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Fawaz Ghaith v. Don Rauschenberger

March 10, 2011

FAWAZ GHAITH, PLAINTIFF,
v.
DON RAUSCHENBERGER, JR., MARION BREASBOIS, JERRY BREASBOIS, RICHARD I. DRESSER, SCOTT GORDON, DAWN ROSE PORTER GHAITH, BAY COUNTY, BAY COUNTY SHERIFF'S DEPARTMENT, MICHAEL NEWSHAM, MICHAEL E. BURCH AND JOHN E. MILLER, DEFENDANTS.



The opinion of the court was delivered by: Honorable Thomas L. Ludington

OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, DISMISSING WITH PREJUDICE PLAINTIFF'S § 1983 CLAIMS AGAINST THE STATE AND COUNTY DEFENDANTS, AND DIRECTING ADDITIONAL BRIEFING ON WHETHER THE COURT SHOULD RETAIN JURISDICTION OVER THE REMAINING CLAIMS

Plaintiff Fawaz Ghaith believes that he was mistreated by his former wife, Defendant Dawn Rose Porter Ghaith, his mother- and father-in-law, Marion and Jerry Breasbois, and his daughter, Hanan Ghaith. He has highlighted some circumstantial evidence that would appear to corroborate his belief that his family schemed and lied to have him jailed and prosecuted for a crime he did not commit. While he was in jail awaiting trial-unable to raise a $500,000 bond-his wife, without consulting Plaintiff, brought their children from their home in Jordan to the United States and began a divorce proceeding in Midland County. After six months in custody, the prosecutors dropped the charges against him when they were unable to confirm his family's story.

As compelling as Plaintiff's case against his family may be, however, federal law does not provide a remedy against them. See Ghaith v. Rauschenberger, No. 09-14336, 2010 WL 4982795 (E.D. Mich. Dec. 2, 2010). The United States Constitution protects the rights and liberties of individuals against encroachment by governments, not other individual citizens. Section 1983, which was enacted as part of the Civil Rights Act of 1871 "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails," provides a private right of action against persons acting "under color" of state law. Wyatt v. Cole, 504 U.S. 158, 161 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254--57 (1978)). It does not and cannot constitutionally govern private citizens acting on their own private agenda.

Plaintiff has not advanced any evidence that the state and municipal employees identified in his complaint acted in concert with his family or even had any reason to believe the information reported by his family was false. As a result, they cannot be held liable under § 1983 either. This is not to say Plaintiff is without a remedy. Indeed, if his wife and daughter falsely reported to authorities that he had committed a crime, they likely committed a crime themselves. See Mich. Comp. Laws § 411a(1)(b) (making the false report of a felony a felony under Michigan law, punishable by up to four years in prison and a $2,000 fine). Additionally, they may be liable to Plaintiff under Michigan tort law, as discussed in this court's earlier opinion. See Ghaith, No. 09-14336, 2010 WL 4982795. However, where there is no evidence that state or county officials were involved in any of the alleged misconduct, or even knew of it, Plaintiff has not presented a claim for which there is a remedy under federal law or a forum in federal court. Plaintiff's constitutional claims must be dismissed. If he wishes, Plaintiff may pursue redress of his grievances under state law.

I

Plaintiff's thirteen-count complaint identifies nine individual Defendants and two institutional Defendants. He contends, inter alia, that the Defendants conspired to violate his constitutional rights to parent, to be free from unreasonable searches and seizures, and to a fair trial. The defendants include his wife, Dawn Rose Porter Ghaith; her mother and stepfather, Marion and Jerry Breasbois; Bay County Assistant Prosecutors, Richard I. Dresser and Scott Gordon; Michigan State Police Officers, Don Rauschenberger, Jr., Michael Newsham, and Mark E. Burch; Bay County Sheriff John E. Miller; the Bay County Sheriff's Department; and Bay County.

On August 26, 2010, Dawn Rose Porter Ghaith ("Defendant Dawn") filed a motion for judgment on the pleadings. Fed. R. Civ. P. 12(c). After a hearing on November 30, 2010, the Court issued an opinion and order granting in part and denying in part Defendant Dawn's motion on December 2, 2010 [Dkt. # 56]. The Court concluded that Plaintiff's § 1983 claims against his former wife should be dismissed because Defendant Dawn is not a state actor. Plaintiff's tort claims against Defendant Dawn, however, stated a claim for relief and judgment on the pleadings was denied with respect to his claims against her under Michigan law. In permitting Plaintiff's state-law claims to proceed, the Court cautioned the parties that it would be unlikely to retain jurisdiction over the remaining claims against Defendant Dawn if all of the constitutional claims against the other Defendants were also dismissed. 28 U.S.C. § 1367(c)(3).

