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Schlussel v. City of Dearborn Heights

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

October 11, 2017

Deborah Schlussel Plaintiff,
v.
City of Dearborn Heights, et al. Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS [4][9]

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Presently before the Court is Defendant Gary T. Miotke's Motion to Dismiss and Defendants City of Dearborn Heights, Dearborn Heights Police Department, Dan Paletko, and Lee Gavin's Motion to Dismiss. All Defendants seek to dismiss the nine counts that Plaintiff has filed against them. For the reasons that follow, the Court will grant Defendant Miotke's and Defendants Paletko, Gavin, City of Dearborn Heights, and Dearborn Heights Police Department's Motions to Dismiss. Counts one, four, eight, and nine are dismissed without prejudice. Counts two, three, five, six, and seven are dismissed with prejudice.

         II. Factual Background

         This suit originates from a request by Plaintiff Deborah Schlussel for booking photographs and videos that the Defendants denied. On June 8, 2015, The City of Dearborn Heights (“the City”) promulgated a “Policy Regarding Booking Procedure for Females Wearing a Hijab, Burka, or Other Religious Head Covering” (“Hijab Policy”). Dkt. No. 1-7, pg. 2 (Pg. ID 44). The policy states that the City will not take booking photographs of women who wear hijabs or burkas with their head coverings off. Id. at 2-3 (Pg. ID 44-45). If there are any identifying marks present, the officer taking the photographs will photograph the identifying mark only. Id. On March 24, 2016, Plaintiff sent the Dearborn Heights Police Department a request for information pursuant to the Michigan Freedom of Information Act (FOIA). Dkt. No. 1, pg. 5 (Pg. ID 5). Plaintiff requested booking photos and videos of an arrestee, Ms. Kazan, without her hijab on, which were taken before the City enacted the Hijab Policy. See Id. On April 22, 2016, Defendant Gary T. Miotke wrote Plaintiff on behalf of the City of Dearborn Heights, granting in part and denying in part the request, and charging Plaintiff twenty-four dollars for the information. Pl.'s Ex. B. Miotke's denial was pursuant to the privacy exemption of the Michigan FOIA. Id. Plaintiff appealed the decision to partially deny her request on October 16, 2016. Pl.'s Ex. E. In her appeal, Plaintiff cited the November 14, 2014 request of Mr. Amir Makled, an Arab Muslim male born in Lebanon, for booking photos and videos of the same arrestee that was granted in its entirety for fifteen dollars. Id. The City of Dearborn Heights made a final determination to deny her request on November 16, 2016. Pl.'s Ex. F.

         Plaintiff then filed a complaint against the City of Dearborn Heights, et al., including Miotke, on May 15, 2017. See Dkt. No. 1. Plaintiff alleged nine counts against all of the defendants. Count I alleges a violation of the Michigan Freedom of Information Act by denying Schlussel access to all of the booking photos she requested. Dkt. No. 1, pg. 9 (Pg. ID 9).Count I also alleges that the Hijab Policy adopted by Defendants violates the Michigan FOIA. Id. at 11 (Pg. ID 11). Count II is a 42 U.S.C. §1983 Equal Protection claim alleging that Defendant denied her requests because of her gender, Jewish ethnicity/religion, and United States national origin. Dkt. No. 1, pg. 13 (Pg. ID 13). Count III alleges a conspiracy by all of the Defendants to deprive Plaintiff of her Equal Protection rights. Dkt. No. 1, pg. 15 (Pg. ID 15). Count IV alleges a violation of the Michigan Elliott-Larsen Civil Rights Act, which states, “a person shall not deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodation of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.” Dkt. No. 1, pg. 16 (Pg. ID 16). Count V alleges that Defendant violated the Establishment Clause of the United States Constitution by denying her the requested material and by adopting a policy exempting Muslim women from FOIA laws. Dkt. No. 1, pg. 17 (Pg. ID 17). Count VI alleges Defendants violated Plaintiff's federal First Amendment rights of free speech and freedom of the press. Dkt. No. 1, pg. 18 (Pg. ID 18). Count VII alleges that Defendants violated Plaintiff's federal Freedom of Religion rights by denying her request for materials but granting the request to a party of the Muslim faith. Dkt. No. 1, pg. 19-20 (Pg. ID 19-20). Counts VIII and IX allege that Defendants violated the Equal Protection Clause of the Michigan Constitution by denying Plaintiff's request for materials. Dkt. No. 1, pg. 21- 24 (Pg. ID 21-24).

         Defendant Miotke filed a motion to dismiss all nine counts against him on July 17, 2017. See Dkt. No. 4. Plaintiff opposed the motion and responded on August 7, 2017 conceding that Count I should be dismissed. See Dkt. No. 6, pg. 5 (Pg. ID 106). Defendant replied on August 14, 2017. See Dkt. No. 7. Defendants City of Dearborn Height, Dearborn Heights Police Department, Dan Paletko, and Lee Gavin filed a motion to dismiss on August 24, 2017. Dkt. No. 9. Plaintiff responded on September 14, 2017, opposing the motion, but conceding that Count I should be dropped against Paletko and Gavin, and Defendant Dearborn Heights Police Department should be dismissed. Dkt. No. 11, pg. 4 (Pg. ID 175). Defendants replied on September 20, 2017. Dkt. No. 12.

