United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING
DEFENDANTS DEBETS AND FERNANDEZ'S MOTION TO DISMISS [ECF
V. PARKER U.S. DISTRICT JUDGE.
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.)
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. (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.
Standard for Motion to Dismiss
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).
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.
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).
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)).
Factual and Procedural Background
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.)
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.)
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.)
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.)