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Cross v. Carmona

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

March 29, 2018

DANNY CROSS, Plaintiff,
v.
DANIEL CARMONA, et. al., Defendants.

          OPINION AND ORDER GRANTING DEFENDANT'S RENEWED MOTION TO DISMISS (DKT. 13)

          TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is a pro se § 1983 case challenging Wayne County Sheriff Officers' conduct during an allegedly unlawful arrest in December, 2012. Danny Cross (“Plaintiff”) filed his original Complaint in December, 2015 against unidentified “John Doe” officers.[1] He amended his Complaint with leave of the Court in March, 2017 to name the Defendant Officers. Defendants now argue his Amended Complaint against them should be dismissed as time-barred because he failed to properly serve them within the statute of limitations for §1983 actions. For the reasons outlined below, Defendants' motion is GRANTED with prejudice.

         II. Background

         On December 6, 2012, Plaintiff had an encounter with several Wayne County Sheriff's Deputies while visiting his friend James Johnson's home in Detroit. Dkt. 10 at Pg ID 72; Dkt. 13 at Pg ID 101. The officers were attempting to serve a felony warrant on Johnson, Dkt. 14 at Pg ID 138, but Plaintiff answered the door when they knocked. Dkt. 10 at Pg ID 172.

         According to Plaintiff's recounting of the facts, the encounter proceeded as follows: After Plaintiff answered the door at Johnson's home the Defendant officers immediately began questioning him. Id. He states they “verbally berated him” with “racist textures and tones” and did not show him a warrant. Id. Plaintiff explained he was a visitor and that he had recently arrived at Johnson's home by car, which was parked next to the house. Id. Defendants then began to search Plaintiff's car even after he told them he did not consent to the search. Id. After Defendants finished searching his car, Plaintiff got in it and attempted to drive away, but Defendants stopped his car, pulled him out of it, and forcefully searched him. Dkt. 10 at Pg ID 72. After the body search, Defendants handcuffed Plaintiff and put him in one of the police cruisers for “a substantial period of time” until Defendant Deputy Sheriff Daniel Carmona arrived at the scene and questioned Plaintiff while searching Plaintiff's wallet. Id. Defendants then released Plaintiff on the condition that he acknowledge that his car would remain seized. Id. Plaintiff agreed to leave Johnson's property without his car and walked across the street to sit on a neighbor's porch where he watched Defendants forcefully enter Johnson's home and arrest Johnson. Id. at Pg ID 74. After arresting Johnson, Defendants left the scene leaving Plaintiff's unlocked car behind. Id. Plaintiff ultimately found his keys in the grass on Johnson's lawn. Dkt. 1 at Pg ID 4.

         Plaintiff filed his Complaint on December 6, 2015-exactly three years to the day from the encounter described above-against “John Does 1-5” whom he identified only as Deputies Sheriffs in the Wayne County Sheriff's Department, and James Compton whom he identified as a Detroit Police Officer.[2] Dkt. 1.

         In that Complaint Plaintiff claimed 1) two counts of illegal seizure under 42 U.S.C. §1983; 2) violation of his property rights under 42 U.S.C. § 1982; 3) two counts of false arrest and unlawful detention; and 4) assault and battery. Dkt. 1.

         After filing the original Complaint on December 6, 2015, Plaintiff did not request an issuance of summons, nor make any attempt to serve the Complaint on any of the Defendants including Defendant Compton who was specifically identified in the original Complaint, but is not named in the Amended Complaint. Because he did not know who the John Doe Wayne County deputy sheriffs were, Plaintiff filed a FOIA request with the Wayne County Sheriff's Department on December 7, 2015 “seeking records of Terry Stop relating to Danny C. Cross.” See Dkt. 14 at Pg ID 136-37.

