United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis, United States Magistrate Judge.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS COUNTS VI THROUGH IX
OF THE THIRD AMENDED COMPLAINT 
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE.
Adam Gerics commenced this 42 U.S.C. § 1983 action on
August 17, 2015. Dkt. No. 1. Plaintiff alleges several claims
against the following Defendants: the County of Genesee,
Michigan; the City of Flint, Michigan; Flint Police Officers
Felix Trevino and Bobby Fowlkes; and Flint Police Sergeant
Joseph Hall. Dkt. No. 36, p. 3 (Pg. ID 143).
first amended his Complaint on August 26, 2015. Dkt. No. 8.
On December 21, 2015, the Court granted Gerics's Ex Parte
Motion to file a Second Amended Complaint. Dkt. Nos. 12, 16.
Gerics then filed a Third Amended Complaint on November 9,
2017. Dkt. No. 36. In the Third Amended
Complaint, Gerics asserts the following claims:
• Retaliatory Arrest under § 1983 and the First
Amendment (Count I)
• Unlawful Arrest under § 1983 and the Fourth
Amendment (Count II)
• Excessive Force under § 1983 and the Fourth and
Fourteenth Amendments (Count III)
• Unlawful Seizure of Plaintiff's Cell Phone under
§ 1983 and the Fourth and Fourteenth Amendments (Count
• Failure to Intervene under § 1983 and the First
and Fourth Amendments (Count V)
• Malicious Prosecution under § 1983 and the Fourth
Amendment (Count VI)
• Retaliatory Prosecution under § 1983 and the
First Amendment (Count VII)
• Abuse of Process under § 1983 and the Fourth
Amendment (Count VIII)
• Monell Claim, Municipal Liability under § 1983
moved to dismiss Counts VI through IX of the Complaint on
December 11, 2017. See Dkt. No. 41. On December 27, 2017,
Gerics responded to Defendants' motion. See Dkt. No. 42.
The Defendants then filed a reply in support on January 10,
2018. Dkt. No. 44.
before the Court is Defendants' Motion to Dismiss Counts
VI through IX of Plaintiff's Third Amended Complaint
. The Court held a hearing on the motion on Monday, March
19, 2018 at 10:00 a.m. For the reasons detailed below, the
Court ruled from the bench and GRANTED IN PART and DENIED IN
PART Defendants' Motion to Dismiss Counts VI through IX
of the Third Amended Complaint . Plaintiff's claims
for malicious prosecution (Count VI) and retaliatory
prosecution (Count VII) will survive the motion. On the other
hand, Plaintiff's abuse of process claim (Count VIII) and
Monell claim (Count IX) will be dismissed.
events leading up to this litigation started way back on
September 27, 2013, when Gerics was on his property in Flint,
Michigan speaking to Defendant Officer Trevino. Dkt. No. 36,
pp. 3-4 (Pg. ID 143-44). Gerics alleges that because he was
recording this conversation with his cell phone, Trevino took
offense and “brutally attacked” him. Id.
at p. 4 (Pg. ID 144). Sergeant Hall and Officer Fowlkes
purportedly watched the attacked and did not intervene.
Id. The three officers then, according to Gerics,
seized his cell phone and tried to destroy it. Id.
the alleged attack, Gerics was arrested and incarcerated for
three days. Id. Gerics protests his treatment as
unlawful; he maintains that he did not resist arrest or
otherwise threaten the Defendant Officers at any point during
this altercation. Id. According to Gerics, in
addition to unlawfully arresting him, all three officers
included materially false ...