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Trevino v. Kelly

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

March 27, 2017

TIM TREVINO, Plaintiff,

          Stephanie Dawkins Davis, Magistrate Judge


          DAVID M. LAWSON, United States District Judge

         Plaintiff Tim Trevino, a Michigan prisoner representing himself, filed this lawsuit under 42 U.S.C. § 1983 against various police personnel and a county assistant prosecutor involved in his arrest for the crimes that led to his present incarceration. The Court referred the case to United States Magistrate Judge Stephanie Dawkins Davis under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich.

         LR 72.1(b)(3) to conduct pretrial proceedings. Thereafter, assistant prosecutor Burke Castleberry and police officer Jacob Pifer filed a motion to dismiss and defendant John Doe Riney, a City of Adrian police officer, filed a motion to dismiss. Judge Davis filed a report on February 14, 2017 recommending that defendants Castleberry and Pifer's motion to dismiss be granted, the claims of excessive force against all the defendants be dismissed with prejudice, and all remaining claims be dismissed without prejudice under the authority of Heck v. Humphrey, 512 U.S. 477 (1994). The plaintiff filed timely objections to the report and recommendation, and the matter is now before the Court for fresh review.



         The plaintiff has made a number of attempts at filing a complaint that adequately describes his grievances. He has made allegations about seemingly unrelated events, and his later pleadings have not done much to alleviate the confusion. In his original complaint, Trevino makes reference to an incident that occurred March 2006, when he was accused of criminal sexual conduct, and the charges against him were dismissed “with prejudice.” That allegation is followed by a statement that on August 24, 2012, Blissfield Police Chief Jane Kelly entered his home without a valid search warrant. He alleges that Kelly conducted an unlawful “strip search” of him. He then says that Kelly sent two narcotics agents to his home in the middle of the night, they forcibly entered his home, and they shot him with a taser. He alleged that these actions violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments.

         Trevino noted that at the time that he filed his complaint, he did not know the names of the narcotics officers, but he believed he would learn their identities through discovery. It appears that he also intended to name the City of Blissfield as a defendant. He made references to failure to train and supervise the defendants, and he sought relief from four defendants, not three. Id. at 4-5. However, the city was never listed as a party on the docket.

         On April 27, 2015, Trevino filed a motion for discovery seeking the names of the unnamed narcotics officers from defendant Kelly. Magistrate Judge Michael Hluchaniuk, previously assigned to the case before his retirement, ordered a response, and defendant Kelly provided a copy of an incident report filed by defendant Jacob Pifer. Trevino subsequently filed a motion to amend the complaint to include defendant Burke Castleberry, an assistant prosecuting attorney, and investigators Escott and Riney, and Jacob Pifer. He also filed a first amended complaint separately.

         In the first amended complaint, Trevino named the above individuals and the Village of Blissfield as defendants. The Village of Blissfield, however, was again not added to the caption.

         The first amended complaint largely tracks the original complaint, but it appears that a page is either missing or the plaintiff intended only to supplement his original complaint. All of the detailed allegations concerning the events of August 24, 2012 are missing from the first amended complaint.

         That pleading states:

Each Defendant in their [sic] Individual Capasity [sic] did Violate Plaintiff[']s 4th; 5th; 8th; and 14th Amendment Civil Rights by Illegally Arresting and seizing Plaintiff of his Liberty where they all came into Plaintiff[']s Home without a Search Warrant; tased Plaintiff causing Personal Injury emotional distress as sustained by the attached Evidence that they could not have persued [sic] the matter at all.

         First Amended Compl. at 3. The plaintiff also filed a second amended complaint, making a small date correction. Judge Hluchaniuk granted Trevino's motion to amend and directed him to file a single, complete, amended complaint by October 1, 2015. No amended complaint was filed by that date.

         On January 5, 2016, this case was reassigned to Magistrate Judge Davis. On April 6, 2016, the plaintiff filed a motion asking the Court to ensure that the defendants were served with his amended complaint. In his motion, he represented that he sent a letter to the Clerk of the Court asking for service to be made on the defendants and asserting that he complied with Judge Hluchaniuk's order directing him to file an amended complaint. He said that he complied when he sent copies of the amended complaint to the Clerk at the same time that he filed his motion to amend. It appears that the plaintiff did not understand that the magistrate judge was directing him to file a single amended complaint that incorporated the first and second amended complaints. Magistrate Judge Davis subsequently entered an order observing that no amended complaint had been filed and deemed the first amended complaint as the operative complaint. She also noted that in order to serve the defendants, Trevino was required to provide within 30 days addresses for service. Trevino subsequently filed another amended complaint that included the addresses of the defendants. In response to the first amended complaint, defendants Castleberry and Pifer filed a motion to dismiss, defendants Kelly and Riney filed an answer to the first amended complaint, and defendant Escott filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(5) arguing that he was not served properly. Defendant Escott was eventually served properly and the magistrate judge dismissed his motion as moot. Defendant Escott filed an answer to the amended complaint, but did not file any further motions. Defendant Riney filed a motion for summary judgment.

         None of the plaintiff's efforts to amend his pleadings sheds much light on the facts of his case. The magistrate judge's report contains only sparse references to the facts and no detail. To learn the story, one must review defendant Riney's motion for summary judgment and the exhibits attached to his supporting brief. One exhibit is the plaintiff's deposition, and another is a series of police reports concerning the crimes for which Trevino stands convicted, which are criminal sexual conduct.

         As it turns out, Trevino's grievances stem from three separate incidents. It appears that he indeed was accused of sexual misconduct in 2006, and his accuser was his wife's daughter, Angel Valdez, who then was a minor. Valdez signed an affidavit recanting her allegations, and the charges against Trevino were dismissed by an order nolle prosequi. But Valdez returned to Blissfield as an adult in 2012 and asked the police to reopen the case. According to the police report, her affidavit of recantation was procured under suspicious circumstances.

         Village of Blissfield police chief Jane Kelly took up the investigation in 2012. On August 24, 2012, Kelly came to Trevino's house to question him about the 2006 incident. When Kelly came to the house, she did not have a warrant. That appears to be the source of Trevino's first allegation that Kelly made a warrantless entry into his home. But Trevino testified at his deposition that Kelly came in the afternoon, knocked, and he let her in. Trevino explained that he had barking dogs in the house, so after a few minutes Kelly asked if they could talk outside. So they went to his yard and sat in lawn chairs on the patio. Trevino testified that Kelly was very insistent about questioning him. She wanted to “strip search” him, but really she wanted him to take off his shirt to see if he had a scar on his chest. He cooperated, because Kelly told him he would have to answer questions or she would arrest him for obstruction of justice. Trevino said that he was embarrassed because neighbors were watching. The encounter came to an abrupt halt, according to Trevino, when he showed Kelly the documents confirming that the 2006 case was dismissed. Kelly then “kind of stopped everything.” Trevino asked Kelly for her badge number, but she said she did not have to tell him, and said that she was the chief of police. Then she left.

         Another “strip search” incident occurred on January 15, 2013. Trevino was served with a search warrant a few days earlier directing him to come to a walk-in clinic so photographs could be taken of his body. Trevino testified that the search was conducted without a warrant, but the documents attached to defendant Riney's summary judgment motion establish otherwise. Kelly was present at the clinic with a nurse. According to the police ...

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