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Estate of Romain v. City of Grosse Pointe Farms

United States District Court, E.D. Michigan, Southern Division

March 18, 2015

THE ESTATE OF JOANN MATOUK ROMAIN and MICHELLE MARIE ROMAIN, Plaintiffs,
v.
THE CITY OF GROSSE POINTE FARMS, DANIEL JENSEN, HOLLY KRIZMANICH, JACK PATTERSON, ANDREW ROGERS, RICHARD A. ROSATI, MICHAEL McCARTHY, KEITH COLOMBO, ANTONIO TRUPIANO, GEOFFREY McQUEEN, WELSEY KIPKE, JOHN WALKO, FRANK ZIELINSKI, RICKY GOOD, THE CITY OF GROSSE POINTE WOODS, ANDREW PAZUCHOWSKI, JOHN KOSANKE, JOHN ROSS, KEITH WASZAK, DENNIS WALKER, MARTIN MITCHELL, ANTHONY CHALUT, OFFICER JOHN DOE, TIMOTHY J. MATOUK, JOHN DOE, and KILLER JOHN DOE, Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS [ECF NOS. 77, 82]

LINDA V. PARKER, District Judge.

On January 12, 2010, an officer from the City of Grosse Pointe Farms Police Department came to the home of JoAnn Matouk Romain ("Ms. Romain"), asking if Ms. Romain was missing. The officer claimed that Ms. Romain's vehicle had been found in a church parking lot and the police believed she had committed suicide by walking into the frozen lake across the road. Claiming that she in fact was murdered and that Defendants conspired to cover up the murder, Ms. Romain's estate, through its personal representative Michelle Marie Romain, filed this lawsuit on June 10, 2014. Plaintiffs filed an Amended Complaint on July 16, 2014, in which they assert the following claims against Defendants: (I) denial of right of access to the courts under 42 U.S.C. § 1983; (II) conspiracy to deny Plaintiffs their constitutional rights under 42 U.S.C. § 1985; (III) "state created danger" under 42 U.S.C. § 1983; (IV) violation of the Freedom of Information Act ("FOIA"); (V) spoliation of evidence; (VI) violations of substantive and procedural due process and the Fair and Just Treatment Doctrine under the Michigan Constitution; (VII) municipal liability under 42 U.S.C. § 1983; and (VIII) wrongful death.

On October 17, 2014, Defendant Timothy J. Matouk filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for a more definite statement under Rule 12(e). (ECF No. 77.) A motion to dismiss and joinder in Defendant Matouk's motion was filed on December 4, 2014 by the following defendants associated with the City of Grosse Pointe Woods and/or its police department: the City of Grosse Pointe Woods ("Grosse Pointe Woods"); Sargent and Director of Public Safety Andrew Pazuchowski; Lieutenant John Kosanke; Lieutenant John Ross; and Public Safety Officers Keith Waszak, Dennis Walker, Martin Mitchell, and Anthony Chalut (collectively "Grosse Pointe Woods Defendants").[1] (ECF No. 82.) The motions have been fully briefed. On December 14, 2014, the Court issued a notice informing the parties that it is dispensing with oral argument with respect to the motions.

I. Factual Background

According to Plaintiffs' Amended Complaint, at 9:25 p.m. on January 12, 2010, Officer John Doe from the City of Grosse Pointe Farms Police Department, came to Ms. Romain's home, where she resided with her three children. (Am. Compl. ¶ 35; see also ECF No. 80-5 ¶ 2.) Michelle Romain ("Michelle"), Ms. Romain's daughter, answered the door. (Am. Compl ¶ 35.) The officer asked Michelle if her mother was missing; Michelle responded that, to her knowledge, no. ( Id. ) Michelle and her siblings had been with Ms. Romain at 5:00 p.m. that day and Ms. Romain then went to attend services at St. Paul Catholic Church on Lakeshore Drive in the City of Grosse Pointe Farms ("Grosse Pointe Farms"). ( Id. ¶¶ 49e, 61.)

The officer proceeded to inform Michelle that Ms. Romain's car had been found in the church parking lot during a routine patrol which had caused the patrolling officers to become concerned and investigate. ( Id. ¶ 35.) He indicated that officers were at the scene, searching for clues regarding Ms. Romain's disappearance, and that Michelle and her family should stay at the residence. (Am. Compl. ¶ 36.) Michelle and her two siblings decided, instead, to drive to the church. ( Id. ¶ 37.) There, they saw the Lexus vehicle that Ms. Romain had been driving surrounded with police caution tape. ( Id. ) The police were attempting to gain entry into the locked vehicle. ( Id. ) This was at approximately 10:00 p.m. ( Id. )