While Defendant Dawn's motion for judgment on the pleadings was under consideration, the remaining Defendants also filed motions for summary judgment or judgment on the pleadings [Dkt. # 48 & 53]. The Bay County Defendants, including Dresser, Gordon, Miller, the Sheriff's Department, and the County, filed a motion for summary judgment or judgment on the pleadings on November 22, 2010. The Bay County Defendants contend that they are entitled to absolute or qualified immunity as to all of Plaintiff's claims. The Bay County Defendants further contend that Plaintiff has not identified sufficient evidence to defeat their entitlement to qualified immunity or absolute immunity. The State Defendants, including Burch, Newsham, and Rauschenberger, also filed a motion for summary judgment. The State Defendants similarly contend that they are entitled to qualified immunity and that Plaintiff's claims lack factual support.

I The motions present the Court with two different standards of review. The Bay County Defendants cite both the Rule 12(c) judgment on the pleadings standard and the Rule 56(a) summary judgment standard, while the State Defendants rely exclusively on Rule 56(a). In considering a Rule 12(c) motion, the Court assumes all "well pleaded factual allegations" are true and will not look beyond the pleadings in reaching a conclusion. Lowden v. Cnty of Clare, 709 F. Supp. 2d 540, 545 (E.D. Mich. 2010) (citing 5C Wright & Miller, Federal Practice & Procedure § 1368); see also Fed. R. Civ. P. 12(d) (directing the Court not to consider matters outside the pleadings). In considering a Rule 56(a) motion, by contrast, the Court may review the entire record in the case and will consider affidavits, deposition transcripts, and other documents in reaching a conclusion. Fed. R. Civ. P. 56(c). Under Rule 56(a), the Court is obligated to construe facts in the Plaintiff's favor only if there is a genuine dispute as to what occurred, and there is no obligation to assume the well pleaded allegations in Plaintiff's complaint are true. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586--87 (1986). With that in mind, the facts as alleged in Plaintiff's complaint are summarized below, but the Court will consider other relevant evidence in the appropriate circumstances.

II Plaintiff and Defendant Dawn were married and had four children, Lana, Mohammed, Samer, and Hanan. Pl.'s Compl. ¶¶ 17--18. In August 2008, Defendant Dawn and the four children resided in Jordan, but Plaintiff divided his time between Jordan, where he lived with his family, and the United States, where he worked as a truck driver. Id. ¶¶ 22--24. Defendant Dawn wished to divorce Plaintiff and return to the United States with the couple's children to be nearer Defendant Dawn's mother and step-father, Defendants Marion and Jerry Breasbois. Id. ¶¶ 25--27. But the couple's youngest son, Samer, did not have a passport, and was unable to leave the country. Id. Samer's Jordanian passport, in accordance with the country's laws, could only be renewed by Plaintiff, his father, unless Plaintiff was dead or in prison. Id. ¶ 28; see also [Dkt. # 74-m].

Sometime in August 2008, Hanan, the couple's eldest daughter, traveled to the United States to live with Defendants Marion and Jerry Breasbois. Pl.'s Compl. ¶¶ 29--30. According to Defendant Dawn, Hanan traveled to the United States because Hanan's uncle, Plaintiff's brother, beat her for carrying on a relationship with a boy in Jordan and Plaintiff refused to intervene. When Plaintiff learned Hanan was in the United States, he called her on the telephone at the Breasboises' residence and spoke to her several times between August 28, 2008 and September 2, 2008. Id. ¶ 39; see also [Dkt. 63-E]. The conversations were "pleasant." Pl.'s Compl. ¶ 49. Plaintiff also accepted the Breasboises' invitation to a September 2 dinner at their residence. Id. ¶¶ 37--38.

Unbeknownst to Plaintiff, the Breasboises contacted the Gladwin County Sheriff on August 29, 2008, and reported that Plaintiff was harassing and threatening them and their granddaughter. Id. ¶ 40. The Breasboises also contacted the Michigan State Police and reported that Plaintiff was harassing and threatening them. Id. ¶¶ 41--42. Plaintiff contends those reports were false, and part of a scheme to have him arrested and prosecuted. On September 1, 2008, Plaintiff confirmed the dinner invitation for the next evening, and was told to arrive at their home at 5:00 p.m. Id. ¶ 44. On September 2, 2008, the day of the planned dinner, the Breasboises contacted Defendant Rauschenberger of the Michigan State Police and reported that Plaintiff was coming to the Breasboises' home at 5:00 p.m. that evening to take Hanan back to Jordan. Id. ¶¶ 46--48. The Breasboises also told Defendant Rauschenberger that Plaintiff had threatened to kill them. Id.

