D.J.Y et al v. Ypsilanti Public Schools et al

Filing 68

MEMORANDUM OPINION and ORDER Granting Defendants Ypsilanti Community Schools, Sharron Irvine, Paula Sizemore, Kimberly Ferrell, Ann Robinson, Thomas Woodard, Washetenaw County, Aaron Hendricks, and Katrina Bourdeau's 51 , 56 , 57 Motions for Judgment on the Pleadings - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D.J.Y., by and through his Next
Friend, Kelly York,
Plaintiff,

Case No. 14-cv-11467
Hon. Judith E. Levy
Mag. Judge David R. Grand

v.
Ypsilanti Community Schools,
Sharron Irvine, Paula Sizemore,
Kimberly Ferrell, Ann Robinson,
Thomas Woodard, Washtenaw
County, Aaron Hendricks, Katrina
Bourdeau, and Jasmine Gates,
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS YPSILANTI
COMMUNITY SCHOOLS, SHARRON IRVINE, PAULA
SIZEMORE, KIMBERLY FERRELL, ANN ROBINSON, THOMAS
WOODARD, WASHTENAW COUNTY, AARON HENDRICKS,
AND KATRINA BOURDEAU’S MOTIONS FOR JUDGMENT ON
THE PLEADINGS [51, 56, 57]
Pending before the Court are defendants Ypsilanti Community
Schools, Sharron Irvine, Paula Sizemore, Kimberly Ferrell, Ann
Robinson, Thomas Woodard, Washtenaw County, Aaron Hendricks, and

Katrina Bourdeau’s motions for judgment on the pleadings.1 (Dkts. 51,
56, 57.) Pursuant to E.D. Mich. Local R. 7.1(f)(2), the Court will decide
the motion without oral argument.
I.

Background
On April 17, 2012, plaintiff, then a thirteen-year-old student at

Ypsilanti Middle School, was accused by a fellow female student of
inappropriately touching her in the hallway. Ann Robinson, a teacher
at the school, removed plaintiff from his fourth-hour art class and
required plaintiff to go to Assistant Principal Paula Sizemore’s office.
Plaintiff alleges that Robinson and/or Sizemore threatened him
with criminal prosecution, falsely told him that he had been caught
committing a criminal act on videotape, and demanded he write out a
statement concerning the incident.2 Plaintiff further alleges that he

The motion that Washtenaw County, Hendricks, and Bourdeau filed is
improperly termed a “Motion to Dismiss.” (Dkt. 51.) The parties,
however, filed the motion after filing an answer. Pursuant to Fed. R.
12(c), the Court will treat the motion, filed after the pleadings were
closed, as a motion for judgment on the pleadings.

1

Plaintiff’s complaint first states that Robinson made these statements
and demands (Dkt. 40 at ¶ 21), then states that the statements and
demands were Sizemore’s. (Id. at ¶ 25.) In light of the remainder of the
complaint, the Court will read paragraph 21 as intending to reference
Sizemore rather than Robinson.
2

2

had asked for his mother to be present at the time Robinson questioned
him. Plaintiff claims that Sizemore forced him to stay in her office
against her will, and that he refused to sign a statement confessing to
the crime.
Plaintiff did write out a single statement stating only that “I did
not do it.” (Dkt. 40 at ¶ 27.) At some point, someone at the school
called plaintiff’s mother, who came to the school.

Plaintiff’s mother

then removed plaintiff from the school until a videotape of the incident,
which plaintiff and his mother believed would exonerate him, was
reviewed.
On April 18, 2012, plaintiff’s mother telephoned Sizemore to ask if
she had reviewed the video footage. Sizemore was unavailable, and
plaintiff alleges that Sizemore did not return his mother’s call despite
the fact that she left a message requesting a return phone call. On
April 19, 2012, plaintiff’s mother attempted to speak to Sizemore via
telephone again; Sizemore was again unavailable, and plaintiff’s mother
left a second message.
Later on April 19, 2012, plaintiff’s mother went to the school to
speak to Sizemore. The two met for thirty-five minutes, during which
3

