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Dixon v. Kurta

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

December 17, 2017

ERVIN DIXON and ELSA DIXON, Plaintiffs,
v.
JUDITH KURTA, DENNIS KURTA, JAMES CONNER, STEPHANIE CONNER, and CITY OF ROSEVILLE, MICHIGAN Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CITY OF ROSEVILLE'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT, AND IN THE ALTERNATIVE, TO STRIKE PLAINTIFFS' AMENDED COMPLAINT (Doc. 21)

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is a civil rights case. Plaintiffs Reverend Ervin and Elsa Dixon (Plaintiffs) are suing Defendants City of Roseville, Michigan (City of Roseville), individuals James and Stephanie Conner (Conners), and individuals Dennis and Judith Kurta (Kurtas). Plaintiffs say that for over two years, the Conners and Kurtas have exhibited a pattern of unlawful ethnic intimidation and harassment toward them. They further say that the City of Roseville in the person of city attorney Timothy Tomlinson (Tomlinson) did not prosecute the Conners and Kurtas for violating city ordinances prohibiting trespass, harassment, ethnic intimidation, and malicious destruction of property (though they fail to provide the text or citation of any city ordinance they claim was violated).[1] Tomlinson did, however, prosecute Plaintiffs for placing a string fence on their property in violation of a city ordinance (which they also fail to cite). Finally, Plaintiffs say Tomlinson should have referred the Conners and Kurtas to state authorities for prosecution for violating M.C.L. § 750.147b, which prohibits ethnic intimidation.

         Plaintiffs filed their complaint on January 20, 2017 (Doc. 1) and an amended complaint on July 18, 2017 (Doc. 19). The amended complaint is in seven counts:

. Counts I and II: Violation of 42 U.S.C. § 3617 as to the Kurtas and Conners;
. Count III: Violation of 42 U.S.C. § 1983 as to the City of Roseville;
. Count IV: Violation of Article I, Section 2 of the Michigan Constitution as to the City of Roseville;
. Count V: Violation of M.C.L. § 750.147b as to the Kurtas and Conners;
. Count VI: City of Roseville's Vicarious Liability for Tomlinson's Actions;
. Count VII: Violation of the Fourteenth Amendment Equal Protection Clause as to the City of Roseville.

         Plaintiffs seek actual, punitive, treble, and non-economic damages, as well as costs and attorney's fees. Only Counts III, IV, VI, and VII charge the City of Roseville with wrongdoing.

         Now before the Court is the City of Roseville's motion, styled “Motion To Dismiss And For Summary Judgment Of Plaintiffs' First Amended Complaint Pursuant To Fed.R.Civ.P. 12(B)(6) And 56(A) Or Alternatively, To Strike Plaintiffs' First Amended Complaint Pursuant To Fed.R.Civ.P. 12(F)” (Doc. 21). For the reasons that follow, the motion is GRANTED for failure to state a claim against the City of Roseville.

         II. LEGAL STANDARD

         A Fed.R.Civ.P. 12(b)(6) motion seeks dismissal for a plaintiff's failure to state a claim upon which relief can be granted. “To survive a motion to dismiss under Rule 12(b)(6), a ‘complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'” Advocacy Org. for Patients & Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 319 (6th Cir. 1999) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)). Further, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim “must be dismissed . . . if as a matter of law it is clear that no relief could be granted under any ...


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