Webb et al v. United States of America et al
Filing
156
Memorandum Opinion and Order on Defendant Lee Lucas' Motion for Summary Judgment (ECF #68) and Supplemental Motion to Dismiss Complaint (ECF #139). For the following reasons, the Court grants, in part and denies, in part, Lucas' Mot ions; <Supplemental Motion to supplement Defendant Lee Lucas supplemental brief for summary judgment based on Qualified Immunity/Motion to dismiss complaint reply as directed by the Court filed by Lee Lucas> with Certificate of Service filed by Lee Lucas Motion for summary judgment. Judge Christopher A. Boyko on 12/9/2011(M,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSHAWA WEBB, ET AL.,
Plaintiff,
Vs.
LEE LUCAS, ET AL.,
Defendant.
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CASE NO.1:07CV3290
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant Lee Lucas’ Motion for Summary Judgment
(ECF # 68) and Supplemental Motion to Dismiss Complaint (ECF # 139). For the following
reasons, the Court, grants, in part, and denies, in part, Lucas’ Motions.
The case arises from a First Amended Complaint filed by Joshawa Webb (“Webb”),
alleging constitutional violations stemming from his arrest and incarceration for an alleged drug
conspiracy. Webb contends he was innocent of the charges and his arrest and incarceration were
the result of Defendants’ wrongful acts. The Court finds Plaintiffs’ First Amended Complaint
does not allege any constitutional violation claims on behalf of Webb’s fellow Plaintiffs, to wit;
his mother Juanita Brooks, his wife Lakisha, his unnamed adolescent sister or his child; further,
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Webb has not provided any evidence that he is a guardian authorized to bring suit on behalf of
his adolescent sister. Therefore, this discussion on qualified immunity applies solely to Webb’s
claims.
By way of background, the Court had previously ruled on Lucas’ Summary Judgment
Motion and granted it, due in part to Plaintiffs failure to oppose the Motion. After reviewing
Plaintiff’s subsequently filed Motion under Fed. R. Civ. P. 60(b), the Court determined that
Plaintiff’s error in failing to oppose the motion was due to excusable neglect. The Court agreed
to reconsider Lucas’ Summary Judgment Motion with the benefit of Plaintiff’s opposition. After
the Court returned the case to the active docket Lucas filed a Supplemental Motion to Dismiss
which Plaintiff opposed. Lucas’ Motion to Dismiss will be treated as a Supplemental Motion for
Summary Judgment, as it relies, at least in part, on evidence (i.e. Lucas’ declaration) outside the
pleadings. The Court will now consider both Motions in its Opinion.
Defendants’ Version of the Facts
The matter before the Court arises from Webb’s arrest in connection with a drug
investigation. According to Defendants’ affidavits in this suit, on November 9, 2005, Plaintiff
Joshawa Webb was indicted for violations of federal criminal drug laws. The investigation
began in December of 2004 due to a murder that occurred in Richland County. The Richland
County Sheriff’s investigation of the murder indicated it was drug related and, as a result, the
Richland County Sheriff’s Department began investigating drug trafficking in Richland County.
At the request of the Richland County Sheriff’s Department in late August or early September of
2005, the Drug Enforcement Agency (“DEA”) Task Force began working collaboratively with
the Richland County Sheriff’s Department investigating drug trafficking in and around Richland
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County.
As part of the investigation, on October 13, 2005, Richland County Sheriff’s Department
Detective Chuck Metcalf monitored and recorded a phone conversation between Jarrell Bray, a
paid DEA informant, who was also a confidential informant used previously by the Richland
County Sheriff’s Department, and a man Bray identified as Joshawa Webb, wherein Bray
relayed he had $2,000.00 to purchase crack the next day.
On October 14, 2005, Detective Metcalf, Richland County Sheriff’s Department Sgt.