         III. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss. The court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must “allege enough facts to make it plausible that the defendant bears legal liability.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016). The facts need to make it more than “merely possible that the defendant is liable; they must make it plausible.” Id. “Bare assertions of legal liability absent some corresponding facts are insufficient to state a claim.” Id. A claim will be dismissed “if the facts as alleged are insufficient to make a valid claim or if the claim shows on its face that relief is barred by an affirmative defense.” Riverview Health Inst., LLC v. Med. Mut. Of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

         IV. Discussion

         Federal Law Claims

         Defendant Dearborn Heights Police Department

         Michigan law states that a municipal police department is a “creature of the municipality.” See Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989, 992 n.1 (6th Cir. 1994). Therefore, a suit against a municipal police department is a suit against the municipality itself. Plaintiff concedes that Defendant Dearborn Heights Police Department is an improper defendant. Dkt. No. 11, pg. 4 (Pg. ID 175). The Court dismisses all of the federal claims against Defendant Dearborn Heights Police Department.

         Count II

         Count II is a 42. U.S.C. § 1983 claim that alleges Defendants denied Plaintiff Equal Protection of the law under the United States Constitution based on her gender as a woman, ethnicity/religion as Jewish, and nationality as a United States national. Dkt. No. 1, pg. 13 (Pg. ID 13).

         City of Dearborn Heights

         “To prevail in a 42 U.S.C. § 1983 suit against a municipality, a litigant must show a constitutional deprivation that was due to a municipal policy or custom.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). “To state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class.” LRL Props. V. Portage Metro Hous. Auth., 55 F.3d 1097, 1111 (6th Cir. 1995) (quoting Henry v. Metro. Sewer Dist., 992 F.2d 332, 341 (6th Cir. 1990)). An Equal Protection claim must also show that differential treatment resulted from discriminatory intent. See Ryan v. City of Detroit, 174 F.Supp.3d 964, 972 (E.D. Mich. 2016).

         Here, Plaintiff's complaint and attached exhibits fail to allege sufficient facts that show Defendants had discriminatory intent. Plaintiff's complaint states several times that Defendants discriminated against her based on her gender/sex, ethnicity/religion, and national origin, without stating any facts that support discriminatory intent. In paragraph 51 of her complaint, Plaintiff states that “Defendants, acting under color of law, intentionally singled out and treated Plaintiff less favorably than a similarly situated male Muslim of Arabic descent.” Dkt. No. 1, pg. 12 (Pg. ID 12). In paragraph 57 of her complaint, Plaintiff states that “Defendants targeted Plaintiff for discriminatory and arbitrary treatment on account of her sex/gender, religion, ethnicity, and national origin, thereby infringing on her fundamental rights.” Dkt. No. 1, pg. 13 (Pg. ID 1). In paragraph 58 of her complaint, Plaintiff states that “Defendants granted the FOIA rights . . . when it granted a similarly situated male Muslim of Arabic descent . . . the same FOIA materials it denied to Schlussel and manufactured a pretextual ‘right to privacy' which does not exist, as an excuse to deny Schlussel the FOIA materials.” Id. In paragraph 60 of her complaint, Plaintiff states, “Defendants treated Schlussel differently than Mr. Makled, despite her FOIA request being virtually identical to his, because unlike him, she is female not male; Jewish not Arab and Muslim; and born in the United States, not . . . Lebanon-thus, depriving her of her Constitutionally protected rights to equal treatment and equal protection under the law.” Id. at pg. 14 (Pg ID 14). In paragraph 61 of her complaint, Plaintiff states that “Defendants' FOIA policy and discriminatory FOIA responses to the same requests for the same information discriminates against, violates, and deprives Plaintiff and the class of similarly situated non-male, non-Muslim, native-born Americans of equal privileges of obtaining information under FOIA, based on their sex/gender, religious, ethnic, and national origin statuses” Id. Besides these assertions, Plaintiff otherwise presents no facts to plausibly show that Defendants intended to discriminate against Plaintiff based on her protected identities. Plaintiff makes no claims of any statements or conduct directed towards her by Defendants that would suggest discriminatory intent. The exhibits Plaintiff attached to her complaint do not make any statements that suggest discriminatory intent. See Pl.'s Exs. B & F.

         Plaintiff attempts to show intent by alleging disparate treatment between her request and the request of Mr. Makled. To prove disparate treatment, a movant must show that she was “treated different than those similarly situated in all material respects.” Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012). However, Plaintiff fails to show that she was similarly situated to Mr. Makled. Mr. Makled was the Ms. Kazan's hired lawyer who represented her in her suit against the City. Dkt. No. 9, pg. 23 (Pg. ID 156). Plaintiff was a journalist with no connection to Ms. Kazan at the time she made her request. Mr. Makled made his request to the City on November 5, 2014. See Pl.'s Ex. C. Plaintiff made her request to the City on March 24, 2016. See Pl.'s Ex. A. Plaintiff's request came after the City had enacted the Hijab Policy on June 8, 2015, and Mr. Makled's request came before the City enacted the Hijab Policy. Therefore, Plaintiff was not similarly situated and there are plausible reasons besides discriminatory intent-like the Hijab Policy and the privacy exemption of the Michigan FOIA-that the City partially denied Plaintiff's request for information. Further, this Court has previously noted that “the mere existence of disparate treatment . . . does not furnish adequate basis for an inference that the discrimination was impermissibly motivated.” Ryan v. City of Detroit, 174 F.Supp.3d 964, 973 (E.D. Mich. 2016) (quoting Soto v. Flores, 103 F.3d 1056, 1067 (1st Cir. 1997)).

         For the above reasons, the Court finds that Plaintiff's Equal Protection claim, Count II, fails against the City of Dearborn Heights because it does not allege sufficient facts to support an inference of discriminatory intent. Count II is therefore dismissed against the City.

         Defendants Miotke, Paletko, and Gavin

         For the reasons discussed above for the City of Dearborn Heights, Plaintiff's Count II is dismissed against Defendants Miotke, Paletko, and Gavin. The Court finds that Plaintiff did not allege ...


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