Defendant Rauschenberger came to the Breasboises' home at 1:00 p.m. on the afternoon of September 2, 2008 to interview the Breasboises and Hanan about the alleged threats made by Plaintiff. Id. ¶ 48; [Dkt. # 61-D]. In his complaint, Plaintiff theorized that Defendant Rauschenberger arranged for Hanan to call Plaintiff on the telephone at 1:20 p.m. in an attempt to get Plaintiff to repeat the threats, and that Plaintiff spoke with Hanan and the Breasboises for twenty minutes and did not make any incriminating statements. Pl.'s Compl. ¶¶ 45, 50. Indeed, the Breasboises' phone records confirm that Plaintiff placed a called to the Breasboises' home at 1:25 p.m. Eastern Time, while Rauschenberger was apparently at the home. [Dkt. # 63-E]. The call lasted twenty-one minutes, but it is not mentioned in Rauschenberger's police report. [Dkt. # 63-D]. Rauschenberger noted that the Breasboises received a call from Dawn Ghaith while he was in the home and that he attempted to have Hanan call Plaintiff later in the day from the police station, but the 1:25 p.m. call was not mentioned.

Defendant Rauschenberger then transported Hanan and Marion Breasbois to a Bay City women's shelter. Defendant Rauschenberger also contacted Defendant Gordon of the Bay County Prosecutor's office. Defendant Gordon advised Rauschenberger that if Marion Breasbois and Hanan had reported that Plaintiff threatened to kill his daughter or another member of his daughter's family in an effort to force her to return to Jordan, there was probable cause to believe he had committed extortion in violation of Michigan law. Id. ¶¶ 55--57. Accompanied by two other State Police officers, Defendants Newsham and Burch, Rauschenberger returned to the Breasboises' home to find and arrest Plaintiff. Id. ¶¶ 53--54.

Plaintiff arrived at the Breasboises' home with groceries to prepare dinner at 5:00 p.m. on September 2, 2008. Id. ¶ 58. No one was there so Plaintiff waited in his car and called Defendant Dawn in Jordan. Id. ¶ 59. The phone records also show that Plaintiff attempted to call the Breasboises home, twice, shortly after 6:00 p.m., but that the calls were not answered. [Dkt. # 63-E]. Defendants Rauschenberger, Newsham, and Burch arrived at the Breasboises' home sometime after 6:00 p.m. and found him sitting in a rented car in the driveway. The officers approached the car, arrested Plaintiff, and searched his vehicle. Id. ¶¶ 60--63. The search revealed groceries but no weapons or other contraband. Id. ¶ 65--67. Defendant was charged with four counts of extortion, and transported to the Bay County Jail where he was held on a $500,000 bond. Id. ¶ 75--76.

Jordanian authorities were informed of Plaintiff's arrest and issued a new passport to Samer. Id. ¶ 77--80. It is unclear from the record the extent to which Plaintiff's arrest aided or accelerated Samer's passport application process. Defendant Rauschenberger did provide a copy of his police report to the U.S. Embassy in Aman, Jordan, with Defendant Dresser's permission. [Dkt. 63-D]. Defendant Dawn then traveled to the United States with Samer, Lana, and Mohammed, arriving on September 11, 2008. Id. ¶ 81.

Plaintiff was tried on the extortion charges, but the jury was unable to reach a verdict and a mistrial resulted. Id. ¶ 90. On the eve of second trial, the Bay County Prosecutor's Office dismissed all of the charges against Plaintiff and he was released from the Bay County Jail after spending 196 days in custody. Id. ¶¶ 92--93. The charges were dropped when investigators were unable to confirm that the threatening phone calls allegedly made by Plaintiff actually occurred. Although the phone records confirm that Plaintiff made several calls to the Breasboises' home, the times of those calls apparently did not match the times reported by Marion Breasbois and Hanan.

On June 12, 2009, Plaintiff filed a complaint against the Defendants in the United States District Court for the Eastern District of Michigan in Detroit. [Dkt. # 1]. Count I of Plaintiff's complaint contends that the Defendants conspired to violate Plaintiff's constitutional right to parent by "fraudulently procuring a Jordanian passport for" Samer and "conspiring to circumvent" Jordanian law. U.S. Const. amend 14; 42 U.S.C. § 1983; Lehr v. Robertson, 463 U.S. 248 (1983). Counts II, III, and IV contend that the Defendants violated Plaintiff's Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights to be free from unreasonable searches and seizures, to a fair trial, and to be free from excessive bail. U.S. Const. amends. 4, 5, 6, 8, 14; 42 U.S.C. § 1983. Count V contends that Defendants conspired to interfere with Plaintiff's civil rights in violation of 42 U.S.C. § 1985. Count VI contends that Defendant Bay County had a custom or policy of violating civil rights in violation of 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658 (1978). Count VII contends that Defendants falsely arrested Plaintiff in violation of Michigan law. Count VIII contends that Defendants falsely imprisoned Plaintiff in violation of Michigan law. Count IX contends that Defendants maliciously prosecuted Plaintiff in violation of Michigan law. Count X contends that Defendants abused the judicial process causing harm to Plaintiff in violation of Michigan law. Count XI contends Defendants engaged in "concert of action" to tortiously harm Plaintiff. County XII contends that Defendants engaged in a "civil conspiracy" to tortiously harm Plaintiff. Count XIII contends that Defendant Dresser defamed Plaintiff.