Matt Mayer, DEA Special Agent Lee Lucas (“Lucas”), DEA Task Force Officer Tom Verhiley
and DEA Special Agent Robert Cross met at the Richland County Sheriff’s Office to arrange a
controlled buy of two and a half ounces of crack cocaine from the person identified by Bray as
Joshawa Webb. That same day Lucas, operating undercover, contacted Bray, who informed
Lucas that Webb was with him. After securing money for the buy from federal government
funds wherein the serial numbers were previously recorded, Lucas, wearing a wire, along with
Detective Metcalf, Agent Cross, Sgt. Mayer and Agent Verhiley, proceeded to the location of the
controlled buy. Lucas drove in a separate vehicle and pulled into a gas station next to a vehicle
with tinted windows. The other agents and Richland officers were unable to observe the vehicles
from their monitoring location. Lucas later informed Agent Cross that he entered the vehicle
with Bray where a large white male was seated in the front passenger seat. Bray identified the
individual as Webb. Lucas exchanged $2600.00 dollars for approximately 70 grams of crack
cocaine. After the transaction, Bray returned to the Richland County Sheriff’s office for a
debriefing.
In March of 2006, Webb was indicted under a superceding indictment for the alleged sale
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of crack cocaine as described above. Sometime in 2007 Bray was arrested and later recanted his
previous statements regarding the controlled buy allegedly involving Webb. As a result, the
government moved to dismiss the charges against Webb; and on July 16, 2007, the Court granted
the government’s motion and dismissed the superceding indictment against Webb. On October
24, 2007, Webb filed his Complaint with this Court.
Plaintiffs’ Complaint
Webb contends he was wrongfully arrested, indicted and incarcerated for nearly twentyone months on fabricated evidence. Bray confessed to fabricating evidence to frame innocent
people, including Webb. Webb alleges audiotape evidence was tampered with or fabricated by
Defendants.
Plaintiffs’ First Amended Complaint contends the following: Webb never met Lucas
prior to being indicted and was not involved in the alleged drug ring. On November 9, 2005,
Defendants Lucas, George and other unidentified individuals kicked in the door of the home of
Juanita Brooks, Webb’s mother, looking for Webb. They attempted to force Webb’s adolescent
sister to accompany them. Lucas, George and other unidentified personnel then forced their way
into Webb’s home where they arrested Webb in the presence of Webb’s wife, Lakeisha, and
infant child. Plaintiffs contend that Defendants then unlawfully searched Webb’s home, where
no evidence of criminal activity was found.
The First Amended Complaint further states that two experts have reviewed the audio
recordings used to indict Webb and found they were tampered with or fabricated. According to
the First Amended Complaint, Bray admitted the controlled buy was simulated and recorded to
make it sound like Webb was involved in the drug ring. The First Amended Complaint further
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alleges Defendants fabricated, destroyed and/or withheld evidence that would have exonerated
Webb and alleges Defendants coached and manipulated witnesses and withheld doing so from
prosecutors. The First Amended Complaint alleges Defendants violated Webb’s rights under
the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments; Defendants conspired to deprive
Webb of his constitutional rights; the municipal defendants failed to train their employees; and,
in addition, their policies and practices violated Webb’s constitutional rights, and finally, alleges
violations of Ohio state law for malicious prosecution and intentional infliction of emotional
distress.
STANDARD OF REVIEW
In accordance with Federal Rule of Civil Procedure 56(c), summary judgment is
appropriate when no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); LaPointe v.
United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the
absence of any such genuine issues of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. A fact is material only if its resolution might affect the outcome of the
lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmoving party pursuant to Federal Rule of Civil Procedure 56. In ruling upon the motion, the
court must afford all reasonable inferences and construe the evidence in the light most favorable
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to the nonmoving party. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995);
United States v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir. 1985). However, summary
judgment should be granted if the party bearing the burden of proof at trial does not establish an
essential element of its case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995)
(citing Celotex, 477 U.S. 317). Furthermore, this Court is not required “to search the entire
record to establish that it is bereft of a genuine issue of material fact.” Betkerur v. Aultman
Hospital Ass'n., 78 F.3d 1079, 1087 (6th Cir. 1996). “Rather, the burden falls on the non-moving
party to designate specific facts or evidence in dispute.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-250 (1986).