time Sizemore stated that she had not yet been able to view the video.
On April 20, 2012, plaintiff’s mother again called Sizemore to inquire
whether Sizemore had viewed the video; Sizemore was again
unavailable and did not return the call.
On April 23, 2012, plaintiff’s mother went to the school for a
second time to speak to Sizemore. Plaintiff’s mother was informed that
Sizemore was unavailable to speak to her. On April 24, 2012, plaintiff’s
mother called Sizemore again, and again Sizemore was unavailable.
Later on April 24, 2012, plaintiff’s mother went to the school and spoke
with Principal Ferrell about whether the video of the incident had been
reviewed. Ferrell informed plaintiff’s mother that she was unaware of
the incident.
On April 26, 2012, plaintiff’s mother went to the school to speak to
Sizemore a third time. Plaintiff alleges that Sizemore refused to speak
to his mother. Plaintiff’s mother then left the school and went to the
administration building, where she spoke with Sharron Irvine, the
Director of Human Resources. Plaintiff’s mother informed Irvine of the
situation, and her concerns about the investigation.

4

On the evening of April 26, 2012, Sizemore telephoned plaintiff’s
mother. Sizemore informed her that she had viewed the video, but that
it was “hard to make out” and that the school had to “clean it up” to look
at it from different angles. (Dkt. 40 at ¶ 48.) At the end of the call,
Sizemore and plaintiff’s mother agreed to meet on April 27, 2012 to
review the video.
Meanwhile, on April 26, 2012, plaintiff alleges that Sizemore
contacted Deputy Aaron Hendricks, a Washtenaw County Sherriff’s
Department liaison officer for the school, and informed him of the
allegation.

Plaintiff further alleges that Sizemore did not inform

Deputy Hendricks that a videotape existed of the incident. That day,
Deputy Hendricks initiated a complaint against plaintiff in the
Washtenaw County Circuit Court, entitled a Request for Delinquency
Proceedings. At some point in May 2012, Deputy Katrina Bourdeau,
another

Washtenaw

County

Sherriff’s

Department

employee,

authorized the petition.
On April 27, 2012, plaintiff alleges that Sizemore called his
mother and stated that plaintiff was “off the hook” and that the video
showed “another little boy grabbing her.” (Id. at ¶ 56.) Sizemore is also
5

alleged to have told Deputy Hendricks that plaintiff did not commit the
crime at issue.
Plaintiff returned to Ypsilanti Middle School at some point
between May 1, 2012, and May 4, 2012.

During that timeframe,

Thomas Woodard, a teacher at Ypsilanti Middle School, stopped
plaintiff and asked him various questions about the incident. Plaintiff
alleges that Woodard also witnessed the April 17, 2012 incident.
On May 16, 2012, Deputy Hendricks allegedly contacted plaintiff’s
mother to discuss additional allegations against plaintiff.

Plaintiff’s

mother again removed plaintiff from school “for his own protection and
safety.”

(Id. at ¶ 65.)

At that point, Deputy Hendricks had not,

according to plaintiff, interviewed plaintiff.
On July 24, 2012, Deputy Bourdeau signed off on the delinquency
proceedings against plaintiff. In August 2012, plaintiff was formally
charged with “CSC Fourth Degree – Forcible Contact,” a criminal
offense. (Id. at ¶ 75.) On September 14, 2012, plaintiff and his mother
went to Washtenaw County Circuit Court for a preliminary inquiry that
was adjourned.

6

Also on September 14, 2012, plaintiff’s mother requested a copy of
the video footage of the incident from Irvine.

That evening, Irvine

informed plaintiff’s mother that the video footage had been deleted.
On February 27, 2013, Deputy Hendricks met with the victim of
the incident. At that meeting, the victim admitted that plaintiff had
not inappropriately touched her. On March 27, 2013, the case against
plaintiff was dismissed.
Plaintiff filed suit on April 10, 2014.

On October 7, 2014, the

Court granted Washtenaw County, Bourdeau and Hendricks’ motion to
dismiss (Dkt. 17) without prejudice, and granted leave to plaintiff to
amend his complaint by October 28, 2014. (Dkt. 39.) Plaintiff filed his
amended complaint on October 28, 2014. (Dkt. 40.)
Defendants

Ferrell,

Irvine,

Robinson,

Sizemore,

Woodard,

Bourdeau, Hendricks, Washtenaw County, and Ypsilanti Community
Schools filed their answer on November 10, 2014.

(Dkts. 41, 45.)