Prior to this time, the United States Coast Guard had been contacted and divers were in the process of searching the lake across the road from the church for Ms. Romain. ( Id. ) When Michelle asked why the police were searching the water, she was told that footprints led from the Lexus down the church driveway, across the street, and down to the lake. ( Id. ¶ 38.) Ms. Romain's family asked the police to bring K-9 units to the scene to track Ms. Romain's scent; however, the officers advised that dogs cannot detect scent in the cold. ( Id. ¶ 39.) Ms. Romain's family subsequently learned that this is not true. ( Id. )

After several hours searching for Ms. Romain in the lake, the search was called off for the evening. ( Id. ¶ 40.) The search continued the following day, without locating Ms. Romain's body. It was discovered by two fishermen in Amherstburg, Ontario, Canada more than two months later on March 20, 2010. ( Id. ¶ 42.) They contacted the Ontario Police. ( Id. )

Defendants Michael McCarthy and Richard Rosati of the Grosse Pointe Farms Police Department "immediately rushed over to Canada" and told the Ontario police that Ms. Romain was "extremely paranoid, suffered from severe mental health issues' and that no foul play was suspected.'" ( Id. ) The police supposedly obtained the information concerning Ms. Romain's mental state through an anonymous tip. ( Id. ¶ 47.) It was later discovered and confirmed through phone records that the tip had come from Defendant Matouk. ( Id. ) Defendants McCarthy and Rosati also told the Ontario police that Ms. Romain had committed suicide. ( Id. ¶ 42.) A coroner in Ontario performed an autopsy and found nothing strange about Ms. Romain's body or her clothing. ( Id. ¶ 44.)

Michelle had an autopsy performed by the head of forensic pathology at the University of Michigan Hospital, who found contusions on Ms. Romain's upper left arm where she carried her purse. ( Id. ¶ 45.) Ms. Romain's purse had been found inside her locked vehicle with a portion near the handle visibly torn, as if it were grasped in a struggle. ( Id. ) The forensic pathologist also noted that Ms. Romain's boots appeared to be brand new with absolutely no scuff marks. ( Id. ) Ms. Romain needed to walk down a very steep cement embankment and over at least several hundred feet of rocks and boulders by the water's edge to gain access to the lake across from the church. ( Id. ) Further increasing her families' doubt that Ms. Romain committed suicide by walking into the lake by the church was the fact that her body would have had to float over thirty miles in nine weeks, in what Plaintiffs' allege was a mostly frozen lake which had virtually zero current, to reach the location where it was found by the fishermen. ( Id. ¶ 43.) Other facts led Ms. Romain's family to believe that she was murdered and that the police were involved in a conspiracy to cover up her murder.

Several weeks before her disappearance, Ms. Romain received a call from her cousin, Defendant Matouk. ( Id. ¶ 46.) Michelle and her sister were present when Ms. Romain received the call. ( Id. ) They found it strange that Defendant Matouk was calling, as Ms. Romain had not spoken to her cousin in at least ten years. ( Id. ) Ms. Romain and Defendant Matouk spoke for some time and their conversation turned into an argument. ( Id. ) According to her daughters, Ms. Romain suddenly turned white and she hung up the phone. ( Id. ) She then turned to Michelle and told her that if anything happened to her or if she went missing, Michelle should tell the police to investigate Defendant Matouk, who was employed at the time as a police officer for the City of Harper Woods. ( Id. ) Michelle and her sister met with Defendants McCarthy and Rosati on January 14, 2010 (two days after Ms. Romain's disappearance) and told them about this incident.[2] ( Id. )

On the same date, the Grosse Pointe Farms Police Department turned its investigation of Ms. Romain's disappearance over to the Grosse Pointe Woods Police Department. ( Id. ¶ 48.) Seventy days later, the Grosse Pointe Woods Police Department changed its investigation to "open but inactive." ( Id. ) After Michelle pleaded to have the case re-opened and the case made national headlines on television, the Grosse Pointe Woods Police Department indicated that the investigation had been turned back over to Grosse Pointe Farms. ( Id. ) Michelle decided to hire her own lawyers and investigators to investigate Ms. Romain's death. ( Id. ¶ 49.)