42 U.S.C. §1983, Bivens and Qualified Immunity
In order to prevail on a claim under 42 U.S.C. § 1983, a plaintiff must prove two
elements. First, he must demonstrate that he was deprived of a right secured by the Constitution
or the laws of the United States, and second, he must demonstrate that the deprivation was
caused by a person acting under color of state law. Redding v. St. Edward, 241 F.3d 530, 532
(6th Cir. 2001).
When the cause of action concerns violations of constitutional rights by federal agents
sued in their individual capacities the United States Supreme Court in Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971), implied a right to
damages for Fourth Amendment violations. Since then, the Supreme Court has extended Bivens
twice, “ to provide an otherwise nonexistent cause of action against individual officers alleged to
have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any
alternative remedy for harms caused by an individual officer's unconstitutional conduct.”
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Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001). Bivens acts as a counterpart to
42 U.S.C. §1983 actions where the former is the proper vehicle for bringing constitutional
violation suits against federal actors while the latter is used for suits against state actors. Id at
66-67. A Bivens action permits the defense of qualified immunity, the analysis of which is
identical under either Bivens or §1983. Wilson v. Layne, 526 U.S. 603, 609 (1999).
“Government officials performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) “Qualified immunity ‘is an affirmative defense that must be pleaded by
a defendant official.’” Harlow, 457 U.S. 800, 815 (1982). But qualified immunity “is an
immunity from suit rather than a mere defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227
(1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “Immunity ordinarily should be
decided by the court long before trial.” Hunter at 228 (citing Mitchell at 527-29). “Unless the
plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell at
526 (citing Harlow at 818). The issue of qualified immunity must be addressed at the earliest
possible point in the litigation. Saucier v. Katz, 533 U.S. 194, 200-201 (2001), overruled on
other grounds by Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818 (2009). Siegert v.
Gilley, 500 U.S. 226, 232 (1991). The Supreme Court has stated that, “[u]ntil this threshold
immunity question is resolved, discovery should not be allowed. ” Harlow, 457 U.S. at 819. A
district court should resolve the immunity question before permitting discovery.
Crawford-El v. Britton, 523 U.S. 574, 598 (1998). Indeed, one of the core purposes
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of the immunity is to shield officials from “the burdens of broad-reaching discovery.”
Crawford-El, 523 U.S. at 588 (quoting Harlow, 457 U.S. at 817-818).
The analysis of a qualified immunity claim is distinct from the merits of the underlying
claim itself. Saucier, 533 U.S. at 204; Dunigan v. Noble, 390 F.3d 486, 491 n.5 (6th Cir. 2004).
Qualified immunity is a purely legal question which must be determined early in the
proceedings. Saucier, 533 U.S. at 200; Siegert, 500 U.S. at 232.
The defendants bear the initial burden of coming forward with facts which suggest that
they were acting within the scope of their discretionary authority at the time in question. Rich v.
City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). The burden then shifts to the
plaintiff to show that the defendants are not entitled to qualified immunity. Untalan v. City of
Lorain, 430 F.3d 312, 314 (6th Cir. 2005); Cartwright v. City of Marine City, 336 F.3d 487, 490491 (6th Cir. 2003).
ANALYSIS
Lucas’ Motion for Summary Judgment
Defendant Lucas has been an agent with the DEA for over sixteen years, has participated
in over a thousand drug cases and investigations, and has worked in an under cover capacity on
over one hundred drug cases, including this case. Lucas moves for summary judgment based on
qualified immunity on Plaintiffs’ Bivens claims because Webb allegedly cannot demonstrate
Lucas’ actions regarding Webb’s criminal investigation and arrest violated Webb’s constitutional
rights. Furthermore, Lucas contends Plaintiffs’ claims lack evidentiary support and are merely
conclusory allegations lacking reasonable particularity.