Defendants Bourdeau, Hendricks, and Washtenaw County filed their
motion for judgment on the pleadings on December 2, 2014. (Dkt. 51.)
Defendant Sizemore filed her motion for judgment on the pleadings on
December 19, 2014. (Dkt. 56.) Defendants Ferrell, Irvine, Robinson,
7

Woodard and Ypsilanti Community Schools filed their motion for
judgment on the pleadings on December 19, 2014. (Dkt. 57.) The Court
has already dismissed defendant Jasmine Gates from this suit. (Dkt.
67.)
The motions are now fully briefed.
II.

Legal Standard
A motion for judgment on the pleadings pursuant to Fed. R. Civ.

P. 12(c) is analyzed using the same standard as for a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). Tucker v. Middleburg–Legacy Place, 539
F.3d 545, 549 (6th Cir. 2008).
When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir.2012). “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). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and

8

conclusions” or “a formulaic recitation of the elements of a cause of
action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
III.

Analysis

Plaintiff alleges the following counts against the following
defendants:
1) False Arrest/Imprisonment under Michigan law against
defendants Sizemore, Robinson, Woodard, Deputy Hendricks
and Deputy Bourdeau.
2) Malicious Prosecution under Michigan law against Sizemore,
Deputy Hendricks, and Deputy Bourdeau.
3) Unreasonable Search and Seizure under the Fourth
Amendment against Sizemore, Robinson, Woodard, Deputy
Hendricks, and Deputy Bourdeau.
4) Malicious Prosecution under the Fourth Amendment against
Sizemore, Deputy Hendricks, and Deputy Bourdeau.
5) Constitutional Violations against Ypsilanti Community Schools
and Washtenaw County.
6) Gross Negligence against Irvine, Sizemore, Ferrell, Robinson,
Woodard, Deputy Hendricks, and Deputy Bourdeau.
7) Violation of Fourteenth Amendment Due Process Rights
against Irvine, Sizemore, Ferrell, Robinson, Deputy Hendricks,
and Deputy Bourdeau.

9

A. False Arrest
A false-arrest claim under Michigan law requires the plaintiff to
show that defendants “participated in an illegal and unjustified arrest,
and that [the defendants] lacked probable cause to do so.” Walsh v.
Taylor, 689 N.W.2d 506, 513 (Mich. Ct. App. 2004). Plaintiff alleges
that the following acts constituted arrests:
Sizemore: Plaintiff alleges that Sizemore falsely arrested him on
April 17, 2012 by calling him to her office, not permitting him to leave,
and doing so without a parent present.
Robinson: Plaintiff alleges that Robinson falsely arrested him on
April 17, 2012 by taking him from his class and to Sizemore’s office
against his will, forcing him to be interrogated.
Woodard: Plaintiff alleges that Woodard falsely arrested him at
some time between May 1, 2012 and May 4, 2012, by stopping him in
the hallway and questioning him about the allegations.
Deputy Hendricks: Plaintiff alleges no act that could arguably
constitute an arrest, only that Deputy Hendricks initiated a complaint
in Washtenaw County Circuit Court without having reviewed the
videotape at issue.
10

Deputy Bourdeau: Plaintiff alleges no act that could arguably
constitute an arrest, only that Deputy Bourdeau signed off on the
complaint that initiated the delinquency proceedings against plaintiff in
the Washtenaw County Circuit Court.
To state a claim for false arrest, plaintiff must establish, at the
very least, that he was arrested by the party or parties accused of false
arrest. Plaintiff has alleged no fact that would give rise to a plausible
claim that Hendricks and Bourdeau arrested him.

As a threshold

matter, the Court must dismiss this claim against Hendricks and
Bourdeau.
Robinson, Sizemore, and Woodard argue that they are entitled to
governmental immunity under Michigan law. Robinson and Woodard
also argue that they committed no acts constituting an arrest.
A governmental actor who is not a judge, a legislator, or the
highest-ranking appointed executive official and claims governmental
immunity under Michigan law must show that “(a) [t]he acts he
undertook were in the course of his [or her] employment, and he was
acting, or reasonably believed that he was acting, within the scope of
his authority, (b) he undertook the acts in good faith and without
11

malice, and (c) the acts were discretionary rather than ministerial.”
Odom v. Wayne Co., 482 Mich. 459, 480 (2008).
Plaintiff does not dispute that Robinson, Sizemore, and Woodard
satisfy the first and third prongs of the governmental immunity test.
Instead, plaintiff argues only that the question of good faith versus
malice is reserved to the jury. “Unlike probable cause, the question of
‘malice’ is to be determined by the jury, unless only one conclusion may
reasonably be drawn from the evidence.” William Prosser, Torts (4th
ed), § 119, pp 848-849. Accordingly, the Court may reach the issue
whether plaintiff has set forth a plausible claim of malice, or whether
only one conclusion may reasonably be drawn from the allegations in
the complaint.
i.

