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Small v. City of Detroit

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

June 5, 2017

JERMAINE SMALL, Plaintiff,
v.
CITY OF DETROIT, DETROIT POLICE OFFICER JOSHUA CHRISTIAN, Individually; DETROIT POLICE OFFICER KYLE DEBETS, individually, and DETROIT POLICE OFFICER JACQUELINN FERNANDEZ, individually, Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS DEBETS AND FERNANDEZ'S MOTION TO DISMISS [ECF NO. 91]

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         This lawsuit arises from a police chase between Plaintiff Jermaine Small and Detroit Police Officers Joshua Christian ("Defendant Christian"), Kyle Debets ("Defendant Debets"), and Jacquelinn Fernandez ("Defendant Fernandez") (collectively "Defendant Officers"). On July 14, 2016, Plaintiff filed a complaint alleging that Defendant City of Detroit and the Defendant Officers violated his rights pursuant to 42 U.S.C. §§ 1983 and 1988, as well as the Fourth and Fourteenth Amendments to the United States Constitution. (ECF No. 1.) Specifically, two of the three counts in the Complaint are against the Defendant Officers in their individual capacity: (1) Count II states a violation of civil rights pursuant to 42 U.S.C. § 1983 and (2) Count III alleges that the Defendant Officers failed to intervene to prevent a violation of Plaintiff's Fourth or Fourteenth Amendment rights. (ECF No. 1 at Pg ID 9-11.)

         Presently before the Court is Defendants Debets and Fernandez's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on September 6, 2016.[1] (ECF No. 9.) Plaintiff filed an opposition brief on September 27, 2016. (ECF No. 12.) Defendants Debets and Fernandez did not file a reply brief. Finding the facts and legal arguments sufficiently presented in the parties' briefs, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). For the reasons stated below, this Court is granting the motion to dismiss.

         I. Standard for Motion to Dismiss

         A motion to dismiss pursuant to Rule 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).

         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).

         Ordinarily, the court may not consider matters outside the pleadings when deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir. 1989)). A court that considers such matters must first convert the motion to dismiss to one for summary judgment. See Fed. R. Civ. P 12(d). However, "[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the] defendant's motion to dismiss, so long as they are referred to in the [c]omplaint and are central to the claims contained therein." Bassett v. Nat 7 Collegiate Athletic Ass % 528 F.3d 426, 430 (6th Cir. 2008). Thus, a court may take judicial notice of "other court proceedings" without converting a motion to dismiss into a motion for summary judgment. Buck v. Thomas M. CooleyLaw Sck, 597 F.3d 812, 816 (6th Cir. 2010) (citing Winget v. J.P. Morgan Chase Bank, N.A., 537 F.3d 565, 575 (6th Cir. 2008)).

         II. Factual and Procedural Background

         On August 3, 2013 at 1:15 a.m., Defendant Officers Christian, Debets, and Fernandez were on patrol in a police vehicle near East Warren and Drexel Street in Detroit. (ECF No. 1 ¶ 9.) Plaintiff was standing with a group of people in front of a home off Drexel. (Id. ¶11.) As the officers turned onto Drexel Street, individuals began to run away. (Id. ¶ 12.) Defendant Officers allege they observed Plaintiff "aggressively grasp the front of his waistband" and began to pursue him. (ECF No. 9 at Pg ID 68.) Defendants Debets and Fernandez exited the vehicle and chased Plaintiff on foot, while Defendant Christian continued to drive the police vehicle. (ECF No. 1 ¶¶ 14, 15.) According to the Complaint, the pursuit ended when Defendant Christian struck Plaintiff with the vehicle and ran him over. (Id. ¶ 15.) After Plaintiff was hit by Defendant Christian, Defendant Debets alleges that he "recovered a handgun with one live round in the chamber and 2 rounds in the magazine." (ECF No. 9 at Pg ID 69.)

         Defendants Debets and Fernandez allege that Plaintiffs complaint should be dismissed for failure to state a claim. First, Defendants Debets and Fernandez contend that Plaintiff failed to allege particularized facts supporting his 42 U.S.C. § 1983 or failure to intervene claims. (Id. at Pg ID 73.) Here, Defendants state Plaintiff has failed to demonstrate any violation by Plaintiffs constitutional rights by Defendants Debets or Fernandez. (Id.) Even if Plaintiff did provide sufficient facts to show misconduct, Defendants Debets and Fernandez argue that they would be entitled to qualified immunity because their pursuit of Plaintiff was a discretionary act. (Id.)

         Defendants Debets and Fernandez also note that in order to prevail on a failure to intervene claim, Plaintiff must demonstrate (1) Defendant Officers observed or knew the constitutional harm was occurring and (2) there was an opportunity and means to prevent the harm from occurring. (Id. at Pg ID 75.) Here, Defendants argue if there was a constitutional violation, there was no opportunity for Defendants Debets and Fernandez to intervene before Plaintiff was struck by the police car. (Id. at Pg ID 76.)

         In his opposition brief, Plaintiff contends that all claims were properly pled. Plaintiff also requests discovery "concerning the actions taken and decisions made by these Defendants up to and including the running down of Plaintiff." (ECF No. 12 at Pg ID 118.)

         III. Applicable ...


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