Attached to his summary judgment motion, Lucas provides a number of exhibits in
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support of his contention that Bray was approved as an informant by the proper DEA authorities,
had been used by Richland Sheriff’s department before, and has been indicted for falsely
implicating Webb amongst others in the drug conspiracy. In short, Lucas contends the evidence
demonstrates the controlled buy was made from Webb and there is no evidence Lucas fabricated
evidence.
The only non-conclusory facts alleged in Plaintiffs’ First Amended Complaint are stated
as follows:
In or about October of 2005, Joshawa Webb was falsely implicated
in a drug conspiracy. According to the fabricated charges in Mr.
Webb’s criminal case, he allegedly sold Defendant Lee Lucas
crack cocaine.
In reality, Mr. Webb never met Defendant Lee Lucas prior to being
charged with this crime. Mr. Webb was not involved in the alleged
drug ring for which he was arrested.
On November 9, 2005 Lee Lucas, Dan George, and yet-unidentified
Defendants kicked in the door of Juanita Brooks’ home. In an effort to
locate Mr. Webb, Lucas and Dan George attempted to force Mr. Webb’s
adolescent sister to accompany them.
Later on or about November 9, 2005, Lee Lucas, Dan George, and yetunidentified Defendants forced their way into Mr. Webb’s residence with
their guns drawn and falsely arrested Mr. Webb. Lakeisha Webb and
Kalib Webb, who was 15 months old at the time, were present for those
events.
After arresting Mr. Webb, the Defendants searched the Webb home
without lawful justification. The search did not uncover evidence of any
crime.
The Sixth Circuit has held “that a person's constitutional rights are violated when
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evidence is knowingly fabricated and a reasonable likelihood exists that the false evidence would
have affected the decision of the jury.” Gregory v. City of Louisville, 444 F.3d 725, 737 (6th Cir.
2006) citing Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir.1997). However, “ the
burden is on the plaintiff to allege and prove that the defendant violated a clearly established
constitutional right.” Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir 1999).
As the Supreme Court in Saucier held, in order to overcome a qualified immunity motion, a
plaintiff must show (1) the facts, taken in the light most favorable to plaintiff, “show the
officer’s conduct violated a constitutional right,” and (2) the right was “clearly established.”
Saucier 533 U.S. at 201.
In the Court’s original ruling in favor of Lucas, the Court found that Lucas had offered
unrebutted evidence regarding his role in the controlled buy and his handling of evidence used to
charge Webb, demonstrating his conduct did not violate Webb’s constitutional rights. However,
in two cases alleging nearly the same claims, filed by the same counsel for Plaintiffs against
many of the same Defendants, Judge Gaughan in Westerfield and Judge Oliver in Brown v. USA,
et al., 1:07cv3750 (N.D. Ohio 2008) arrived at opposite conclusions on qualified immunity.
Both cases were appealed, resulting in the Sixth Circuits overturning Judge Gaughan’s grant of
summary judgment and upholding Judge Oliver’s grant of limited discovery on the issue of
qualified immunity. See Brown v. USA et al 366 Fed. Appx. 614 (6th Cir. 2010). In Westerfield,
the Court stated:
denying any discovery in this case, when it appears from the amended affidavit that the
allegations in the complaint-at least with respect to some defendants-are anything but
frivolous, would work a manifest injustice on plaintiff.
366 Fed. Appx. 614, 620 2010 WL 653535 *5 (6th Cir. 2010).
In this case, Plaintiff’s Rule 56(d) affidavit is nearly identical to the affidavit in Brown,
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as to how discovery will enable him to defeat Defendants’ summary judgment motions.
Plaintiffs’ affidavit by counsel states the belief that a conspiracy existed among various law
enforcement officials acting in Richland, Ohio, as evidenced by defendants similar to Webb,
who were falsely charged by the defendants.
