United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS (DKT. 19)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Oakland County,
Michael David, Russell Lewis, and Andrew Moldenhauer's
motion to dismiss (Dkt. 19). The issues have been fully
briefed and a hearing was held on October 25, 2017. For the
reasons set forth below, the Court grants Defendants'
motion as to Oakland County, but denies the motion as to
David, Lewis, and Moldenhauer.
action arises out of the repossession of Plaintiff Marvin
King's vehicle. In April 2016, King spoke with Credit
Acceptance to inform the company that he would be a couple
days late on his monthly car payment. Am. Compl. ¶ 11
(Dkt. 16). Credit Acceptance informed King that it would
accept the late payment, but subsequently changed King's
payment plan to require bimonthly payments. Id.
¶¶ 12, 14. This unilateral change served to double
King's monthly payment. Id. ¶ 15. Upon
learning of this change, King informed Credit Acceptance that
he would be unable to meet this new payment schedule.
Id. ¶ 16.
early morning hours of June 3, 2016, Defendant Larry Everson,
an employee of Defendant Blackhawk Recovery and
Investigations, LLC, arrived at the Meijer in Commerce
Township, Michigan, where King works as a merchandiser.
Id. ¶¶ 17-18. Blackhawk had contracted
with Credit Acceptance to repossess King's vehicle.
Id. ¶ 18. Everson drove his tow truck in front
of King's vehicle and began to reverse towards it.
Id. ¶¶ 24-25. Plaintiff Shelly Kahle was
in King's vehicle at the time with her dog and witnessed
Everson reversing towards her. Id. Without
communicating with Kahle or King, Everson hooked the vehicle
onto his tow truck and began lifting the vehicle four to five
feet into the air while Kahle and her dog were still inside.
Id. ¶¶ 26-34.
Kahle's requests, Everson refused to lower the vehicle.
Id. ¶¶ 29-30. Kahle then called King to
notify him of the repossession. Id. ¶ 33. When
King came outside, Everson was on the phone with the Oakland
County Sherriff's Department. Id. ¶ 37.
Everson informed the dispatcher that he was attempting to
repossess a vehicle, but that Kahle refused to exit the
vehicle. Id. ¶¶ 39-40. He also informed
the dispatcher that he had the vehicle lifted in the air with
Kahle and the dog inside. Id. ¶ 42. In
response, the dispatcher confirmed Everson's location and
name. Id. ¶ 43. The dispatcher then informed
Everson that deputies were on their way and to let her know
if King or Kahle gave him any further problems. Id.
¶ 44. The dispatcher also offered to stay on the line
with Everson. Id. ¶ 45.
Defendant officers arrived, they first spoke with Everson.
Id. ¶ 54. They then informed King that they
were not going to stay at the scene all night, and that the
vehicle was no longer his because he failed to make his car
payments. Id. ¶ 55. After examining King's
registration, the officers demanded that Kahle exit the
vehicle. Id. ¶¶ 57-58. In order to allow
her to exit, the officers asked Everson to lower the vehicle.
Id. ¶ 59. Everson partially lowered the
vehicle, after which Kahle exited. Id. ¶¶
60-61. Once she was out of the vehicle, the officers
instructed Kahle to remove her dog. Id. ¶ 61.
Kahle informed the officers that the dog was very protective
of her and King. Id. ¶ 62. When Kahle took the
dog out of the vehicle, one of the officers put his hand on
his gun. Id. ¶ 63. Kahle then asked the officer
if he was going to shoot her dog; the officers subsequently
threatened to arrest Kahle for disorderly conduct.
Id. ¶¶ 64-65. The officers then demanded
that King and Kahle move away from the vehicle. Id.
