United States District Court, W.D. Michigan, Southern Division
T. Neff United States District Judge
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. Under the Prison Litigation Reform Act,
Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), the Court
is required to dismiss any prisoner action brought under
federal law if the complaint is frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant immune from such relief. 28
U.S.C. §§ 1915(e)(2), 1915A. The Court must read
Plaintiff's pro se complaint indulgently,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), and
accept Plaintiff's allegations as true, unless they are
clearly irrational or wholly incredible. Denton v.
Hernandez, 504 U.S. 25, 33 (1992). Applying these
standards, the Court will dismiss Plaintiff's complaint
against Defendants Grand Rapids Police Lieutenant Kristen
Rogers and Grand Rapids Police Detective Case Weston for
failure to state a claim.
is presently incarcerated with the Michigan Department of
Corrections (MDOC) at Cooper Street Correctional Facility
(JCS) in Jackson, Jackson County, Michigan. The events about
which he complains, however, occurred in Kent County,
Michigan, as the police investigated the crime of which he
was convicted. Plaintiff's complaint is scant on details
regarding his crime. The Michigan Court of Appeals provided
some details that put Plaintiff's complaint in context:
According to the evidence introduced at trial, defendant
sexually assaulted the victim while she was sleeping in the
early morning hours of December 27, 2013. Late the previous
night, the victim enjoyed a few drinks at a local bar with
her roommate, some friends, and defendant. When the bar
closed, the group returned to the apartment that the victim
shared with her roommate. The victim went to bed alone and
fully-clothed. She did not consent to any sexual acts.
However, she awoke around 5:00 or 5:30 a.m. to find herself
naked from the waist down and defendant kneeling over the top
of her, between her legs, with his pants down. The victim
noticed her vagina was wet. The victim alerted her friends,
and defendant left the apartment. The same day, the victim
reported the incident to the police and underwent an
examination by Alison Edidin, a sexual assault nurse examiner
(SANE). Edidin observed an abrasion on the victim's
perineum caused by something sharp, possibly a fingernail;
and she testified that her findings were “consistent
with a sexual assault.” Forensic testing revealed the
presence of saliva in swabs collected from the victim's
vulvar and vaginal wall as well as low levels of male DNA in
the swabs from the victim's vulvar, though the quantity
of DNA was too low to allow comparison to a possible donor.
During a recorded interview with police, defendant fully
admitted that he engaged in sexual activity with the
victim. He told police: “I had oral sex with her,
and I fingered her.” Initially, defendant claimed that
the victim consented to having sex with him. He conceded that
the victim did not invite him to her room. Nevertheless, he
told police that, when he entered the bedroom, the victim was
awake, and he and the victim had a conversation during which
she said she was “cool” with “mess[ing]
around.” According to defendant, everything seemed fine
until the victim “freaked out.” However,
defendant soon changed his story and admitted that he
“made a mistake” on the night in question. He
told police that the victim may not have been fully conscious
and that they did not have a conversation during which the
People v. Boggiano, No. 332450, 2017 WL 3441427, *1
(Mich. Ct. App. Aug. 10, 2017) (emphasis
supplied). The recorded interview with police
referenced in the appellate court's opinion lies at the
foundation of Plaintiff's civil rights claims in this
sues Grand Rapids Police Department Family Affairs Division
Detectives Lieutenant Kristen Rogers and Case Weston.
(Compl., ECF No. 1, PageID.6.) Plaintiff alleges that
Defendants Rogers and Weston contacted the Plaintiff via cell
phone on December 27, 2013, as part of Defendants'
investigation of an allegation that Plaintiff had sexually
assaulted a woman. (Id., PageID.7.) Plaintiff agreed
to speak with Defendants at Plaintiff's residence.
(Id.) Unbeknownst to Plaintiff, Defendants recorded
their conversation with Plaintiff. (Id.) Defendants
provided the recorded conversation to a magistrate who, based
thereon, made a probable cause determination. (Id.,
PageID.8.) Defendants also provided the recorded conversation
to the prosecutor who introduced a redacted transcript of the
recorded conversation at trial. (Id.)
claims the recording of the conversation constituted an
illegal warrantless search, led to an illegal warrant, and
caused his illegal arrest. Plaintiff seeks compensatory and
punitive damages exceeding $750, 000.00.
Failure to state a claim
complaint may be dismissed for failure to state a claim if it
fails “‘to give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain
detailed factual allegations, a plaintiff's allegations
must include more than labels and conclusions.
Twombly, 550 U.S. at 555; Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”). The
court must determine whether the complaint contains
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “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.” Iqbal, 556 U.S.
at 679. Although the plausibility standard is not equivalent
to a “‘probability requirement, ' . . . it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 556). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - that the
pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding
that the Twombly/Iqbal plausibility standard applies
to dismissals of prisoner cases on initial review under 28
U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the federal
Constitution or laws and must show that the deprivation was
committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Street
v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.
1996). Because § 1983 is a method for vindicating
federal rights, not a source of substantive rights itself,
the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed.
Albright v. Oliver, 510 U.S. 266, 271 (1994).
alleges that Defendants violated Plaintiff's rights under
the Fourth and Fourteenth Amendments. It is not a violation
of the Fourth or Fourteenth Amendment, or the counterparts of
those provisions in the Michigan Constitution, for a
participant in a conversation to record the conversation or
for the recording to be used at trial. United States v.
White, 401 U.S. 745, 752 (1971) (plurality opinion)
(“If the law gives no protection to the wrongdoer whose
trusted accomplice is or becomes a police agent, neither
should it protect him when that same agent has recorded or
transmitted the conversations which are later offered in
evidence to prove the State's case.”); United
States v. Lopez, 373 U.S. 427, 439 (1963) (“The
Government did not use an electronic listening device to
listen in on conversations it could not otherwise have heard.
Instead the device was used only to obtain the most reliable
evidence possible of a conversation in which the
Government's own agent was a participant and which the
agent was fully entitled to disclose. . . . [The device] was
carried in and out by an agent who was there with
petitioner's assent, and it neither saw nor heard more
than the agent himself.”); see also United States
v. Cacares, 440 U.S. 741, 750 (1979) (“In
[Lopez] we repudiated any suggestion that the
defendant had a ‘constitutional right to rely on
possible flaws in the agent's memory, or to challenge the
agent's credibility without being beset by corroborating
evidence that is not susceptible of impeachment, ' . . .
.”); People v. Collins, 475 N.W.2d 684, 698
(Mich. 1991) ...