Now, having considered the Plaintiff’s Opposition Brief which argues for additional
discovery and, in light of the Sixth Circuit’s opinion in Westerfield, the Court finds limited
discovery should be permitted. Therefore, the Court holds Plaintiff is entitled to discovery on
his claims that Lucas violated his constitutional rights when Lucas falsely arrested him,
unlawfully searched his home and tampered with, withheld or destroyed evidence in order to
unlawfully charge Webb with a criminal act. Given that Lucas allegedly met Webb at the time
of the controlled buy, then later arrested him and given Lucas’ role in the collection, production
and possession of evidence, the Court finds limited discovery is necessary to allow Plaintiff to
fully address the issue of qualified immunity.
However, the inquiry does not stop there since the Court also held that some of Plaintiff’s
claims failed to sufficiently allege facts to support his claims and thus failed as a matter of law.
The Court will now revisit that analysis in light of Plaintiff’s Objections and the Supplemental
Motions and opposition briefs.
“A necessary concomitant to the determination of whether the constitutional right
asserted by a plaintiff is ‘clearly established at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a constitutional right at all.” Rich at 1095
(quoting Siegert, 500 U.S. at 226). “In ruling on a summary judgment motion, a district court
will consider the allegations put forth by the plaintiff, and ‘[u]nless the plaintiff's allegations
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state a claim of violation of clearly established law, a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery.’” Rich at 1095, (quoting Mitchell,
472 U.S. at 526). As the Sixth Circuit has consistently held, “It is not enough for a complaint
under § 1983 to contain mere conclusory allegations of unconstitutional conduct by persons
acting under color of state law. Some factual basis for such claims must be set forth in the
pleadings.” Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986) citing Place v.
Shepherd, 446 F.2d 1239 (6th Cir. 1971). The Sixth Circuit in Chapman went on to say:
There is a sound reason for requiring that a civil rights action against a
government official or employee state a claim in terms of facts rather than
conclusions. When a government employee is sued, if no factual allegations are
made, discovery and perhaps even trial may be required to demonstrate that the
claim has no merit. Such activities require the government defendant and others
such as government attorneys involved in defense of the claim to divert their
attention from their usual activities and to become involved in the litigation to the
neglect of their assigned duties.
Id.
The Court previously determined that the First Amended Complaint failed to allege
sufficient facts to support the claims against Lucas. After granting Plaintiff’s Rule 60(b) and
considering the parties additional briefs, the Court revises its Opinion. Here, the First Amended
Complaint states generalized allegations of evidence tampering by all Defendants and states that
Lucas falsely arrested Webb. It also states Defendants, including Lucas, unlawfully searched
Webb’s home.
Given the overarching requirement at this stage of the proceedings that the facts alleged
in the Complaint be construed in favor of Plaintiff, the Court finds Plaintiff’s claims, that he
never met Lucas prior to being charged with a crime, coupled with Lucas’ admissions in his
declaration that he was present in the vehicle at the time of the alleged controlled buy from
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Webb, and later identified Webb as the person in the car during the controlled buy supports a
claim for violating Webb’s constitutional rights at the pleading stage. Although the allegations
of tampering with evidence are plead against all Defendants, Lucas’ admitted role in possessing
at some point the recorded phone conversations setting up the drug buy, participating in the buy
and identifying Webb, require those claims proceed and permit Plaintiff limited discovery to
address Lucas’ qualified immunity motion. Furthermore, the Sixth Circuit in Westerfield
indicated that the allegations in that case, which are similar to the ones before this Court were
“anything but frivolous” compels additional discovery.
Finally, Plaintiffs’ conspiracy claim wholly fails to state a claim as a matter of law. As
the Sixth Circuit has stated, “[i]t is well-settled that conspiracy claims must be pled with some
degree of specificity and that vague and conclusory allegations unsupported by material facts
will not be sufficient to state a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 1538
(6th Cir.1987).
