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Kelmendi v. Walsh

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

May 30, 2019

BETH WALSH, individually and in her official capacity as a Detective of the SHELBY TOWNSHIP POLICE DEPARTMENT, and SHELBY TOWNSHIP, jointly and severally, Defendants.



         Before 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 argument.


         Appearing 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.

         Plaintiff 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.

         Plaintiff 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 rights.” Id.

         According 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.

         Walsh 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.

         Walsh 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 $200.00.

         A 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.


         I. Standard of Review

         Defendants 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).

         A court 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 ...

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