Tillman #231929 v. Meijer Store et al
Filing
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CORRECTED OPINION; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW TILLMAN,
Plaintiff,
Case No. 1:15-cv-459
v.
Honorable Paul L. Maloney
MEIJER STORE et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The
Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act,
PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any prisoner action
brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2),
1915A. The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S.
519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, Plaintiff’s action
will be dismissed for failure to state a claim.
Factual Allegations
Plaintiff is incarcerated in the Cooper Street Correctional Facility. He is serving a sentence
of 2 to 10 years imposed by the Kalamazoo County Circuit Court on June 10, 2013, after Plaintiff pleaded
guilty to possession of methamphetamine. In his pro se complaint, Plaintiff sues the Meijer store in Portage,
Meijer Loss Prevention Officer Mark Degoede, Portage Police Officer Aaron Samuel Ham, City of
Portage, Portage Police Department, City of Portage Department of Public Safety,1 and Attorney Alan B.
Koenig.
Plaintiff claims that false allegations made by Defendant Degoede resulted in his false arrest,
malicious prosecution, and subsequent loss of $920.00 through forfeiture. According to Plaintiff, the Meijer
store failed to properly train and supervise Defendant Degoede. Degoede allegedly used his friendship with
Defendant Ham to subject Plaintiff to an illegal search and seizure, resulting in his false arrest. Plaintiff
alleges that the City of Portage and the City of Portage Department of Public Safety, which employed
Defendant Ham, “failed to properly train and supervise Officer Ham regarding adverse conflicts of interests
personal relationships with city residents and abuse of Police Powers and Search and Seizure/False Arrest
that resulted in the false arrest, malprosecution [sic] of Plaintiff and subsequent loss of Plaintiff’s $920.00
through an illegal forfeiture.” (Compl., docket #1, Page ID#3.) Plaintiff further claims that Defendant
Koenig, his appointed counsel, failed to render adequate, effective and competent assistance in Plaintiff’s
defense.
For relief, Plaintiff seeks the return of his $920.00, as well as monetary damages against
Defendants for violating his rights.
1
The Portage Police Department and the City of Portage Department of Public Safety appear to be the same
entity.
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Discussion
I.
Failure to state a claim
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.
1996). Plaintiff cannot maintain an action under § 1983 against Defendants Meijer and Koenig because
they are not state actors. Meijer corporation, the owner of the Meijer store at issue in this case, is a private
corporation. In order for a private party’s conduct to be under color of state law, it must be “fairly
attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street, 102 F.3d
at 814. There must be “a sufficiently close nexus between the State and the challenged action of [the
defendant] so that the action of the latter may be fairly treated as that of the State itself.” Skelton v. PriCor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1974)). Plaintiff has not presented any allegations by which Meijer’s conduct could be fairly attributed
to the State. Accordingly, Plaintiff fails to state a claim against Defendant Meijer.
Likewise, Defendant Koenig was not acting under color of state law. In Polk County v.
Dodson, 454 U.S. 312 (1981), the Supreme Court held that defense counsel performs a private, not an
official, function:
In our system[,] a defense lawyer characteristically opposes the designated representatives
of the State. The system assumes that adversarial testing will ultimately advance the public
interest in truth and fairness. But it posits that a defense lawyer best serves the public, not
by acting on behalf of the State or in concert with it, but rather by advancing “the undivided
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interest of his client.” This is essentially a private function, traditionally filled by retained
counsel, for which state office and authority are not needed.
454 U.S. at 318-19 (footnotes omitted). The Polk County Court further held that this is true even of the
state-appointed and state-paid public defender. Id. at 321. The Court said that, once a lawyer undertakes
the representation of an accused, the duties and obligations are the same whether the lawyer is privately
retained, appointed, or serves in a legal aid or defender program. Id. at 323. The Court held that, even
though a public defender is paid by the state, he or she does not act under color of state law in representing
the accused. Id. at 325. Rather, defense counsel—whether privately retained or paid by the state—acts
purely on behalf of the client and free from state control. Id. The Sixth Circuit has adhered to the holding
in Polk County in numerous decisions. See, e.g., Floyd v. Cnty. of Kent, 454 F. App’x 493, 497 (6th
Cir. 2012) (holding that, when performing traditional functions as counsel, a public defender is not a state
actor); Powers v. Hamilton Cnty. Pub. Defender, 501 F.3d 592, 611 (6th Cir. 2007) (same); Harmon
v. Hamilton Cnty. Court of Common Pleas, 83 F. App’x 766, 767 (6th Cir. 2003). Because Plaintiff’s
court-appointed attorney does not act under color of state law, no claim under § 1983 can be maintained
against him.