Robinson

Robinson is alleged to have escorted plaintiff to Sizemore’s office
so that Sizemore could discuss an allegation of criminal activity with
plaintiff. The Court may draw only one reasonable conclusion from the
facts plaintiff presents, and it is that Robinson acted in good faith.
Robinson, in her capacity as a teacher at Ypsilanti Middle School,
assisted Sizemore in speaking to a student accused of a criminal act.
12

There are no facts alleged that would give rise to any plausible claim
that Robinson acted out of malice on April 17, 2012. Plaintiff argues
only that he did not want to go to Sizemore’s office.

However, a

student’s unwillingness to go to an administrator’s office to discuss a
disciplinary issue is insufficient, on its own, to give rise to the
possibility of malice necessary to sustain a false arrest claim.
Accordingly, the Court finds that, even had plaintiff stated a
viable claim for false arrest, Robinson is entitled to governmental
immunity with regard to this claim and dismisses the false arrest claim
against Robinson.
ii.

Sizemore

Sizemore is alleged to have kept plaintiff in her office, questioned
him against his will, and done so without his parent present on April
17, 2012. Much as with Robinson, no facts are alleged giving rise to any
plausible claim that Sizemore acted with malice. Sizemore believed at
the time that plaintiff had potentially committed a criminal act, and in
her discretion requested that her report to her office to discuss the
alleged incident.

13

Plaintiff also alleges in his complaint that Sizemore was “in part[]
the cause of Plaintiff D.J.Y.’s false arrest because she contacted police
agencies and advised them that Plaintiff D.J.Y. had committed a crime
despite the fact that she had a videotape in her possession (which she
had not reviewed) which did not show Plaintiff D.J.Y. involved in the
criminal acts he was falsely accused of.” (Dkt. 40 at ¶ 89.) However,
plaintiff does not allege that the police arrested him. This cannot be the
basis for a false arrest claim.
Because plaintiff fails to plead any fact which would give rise to a
plausible claim of malice against Sizemore, even had plaintiff stated a
viable claim for false arrest, Sizemore is entitled to governmental
immunity with regard to this claim and the false arrest claim against
her is dismissed.
iii.

Woodard

Plaintiff alleges that Woodard stopped him in the hallway during
school hours at some point between May 1 and May 4, 2012, to discuss
the allegations surrounding the incident.

Plaintiff also alleges that

Woodard witnessed the original April 17, 2012 incident.

14

Again, plaintiff fails to allege any facts that would give rise to a
plausible claim of malice on the part of Woodard. Particularly here,
where Woodard allegedly witnessed the incident, Woodard’s questioning
of plaintiff about the allegations alone cannot give rise to a question of
whether he acted with malice. This is particularly true where plaintiff
alleges only that he did not want to talk to Woodard, but fails to allege
that Woodard acted or intended to act in a way that would or did harm
plaintiff. It is understandable that plaintiff would not want to discuss
false charges against him with a teacher. It is not, however, indicative
of malice that a teacher asked a student about an incident the teacher
witnessed.
Accordingly, even had plaintiff stated a viable claim for false
arrest, Woodard is entitled to governmental immunity with regard to
this claim and the false arrest claim against Woodard is dismissed.
B. False Imprisonment
False imprisonment requires the plaintiff to show “(1) an act
committed with the intention of confining another, (2) the act directly or
indirectly results in such confinement, and (3) the person confined is
conscious of his confinement.” Walsh, 689 N.W.2d at 514. The plaintiff
15

must also show that “[t]he restraint . . . occurred without probable
cause to support it.” Id.
Plaintiff’s

complaint

conflates

his

false

arrest

and

false

imprisonment claims. In his responses, plaintiff states that his claim
for false imprisonment rests on plaintiff having been “removed from the
Ypsilanti Public Schools and confined to his home for his own safety and
integrity.” (Dkt. 59 at 16; Dkt. 62 at 23; Dkt. 63 at 22 (citing Dkt. 40 at
¶¶ 32, 65).) However, plaintiff states that his mother initially removed
him from school, and that he was once again removed from school by his
mother on or around May 16, 2012.
A claim for false imprisonment requires that the accused have
committed some act with the intention of confining another. Plaintiff
alleges no such act on the part of any defendant.

