Marvaso et al v. Sanchez
Filing
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OPINION AND ORDER Denying 7 Defendant's Motion to Dismiss or in the Alternative for Summary Judgment. Signed by District Judge Linda V. Parker. (MacKay, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GEORGE MARVASO, et al.,
Plaintiffs,
Civil Case No. 18-12193
Honorable Linda V. Parker
v.
RICHARD SANCHEZ,
Defendant.
_____________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO
DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
This civil rights actions, filed pursuant to 42 U.S.C. § 1983, arises from a
May 8, 2013 fire at a restaurant and pool hall in Westland, Michigan, and the
subsequent investigation of the fire by Defendant Richard Sanchez, a Michigan
State Police Department employee (“Lieutenant Sanchez”).1 In their Complaint,
filed July 13, 2018, Plaintiffs assert that Lieutenant Sanchez made material
misstatements and omissions in an affidavit he submitted in support of search
Plaintiffs allege in their Complaint that Defendant is a detective-sergeant, and
Defendant identified himself as such in the affidavit he submitted in support of the
search warrant that is at the heart of this case. (Compl. ¶ 8.) Defendant is referred
to as a lieutenant in the pending motion to dismiss. (ECF No. 7.) The Court will
use the latter title to refer to Defendant throughout this Opinion and Order, as it
presumes that he currently holds that position.
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warrants for their homes. Plaintiffs claim that this violated their Fourth
Amendment rights.
The matter is presently before the Court on Lieutenant Sanchez’s motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
for summary judgment under Rule 56. (ECF No. 7.) The motion has been fully
briefed. (ECF Nos. 13, 17.) Finding the facts and legal issues sufficiently
presented in the parties’ briefs, the Court is dispensing with oral argument pursuant
to Eastern District of Michigan Local Rule 7.1(f). For the following reasons, the
Court is denying Lieutenant Sanchez’s motion.
I.
Applicable Standard of Review
As indicated, Lieutenant Sanchez seeks dismissal of Plaintiffs’ claim against
him pursuant to Rule 12(b)(6) or, alternatively, Rule 56. Lieutenant Sanchez
attaches matters outside the Complaint to his motion, including an affidavit he
made in support of the motion, his affidavit in support of the search warrants, and
the search warrants. Plaintiffs argue in response that Defendant’s request for
summary judgment is premature as no discovery has been taken. In fact, the Court
has yet to conduct an initial scheduling conference in this case and no scheduling
order has been entered. Plaintiff’s counsel has submitted an affidavit in
compliance with Rule 56(d) detailing the evidence he expects to uncover during
discovery, which he believes is needed to properly respond to a Rule 56 motion.
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Motions for summary judgment filed before the close of discovery are often
denied as premature in this Circuit. CLT Logistics v. River West Brands, 777 F.
Supp. 2d 1052, 1076 (E.D. Mich. 2011) (quoting Wells v. Corporate Accounts
Receivable, 683 F. Supp. 2d 600, 602 (W.D. Mich. 2010)). The Sixth Circuit
Court of Appeals has found that summary judgment motions, as a matter of
discretion, may be found premature where discovery has not commenced.
McKinley v. City of Mansfield, 404 F.3d 418, 443 (6th Cir. 2005) (holding that
summary judgment was premature and “the district court abused its discretion
because at the time of its highly restrictive discovery order, no discovery had
occurred and the court offered no explanation for limiting discovery”); Vance By &
Through Hammons v. United States, 90 F.3d 1145, 1149 (6th Cir. 1995) (reversing
summary judgment because “no discovery was conducted before the motion for
summary judgment was filed and decided”). This Court finds Lieutenant
Sanchez’s request for summary judgment to be premature, as well, and therefore is
reviewing Plaintiffs’ § 1983 claim against him solely under Rule 12(b)(6)’s
standard.
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
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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 (2007). A complaint does not
“suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
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). “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). 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.
In deciding whether the plaintiff has set forth a “plausible” claim, the court
must accept the factual allegations in the complaint as true. Erickson v. Pardus,
551 U.S. 89, 94 (2007). This presumption is not applicable to legal conclusions,
however. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the elements
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of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555).
Ordinarily, the court may not consider matters outside the pleadings when
deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc., 108 F.3d
86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.
1989)). A court that considers such matters must first convert the motion to dismiss
to one for summary judgment. See Fed. R. Civ. P 12(d). However, “[w]hen a
court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and
any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to [the] defendant’s motion to dismiss, so long as they
are referred to in the [c]omplaint and are central to the claims contained therein.”
