United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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.
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
Dearborn Heights Police Department
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
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).
of Dearborn Heights
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).
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
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
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.
Miotke, Paletko, and Gavin
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 ...