No defendant is

alleged to have required, suggested, or even implied that plaintiff’s
mother should have removed him from school. No defendant is alleged
to have committed any act with the intention that plaintiff’s mother
remove him from school and confine him to his home.
Because plaintiff has failed to allege any act committed with the
intention of confining him other than his mother’s voluntary removal of
16

plaintiff from school, the false imprisonment claim is dismissed against
all individual defendants.
C. Malicious Prosecution (Michigan Law)
Under Michigan law, a plaintiff asserting malicious criminal
prosecution has the burden of proving “(1) that the defendant has
initiated a criminal prosecution against him, (2) that the criminal
proceedings terminated in his favor, (3) that the private person who
instituted or maintained the prosecution lacked probable cause for his
actions, and (4) that the action was undertaken with malice or a
purpose in instituting the criminal claim other than bringing the
offender to justice.” Matthews v. Blue Cross & Blue Shield of Mich., 456
Mich. 365, 378 (1998).
Malicious prosecution generally only applies to private citizens.
See, e.g., Ringo v. Richardson, 88 Mich. App. 684, 690 (1979)
(evaluating a citizen’s satisfaction of the probable cause standard).
“[T]he only situation in which an action for malicious prosecution
[against a police officer] would properly lie is where a police officer
knowingly swears to false facts in a complaint, without which there is
no probable cause.’” King v. Arbic, 159 Mich. App. 452, 466 (1987).
17

Defendants Hendricks and Bourdeau are deputy sheriffs. Plaintiff
does not allege that either knowingly swore to false facts in the
complaint, only that their investigation of the incident was conducted in
a hasty and incomplete manner. Accordingly, the Court dismisses the
malicious prosecution claim against Deputies Hendricks and Bourdeau.
The only remaining defendant under this count is Sizemore.
“[T]he plaintiff's burden in a malicious prosecution case is to make a
prima facie showing that the defendant . . . lacked probable cause to
believe that the plaintiff had committed a crime.” Matthews, 456 Mich.
at 379. “To constitute probable cause . . . there must be such reasonable
ground of suspicion, supported by circumstances sufficiently strong in
themselves to warrant an ordinarily cautious man in the belief that the
person arrested is guilty of the offense charged.”

Id. at 387 (citing

Wilson v. Bowen, 64 Mich. 133, 138 (1887).
At the time that Sizemore contacted the police on April 26, 2012,
plaintiff alleges that Sizemore had viewed the allegedly exonerating
video, but that she believed it was “hard to make out” what happened.
(Dkt. 40 at ¶ 48.) Sizemore then contacted the police based in large
part on the accusation of the female student that plaintiff, specifically,
18

was the one who had inappropriately touched her. In the light most
favorable to plaintiff, the facts as set forth by plaintiff show that
Sizemore had probable cause to believe that plaintiff committed a crime
on April 26, 2012.
Despite plaintiff’s contention that Sizemore was under a duty to
view the video, “once probable cause is established, an [official] is under
no duty to look further for additional evidence which may exculpate the
accused.” Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999).
Further, a private individual accused of malicious prosecution
cannot be found to have initiated the prosecution where the prosecutor
or police conduct their own investigation independent of the defendant’s
statement. Matthews, 456 Mich. at 386; Christy v. Rice, 152 Mich. 563,
565 (1908); Renda v. Int’l Union, UAW, 366 Mich. 58, 91 (1962). Here,
plaintiff alleges that the police “interviewed many teachers and others,”
(Dkt. 66), that the police did not sign the complaint until July 24, 2012,
and that the prosecutor did not formally charge plaintiff until August
2012.
Plaintiff has not adequately pleaded that Sizemore did not have
probable cause to contact the police. Even if Sizemore did not have
19

probable cause, plaintiff has demonstrated that the police conducted an
independent investigation in the weeks and months after Sizemore
contacted the police.