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). As
Plaintiffs’ claim against Lieutenant Sanchez is premised on the affidavit he
submitted in support of the search warrants for their homes, the Court concludes
that it is proper to consider those documents in reviewing the pending motion.
II.
Factual Background
The following facts are derived from Plaintiffs’ Complaint, except where
noted.
On May 8, 2013, shortly before 8:15 a.m., a fire broke out in the kitchen of
Marvaso’s Italian Grille (“Marvaso’s”), a restaurant located on Wayne Road in
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Westland, Michigan. Plaintiffs George and Mary Marvaso leased and operated
Marvaso’s, as well as an adjacent pool hall and charity poker facility called
Electric Stick. No one was inside Marvaso’s or Electric Stick when the fire broke
out. Wayne-Westland Fire Department Firefighter Brian Woehlke died from
smoke and soot inhalation while fighting the fire.
Officials from the Wayne-Westland Fire Department initially investigated
the fire, refusing the Michigan State Police Department’s offer to conduct the fire
origin and cause investigation. Wayne-Westland Fire Marshal John Adams
conducted an on-scene investigation which revealed no accelerants. Investigators
who investigated the fire for the insurance companies that insured the buildings’
landlord and the tenant businesses classified the cause of the fire as
“undetermined.”
Between May 8, 2013 and June 30, 2013, the Michigan Occupational Safety
and Health Administration (“MIOSHA”) investigated Woelke’s death, conducting
its “closing conference” with Wayne-Westland Fire Department officials on the
latter date. At that time, MIOSHA indicated that it would be issuing citations to
the fire department for safety violations resulting in Woelke’s death. On August
30, 2013, MIOSHA issued a citation to the City of Westland for a “serious”
violation of health and safety regulations. The City subsequently acknowledged
the citation and agreed to pay the $3,500 penalty assessed against it.
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In mid-November 2013, Wayne-Westland Fire Marshal Adams announced
that the fire had an incendiary cause and that the Michigan State Police would be
opening a homicide investigation into Woelke’s death. On December 12, 2013,
Lieutenant Sanchez swore out an affidavit in support of search warrants for, among
other places, Plaintiffs’ homes. In the affidavit he submitted in support of the
search warrants, Lieutenant Sanchez indicated, among other things, the following:
(7) Almost immediately after the reported fire was
extinguished, Westland Police began receiving tips that
the fire was suspicious and most likely an arson fire.
One of the tips indicated that on the evening of May 8,
2013, a bar patron named Andrew Baldoni was at the bar
at Super Bowl 45100 Ford Road, Canton and reportedly
told people at the bar about information he had about the
cause of the fire. He stated that people would be shocked
if they knew the truth about the fire and went on to state
that, Geo, the son of the bar’s owner and other persons
had placed leftover construction materials in the ceiling
of the building and started the fire earlier in the morning.
In an interview with police, Baldoni denied having actual
knowledge of who started the fire and stated he had only
repeated what other people were talking about. In
addition, witness Sean Quigley, reported to police that he
observed two vehicles in the parking lot a couple hours
prior to the fire (after closing), described as a light
gray/white Dodge and dark mid-sized sedan. Fire
Marshall John Adams stated that he had observed the son
of George Marvaso, (Geo), George Marvaso Jr. driving a
car that matched this description on occasions prior to the
fire. A third witness, Robert Mulka, told sheriff’s
deputies that he believed the fire was started by Geo
Marvaso and knew the fire started in the ceiling and got
out of control. He stated that he (Mulka) is a relative of
the Marvaso’s and knew that Marvaso, Sr. was distraught
over the fire because it was supposed to be an insurance
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job and no one was supposed to get hurt.
…
(10) On October 29, 2013 Fire Marshall Adams made
contact with Detective Sergeant Ponzetti and provided
her with a copy of his Wayne Westland Fire Authority
fire report incident #13-04931WL. In his cause and
origin report, Fire Marshall Adams described finding two
points of fire origin in the building, one being in the
Electric Stick near the office and the second one being
identified in the kitchen area of Marvaso’s. Fire
Marshall Adams stated that the Electric Stick fire
originated in the ceiling area of the location. He also
indicated that he observed evidence of a separate and
distinct area of origin in the kitchen of Marvasos [sic].
He concluded and opined that the fire was incendiary in
nature and resulted from an “open flame” applied by
human hands to combustibles to start this fire. …
(11) Fire Marshall Adams determined that the doors to
the Electric Stick and Marvaso’s were locked and
secured at the time of the fire and were breached by the
Wayne Westland Fire Authority fireman [sic], indicating
that someone with a key had entered the establishment to
ignite the fires.
