United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS (DOC. 47) AND DENYING MOTION FOR SANCTIONS (DOC.
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
the court are Defendants' motions to dismiss and for
sanctions. Pursuant to L.R. 7.1(f)(2), the court finds that
the resolution of this matter will not be aided by oral
pro se, Plaintiff John Kelmendi filed this action on July 17,
2017, and filed an amended complaint on October 17, 2017.
Plaintiff alleged claims of false arrest, malicious
prosecution, and intentional infliction of emotional
distress. Counsel appeared on his behalf on January 29, 2018.
The defendants moved to dismiss the complaint and for summary
judgment, which was granted by the court on August 27, 2018.
The court dismissed the complaint as to Bruno Pacito, Steve
Klein-Knecht, Robert Sizemore, DTE Energy Company, and the
Shelby Township Police Department. Doc. 39. The court granted
Plaintiff leave to amend his complaint to state a claim under
42 U.S.C. § 1983 against Shelby Township Police Officer
Beth Walsh and Shelby Township. Id.
filed his second amended complaint on September 7, 2018. Doc.
41. Plaintiff alleges that his claims arise under the Fourth
Amendment and § 1983. According to the complaint, Bruno
Pacito and Steve Klein-Knecht wanted to “get him”
and falsely accused him of stealing the electric meters
attached to his residence. Pacito is the father of
Plaintiff's former spouse, whom Plaintiff had recently
divorced. See Doc. 41 at ¶¶ 11, 13, 15-16.
Plaintiff contends that he did not steal the electric meters,
which were later found on the premises “in a patch of
weeds.” Id. at ¶ 20.
alleges that Officer Walsh violated his constitutional rights
and that Shelby Township enabled the violation by failing to
train or discipline her. Id. at ¶¶ 28-30.
The complaint contains one count, a § 1983 claim against
Shelby Township for “reckless indifference to
Plaintiff's clearly established constitutional
to the police report, Officer Walsh was dispatched to
Pacito's home, at his request, on June 4, 2014. Doc.
34-2. Pacito stated that Kelmendi had recently been evicted
from the home. Following the eviction, Pacito discovered that
the home had no electricity and observed that the DTE
electric meters were missing. Pacito told Walsh that he spoke
to his next-door neighbor, Klein-Knecht. Klein-Knecht's
home has a clear view of the north side of Pacito's home
where the electric meters were located. Pacito told Walsh
that Klein-Knecht saw Kelmendi take the meters.
attempted to confirm these details with Klein-Knecht on the
morning of June 4, but he was unavailable. Walsh left a
business card at Klein-Knecht's home and stated her
intent to follow up with him. She directed an evidence
technician to respond to the scene and take photographs.
Seven photographs appear in the police report.
called Kelmendi and left a voice message on June 4, 2014.
Kelmendi alleges that he attempted to return Walsh's
call, without success. Doc. 41 at ¶ 15. Walsh also
called DTE and spoke with corporate security employee Robert
Sizemore. Walsh's notes indicate that Sizemore advised
that DTE would prosecute the missing electric meters. Later
that afternoon, Walsh was able to make contact with
Klein-Knecht, who said that he was “reluctant to get
involved, ” but gave a witness statement. Klein-Knecht
said that he saw Kelmendi exit his vehicle with a pair of
pliers, pry the electrical meters off the side of the home,
place them in his car, and leave. Walsh's report stated
her intent to submit a warrant request for larceny under
criminal complaint was filed against Kelmendi on June 18,
2014. The case did not proceed to trial, but was resolved on
July 17, 2015, when Kelmendi paid restitution. Kelmendi
maintains that he did not steal the electric meters.
Standard of Review
seek dismissal of Plaintiff's amended complaint pursuant
to Federal Rules of Civil Procedure 12(b)(6) and 56. A court
confronted with a motion to dismiss under Rule 12(b)(6) must
construe the complaint in favor of the plaintiff, accept the
allegations of the complaint as true, and determine whether
the plaintiff's factual allegations present plausible
claims. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 554-56 (2007). “[N]aked assertions devoid of
further factual enhancement” and “unadorned,
the-defendant-unlawfully-harmed-me accusation[s]” are
insufficient to “state a claim to relief that is
plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The complaint need not
contain “detailed” factual allegations, but its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).
may grant summary judgment pursuant to Rule 56 “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Williams v. Mehra, 186 F.3d
685, 689 (6th Cir. 1999) (en banc) (citing
Fed.R.Civ.P. 56(c)). The standard for determining whether
summary judgment is appropriate is “‘whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Amway
Distrib. Benefits Ass'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986)). Mere allegations or denials in the non-movant's
pleadings will not meet this burden, nor will a mere
scintilla of evidence supporting the non-moving party.
Anderson, 477 U.S. at 248, 252. There must instead
be evidence from which a jury could reasonably find for the
non-movant. McLean v. 988011 Ontario, Ltd., 224 F.3d
797, 800 (6th ...