         On April 8, 2016, 121 days after Plaintiff filed his Complaint, the Court issued an Order to Show Cause why his case should not be dismissed for failure to prosecute. Dkt. 2. On April 16, 2016 Plaintiff filed a response to the show cause order arguing his claims against the unnamed officers should not be dismissed because he had diligently pursued several information requests to determine their identities: He made his first FOIA request for Terry stop records including his name to the Wayne County Sheriff's Department in December, 2015 after filing his Complaint. Dkt. 3 at Pg ID 12. When that request was denied because a search with his name returned nothing, he asked the Wayne County Circuit Court clerk's office to conduct a search of court records to find any records relating to Johnson's arrest, which he believed would include the names of the same arresting officers that had unlawfully searched and detained him. Dkt. 3 at Pg ID 12-14. That second request turned up a copy of the bench warrant for Johnson. But the warrant did not include the names of the arresting officers. Dkt. 3 at Pg ID 14. Finally, on March 21, 2016, Plaintiff submitted another FOIA request to the Wayne County Sheriff's Department; this time for Johnson's arrest records, which he believed would include the arresting officers' names. Dkt, 3 at Pg ID 14. In his April 16, 2018 response to the Court's show cause order Plaintiff indicated he expected a response to that final FOIA request by April 18, 2016. Dkt. 3 at Pg ID 14-15. Accordingly, on May 25, 2016, the Court entered a text only order giving Plaintiff until July 25, 2016 to serve his Complaint on the yet-to-be-identified defendants.

         Although this is not reflected on the docket due to an administrative error by the Court, on July 21, 2016 Plaintiff attempted to serve summonses on Defendants Donald Jones and Timothy Do-mansky. Dkt. 9 at Pg ID 67 (noting it was the Court's error that these summonses were not entered on the docket); Dkt. 4, Ex. 4 (copy of summonses). The Wayne County Sheriff's Office, however, refused to accept service for Defendants Jones and Domansky based on its belief that Plaintiff's claims against them were time-barred. Dkt. 4, Ex. 3. On July 22, 2016, the day after this attempted service, “Wayne County Defendants” filed a Motion to Dismiss arguing that even though the Court had exercised its discretion in allowing Plaintiff until July 25, 2016 to serve his Complaint, Plaintiff could not legally serve a summons that the court had extended after the three-year statute of limitations for filing §1983 actions and additional 90-day period for serving them under Fed. R. Civ. Pro. 4(m) had both expired. Dkt. 4 at Pg ID 27-28.

         On February 21, 2017 the Court denied Defendant's Motion to Dismiss the Complaint without prejudice finding that: the Court had made a mistake by not entering the July 21, 2016 summonses on the docket; Plaintiff had made a mistake by attempting to serve Defendants Jones and Domansky without first amending his Complaint to name them; and Defendants made a mistake by refusing service of the Complaint based only on their belief that it was filed out of time. Dkt. 9 at Pg ID 67.

         The Court granted Plaintiff leave to amend his Complaint to “add the names of the defendants he is aware of” within 30 days, and re-issue and serve the summons within 60 days. Dkt. 9. In other words, Plaintiff had until March 23, 2017 to his amend his Complaint and name the previously unidentified defendants, and until April 22, 2017 to serve those defendants. Plaintiff complied with these deadlines: he filed his Amended Complaint on March 22, 2017, Dkt. 10, and summons were issued for all Defendants on March 23, 2017. Dkt. 11.

         On April 18, 2017 Defendants filed this renewed Motion to Dismiss arguing, again, that Plaintiff's claims are time-barred because he did not properly serve them within the three-year statute of limitations for § 1983 actions or the additional 90-day period for service under Fed. R. Civ. Pro. 4(m). Dkt. 13.

         III. Standard of Review

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when a plaintiff pleads factual content that permits a court reasonably to infer that the defendant is liable for the alleged misconduct. Id. (citing Twombly, 550 U.S. at 556). When assessing whether a plaintiff has set forth a “plausible” claim, the district court must accept all of the complaint's factual allegations as true. See Ziegler v IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). A plaintiff must provide “more than labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 556. Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         IV. Analysis

         The Court granted Plaintiff leave to amend his Complaint to name the previously unidentified Defendant officers, but is now faced with the Sixth Circuit's strict interpretation of the relation-back doctrine under Rule 15(c)-i.e., when amended pleadings filed after the statute of limitations are determined to ...


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