Boggiano #974503 v. Rogers et al
Filing
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OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
ANTHONY BOGGIANO,
Plaintiff,
v.
Case No. 1:18-cv-212
Honorable Janet T. Neff
KRISTEN ROGERS et al.,
Defendants.
____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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, the Court will dismiss
Plaintiff’s complaint against Defendants Grand Rapids Police Lieutenant Kristen Rogers and
Grand Rapids Police Detective Case Weston for failure to state a claim.
Discussion
I.
Factual allegations
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at Cooper Street Correctional Facility (JCS) in Jackson, Jackson County, Michigan. The
events about which he complains, however, occurred in Kent County, Michigan, as the police
investigated the crime of which he was convicted. Plaintiff’s complaint is scant on details
regarding his crime. The Michigan Court of Appeals provided some details that put Plaintiff’s
complaint in context:
According to the evidence introduced at trial, defendant sexually assaulted
the victim while she was sleeping in the early morning hours of December 27, 2013.
Late the previous night, the victim enjoyed a few drinks at a local bar with her
roommate, some friends, and defendant. When the bar closed, the group returned
to the apartment that the victim shared with her roommate. The victim went to bed
alone and fully-clothed. She did not consent to any sexual acts. However, she
awoke around 5:00 or 5:30 a.m. to find herself naked from the waist down and
defendant kneeling over the top of her, between her legs, with his pants down. The
victim noticed her vagina was wet. The victim alerted her friends, and defendant
left the apartment. The same day, the victim reported the incident to the police and
underwent an examination by Alison Edidin, a sexual assault nurse examiner
(SANE). Edidin observed an abrasion on the victim’s perineum caused by
something sharp, possibly a fingernail; and she testified that her findings were
“consistent with a sexual assault.” Forensic testing revealed the presence of saliva
in swabs collected from the victim’s vulvar and vaginal wall as well as low levels
of male DNA in the swabs from the victim’s vulvar, though the quantity of DNA
was too low to allow comparison to a possible donor.
During a recorded interview with police, defendant fully admitted that he
engaged in sexual activity with the victim. He told police: “I had oral sex with her,
and I fingered her.” Initially, defendant claimed that the victim consented to having
sex with him. He conceded that the victim did not invite him to her room.
Nevertheless, he told police that, when he entered the bedroom, the victim was
awake, and he and the victim had a conversation during which she said she was
“cool” with “mess[ing] around.” According to defendant, everything seemed fine
until the victim “freaked out.” However, defendant soon changed his story and
admitted that he “made a mistake” on the night in question. He told police that the
victim may not have been fully conscious and that they did not have a conversation
during which the victim consented.
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People v. Boggiano, No. 332450, 2017 WL 3441427, *1 (Mich. Ct. App. Aug. 10, 2017) (emphasis
supplied).1 The recorded interview with police referenced in the appellate court’s opinion lies at
the foundation of Plaintiff’s civil rights claims in this Court.
Plaintiff sues Grand Rapids Police Department Family Affairs Division Detectives
Lieutenant Kristen Rogers and Case Weston. (Compl., ECF No. 1, PageID.6.) Plaintiff alleges
that Defendants Rogers and Weston contacted the Plaintiff via cell phone on December 27, 2013,
as part of Defendants’ investigation of an allegation that Plaintiff had sexually assaulted a woman.
(Id., PageID.7.)
Plaintiff agreed to speak with Defendants at Plaintiff’s residence.
(Id.)
Unbeknownst to Plaintiff, Defendants recorded their conversation with Plaintiff. (Id.) Defendants
provided the recorded conversation to a magistrate who, based thereon, made a probable cause
determination. (Id., PageID.8.) Defendants also provided the recorded conversation to the
prosecutor who introduced a redacted transcript of the recorded conversation at trial. (Id.)
Plaintiff claims the recording of the conversation constituted an illegal warrantless
search, led to an illegal warrant, and caused his illegal arrest. Plaintiff seeks compensatory and
punitive damages exceeding $750,000.00.
II.
Failure 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
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The court of appeals affirmed the trial court on all issues. Plaintiff’s application for leave to appeal to the Michigan
Supreme Court remains pending. http://courts.mi.gov/opinions_orders/case_search/pages/default.aspx; then search
“332450” (last visited March 15, 2018).
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(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). “[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)).
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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to
identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271
(1994).
Plaintiff alleges that Defendants violated Plaintiff’s rights under the Fourth and
Fourteenth Amendments. It is not a violation of the Fourth or Fourteenth Amendment, or the
counterparts of those provisions in the Michigan Constitution, for a participant in a conversation
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to record the conversation or for the recording to be used at trial. United States v. White, 401 U.S.
745, 752 (1971) (plurality opinion) (“If the law gives no protection to the wrongdoer whose trusted
accomplice is or becomes a police agent, neither should it protect him when that same agent has
recorded or transmitted the conversations which are later offered in evidence to prove the State’s
case.”); United States v. Lopez, 373 U.S. 427, 439 (1963) (“The Government did not use an
electronic listening device to listen in on conversations it could not otherwise have heard. Instead
the device was used only to obtain the most reliable evidence possible of a conversation in which
the Government’s own agent was a participant and which the agent was fully entitled to disclose.
. . . [The device] was carried in and out by an agent who was there with petitioner’s assent, and it
neither saw nor heard more than the agent himself.”); see also United States v. Cacares, 440 U.S.
741, 750 (1979) (“In [Lopez] we repudiated any suggestion that the defendant had a ‘constitutional
right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without
being beset by corroborating evidence that is not susceptible of impeachment,’ . . . .”); People v.
Collins, 475 N.W.2d 684, 698 (Mich. 1991) (“It is our conclusion in this case that the warrantless
participant monitoring in this case violated no reasonable expectation of privacy on the part of
defendant, and that there is no compelling reason to interpret [the Michigan Constitution] as
affording greater protection for this defendant is provided under the Fourth Amendment.”). The
premise of Plaintiff’s entire complaint is unsupportable. His claims are frivolous.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants Grand Rapids Police Lieutenant Kristen Rogers and Grand
Rapids Police Detective Case Weston will be dismissed for failure to state a claim, under 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:
March 20, 2018
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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