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Markowicz v. Royal Oak Police Department

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

December 8, 2016

MARTIN MARKOWICZ, Plaintiff,
v.
ROYAL OAK POLICE DEPARTMENT, KORB, VON OCHTEN, HILL, A & M TOWING YARD IMPOUND, STANTON, KEVIN ISAACSON, SPELLMAN, BOBEK, STEINKE, and JAY LNU, Defendants.

          LAURIE J. MICHELSON DISTRICT JUDGE.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS (DOC. 40)

          PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         For the reasons set forth below, IT IS RECOMMENDED that Defendants' Motion for Judgment on the Pleadings, (Doc. 40), be GRANTED, and that Plaintiff's First Amended Complaint, (Doc. 9), be DISMISSED WITH PREJUDICE.

         II. REPORT

         A. Introduction

         Plaintiff is presently incarcerated at the Michigan Department of Corrections JCS Facility, and he filed this complaint on March 30, 2015 against Defendants Detective Von Ochten (“Von Ochten”), Sergeant Stanton (“Stanton”), Officer Isaacson (“Isaacson”), Officer Spellman (“Spellman”), Officer Bobek (“Bobek”), Officer Steinke (“Steinke”), Jay LNU (“Jay”), Officer Hill (“Hill”), Officer Korb (“Korb”), A & M Towing Yard Impound (“the Impound”), and Royal Oak Police Department (“ROPD”). (Doc. 9). He alleges that his property was taken in violation of his due process rights. (Doc. 9 at 9-12).

         Articulating the specifics underlying his complaint, Plaintiff contends that the ROPD used spike strips to deflate his tires and effectuate his arrest on September 30, 2013. (Doc. 9 at 2-3). His truck and the items therein were thereafter impounded in good condition. (Id.). He completed the “requisite [Property Release] form for [his] wife and a copy was not provided to [him] for his personal records.” (Doc. 9 at 3-4). Although his “wallet, rings[, ] bracelet, phone, ear[r]ings” were released to his wife, the ROPD refused to release his truck. (Doc. 9 at 4). Plaintiff alleges that his mother spoke with Von Ochten, who told her Plaintiff would have to sign a release to a family member. (Id.). Plaintiff drafted this release, marking his brother as the designated person for release. (Id.). The ROPD received this release. (Doc. 9 at 4-5).

         After another week, Plaintiff contends that “Officer Karls” told his mother that his truck would be released after the investigation was over. (Doc. 9 at 6). Plaintiff, his family, and his lawyer made other unsuccessful attempts to contact Hill, Campbell, Von Ochten, and “Officer Karl” after this. (Doc. 9 at 7). But on December 14, 2013, ROPD informed Plaintiff's mother that his truck had been sold at an auction. (Id.).

         For perspective, Plaintiff's alleged stolen property includes his truck, assorted tools, a leaf blower and vacuum system, bolt cutters, luggage, assorted jewelry, safety-deposit box keys, personal files, and his grandfather's Purple Heart medal from World War II. (Doc. 9 at 5-6).

         B. Judgment on the Pleadings Standard

         Defendants move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Rule 12(c) provides that, “[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” Judgment may be granted under Rule 12(c) where the movant clearly establishes that no material issue of fact requires resolution and that she is entitled to judgment as a matter of law. See Beal v. Missouri Pacific R.R., 312 U.S. 45 (1941); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368, p. 518. The Court of Appeals for the Sixth Circuit has stated that a district court must consider a motion under Rule 12(c) using the same standard of review as a Rule 12(b)(6) motion to dismiss. Roger Miller Music, Inc. v. Sony/ATV Publ'g, L.L.C., 477 F.3d 383, 389 (6th Cir. 2007).

         When deciding a motion to dismiss, “[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff can prove a set of facts in support of its claims that would entitle it to relief.” Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 360 (6th Cir. 2001). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint does not plead “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citation omitted). Even though a complaint need not contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted).

         The Supreme Court has further explained that courts need not accept as true conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (finding assertions that one defendant was the “principal architect” and another defendant was “instrumental” in adopting and executing a policy of invidious discrimination insufficient to survive a motion to dismiss because they were “conclusory” and thus not entitled to the presumption of truth). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are ...


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