III "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). The requirement is meant to provide the opposing party with " '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. 42, 47 (1957)). If a complaint does not meet that standard, the opposing party may move to dismiss it for failure to state a claim at any time before filing an answer or for judgment on the pleadings after filing an answer. Fed. R. Civ. P. 12(b)(6) & (c). "[T]he legal standards for adjudicating Rule 12(b)(6) and Rule 12(c) motions are the same." Lowden, 709 F. Supp. 2d at 545 (citing Lindsay v. Yates, 498 F.3d 434, 437 n.4 (6th Cir. 2007)).

"While a complaint attacked by a Rule [12(c) motion for judgment on the pleadings] does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (2007) (citations omitted). "Factual allegations must be enough to raise a right to relief above a speculative level, on the assumption that all the allegations in the complaint are true . . . ." Id. at 555--56 (citations omitted). "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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570)). "Facial plausibility" requires the plaintiff to include sufficient "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

A motion for summary judgment should be granted if the "movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the initial burden of informing the Court of the basis for its motion, and identifying where to look in the record for relevant facts "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must "set out specific facts showing a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). If the opposing party does not raise genuine issues of fact and the record indicates the moving party is entitled to judgment as a matter of law, the court shall grant summary judgment. Anderson, 477 U.S. at 250.

The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251--52. The party opposing the motion may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.

IV As an initial matter, Plaintiff contends that Defendants' motions for summary judgment are premature because he has not had an opportunity to engage in "meaningful discovery." A brief review of the docket, however, demonstrates that while Plaintiff may not have engaged in discovery, he has been provided the opportunity to do so. This case was filed on November 4, 2009, and the motions currently pending were filed more than one year later, on November 22 and November 24, 2010. Although the parties invested several months on a skirmish concerning the appropriate place of holding court, five months passed between the time this Court entered the scheduling order on June 14, 2010 [Dkt. # 39] and the time that the first motion for summary judgment was filed on November 22, 2010 [Dkt. # 48] and discovery closed on December 30, 2010. During that time, Plaintiff served written interrogatories and requests for production of documents, but he did not conduct any depositions. [Dkt. # 66]. Moreover, although Defendants apparently did not produce all of the requested documents because of concerns about a protective order, Defendants answered the interrogatories. Plaintiff made no effort to compel production of the documents.

In an affidavit filed pursuant to Federal Rule of Civil Procedure 56(d),*fn1 Plaintiff asserts he "cannot present facts essential to justify [his] opposition" to Defendants' motion for summary judgment because he has not had an opportunity to depose any of the witnesses. [Dkt. # 63-B]. He does not, however, identify any evidence he seeks to discover. See Singleton v. United States, 277 F.3d 864, 872 (6th Cir. 2002) ("[A] district court need not allow additional discovery by the nonmoving party if the party does not explain how such discovery would rebut the movant's showing of the absence of a genuine issue of material fact.") (citations omitted). The police reports, phone records, and transcripts from the preliminary hearing, criminal trial, and divorce proceeding are all available. Plaintiff has not identified anything he believes he might learn from the proposed depositions that is not already part of the record. Therefore, it is appropriate to decide the motions on the merits, particularly where the principal issues are qualified immunity and state governmental immunity. If the Defendants are immune from suit, they should not be required to comply with the burdens of discovery [Dkt. # 67]. See Pearson v. Callahan, 555 U.S. 223, 815 (emphasizing the importance of determining whether defendants in a § 1983 case are entitled to qualified immunity early in the case, before discovery).

Given the relatively large number of Defendants and claims, it is also worth providing a brief note on organization. Although there are discrete questions raised by the separate Defendants in their motions and Plaintiff's responses, the issues can be categorized for organizational purposes. The first, and most significant issue, is whether the individual Defendants are entitled to qualified immunity or absolute immunity as to Plaintiff's constitutional claims. The second issue is whether Plaintiff is estopped from challenging the determination of a Michigan state court that probable cause existed for his arrest and prosecution. The third issues is whether the only remaining institutional Defendant,*fn2 Bay County, is entitled to summary judgment under Monell v. Department of Social Services, 436 U.S. 658 (1978). The final issue is whether Plaintiff's state tort claims should be dismissed based on state law immunity issues or on their merits. Each of the categories will be addressed in turn.

A.

"Qualified immunity provides 'that 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.' " Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Qualified immunity is immunity from suit, not merely a defense to liability. See id. at 200--01 (emphasis in original). ...


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