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King v. Blackhawk Recovery and Investigations, LLC

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

December 3, 2017

MARVIN KING, et al., Plaintiffs,
v.
BLACKHAWK RECOVERY AND INVESTIGATIONS, LLC, et al., Defendants.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (DKT. 19)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         This 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.

         In the 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.

         Despite 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.

         When 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 Fourteenth Amendments.[1]

         II. STANDARD OF REVIEW

         To 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.

         III. ANALYSIS

         Defendants 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).

         King 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).

         King 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.[2]

         King's 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 ...


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