguish them. If the officer gives
only one of those people a ticket, it may be good English to say that
the officer has created a class of people that did not get speeding
tickets, and a “class of one” that did. But assuming that it is in the
nature of the particular government activity that not all speeders can
be stopped and ticketed, complaining that one has been singled out for
no reason does not invoke the fear of improper government
classification. Such a complaint, rather, challenges the legitimacy of
the underlying action itself—the decision to ticket speeders under
such circumstances. Of course, an allegation that speeding tickets are
given out on the basis of race or sex would state an equal protection
claim, because such discriminatory classifications implicate basic
equal protection concerns. But allowing an equal protection claim on
the ground that a ticket was given to one person and not others, even
if for no discernible or articulable reason, would be incompatible with
the discretion inherent in the challenged action. It is no proper
challenge to what in its nature is a subjective, individualized decision
that it was subjective and individualized.
Id. at 603-04. While the Sixth Circuit has not extended the holding in Engquist
beyond the public employment context, Defendants’ decisions as to how to
investigate the accident do not seem properly subjected to a class-of-one theory
based on the rationale applied by the Supreme Court in that case. See Flowers v.
City of Minneapolis, 558 F.3d 794, 799-800 (8th Cir.) (“In light of Engquist,
therefore, we conclude that while a police officer’s investigative decisions remain
subject to traditional class-based equal protection analysis, they may not be
attacked in a class-of-one equal protection claim.”), reh’g & reh’g en banc denied
32

(8th Cir. 2009); United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008)
(applying Engquist to bar class-of-one claims challenging prosecutorial decisions);
Vassallo v. Lando, 591 F. Supp. 2d 172, 187-89 (E.D.N.Y. 2008) (extending
Engquist to the defendants’ decision to question and search a student for evidence
of criminal activity).
For these reasons, the Court concludes that Plaintiffs fail to allege a viable
equal protection claim in their Complaint.
Access to the Courts
“‘It is beyond dispute that the right of access to the courts is a fundamental
right protected by the Constitution.’” Swekel v. City of River Rouge, 119 F.3d
1259, 1261 (6th Cir. 1997) (quoting Graham v. Nat’l Collegiate Athletic Ass’n,
804 F.2d 953, 959 (6th Cir. 1986)). The right “in its most formal manifestation
protects a person’s right to physically access the court system.” Id. at 1262. It also
guarantees, however, access that is “‘adequate, effective and meaningful.’” Id.
(quoting Bounds v. Smith, 430 U.S. 817, 822 (1977)). “Therefore, if a party
engages in actions that effectively cover-up evidence and this action renders a
plaintiff’s state court remedy ineffective, they have violated his right of access to
the courts.” Id.
In Swekel, the plaintiff claimed that the defendant city officials covered up
the identity of the driver of a vehicle that possibly struck and killed the plaintiff’s
33

husband while he was crossing the street because the driver was the son of a highranking police officer. 119 F.3d at 1260. The Sixth Circuit affirmed the district
court’s dismissal of the plaintiff’s access-to-the-courts claim, finding no evidence
that the defendants’ actions barred the plaintiff from filing suit or rendered the
filing of a suit ineffective. Id. at 1264. The court identified several facts to
consider in deciding whether the plaintiff has stated a viable claim:
First, a court must ascertain whether the abuse occurred pre- or postfiling. When the abuse transpires post-filing, the aggrieved party is
already in court and that court usually can address the abuse, and thus,
an access to courts claim typically will not be viable.[] If the abuse
occurs pre-filing, then the plaintiff must establish that such abuse
denied her “effective” and “meaningful” access to the courts. Bounds,
430 U.S. at 822, 97 S. Ct. at 1495. She can do this only by showing
that the defendants’ actions foreclosed her from filing suit in state
court or rendered ineffective any state court remedy she previously
may have had. See Crowder [v. Sinard, 884 F.2d 804, 821-12 (5th
Cir. 1989)]; Bell [v. Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984)];
Ryland [v. Shapiro, 708 F.2d 967, 974-75 (5th Cir. 1983)].
Id. at 1263-64 (footnote omitted).
In the present case, Plaintiffs’ allegations fail to identify what specific court
access they were denied as a result of any action(s) by Defendants. The Court’s
quest for clarification at the motion hearing failed to elucidate the access Plaintiffs
claim they have been denied. Because Plaintiffs’ allegations do not assert how
Defendants’ actions deprived them of meaningful or effective access to the courts,
the Court is dismissing this claim.