The lawyers immediately submitted requests for information and police reports on behalf of Ms. Romain's estate and Michelle under FOIA. ( Id. ) The requests went ignored by the Grosse Pointe Woods and Grosse Pointe Farms police departments. ( Id. ) Michelle therefore filed a FOIA lawsuit on behalf of herself and the estate and the judge in that case subsequently ordered the defendants to turn over the requested documents. ( Id. ) Through these documents, Plaintiffs discovered that the LEIN check on the vehicle Ms. Romain was driving the night she disappeared- which allegedly led the police to her home to ask about her whereabouts- was run after 10:00 p.m. ( Id. ¶ 49a.) This was over a half hour after the police officer arrived at the home. Additionally, the automobile was not registered in Ms. Romain's name and thus it is unclear why the police would have been looking for her based on finding the car. ( Id. )

Additionally, there were no footprints on the driveway or the street leading from the church to the lake, which photographs showed were dry that evening. ( Id. ¶ 49c.) The only footprints found were in the snow and those prints had been made by someone with feet much larger than Ms. Romain's size five foot, wearing an athletic or business attire shoe rather than the high-heels Ms. Romain was wearing that evening. ( Id. ) The police never compared those footprints to Ms. Romain's feet or the boots she was wearing once her body was recovered. ( Id. ) The police also never tested the vehicle or Ms. Romain's purse for possible DNA or fingerprint evidence. ( Id. ¶ 49d.)

Michelle was informed that the police had dusted for and processed a fingerprint analysis of the vehicle; however, no documentation of any analysis was ever turned over to Ms. Romain's family. ( Id. ) When the family's independent investigator questioned Defendants regarding the possibility of prints being found inside the vehicle, he was informed that "[t]he only fingerprints that were collected from the vehicle were that of JoAnn and her children.'" ( Id. ) Neither Ms. Romain's nor her children's fingerprints, however, were on file at that time. ( Id. ) The police also informed the U.S. Coast Guard that Ms. Romain had been missing since 5:00 p.m. that day, when in fact nobody had reported Ms. Romain missing and her family had been with her at that time. ( Id. 49e.) Additionally, several witnesses provided statements to the police that were ignored or edited to support their suicide theory.

Ms. Romain's friends, family, doctors, and the staff at her attorney's office informed the police that she was neither depressed nor suicidal. ( Id. ¶ 50.) They also told the police that Ms. Romain was a devout Catholic who took an absolute stand against suicide. ( Id. ) The last person to leave St. Paul Church on the night of Ms. Romain's disappearance told the police that when she left at approximately 7:45 p.m., Ms. Romain's vehicle was not in the driveway of the church where it was later supposedly found by the police. ( Id. ¶ 51.) Two church members informed the police that they saw Ms. Romain's car alarm go off for at least ten seconds while they were exiting the church after services. ( Id. ¶ 52.) The day after Ms. Romain's disappearance, a woman contacted Defendant McCarthy and stated that she had seen a six-foot tall, medium built man, dressed in all black standing near the lake around the time Ms. Romain went missing. ( Id. ¶ 55.) The woman's statement, however, was changed to say that she saw a woman standing near the lake. ( Id. ) Another witness also reported seeing a man walking in a strange manner on Lakeshore Drive near the church at approximately 8:25 p.m. that evening. ( Id. ¶ 63.) As the witness drove past the man, she looked in her rear view mirror and saw him crossing over to the church. ( Id. ) This witness returned to the scene the next morning, where the divers were continuing to search for Ms. Romain, and tried to tell the police what she had seen, but they would not listen to her. ( Id. ) She also called the Grosse Pointe Woods Police Department, but nobody would take her statement. ( Id. )

A police report entered by Defendant Anthony Trupiano on January 13, 2010, makes reference to evidence found at the scene of Ms. Romain's disappearance. ( Id. ¶ 64.) Two items mentioned are Ms. Romain's purse and a scarf that was found in the street across from the church. ( Id. ) The scarf was never tested for DNA evidence nor turned over to Ms. Romain's family. ( Id. ) Its present whereabouts are unknown to Plaintiffs. ( Id. )

Another witness, an employee of a school located directly next to the church who was the last person to leave the school the evening Ms. Romain disappeared, reported to the police that she saw a suspicious white Mercedes SUV parked next to the church the night of her disappearance. ( Id. ¶ 56.) This witness also reported that as she was leaving the school's parking lot, she saw a man walking strangely along Lakeshore Drive near the church, wearing a scarf but no coat, which she found odd because he did not appear to be exercising and the weather was cold. ( Id. )

Defendant John Ross entered a police report on January 17, 2010, which included a witness statement from a retired Federal Bureau of Investigations ("FBI") Agent and friend of Ms. Romain's. ( Id. ¶ 59.) This witness told the police that Defendant Matouk and David Romain (Ms. Romain's husband from whom she was in the process of finalizing a divorce) should be people of interest with respect to her disappearance. ( Id. ) Michelle also told the police that the same two individuals should be considered people of interest. ( Id. ) Plaintiffs claim that the police never investigated Defendant Matouk and the only information obtained from David Romain involved his banking and financial information and a polygraph report that was never turned over to Ms. Romain's family. ( Id. )

