United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
JUDGMENT ON THE PLEADINGS [ECF NO. 15]
V. PARKER U.S. DISTRICT JUDGE.
a civil action filed under 42 U.S.C. § 1983 and related
state law claims involving a shooting at the Gold Nugget, a
store located in the City of Highland Park. Plaintiff
Carleton Buck (“Plaintiff”) is a civilian who
entered the Gold Nugget during an active robbery situation.
Defendants Sergeant Curtis White (“Defendant
Curtis”) and Officer Heather Holcomb (“Defendant
Holcomb”) responded to the silent alarm at the store.
Plaintiff brought this action against Defendants Curtis,
Holcomb, and the City of Highland Park, where the officers
complaint includes four counts: (1) gross negligence against
Defendant White; (2) failure to train against the City of
Highland Park pursuant to 42 U.S.C. § 1983; (3) gross
negligence against Defendant Holcomb and (4) constitutional
violation of bodily integrity under color of law against
Defendant Holcomb. (ECF No. 1.)
before the Court are four motions: (1) Defendants' motion
for judgment on the pleadings, filed pursuant to Federal Rule
of Civil Procedure 12(c) on December 22, 2016 (ECF No. 15);
(2) Defendants' motion for protective order (ECF No. 6);
(3) motion to compel and extend discovery (ECF No. 12); and
(4) motion to file supplemental authority regarding the
motion to dismiss (ECF No. 20). The motion has been fully
briefed. The Court finds the legal arguments adequately
presented in the parties' papers such that the
decision-making process would not be significantly aided by
oral argument. Therefore, the Court is dispensing with oral
argument with respect to the motions pursuant to Eastern
District of Michigan Local Rule 7.1(f)(2). For the reasons
that follow, the Court is granting Defendants' motion to
dismiss and denying as moot the remaining motions.
motion for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c) is subject to the same standards of
review as a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted.
Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.
1998). 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
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 is not
applicable to legal conclusions, however. 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'l Collegiate Athletic Ass'n, 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. Cooley Law Sch., 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.
October 10, 2009, Plaintiff Carleton Buck parked in front of
the Gold Nugget on Woodward Avenue, Highland Park, behind a
police vehicle. (Compl. ¶ 17.) The police vehicle was
occupied by Defendants White and Holcomb, who were responding
to a silent alarm that had been activated by an employee of
the Gold Nugget. (Id. ¶ 19.) Defendant Holcomb
was “looking through the clear front glass
windows” of the store as Plaintiff exited his vehicle.
(Id. ¶ 21.) Defendant White and Plaintiff
exchanged pleasantries outside the Gold Nugget. (Id.
Defendant White and Defendant Holcomb entered the store.
Shortly after they entered, one of the robbers started
shooting at Defendant White and struck him in his left arm.
(Id. ¶ 40.) Defendant Holcomb began shooting at
the robber, as the robber ran through the front door and onto
the sidewalk. (Id. ¶ 43.) Plaintiff alleges
that as she returned fire at the robber, Defendant Holcomb
shot him twice in the buttocks. (Id. ¶ 44.)
Plaintiff states that the bullets “fractured his lower
spinal column (coccyx), broke into several fragments, and are
still lodged in his body.” (Id. ¶ 45.)
criticizes how Defendants White and Holcomb responded to the
silent alarm. First, Plaintiff states that Defendants White
and Holcomb did not advise him that they were responding to a
silent robbery and therefore, Plaintiff should leave the area
due to safety concerns. (Id. ¶ 24.) Second,
Defendant White did not establish a perimeter with crime
scene tape. (Id. ¶ 25.) Third, Defendant White
parked the vehicle outside the store, making it probable that
the robbers saw the squad car outside the store and hid in
response. Fourth, Defendant White was not wearing a safety
vest “as required when responding to the scene of an
active ongoing armed robbery in progress[.]”
(Id. ¶ 41.)
filed their motion to dismiss on December 22, 2016.
Defendants first argue that Defendant Holcomb is barred from
liability because of the applicable statute of limitations.
(ECF No. 15 at Pg ID 372.) In the alternative, Defendants
contend that Defendant Holcomb is entitled to qualified
immunity. (Id. at Pg ID 374.) Third, Defendants
argue that Plaintiff has failed to state a claim against the
City of Highland Park because Plaintiff cannot establish an
underlying constitutional violation as required by 42 U.S.C.
§ 1983. (Id. at Pg ID 382.) Defendants also
allege that Plaintiff has not established a failure to train
by the City of Highland Park. (Id.) Fourth,
Defendants state that Plaintiff has failed to state a viable