34

Claims Alleging Failure to Intervene, Supervisory Liability, Conspiracy, and
Municipality Liability
As set forth above, Plaintiffs fail to establish liability on behalf of any
defendant for any constitutional violation. This conclusion defeats Plaintiffs’
remaining § 1983 claims alleging liability for failing to intervene, supervisory and
municipal liability, and conspiracy.8 See Stiles ex rel. D.S. v. Grainger Cty., Tenn.,
819 F.3d 834, 856 (6th Cir. 2016) (“As with supervisory liability, a municipality
can be liable under § 1983 only if there is some underlying constitutional violation
for which it could be held responsible.”);
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 900 (6th Cir. 2004) (“A municipality
or county cannot be liable under § 1983 absent an underlying constitutional
violation by its officers.”); Simmons v. Napier, 626 F. App’x 129, 139 (6th Cir.
2015) (finding no error in the district court’s refusal to instruct on the plaintiff’s
failure-to-intervene theory where the jury found no underlying constitutional
violation); Bonner-Turner v. City of Ecorse, 627 F. App’x 400, 412 (6th Cir. 2015)
(“because there is no underlying constitutional violation, [the defendant] may not
be liable for failure to intervene”); Wiley v. Oberlin Police Dep’t, 330 F. App’x
524, 530 (6th Cir. 2009) (citations omitted) (holding that the plaintiff “cannot

As such, even though Macomb County has not filed a motion to dismiss, the
Court is sua sponte dismissing Plaintiffs’ § 1983 claims against it.
35
8

succeed on a conspiracy claim because there was no underlying constitutional
violation that injured her.”).
State Law Claims
This Court has supplemental jurisdiction over Plaintiffs’ various state law
claims pursuant to 28 U.S.C. § 1367(a). The statute grants district courts the
discretion to decline to exercise supplemental jurisdiction where inter alia “the
district court has dismissed all claims over which it has original jurisdiction.” Id.
§ 1367(c)(3).
The Supreme Court and Sixth Circuit have advised district courts deciding
whether to retain jurisdiction over state-law claims to consider and weigh several
factors, including the “values of judicial economy, convenience, fairness, and
comity.” Gamel v. City of Cincinnati, 625 F.3d 949, 951-52 (6th Cir. 2010) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). The court may also
consider whether the plaintiff has engaged in any manipulative tactics. Id. at 952.
“‘When all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing the state law claims, or remanding them to state
court if the action was removed.’” Id. (quoting Musson Theatrical, Inc. v. Fed.
Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (“As a rule of thumb …
[w]hen all federal claims are dismissed before trial, the balance of considerations
usually will point to dismissing the state law claims.”)).
36

Nevertheless, the Sixth Circuit advises that “[t]here are … circumstances
where a district court should retain supplemental jurisdiction even if all of the
underlying federal claims have been dismissed.” Gamel, 625 F.3d at 952. As an
example, the Gamel court cited Harper v. AutoAlliance International, Inc., 392
F.3d 195 (6th Cir. 2004). In Harper, the court found that the following factors
weighed in favor of retaining supplemental jurisdiction despite the dismissal of all
federal claims: (1) the plaintiff had engaged in forum manipulation by deciding to
dismiss his federal law claims only after the case had been on the court’s docket
for 11 months; (2) the defendants’ summary judgment motions were ripe for
decision; and (3) the parties had completed discovery. Harper, 392 F.3d at 211-12.
Moreover, the district court was “familiar with the facts of the case and already had
invested significant time in the litigation.” Id.
Unlike Harper, the present case is at the pleadings stage, there is no
evidence of forum manipulation, no scheduling order has issued, discovery has not
begun, and the Court has not invested significant time or resources in the litigation
besides addressing the pending motions to dismiss. On the other hand, the interest
of comity and deference to state courts strongly counsel that Plaintiffs’ state law
claims proceed in state court.

37

For these reasons, having concluded that Plaintiffs’ federal claims are
subject to dismissal under Rule 12(c), the Court declines to exercise supplemental
jurisdiction over their state law claims.
Conclusion
In summary, the Court holds that Plaintiffs’ § 1983 claims alleging
violations of their constitutional rights (Counts I-IX) fail to state claims upon
which relief may be granted. The Court, therefore, GRANTS Defendants’ Rule
12(c) motions to dismiss those claims and is sua sponte dismissing those claims
against Macomb County. Counts I-IX of Plaintiffs’ Complaint are DISMISSED
WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction
over Plaintiffs’ state law claims (Counts XI-XV) and is DISMISSING those
claims WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: June 13, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, June 13, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager

38