United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT KEYES'S
MOTION TO DISMISS  AND GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
case arises from a failed marijuana prosecution by St. Clair
County. Three of the Plaintiffs were running what they
thought were lawful medical marijuana enterprises. St. Clair
County disagreed, and raided the homes and business of the
Plaintiffs. The Plaintiffs' children were present for the
raids, and the officers conducting the search allegedly went
too far in their destruction and seizure of property. The
Plaintiffs running the operation, and their children, brought
suit against the county, a prosecutor, and the officers
motions to dismiss are now before the Court. Defendant Keyes
seeks to dismiss all counts against her on immunity grounds.
The remaining Defendants' motion seeks to dismiss only
two counts: Count Five and Count Nine. The Court held a
hearing on the motions. For the reasons below, the Court will
grant Keyes's motion, and partially grant the other
Clair County Prosecutor's Office suspected illegal
marijuana sales were occurring at DNA Wellness, a
"medical marijuana alternative wellness center" in
Kimball, MI owned by Dale and Annette Shattuck. To establish
probable cause for a search, the County used confidential
informants, who posed as buyers and purchased marijuana at
the store. On July 27, 2014, the St. Clair County Drug Task
Force (DTF) used the informants' information to secure
narcotics search warrants for three locations: (1) the DNA
Wellness Center; (2) the associated growing facility down the
street, and (3) the Shattucks' home in Port Huron. DTF
executed the three search warrants the next day.
DTF took the Shattucks into custody and questioned them in
the backroom of the store. One of the officers then
"removed his police markings and assumed the role of an
employee manning the reception desk." ECF 1, PgID 12.
When Ginnifer Hency arrived at the store, the officer struck
up a conversation, during which she explained that she was a
medical marijuana caregiver. The officers searched
Hency's backpack, found six ounces of marijuana, and
placed her under arrest. The disguised officer also spoke
with four other customers who came into the store and sold
marijuana to them. One of the other customers was arrested,
while the other three had their medical marijuana cards
Hency's arrest, DTF sought a search warrant for her home.
When DTF arrived at the home, Mr. Hency was there with his
children. They were allowed to leave before DTF searched the
home. During the search, DTF seized a host of items,
including a car and personal effects. Hency's and her
daughter's underwear were also strewn about their
that time, DTF also searched the Shattucks' home, where
children were present. Here, however, DTF allegedly had more
contact with the children before they left. DTF seized a wide
swath of items at the Shattuck home and left it damaged and
Clair County prosecutor brought charges against the Shattucks
and Hency, but the circuit court dismissed the case on the
grounds of entrapment by estoppel. The instant suit followed.
Court may grant a Rule 12(b)(6) motion to dismiss if the
complaint fails to allege facts "sufficient 'to
raise a right to relief above the speculative level, '
and to 'state a claim to relief that is plausible on its
face.'" Hensley Mfg. v. ProPride, Inc., 579
F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007)). The Court views
the complaint in the light most favorable to the plaintiff,
presumes the truth of all well-pled factual assertions, and
draws every reasonable inference in favor of the non-moving
party. Bassett v. Nat'l Collegiate Athletic
Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). If "a
cause of action fails as a matter of law, regardless of
whether the plaintiff's factual allegations are true or
not, " then the Court must dismiss. Winnett v.
Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009).
Keyes's Motion to Dismiss All Counts (ECF 6)
Keyes is a St. Clair County Assistant Prosecuting Attorney.
She did not prosecute the criminal case against the
Plaintiffs, but allegedly communicated with the police, in
advance of the raids, and made two statements: (1) she
instructed the deputy "not to perform an
inspection" of the Wellness Center, ECF 1, PgID 11,
¶ 49, and (2) she recommended that the police use
confidential informants, posing as patients with medical
marijuana cards, to establish the probable cause necessary to
secure a narcotics search warrant, id. at ¶ 51.
Other than these two paragraphs, Keyes is never again
mentioned in the Complaint. She moves to dismiss the counts
against her as failing to state a claim. She relies for
authority on theories of sovereign and prosecutorial
extent Keyes is sued for damages concerning actions she took
in her role as prosecutor, she is protected by both forms of
immunity. The Eleventh Amendment "bars § 1983 suits
against a state, its agencies, and its officials sued in
their official capacities for damages, " and, in
Michigan, a prosecutor is a state agent when she prosecutes
state criminal charges. Cady v. Arenac Cty., 574
F.3d 334, 342-43 (6th Cir. 2009). If Keyes was functioning as
a prosecutor, the damages claims against her in her official
capacity are barred. She is likewise protected in her
personal capacity by prosecutorial immunity because a
prosecutor is entitled to absolute immunity when she
"acts as an advocate for the State and engages in
activity that is intimately associated ...