In a recent decision, the Sixth Circuit upheld the dismissal of a conspiracy claim for lack
of specificity. In Heyne v. Metropolitan Nashville Public Schools, 655 F.3d 556, 563 -564 (6th
Cir. 2011), the Sixth Circuit was faced with a conspiracy claim brought under 42 U.S.C. §1983
against state employees. The Court’s analysis of the claims reads as follows:
Here, the Amended Complaint does not contain a separate count for
conspiracy to violate Heyne's constitutional rights. The only paragraph in which
Heyne discusses conspiracy is vague and consists primarily of legal conclusions:
“Defendants have conspired among themselves and with others unnamed in the
[MNPS] system to knowingly and intentionally deny [Heyne]'s constitutional
rights. They have also conspired with D.A.'s parents to support D.A.'s claim
against the Heynes' insurance carrier for compensation.” We need not accept
these legal conclusions as true, and we decline to do so. See Jones v. City of
Cincinnati, 521 F.3d 555, 559 (6th Cir.2008). Legal conclusions that are
“masquerading as factual allegations” will not suffice. Terry v. Tyson Farms, Inc.,
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604 F.3d 272, 276 (6th Cir.2010) (quoting Tam Travel, Inc. v. Delta Airlines, Inc.,
583 F.3d 896, 903 (6th Cir.2009)). The Amended Complaint contains other
allegations about the Individual Defendants' conferring with one another at
different points in Heyne's disciplinary process, but it does not contain any more
specific allegations of a plan or agreement to violate his constitutional rights.
Heyne's factual allegations of a conspiracy are no more specific than other
allegations we have deemed insufficient. See Moldowan v. City of Warren, 578
F.3d 351, 394–95 (6th Cir.2009); Gutierrez, 826 F.2d at 1538–39; cf. Spadafore,
330 F.3d at 854 (affirming summary judgment on plaintiffs' § 1983 conspiracy
claim where they did not submit any evidence suggesting that defendants had a
single plan when they allegedly made false statements). Heyne's failure to plead a
plan or agreement to violate his constitutional rights is fatal to his conspiracy
claim. See Mettetal v. Vanderbilt Univ., Legal Dep't, 147 Fed.Appx. 577, 585 (6th
Cir.2005) (concluding that a district court correctly dismissed certain conspiracy
claims for failure to allege that the parties had entered into an agreement or
formed a single plan). Heyne has not plausibly stated a conspiracy claim.
Here, the Court finds much the same flaws in Plaintiff’s First Amended Complaint.
There is no separate count for conspiracy. There is no separate allegation of acts particular to
each defendant showing a single plan or agreement to deprive Plaintiff of his constitutional
rights. Webb’s First Amended Complaint alleges conspiracy in only vague and general terms.
For example, the First Amended Complaint at paragraph 36 states, “ Defendants also reached an
agreement to deprive Mr Webb of his constitutional rights via illicit means, and one or more of
them took actions in furtherance of this conspiracy.” These conclusory allegations fail to meet
specificity requirements for pleading conspiracy as stated by the Sixth Circuit. Therefore, the
Court dismisses Plaintiff’s conspiracy claims without prejudice. Plaintiff may seek to amend the
Complaint once limited discovery is completed, however, Plaintiff is admonished to separate out
his claims for both the Defendants’ and the Court’s benefit so that the parties and the Court are
not left to speculate as to what claims are being asserted against which Defendants.
The Court, having granted the United States’ motion to substitute itself for the federal
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defendants on Plaintiffs’ common law tort claims, grants Lucas’ Motion for Summary Judgment
asking the Court to dismiss those claims against him based on the substitution of the United
States.
The Court therefore, denies at this time Lucas’ motion for summary judgment based on
qualified immunity on Plaintiff’s claims that Lucas violated Plaintiff’s constitutional rights,
subject to refiling after Plaintiff has had an opportunity to engage in limited discovery. The
Court grants Lucas’ Motion on Plaintiff’s conspiracy claim and state tort law claims.
IT IS SO ORDERED.
S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
December 9, 2011
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