Elizabeth Fisher, a woman attending the church service the evening of Ms. Romain's disappearance, contacted the police and informed Defendant John Kosanke that she saw Ms. Romain leaving the church around 7:20 p.m. ( Id. ¶ 61.) Ms. Fisher also told Defendant Kosanke that one of her friends later told her that she witnessed Ms. Romain's panic alarm on her car go off for approximately ten seconds (which had also been reported by another witness). ( Id. ) The report entered by Defendant Kosanke states that Ms. Fisher also reported that Ms. Romain's body language indicated that she was depressed. ( Id. ) Ms. Fisher reported no such thing, however. ( Id. ) The report also states that Ms. Fisher claimed that what her friend had seen and heard was not a panic alarm, but the audible chirps made when the car doors are locked. ( Id. ) Ms. Fisher never said this either, however. ( Id. )

On January 18, 2010, Paul Hawk went to the Grosse Pointe Farms police department and met with Defendant Daniel Jensen and two other police offers for about forty minutes to share what he had seen while driving on Lakeshore Drive near St. Paul Catholic Church the night of Ms. Romain's disappearance. ( Id. ¶ 53.) The officers told Mr. Hawk to go home, put his statement in writing, and bring it back the next day, which he did. ( Id. ) According to Mr. Hawk's statement, which he gave to the police on January 19, 2010, while driving on Lakeshore Drive near St. Paul Church the evening of January 12, he observed a woman with dark hair and black clothing sitting on the break-wall of Lake Saint Claire.[3] ( Id. ) He also observed two cars parked illegally on the lake side of the road with two men standing near them and he gave a detailed description of both men. ( Id. ) He also described one of the vehicles as a dark blue or black four-door sedan which appeared to be a municipal vehicle. ( Id. ) He made a written note of the first three characters of the license plate. ( Id. )

According to Mr. Hawk, the woman was slightly slumped over and he immediately became concerned that she was in danger. ( Id. ) He began to slow down; but as he approached the men, one of them reached into his inner coat as if he was going to pull out something, then quickly pulled out his hand and stuck his other hand into his outer coat pocket, while motioning for Mr. Hawk to drive through. ( Id. ) Mr. Hawk interpreted the man's gestures as suggesting that he had a gun in his pocket. ( Id. ) When Mr. Hawk subsequently received a description of Ms. Romain, he indicated that it fit the description of the woman he saw on the break-wall. ( Id. ) He was positive that one of the men he saw was Defendant Matouk. ( Id. )

The Grosse Pointe Farms police never contacted Mr. Hawk after he turned in his written statement. ( Id. ¶ 54.) However two years later, shortly after being interviewed by the FBI regarding what he had witnessed the night of January 12, 2010, Mr. Hawk was contacted by Defendant Anthony Chalut. ( Id. ) Defendant Chalut began asking Mr. Hawk questions about what he had discussed with the FBI, and became very aggressive when Mr. Hawk confirmed that he could positively identify the two men he saw that evening if he saw them again or their pictures. ( Id. ) Defendant Chalut threatened to have Mr. Hawk charged with some variation of an obstructing an investigation charge. ( Id. )

II. Standards Governing Defendants' Motions

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss, a complaint need not contain "detailed factual allegations, " but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action..." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not "suffice if it tenders naked assertions' devoid of further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1966).

As the Supreme Court provided in Iqbal and Twombly, "[t]o 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.'" Id. (quoting 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." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Twombly, 550 U.S. at 556.

In deciding whether the plaintiff has set forth a "plausible" claim, the court must accept the factual allegations in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This presumption, however, is not applicable to legal conclusions. Iqbal, 556 U.S. at 668. Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).

Rule 12(e) of the Federal Rules of Civil Procedure provides that when a pleading is "so vague or ambiguous that the party cannot reasonably prepare a response" a party may move for a more definite statement.

III. Analysis

A. Plaintiff's § 1983 Claims

In his motion, Defendant Matouk contends generally that Plaintiffs' § 1983 claim alleging denial of right of access to the courts should be dismissed because Plaintiffs fail to allege facts to establish the elements needed to establish the claim. He argues that Plaintiffs' § 1983 claim alleging a state created danger fails because they fail to plead affirmative acts by Defendant Matouk as a state actor which created or increased the risk that Ms. Romain would be exposed to private acts of violence. Defendant Matouk asserts that he was never involved in the investigation of Ms. Romain's death and that the police department where he worked also was not involved in the investigation. He contends that Plaintiffs' allegations are "frivolous, speculative and clearly fail to state a plausible claim" and that they "resort to conclusory and speculative allegations." (ECF No. 77 at Pg ID 788.)

The Grosse Pointe Woods Defendants similarly argue that Plaintiffs do not make any specific factual allegations against each individual ...


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