To the extent that Plaintiff asserts claims of legal malpractice, these claims arise solely under
state law. Section 1983 does not provide redress for a violation of a state law. Pyles v. Raisor, 60 F.3d
1211, 1215 (6th Cir. 1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir. 1994). The Sixth Circuit
has stated that district courts should generally decline to exercise supplemental jurisdiction over state law
claims under these circumstances. See Landefeld v. Marion Gen. Hosp., 994 F.2d 1178, 1182 (6th Cir.
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1993); Hawley v. Burke, No. 97-1853, 1998 WL 384557, at *1-2 (6th Cir. June 18, 1998).
Accordingly, these claims will be dismissed without prejudice.
Plaintiff’s claims for monetary and injuctive relief against the remaining Defendants are
barred by the doctrine of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the Supreme
Court addressed whether an Indiana prison inmate could maintain a § 1983 suit in which he alleged that
the prosecuting attorney and an Indiana State Police investigator violated his constitutional rights by
conducting an illegal investigation leading to his arrest, destroying exculpatory evidence, and using an illegal
voice-identification procedure at his trial. 512 U.S. at 478–79. The Supreme Court analogized Heck’s
§ 1983 claim to a tort claim for malicious prosecution. Id. at 484. An element of a malicious-prosecution
claim is a showing that the plaintiff prevailed in the criminal proceeding that gave rise to the
malicious-prosecution lawsuit. The Court noted that this “favorable-termination requirement” protects
against the risk of inconsistent judgments that could result from collateral attacks on criminal convictions.
Id. at 484–85. Accordingly, the Supreme Court held that a § 1983 damages action in connection with an
unlawful conviction or sentence will not lie unless the claimant, like a malicious-prosecution plaintiff, can
show that the underlying conviction or sentence has been invalidated:
[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court’s issuance of a writ
of habeas corpus.
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Id. at 486–87. Moreover, the Supreme Court instructed that even if the plaintiff challenges something other
than his conviction or sentence, where a ruling in his favor would “necessarily imply the invalidity of his
conviction or sentence,” the favorable-termination requirement applies:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.
Id. at 487.
While Plaintiff does not specifically allege that the events alleged in the complaint resulted
in a criminal conviction, it is clear from his claim of ineffective assistance of counsel that he was, in fact,
convicted of a criminal offense. Under Heck, Plaintiff’s claim of malicious prosecution necessarily implies
the invalidity of his conviction or sentence. Plaintiff’s claim of illegal search and seizure also is barred by
Heck. “Fourth Amendment claims arising out of searches occurring prior to Plaintiff’s guilty plea [are]
precluded by Heck v. Humphrey, [512 U.S. at 487], on the grounds that a civil suit holding that these
searches were improper would undermine the basis of Petitioner’s guilty plea and sentence.” Jacob v.
Twp. of West Bloomfield, 531 F.3d 385, 388 (6th Cir. 2008); see also Hayward v. Cleveland Clinic
Foundation, 759 F.3d 601, 609-14 (6th Cir. 2014) (holding that Heck barred the plaintiff’s civil rights
action that police used excessive force in making an arrest where the plaintiff was convicted of resisting
arrest based on the same underlying exercise of force); Shamaeizadeh v. Cunigan, 182 F.3d 391, 398-99
(6th Cir. 1999) (holding that, where an allegedly illegal search produced evidence used to obtain a
conviction, the convicted cannot bring a § 1983 claim challenging the search until the conviction is
overturned), overruled in other part, Wallace v. Kato, 549 U.S. 384, 393 (2007) (recognizing that Heck
bars the pursuit of a Fourth Amendment arrest claim until the conviction is overturned, but concluding that
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the action accrues at the time of the arrest). In addition, Heck’s favorable termination requirement has been
applied to claims of false arrest. See, e.g., Hancock v. Word, 27 F. App’x 256, 257 (6th Cir. 2001).
