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Gerics v. Trevino

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

March 19, 2018

Adam Gerics, Plaintiff,
v.
Felix Trevino, Jr. a Flint City Police Officer, Sergeant/Hall, a Flint City Police Officer, B. Fowlkes, a Flint City Police Officer; all jointly and severally, Defendants.

          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 [41]

          GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff 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).

         Plaintiff 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.[1] 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 IV)
• 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 (Count IX)

See id.

         Defendants 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.

         Presently before the Court is Defendants' Motion to Dismiss Counts VI through IX of Plaintiff's Third Amended Complaint [41]. 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 [41]. 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.

         II. Background

         A. Factual Background

         The 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.

         Following 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 ...


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