(12) George Marvaso, owner of Marvaso’s Italian Grille
and Electric Stick, advised affiant that he has been in
bankruptcy since 2007 and is currently making monthly
payments to satisfy his long term debt. Further
investigation revealed that Marvaso was experiencing a
long history of financial difficulties at the time of the fire
and owed back property and business taxes to the City of
Westland. Moreover, Marvaso told police investigators
that he had increased the coverage of his insurance policy
covering the contents of the structure three to four
months prior to the fire from $400,000 to $600,000.
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(See, e.g., Def.’s Mot. Ex. 1A, ECF No. 7-1 at Pg ID 53-54.) A judge in
Michigan’s 33rd District Court signed the search warrants on the same date as
Lieutenant Sanchez’s affidavit. (Id. Exs. 1A-F, ECF No. 7-1.)
As of the date Plaintiffs filed this lawsuit, no arrests had been made in
connection with the fire.
III.
Defendant’s Argument for Dismissal
Lieutenant Sanchez makes one argument in support of his motion to dismiss.
Specifically, he claims that because a judicial officer issued the search warrants, he
is entitled to qualified immunity. (Def.’s Br. in Supp. of Mot. at 8-9, citing
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).) As the Supreme Court
stated in Messerschmidt: “Where the alleged Fourth Amendment violation involves
a search or seizure pursuant to a warrant, the fact that a neutral magistrate has
issued a warrant is the clearest indication that the officers acted in an objectively
reasonable manner or, as we have sometimes put it, in ‘objective good faith.’” 565
U.S. at 547 (quoting United States v. Leon, 468 U.S. 897, 922-23 (1984)).
In his motion, Lieutenant Sanchez recognizes one exception to the good
faith rule—that is, when the affidavit was so lacking in probable cause as to render
the officer’s reliance upon it unreasonable. (Def.’s Br. in Supp. of Mot. at 10,
quoting Messerschmidt, 565 U.S. at 547.) Yet, Lieutenant Sanchez argues “that
the threshold for establishing this exception is a high one” and that Plaintiffs
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cannot satisfy it here. (Id. at 10-12.) Lieutenant Sanchez maintains that he “had
more than adequate facts” to establish probable cause to support the search
warrants. (Id. at 12.) “In short,” Lieutenant Sanchez asserts, “this is not the rare
case where it would have been obvious to [him] that the search warrant affidavits
were ‘so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.’” (Id. at 12-13, quoting Leon, 468 U.S. at 923).
IV.
Analysis
Qualified immunity shields government officials acting within the scope of
their official duties from civil liability insofar as their conduct does not violate
clearly established rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). A two-step inquiry is used to
decide whether an officer is entitled to qualified immunity. Saucier v. Katz, 533
U.S. 194, 201-02 (2001). First, taken in the light most favorable to the plaintiff,
the court must decide whether the facts alleged show that the officer’s conduct
violated a constitutional right. Id. at 201. Second, if the facts do show the
violation of a constitutional right, the court must determine whether the right was
clearly established. Id.
Plaintiffs allege that Lieutenant Sanchez violated their Fourth Amendment
rights by procuring search warrants through an affidavit that made material false
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statements or omitted material facts. 2 The Fourth Amendment requires that
warrants be issued only upon a showing of probable cause. Greene v. Reeves, 80
F.3d 1101, 1105 (6th Cir. 1996). As Lieutenant Sanchez correctly argues in
support of his motion to dismiss, officers are entitled to rely on a judicially-secured
warrant as satisfactory evidence of probable cause. Yancey v. Carroll Cty., 876
F.2d 1238, 1243 (6th Cir. 1989). What Lieutenant Sanchez fails to address in his
motion however, and what the essence of Plaintiffs’ claim is against him, is that
“an officer cannot rely on a judicial determination of probable cause if that officer
knowingly makes false statements and omissions to the judge such that but for
these falsities the judge would not have issued the warrant.” Id.; see also Ahlers v.