Therefore, Plaintiff’s action is barred under Heck unless and until his criminal conviction has been
invalidated.
Even if Plaintiff’s claims were not barred by Heck, Plaintiff’s conclusory allegations
against Defendants Degoede and Ham are insufficient to state a claim. A complaint may be dismissed for
failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a
plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains
“enough facts to state a claim to relief that is plausible on its face.” 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.” Iqbal, 556 U.S. at 679. Although the
plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 556).
Plaintiff makes only conclusory allegations that Defendants Degoede and Ham subjected
him to a false arrest and illegal search and seizure. Plaintiff does not provide any factual allegations
whatsoever in support of his claims. As such, the complaint does not contain sufficient facts from which
the Court could draw a reasonable inference that Defendants are liable for the alleged misconduct.
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“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.”
Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases
on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). Consequently, Plaintiff’s claims
against Defendants Degoede and Ham must be dismissed for failure to state a claim.
Likewise, Plaintiff fails to state a claim against Defendants City of Portage, Portage Police
Department, City of Portage Department of Public Safety (hereinafter “Municipal Defendants”). A
municipality may only be liable under § 1983 when its policy or custom causes the injury, regardless of the
form of relief sought by the plaintiff. Los Angeles Cnty. v. Humphries, 131 S. Ct. 447, 453-54 (2010)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1974)). In a municipal liability claim, the
finding of a policy or custom is the initial determination to be made. Doe v. Claiborne Cnty., 103 F.3d
495, 509 (6th Cir. 1996). A “policy” includes a “policy statement, ordinance, regulation, or decision
officially adopted and promulgated” by the sheriff. Monell, 436 U.S. at 690. The Sixth Circuit has
explained that a “custom”
. . . for the purposes of Monell liability must be so permanent and well settled as to
constitute a custom or usage with the force of law. In turn, the notion of “law” includes
deeply embedded traditional ways of carrying out state policy. It must reflect a course of
action deliberately chosen from among various alternatives. In short, a “custom” is a “legal
institution” not memorialized by written law.
Claiborne Cnty., 103 F.3d at 507 (citations and quotations omitted). The policy or custom must be the
moving force behind the constitutional injury, and a plaintiff must identify the policy, connect the policy to
the governmental entity and show that the particular injury was incurred because of the execution of that
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policy. Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Alkire v. Irving, 330 F.3d 802,
815 (6th Cir. 2003); Doe, 103 F.3d at 508-509.
Plaintiff’s action fails at this first step because his allegations have not identified a policy or
custom. In limited circumstances, a local government’s decision not to train certain employees about their
legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes
of § 1983. A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train. See Connick v, Thompson, 131 S. Ct. 1350, 1359 (2011) (citing Oklahoma City
v. Tuttle, 471 U.S. 808, 822–823 (1985)). As a consequence, a municipality’s failure to train its
employees in a relevant respect must amount to deliberate indifference to the rights of persons with whom
the untrained employees come into contact. Id. (citing City of Canton v. Harris, 489 U.S. 378, 388
(1989)). As a result, a pattern of similar constitutional violations by untrained employees is ordinarily
necessary to demonstrate deliberate indifference for purposes of failure to train. Connick, 131 S. Ct. at
1360 (citing Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 409 (1997).
Here, Plaintiff alleges only one isolated instance in which a Portage Police Officer allegedly
violated his constitutional rights. Plaintiff does not allege a pattern of similar constitutional violations by
Officer Ham or other Portage police officers. Plaintiff there, fails to state a claim against the Municipal
Defendants for failure to train.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2) and 1915A(b).
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The Court must next decide whether an appeal of this action would be in good faith within
the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.
1997). For the same reasons that the Court dismisses the action, the Court discerns no good-faith basis
for an appeal. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee
pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in
forma pauperis, e.g., by the “three-strikes” rule of § 1915(g). If he is barred, he will be required to pay
the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.
Dated:
July 13, 2015
/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge
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