Accordingly, the malicious prosecution claim

against Sizemore is dismissed.
D. Unreasonable Search and Seizure in Violation of the Fourth
Amendment
“In assessing whether the right against unreasonable searches
and seizures has been violated, the court must consider whether the
action is attributable to the government, and amounts to a search or
seizure for Fourth Amendment purposes.” Relford v. Lexington-Fayette
Urban Cnty. Gov’t, 390 F.3d 452, 457 (6th Cir. 2004.)
Although termed a claim for unreasonable search and seizure,
plaintiff alleges only seizures on the part of Robinson, Sizemore,
Woodard, Deputy Hendricks, and Deputy Bourdeau.

The seizures

alleged are the same acts serving as the basis for plaintiff’s false arrest
claims.
A person is seized for the purposes of the Fourth Amendment
“only when, by means of physical force or a show of authority, his
freedom of movement is restrained.” U.S. v. Mendenhall, 446 U.S. 544,
553 (1980). Under this standard, plaintiff has failed to plead that either
20

Deputy Hendricks or Deputy Bourdeau seized him. Neither officer is
alleged to have committed any act that, by means of physical force or a
show of authority, restrained plaintiff’s movement. Instead, both are
alleged only to have investigated the incident and brought charges
against plaintiff, neither of which constitute a seizure under the Fourth
Amendment. Accordingly, this claim is dismissed against Hendricks
and Bourdeau.
“[A] school official may detain a student if there is a reasonable
basis for believing that the pupil has violated the law or a school rule.”
S.E. v. Grant Cnty. Bd. of Educ., 544 F.3d 633, 641 (6th Cir. 2008)
(quoting Wofford v. Evans, 390 F.3d 318, 326 (4th Cir.2004)).

In a

school setting, a “reasonable suspicion” standard is applied to Fourth
Amendment claims rather than a “probable cause” standard. Safford
United Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009). Plaintiff
argues that there was no reasonable basis for believing that he
committed any violation of the law or any school rule, because a video
existed that should have immediately exonerated him.
In S.E., the Sixth Circuit determined that, when a school’s
assistant principal was contacted by a student’s parent regarding
21

another student’s violation of school rules on the final day of the school
year in May, the Fourth Amendment was not violated when the
assistant principal summoned the students to his office in August to
discuss what had happened. S.E., 544 F.3d at 641.
Here, assistant principal Sizemore called plaintiff to her office the
same day as the incident, and questioned him about it. She called him
to the office based both on the allegation of another student and a
videotape that plaintiff contends exonerated him, but that plaintiff
states (repeatedly) Sizemore did not actually view until nine days later.
Plaintiff has cited no authority that stands for the premise that an
incomplete investigation by a school official alone, coupled with
questioning based on the incomplete investigation, constitutes a
violation of the prohibition against unreasonable seizure.

Under

plaintiff’s version of the facts, Sizemore had a reasonable basis for
calling plaintiff to her office – the accusation of another student that he
had committed a criminal act.
Likewise, the seizure claim against Robinson must fail. Robinson
took plaintiff out of class and escorted him to Sizemore’s office on the
same reasonable suspicion that Sizemore held: that plaintiff, having
22

been accused by another student of committing a criminal act, may
have in fact committed that act.
Plaintiff’s claim against Woodard is based on his allegation that,
on a day in early May, Woodard stopped him in the hallway and asked
him questions about the allegations.

In his response brief, plaintiff

states only that Woodard “unlawfully detained Plaintiff when there was
no need to do so.” (Dkt. 63 at 17.) Plaintiff does not state what the
nature of the questioning was, how long the questioning lasted, or
whether the questioning could have resulted in any further disciplinary
action against plaintiff. Plaintiff does not allege any physical contact by
Woodard.

In essence, plaintiff is arguing that any conversation a

teacher holds with a student during which the student feels as if he or
she cannot immediately walk away constitutes a potential Fourth
Amendment violation.
A lessened standard under the Fourth Amendment applies to
school teachers and officials because schools act, in many instances, in
loco parentis.

Teachers and school officials are responsible for the

education and well-being of their students, and during the course of a
routine school day, the freedom of students is restricted in any number
23

of ways, both formally and informally, without violation of the Fourth
Amendment. Students are required to show up to classes and other
mandatory activities during school hours. Most primary and secondary
students are required to request permission to do things such as use the
bathroom, eat outside of designated meal times, or even wear clothes
not approved by the school.