Schebil, 188 F.3d 365, 373 (6th Cir. 1999); Hill v. McIntyre, 884 F.2d 271, 275
(6th Cir. 1989). Stated differently, “‘police officers cannot, in good faith, rely on a
judicial determination of probable cause when that determination was premised on
In their Complaint, Plaintiffs allege that Lieutenant Sanchez made false
statements in his affidavit in support of the search warrants and that without those
statements the affidavit failed to establish probable cause for the search. (See, e.g.,
Compl. ¶¶ 43, 44.) Plaintiffs do not identify the specific misstatements or
omissions at issue in their Complaint. Nevertheless, Lieutenant Sanchez has not
moved for dismissal arguing that the Complaint is deficient for that reason. In
other words, Lieutenant Sanchez has not contended that Plaintiffs’ Complaint
provides only “a formulaic recitation of the elements of [their] cause of action”
without “further factual enhancement.” Twombly, 550 U.S. at 555, 557. Plaintiffs
identify the false statements and omissions in response to Lieutenant Sanchez’s
motion, thereby giving him fair notice of the nature of their claim and
demonstrating that they could amend their pleading to plausibly state their claim
had this been the basis on which he sought dismissal.
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2
an officer’s own material misrepresentations to the court.’” Wesley v. Campbell,
779 F.3d 421, 433 (6th Cir. 2015) (quoting Gregory v. City of Louisville, 444 F.3d
725, 758 (6th Cir. 2006)) (additional citations omitted). This law was clearly
established when Lieutenant Sanchez swore out the search warrants at issue in this
case. Gregory, 444 F.3d at 758 (finding clearly established law violated when an
officer makes material omissions that are “deliberate … or show[] reckless
disregard for the truth”).
An officer may be liable under § 1983 for making material false statements
or omitting material information knowingly or in reckless disregard of the truth to
establish probable cause for a warrant. Ahlers, 188 F.3d at 373. A plaintiff
asserting such a § 1983 claim must show that the defendant stated a deliberate
falsehood or made an omission knowingly or in reckless disregard for the truth and
that the false or omitted information was material to the finding of probable cause.3
Hill, 884 F.2d at 275. In his motion to dismiss, Lieutenant Sanchez contends that
The Sixth Circuit has stated that a plaintiff must make a “substantial showing”
that the defendant stated a deliberate falsehood or acted in reckless disregard of the
truth. See Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003). The Sixth Circuit
subsequently made clear, however, that this is not a proper standard when
evaluating a motion to dismiss. Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir.
2015) (finding that the district court made “a critical threshold error” in evaluating
the plaintiff’s claim on a motion to dismiss by applying a “‘substantial’ pleading
burden” which is “plainly inappropriate in light of Iqbal and Twombly ….”
Instead, the plaintiff need only “plausibly allege” that the warrant was unsupported
by probable cause. Id. at 429 (citation omitted).
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there was probable cause supporting the search warrants; however, he does not
address the impact of his alleged false statements and omissions on the finding of
probable cause. The Court therefore cannot conclude that he is entitled to qualified
immunity.
Moreover, the Sixth Circuit has held that “it is generally inappropriate for a
district court to grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity.” Wesley, 779 F.3d at 433; see also Guertin v. Michigan, 912 F.3d 907,
917 (6th Cir. 2019); Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir.
2016). As the Sixth Circuit explained in Wesley:
Although an officer’s “entitlement to qualified immunity
is a threshold question to be resolved at the earliest
possible point,” Vakilian, 335 F.3d at 516 (citing Harlow
v. Fitzgerald, 457 U.S. 800, 817, 102 S. Ct. 2727, 73
L.Ed.2d 396 (1982)), that point is usually summary
judgment and not dismissal under Rule 12. See Evans–
Marshall v. Bd. of Educ. of Tipp City Exempted Village
Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J.,
concurring) (observing that the fact-intensive nature of
the applicable tests make it “difficult for a defendant to
claim qualified immunity on the pleadings before
discovery” (emphasis in original)); see also Jacobs v.
City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000)
(Easterbrook, J., concurring) (“Rule 12(b)(6) is a
mismatch for immunity and almost always a bad ground
of dismissal.”); Chesser v. Sparks, 248 F.3d 1117, 1121
(11th Cir. 2001) (“Qualified immunity is typically
addressed at the summary judgment stage of the case.”);
Grose v. Caruso, 284 Fed. Appx. 279, 283 (6th Cir.
2008) (“The standard for a 12(b)(6) motion is whether
the allegations, if taken as true, could state a claim upon
which relief may be granted, [and] dismissal of
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Appellants on the basis of qualified immunity is
premature.”)
779 F.3d at 433-34 (brackets omitted). It would be particularly inappropriate for
the Court to grant Lieutenant Sanchez’s Rule 12(b)(6) motion to dismiss on
qualified immunity grounds where his arguments in support of dismissal are not
directed at the false statements and omissions on the finding of probable cause
alleged by Plaintiffs.
Accordingly,
IT IS ORDERED that Defendant Richard Sanchez’s Motion to dismiss or
in the alternative for Summary Judgment (ECF No. 7) is DENIED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 10, 2019
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