United States District Court, E.D. Michigan, Southern Division
Steven Whalen Magistrate Judge
OPINION AND ORDER ADOPTING IN PART REPORT AND
RECOMMENDATION  AND GRANTING IN PART DEFENDANTS'
MOTION TO DISMISS 
J. MICHELSON U.S. DISTRICT JUDGE
Boyd says that in May 2014, he was in a parked car with some
of his friends when two City of Warren police officers, Colin
McCabe and Jeffrey Masserang, approached under the pretense
that one of the occupants was visibly sick. After he exited
the vehicle, Boyd says that McCabe attempted to strike or
grab his head which caused him to fall into the backseat of
the car. McCabe proceeded to beat and choke him. Boyd was
taken to the police station in Warren. There, several
officers, including McCabe and Masserang, allegedly forced
Boyd to clean up his vomit with a single paper towel. Boyd
further claims that during booking, one officer choked him
(while another watched), one slammed his head, and one threw
him into a cell by his hair. Based on these allegations, Boyd
sued McCabe, Masserang, the City of Warren, and others.
move to dismiss Boyd's lawsuit. (R. 15.) Magistrate Judge
R. Steven Whalen, to whom all pretrial matters have been
referred, recommends that this Court dismiss some of
Boyd's claims but that the case proceed on others. (R.
23, PID 383.) Boyd has no objections to this, but Defendants
have one. In particular, the City of Warren disagrees with
the Magistrate Judge's finding that Boyd adequately pled
a municipal-liability claim. (R. 24.)
the City has objected, the Court reviews anew the City's
argument that Boyd's complaint fails to allege a viable
municipal-liability claim. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3). Thus, the question for this
Court is whether Boyd's claim against the City of Warren
is “plausible, ” i.e., whether the factual
allegations of Boyd's complaint permit “the
reasonable inference” that the City is liable. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
says that the answer is “yes.” (See R.
25, PID 509.) In particular, he argues that his allegations
make it plausible that the City either (1) has a policy of
inadequately training or supervising its officers or (2) has
“a custom of tolerance or acquiescence of federal
rights violations, ” Burgess v. Fischer, 735
F.3d 462, 478 (6th Cir. 2013). (See R. 25, PID 509.)
these theories of municipal liability require a plaintiff to
show-or, at this stage of the case, show that it is
plausible-that the City of Warren acted with
“deliberate indifference.” See Connick v.
Thompson, 563 U.S. 51, 61 (2011); Stanfield v. City
of Lima, No. 17-3305, 2018 WL 1341646, at *8 (6th Cir.
Mar. 15, 2018); Marcilis v. Twp. of Redford, 693
F.3d 589, 605 (6th Cir. 2012.) Deliberate indifference is a
“stringent standard of fault, ” Connick,
563 U.S. at 61; it “does not mean a collection of
sloppy, or even reckless oversights, ” Thomas v.
City of Chattanooga, 398 F.3d 426, 433 (6th Cir. 2005).
“[O]rdinarily” (more on this qualifier below)
deliberate indifference means that the municipality knew or
should have known of “[a] pattern of similar
constitutional violations” and took no remedial
measures. See Connick, 563 U.S. at 61.
allegations of Boyd's complaint do not make it plausible
that the City of Warren knew or should have known of repeat
excessive-force violations by its police officers.
Court starts, as Iqbal directs, by identifying
allegations “that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” 556 U.S. at 679. That means, for purposes of
assessing plausibility, the Court need not credit allegations
like this: the City of Warren “acted recklessly and/or
with deliberate indifference when it practiced and/or
permitted customs and/or policies and/or practices that
resulted in constitutional violations to Plaintiff.”
(R. 11, PID 147.) Or this: the City “failed to
adequately train [its officers, including McCabe, Masserang,
Horlocker, ] with regard to reasonable seizures.”
(Id.) Or this: the City “exhibited a
deliberate indifference as to whether or not members of the
public, such as Plaintiff, would be hurt by its/their failure
to properly train or supervise Defendants.” (R. 11, PID
149.) Whether the City acted with “deliberate
indifference, ” “failed to adequately train,
” or “exhibited a deliberate indifference,
” are legal conclusions.
set of allegations, while narrowly escaping the
legal-conclusion label, do little to “nudge”
Boyd's municipal-liability claim “across the line
from conceivable to plausible.” Iqbal, 556
U.S. at 680. In this set, are allegations like these two: the
City failed to terminate or discipline its officers,
including Defendants, “after it was clear that such
officers had histories of violating the rights of
citizens” (R. 11, PID 147) and “[g]iven the prior
accounts of constitutional violations against [the City] . .
. [it was] clearly on notice that such abuse . . . would
likely occur in the future if [it] . . . continued to fail to
properly hire, train, or supervise its police officers, which
it did fail to do.” (R. 11, PID 149.) Unlike pure legal
conclusions, these allegations at least contain a shred of
factual matter: whether Warren police officers, including
Defendants, had “histories of violating the rights of
citizens” and whether there were “prior accounts
of constitutional violations” are questions that have
an objectively true or false answer. But the standard is
still plausibility, and without saying more about these
“histories” and “prior accounts”-what
happened and when-these allegations are too vague to show
that there was a “pattern” of constitutional
violations and that the constitutional violations were
“similar, ” see Connick, 563 U.S. at 61.
leaves the portions of Boyd's complaint where he does
specify what happened and when. Boyd avers that in November
2013, “a potential rape victim was abused by the Warren
Police Department by having her hair ripped or cut off by
officers while restrained in a chair and while in the
presence of other officers who either took part in it or
watched.” (R. 11, PID 150.) And Boyd's complaint
states that in January 2014, the “Warren Police
Department improperly assaulted a man named Torres at his
home and falsified reports (including falsely stating that
Torres resisted his arrest) [and] [a]t least one officer was
thereafter charged with [a]ssault.” (R. 11, PID 150.)
Boyd also alleges that “Defendant Officer McCabe has
already been sued in this Federal District Court in the
matter of Laskey v. City of Warren, Kimberley Teolis and
Colin McCabe (2:13-CV-14538)” and that the case
also involves claims of excessive force. (R. 11, PID 150-51.)
these allegations are undoubtedly factual, they still do not
make it plausible that the City of Warren knew or should of
known that there was “[a] pattern of similar
constitutional violations, ” Connick, 563 U.S.
at 61. As an initial matter, these three incidents do not
seem all that similar. And even assuming it is enough that
they all fall under the broad umbrella of “excessive
force, ” three does not a pattern make. Given that
there are about 135, 000 people in Warren, see U.S.
(last visited Apr. 18, 2018), the City's police force
likely engages in hundreds of arrests and bookings each year.
As such, one instance of excessive force in 2011 (Laskey),
one in 2013 (the hair ripping), and one in 2014 (Torres),
does not make it plausible that the City knew or should have
known of a pattern of excessive force. See Ellis ex rel.
Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690,
701 (6th Cir. 2006) (finding that two prior incidents over a
two-year period did not establish a pattern for purposes of
complaint, Boyd promised additional examples of misconduct by
Warren police officers. He alleged that there are a
“plethora” of examples (R. 11, PID 137), that the
“instances [were] too many to include in [the]
Complaint” (R. 11, PID 150), and that examples were
“aplenty” and would be “further explored in
Discovery” (R. 11, PID 151). Presumably Boyd had
particular instances in mind when he pled this. Yet in
response to Defendants' motion to dismiss and in response
to Defendants' objections, Boyd has not come up with any
examples other than the three just discussed.
Boyd's complaint does not make it plausible that the City
knew or should have known of a ...