As the Supreme Court has stated,

“maintaining . . . order in the schools requires a certain degree of
flexibility in school disciplinary procedures, and we have respected the
value of preserving the informality of the student-teacher relationship.”
New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
Plaintiff cannot plausibly state that the act of a teacher he alleges
witnessed an incident asking him (apparently briefly) about the
incident constitutes a violation of the Fourth Amendment prohibition
against unreasonable seizures.

To do so would be to turn many

conversations between students and teachers into seizures for the
purposes of the Fourth Amendment.
Accordingly, the unreasonable seizure claim is dismissed against
Sizemore,

Robinson,

Woodard,

Deputy

Bourdeau.
24

Hendricks,

and

Deputy

E. Malicious Prosecution Under the Fourth Amendment
To succeed on a malicious-prosecution claim under § 1983
when the claim is premised on a violation of the Fourth
Amendment, a plaintiff must prove the following: First, the
plaintiff must show that a criminal prosecution was initiated
against the plaintiff and that the defendant made,
influenced, or participated in the decision to prosecute.
Second, because a § 1983 claim is premised on the violation
of a constitutional right, the plaintiff must show that there
was a lack of probable cause for the criminal prosecution.
Third, the plaintiff must show that, as a consequence of a
legal proceeding, the plaintiff suffered a deprivation of
liberty, as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure. Fourth, the
criminal proceeding must have been resolved in the
plaintiff's favor.
Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (internal
citations and quote marks omitted).
Plaintiff’s claim against Sizemore, Deputy Hendricks, and Deputy
Bourdeau fails because he can show no deprivation of liberty following
the initial alleged seizure by Sizemore.

Plaintiff argues that “he was

under the Court’s scrutiny for just under a year and was required to
attend numerous court proceedings, thereby causing him to miss
numerous days of school.” (See, e.g., Dkt. 62 at 20.)

25

The “numerous court proceedings” are referenced nowhere in
plaintiff’s complaint. Instead, plaintiff alleges only that he showed up
for a single adjourned hearing on September 14, 2012. (Dkt. 40 at ¶
76.) Under applicable Fourth Amendment precedent, this is inadequate
to constitute a “deprivation of liberty.”

See, e.g., Hopkins v.

Sellers, Case No. 09-cv-304, 2011 WL 2173859, at *9 (E.D. Tenn. June
2, 2011) (malicious prosecution claim failed where plaintiff could not
show deprivation of liberty because he “was never arrested, never jailed,
never detained, never required to post bond, and never placed under
travel restrictions”); Briner v. City of Ontario, Case No. 07-cv-127, 2011
WL 866464, at *4 (N.D. Ohio Mar. 9, 2011) (malicious prosecution claim
failed where plaintiff could not show deprivation of liberty because she
“was issued a summons; she was not arrested. There was no bond
required and there is nothing in the record to suggest that she had any
restrictions placed on her movements prior to trial.”); see also Rogers v.
O’Donnell, Case No. 10-cv-373, 2012 WL 1831242, at *1 (E.D. Ky. May
18, 2012) (holding that there was no deprivation of a liberty interest
where plaintiffs were never arrested or incarcerated).

26

Plaintiff does not allege that he was arrested, or that any
government official put any restrictions on his movement. Instead, he
alleges that he went to a single adjourned hearing that he was free to
leave following the adjournment.

Further, plaintiff cannot bring a

viable claim for malicious prosecution when the charges against him
were voluntarily dismissed. Cheolas v. City of Harper Woods, 467 Fed.
Appx. 374, 378 (6th Cir. 2012) (holding that there was no viable claim
for malicious prosecution where all charges were dropped against a
plaintiff who was never arrested).
Accordingly, the malicious prosecution claim under the Fourth
Amendment

against

Sizemore,

Deputy

Hendricks,

and

Deputy

Bourdeau is dismissed.
F. Gross Negligence
Plaintiff asserts an independent claim for gross negligence against
a government official under M.C.L. § 691.1407(2).

“Although

establishing that a governmental official's conduct amounted to ‘gross
negligence’ is a prerequisite to avoiding that official's statutory
governmental immunity, it is not an independent cause of action.” Bletz

27

v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011) (citing Van Vorous v.
Burmeister, 262 Mich. App. 467, 483 (2004)).
Plaintiff’s gross negligence claim is not viable under Michigan law.
Accordingly, the claim against all individual defendants is dismissed.
G. Violation of Due Process Under the Fourteenth Amendment
Plaintiff argues that Irvine, Sizemore, Ferrell, Robinson, Deputy
Hendricks, and Deputy Bourdeau violated both his substantive and
procedural due process rights under the Fourteenth Amendment.
Plaintiff argues that their actions “shock[ed] the conscience,” and thus
offended his substantive due process rights.

Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998). In particular, he argues that these
defendants’ actions violated his fundamental liberty interest in his
freedom and uninterrupted education.
Plaintiff cites no basis for the proposition that his “uninterrupted
education” constitutes a fundamental liberty interest for the purposes of
the Fourteenth Amendment.

As defendants argue, “[t]he right to

attend public school is not a fundamental right for the purposes of due
process analysis.” Seal v. Morgan, 220 F.3d 567, 575 (6th Cir. 2000).
Even were it a basis, defendant would still fail to show that any
28

defendant committed any act or failed to commit any act that
interrupted his education.

The only times during which plaintiff’s

education was arguably interrupted were the times when his mother
voluntarily pulled him out of school, without suggestion or requirement
issued by any defendant.
Plaintiff argues that his “freedom” also constitutes a fundamental
liberty interest.

However, the Court cannot discern from either the

complaint or plaintiff’s briefing what fundamental right under the
Fourteenth Amendment “freedom” implicates that is not already
covered in plaintiff’s non-viable Fourth Amendment claims.
“To make out a claim for a violation of procedural due process, the
plaintiff has the burden of showing that (1) he had a life, liberty, or
property interest protected by the Due Process Clause; (2) he was
deprived of this protected interest; and (3) the state did not afford him
adequate procedural rights prior to depriving him of the property
interest.” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir.
2012).
Plaintiff fails to argue that any violation of his procedural due
process rights occurred, other than the deprivation of his non29

fundamental right to an uninterrupted education, and the violation of
his alleged fundamental right of “freedom”.

For the reasons stated

above, neither constitutes a cognizable liberty interest under the
Fourteenth Amendment.
In his complaint, plaintiff also refers to his liberty interests in “his
own physical safety, his good name, his liberty, and property.” Plaintiff
fails to allege any deprivation of his right to his physical safety, his
liberty, or his property. Further, the interest in reputation does not
constitute

either

liberty

or

property

guaranteed

against

state

deprivation without due process of law. Paul v. Davis, 424 U.S. 693,
712 (1976).
Accordingly, the due process claim against Irvine, Sizemore,
Ferrell, Robinson, Deputy Hendricks, and Deputy Bourdeau is
dismissed.
H. Constitutional Violations
Finally, plaintiff alleges a variety of “constitutional violations”
against Ypsilanti Community Schools and Washtenaw County.

The

complaint makes no mention of these violations other than a list of
alleged customs, policies, and/or practices that these defendants held in
30

the count itself. (Dkt. 40 at ¶ 148.) The list consists of: 1) failure to
supervise employees to prevent violations of constitutional rights; 2)
failure to adequately train or supervise employees regarding reasonable
seizures; 3) failure to adequately train or supervise employees
regarding lawful prosecution of a charge; 4) failure to control or
discipline employees known to harass, intimidate, or abuse citizens; 5)
failure to adequately train and/or supervise employees regarding
appropriate investigations; 6) failure to supervise, review, or discipline
employees whom defendants knew or should have known were violating
or were prone to violate citizens’ constitutional rights; and 7) failure to
require compliance of employees with established policies, procedures,
or rules and to discipline those who violate established policies.
The Court construes the above allegations as claims made under
42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
“[T]o survive a motion to dismiss under Rule 12(b)(6) [on a § 1983
claim], a plaintiff must adequately plead (1) that a violation of a federal
right took place, (2) that the defendants acted under color of state law,
and (3) that a municipality's policy or custom caused that violation to

31

happen.”

Bright v. Gallia Cnty., Ohio, 753 F.3d 639, 660 (6th Cir.

2014).
Plaintiff failed to adequately plead that any violation of any
federal right occurred, for the reasons stated above.

Because no

violation of any federal right occurred, plaintiff cannot state a plausible
claim for relief under § 1983. Accordingly, the claim for “constitutional
violations” is dismissed.
IV.

Conclusion

For the reasons stated above, it is hereby ordered that:
Defendants’ motions to dismiss (Dkt. 51, 56, 57) are GRANTED;
and
This case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: February 12, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on February 12, 2015.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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