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Kellom v. Immigration and Customs Enforcement

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

March 27, 2018

Nelda Kellom, as Personal Representative of the Estate of Terrance Kellom, deceased, Plaintiff,
v.
Immigration and Customs Enforcement Agent Mitchell Quinn, et al., Defendants.

          OPINION & ORDER GRANTING DEFENDANT QUINN'S MOTION FOR PARTIAL DISMISSAL

          Sean F. Cox United States District Judge

         Plaintiff is the Personal Representative of a man who was killed when a United States Marshal Detroit Fugitive Apprehension Team was attempting to arrest him at a house in Detroit, Michigan. Plaintiff sued three Defendants in this action, two officers employed by the City of Detroit Police Department and a federal agent, Immigration and Customs Enforcement Agent Mitchell Quinn. The matter is currently before the Court on a Motion for Partial Dismissal filed by Defendant Quinn alone. The matter has been briefed and the Court heard oral argument on March 22, 2018. During oral argument, the parties agreed that the Court should enter a stipulated order that substitutes the United States Government for Defendant Quinn for purposes of Count IV and should dismiss Count IV against Defendant Quinn with prejudice. Thus, the third issue presented in the motion was mooted by that stipulation. As explained below, the Court shall GRANT the remaining portion of Defendant Quinn's Motion for Partial Dismissal. Thus, the Court shall: 1) grant the motion to the extent the Court dismisses that portion of Count I that asserts a claim against Defendant Quinn based upon an alleged violation of the Fourteenth Amendment; and 2) grant the motion as to Count III of the Complaint, which is brought under § 1983 alone.

         BACKGROUND

         On April 6, 2017, Plaintiff Nelda Kellom, as Personal Representative of the Estate of Terrance[1] Kellom, Deceased, filed this action. The complaint names the following Defendants: 1) Immigration and Customs Enforcement Agent Mitchell Quinn; 2) Detroit Police Officer Darell Fitzgerald; and 3) Detroit Police Officer Treva Eaton. Plaintiff's Complaint includes the following four counts: 1) “Bivens Claim” (Count I); 2) “42 U.S.C. § 1983 - Excessive Force and/or Unlawful Use of Deadly Force” (Count II); 3) “§ 1983 Conspiracy by Defendants” (Count III); and 4) “Wrongful Death [under] Michigan Wrongful Death Act, Mich. Comp. Laws § 600.2922 et seq, ” (Count IV).

         Plaintiff's Complaint includes the following allegations. Plaintiff Nelda Kellom is the mother and Personal Representative of the Estate of Terrance Kellom, deceased. (Compl. at ¶ 9).

         At all relevant times, Defendant Quinn has been “a federal law enforcement agent employed by Immigration and Customs Enforcement, a federal agency organized and existing under the laws of the United States.” (Id. at ¶ 11).

         At all relevant times, Defendants Fitzgerald and Eaton were police officers employed by the City of Detroit. (Id. at ¶ 12).

         On April 27, 2015, all three Defendants “were participants of the U.S. Marshall Detroit Fugitive Apprehension Team (DFAT), ” a “joint venture of multiple police agencies.” (Id. at ¶ 15-16). On that date, the DFAT went to a house located on Evergreen in Detroit that was owned by Terrance Kellom's father. (Id. at ¶ 17-18). Plaintiff alleges that while at the house on that date, Terrance “was shot and killed by ICE agent Mitchell Quinn.” (Id. at ¶ 14).

         In Count I, titled “Bivens Claim” and asserted against all three Defendants, Plaintiff alleges that “Defendants Quinn, Fitzgerald, and Eaton, acting under color of federal law based on their positions as officers with the U.S. Marshals Service Detroit Fugitive Apprehension Team (the “DAFT”), knowingly and individually violated Plaintiff's constitutional rights through, inter alia, causing the above-described attack and fatal shooting of Terrance, without legal justification.” (Id. at ¶ 42) (emphasis added). In that count, Plaintiff alleges that the Defendants violated Terrence's: 1) “rights under the Fourth Amendment to the United States Constitution to be secure in his person against, unreasonable search and seizure, excessive force, and the unlawful and deadly use of force under the Fourteenth Amendment to the United States Constitution, and caused the injuries set forth above.” (Id. at ¶ 43). It further alleges that “[f]aced with circumstances present at the aforementioned times and places, reasonably prudent law enforcement officers would or should have known that the actions of Defendants resulting in the deadly force described herein violated Terr[a]nce Kellom's clearly established Fourteenth Amendment liberty interest in bodily integrity as well as protection from unlawful search and seizure, unnecessary force, and excessive force pursuant to the Fourth Amendment to the United States Constitution.” (Id. at ¶ 47). “Plaintiff seeks an award of compensatory damages and punitive damages against Defendants, individually, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) as a result of their actions in deprivation of Plaintiff's constitutional rights.” (Id. at ¶ 48).

         In Count II, Plaintiff asserts a § 1983 excessive/deadly force claim against Defendants Fitzgerald and Eaton, but not against Defendant Quinn.

         In Count III, Plaintiff asserts a § 1983 Conspiracy claim against all three Defendants, alleging that they conspired to conceal the true facts of how Terrance was shot and killed on the day of the events.

         In Count IV, Plaintiff asserts a wrongful death claim under Mich. Comp. Laws § 600.2922 and it appears to be asserted against all three Defendants.

         On October 16, 2017, Defendant Quinn filed a Motion for Partial Dismissal, brought pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6).

         When Plaintiff failed to file a response within the time permitted for doing so, this Court issued an Order to Show Cause why the unopposed motion should not be granted, requiring a response by November 17, 2017. (D.E. No. 14). In response to that order, on ...


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