¶ 66. After they complied, Everson took possession of
the vehicle and drove off. Id. ¶ 68. King
subsequently filed suit, alleging that Oakland County and
Defendant officers violated his rights under the Fourth and
STANDARD OF REVIEW
survive a motion to dismiss, a complaint must state a claim
to relief that is plausible on its face. “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
first argue that the claims against Oakland County should be
dismissed because King has failed to allege that he was
harmed as a result of a policy, practice, or custom enacted
by the county. “A plaintiff raising a municipal
liability claim under [42 U.S.C. § 1983] must
demonstrate that the alleged federal violation occurred
because of a municipal policy or custom.” Burgess
v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
694 (1978)). The plaintiff must allege an illegal policy or
custom in at least one of four ways: (i) the existence of an
official policy or piece of legislation; (ii) an official
with final decision-making authority ratified an illegal
action; (iii) a policy of inadequate training or supervision;
and (iv) a custom of tolerance or acquiescence of federal
rights violations. See Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
“[P]olicy or custom does not have to be written law; it
can be created ‘by those whose edicts or acts may
fairly be said to represent official policy.'”
Paige v. Coyner, 614 F.3d 273, 284 (6th Cir. 2010)
(quoting Monell, 436 U.S. at 694).
argues that his complaint sufficiently alleges two forms of
municipal liability. First, King notes that he alleges a
policy of inadequate training. Specifically, King alleges
that “[a]s a result of the Oakland County
Sherriff's Department's failure to adequately train
their officers in civil disputes and vehicle repossession,
the officers failed to confirm the presence of a court order
and unlawfully assisted in the repossession of the
vehicle.” Am. Compl. ¶ 82. “A
failure-to-train claim, however, requires a showing of prior
instances of unconstitutional conduct demonstrating that the
[municipality] has ignored a history of abuse and was clearly
on notice that the training in this particular area was
deficient and likely to cause injury.”
Burgess, 735 F.3d at 478 (quotation marks omitted).
“The inadequacy of police training only serves as a
basis for § 1983 liability where the failure to train
amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” Miller v.
Sanilac Cty., 606 F.3d 240, 255 (6th Cir. 2010)
(quotation marks omitted). “To establish deliberate
indifference, the plaintiff must show prior instances of
unconstitutional conduct demonstrating that the County has
ignored a history of abuse and was clearly on notice that the
training in this particular area was deficient and likely to
cause injury.” Id. (quotation marks omitted).
has not alleged any prior instances of unconstitutional
conduct that would have put Oakland County on notice that it
should be providing training to its officers on how to act
when confronted with an attempted repossession. King argues
that a pattern of constitutional violations can be inferred
based on “the dispatcher's reassuring nature
towards Mr. Everson and familiarity of how the officers would
handle the situation once they arrived.” Pl. Resp. at
13-14. King also argues that “it is reasonable to infer
from the officers' uniform helping behavior that this was
not an isolated incident of assisting the repossesor, but
rather, the county's way of handling repossessions when a
breach of peace occurs.” Id. at 14. However,
it cannot be said that a dispatcher's calm demeanor
during a call establishes that there has been a pattern of
past misconduct. Even assuming the officers' actions on
the scene constituted a constitutional violation, one
instance of misconduct cannot be used to establish a pattern
of which Oakland County should have been aware. See
Miller, 606 F.3d at 255. Because King has not alleged
past misconduct that would have put the county on notice, his
claim against the county cannot survive a motion to dismiss
based on a failure-to-train theory.
other theory is that Oakland County maintains a “custom
and practice which directs its officers to effectively assist
in the repossession of vehicles where a breach of peace has
occurred.” Am. Compl. ¶ 83. “[W]here no
formal policy exists, the critical question is whether there
is a particular custom or practice that although not
authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage
with the force of law.” Jones v. Muskegon
Cty., 625 F.3d 935, 946 (6th Cir. 2010) (quotation marks
omitted). “A § 1983 plaintiff might not be able to
demonstrate that a written policy exists, but he or she may
be able to prove the existence of a widespread practice that,
although not authorized by written law or express municipal
policy, is so permanent and well settled as to ...