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Dabish v. McMahon

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

July 22, 2019

Dabish et al., Plaintiffs,
v.
McMahon, et al., Defendants.

         OPINION AND ORDER GRANTING DEFENDANTS B&G TOWING, LLC, ANTHONY THOMAS, AND MICHAEL LUCAS'S MOTION TO DISMISS [#18] AND SECOND MOTION TO DISMISS [#40], GRANTING DEFENDANTS CITY OF HAMTRAMCK AND OFFICER MICHAEL STOUT'S MOTION TO DISMISS [#23], AND DISMISSING THIS ACTION AGAINST THE REMAINING DEFENDANTS GASPER FIORE, JAMES MCMAHON, AND THE CITY OF HIGHLAND PARK

          Gershwin A. Drain United States District Court Judge.

         I. Introduction

         Before the Court is Defendants B&G Towing, LLC, Anthony Thomas, and Michael Lucas's Motion to Dismiss. Dkt. No. 18. Also before the Court is Defendants City of Hamtramck and Officer Michael Stout's Motion to Dismiss, Dkt. No. 23, and Second Motion to Dismiss, Dkt. No. 40. All Defendants assert that Plaintiffs' claims against them are barred by the applicable statutes of limitations. Defendant Gasper Fiore, acting in pro se, filed a concurrence in Defendants B&G Towing, LLC, Anthony Thomas, and Michael Lucas's Motion to Dismiss, moving this Court to dismiss Plaintiffs' complaint against him for statute of limitations reasons. Defendants City of Hamtramck and Officer Michael Stout's Second Motion to Dismiss argues that this Court must dismiss Plaintiffs' complaint against them because 1) Plaintiff Dabish pleaded guilty to mail fraud in March 2019 and pursuant to Heck v. Humphrey, his § 1983 and § 1985 claims are barred; 2) collateral estoppel; 3) qualified immunity; 4) no claims remain against the City of Hamtramck; and 5) governmental immunity. For the reasons stated below, the Court will grant Defendants' Motions and dismiss the remaining Defendants Gasper Fiore, James McMahon, and the City of Highland Park from this action.

         II. Factual Background

         Plaintiff Livernois Ventures Inc. (“Livernois”) was a company that primarily handled collision repair; it is no longer in business. Id. at pg. 4 (Pg. ID 4). Plaintiff Khaled Dabish was the body shop manager of Livernois. Id. at pg. 4 (Pg. ID 4). Plaintiff Brian Abrou was the assistant body shop manager of Livernois. Id. at pg. 2 (Pg. ID 2) Defendant City of Hamtramck (“Hamtramck”) is located within the City of Detroit. Defendant Michael Stout is a police officer employed by the City of Hamtramck. Id.

         Plaintiffs allege that on or about September 10, 2014, Defendant police officers raided Livernois and Mr. Dabish's home in Troy, Michigan pursuant to a fraudulently-obtained search warrant. Id. at pg. 7. (Pg. ID 7). Defendants alleged in the search warrant that there was probable cause of Plaintiff Dabish's involvement in crimes associated with insurance fraud. Id. at pg. 9 (Pg. ID 9). The raid included the seizure of approximately 110 vehicles at Livernois which B&G Towing towed and impounded. Id. at pg. 15 (Pg. ID 15). The complaint next alleges that Defendant Mr. Lucas demanded cash only payments in the hundreds of thousands of dollars from Plaintiff in order to return the vehicles. Id. Plaintiffs state that their property has never been returned to them. Id. Further, Plaintiffs allege that Officer Stout, along with another officer (McMahon), arrested and incarcerated Plaintiff Brian Abrou for a period of four days. Id. at pg. 11 (Pg. ID 11).

         The complaint asserts that Plaintiff Dabish never engaged in any fraudulent insurance schemes or racketeering activities. Id. at pg. 9 (Pg. ID 9). Nor was Dabish ever arrested, charged, prosecuted, or convicted of any crimes associated with Defendants' alleged fraud investigation and seizure of property. Id.

         Plaintiffs filed their complaint with this Court on August 9, 2018. Dkt. No. 1. The complaint consists of ten counts. Generally, the complaint alleges that the Defendants engaged “in a massive scheme to unlawfully seize, impound[, ] and hold vehicles and property hostage for ransom. Id. at pg. 3 (Pg. ID 3).

         Count I of Plaintiffs' complaint alleges that all Defendants violated Plaintiffs' Fourth and Fourteenth Amendment rights to be free from unreasonable search and seizure pursuant to 42 U.S.C. §1983. Id. at pg. 13 (Pg. ID 13). Count II alleges a violation of 42 U.S.C. §1985 against all Defendants. Id. at pg. 18 (Pg. ID 18). Count III alleges a state claim of ethnic intimidation by the Officer Defendants. Id. at pg. 20 (Pg. ID 20). Count IV states a state law claim of gross negligence against the Officer Defendants. Id. at pg. 22 (Pg. ID 22). Count V alleges a state abuse of process by the Officer Defendants. Id. at pg. 23 (Pg. ID 23). Count VI brings a state law claim of concert of action against all Defendants. Id. at pg. 25 (Pg. ID 25). Count VII brings a state law claim of civil conspiracy against all Defendants. Id. at pg. 27 (Pg. ID 27). Count VIII brings a state law claim of statutory conversion against all Defendants. Id. at pg. 29 (Pg. ID 29). Count IX (incorrectly numbered as Count X) brings a state law claim of common law conversion against all Defendants. Id. at pg. 31 (Pg. ID 31). Count X (incorrectly numbered as Count VI) brings a state claim of false imprisonment against the Officer Defendants. Id. at pg. 33 (Pg. ID 33).

         On January 15, 2019, Defendants B&G Towing, Thomas, and Lucas filed their Motion to Dismiss. Dkt. No. 18. Defendant Gasper Fiore filed a concurrence with the Motion on January 15, 2019. Dkt. No. 20. Plaintiffs filed a response in opposition to the Motion and opposed Mr. Fiore's concurrence on February 12, 2019. Dkt. Nos. 31, 32. Defendants B&G Towing, Thomas, and Lucas replied on February 26, 2019. Dkt. No. 38. Defendants Hamtramck and Stout filed their Motion to Dismiss on January 16, 2019. Dkt. No. 23. Plaintiffs responded in opposition on February 12, 2019. Dkt. No. 29. Defendants replied on February 26, 2019. Dkt. No. 37.

         On January 24, 2019, Magistrate Judge Anthony Patti authorized federal charges for mail fraud and wire fraud against Plaintiff Mr. Dabish. Dkt. No. 40-3. The federal complaint against Dabish alleged that he submitted inflated false/fraudulent claims for car repairs at his business Livernois Collision; bribed police officers to create false police reports that were consistent with his false claims to insurance companies; purposefully damaged vehicles at his Livernois facility and billed insurance companies for the damage; paid car owners to submit false claims to their insurance companies, among other things. See id.

         On March 7, 2019, Plaintiff Dabish pleaded guilty to one count of mail fraud in violation of U.S.C. § 1341. Dkt. No. 40-6. His plea states that he “knowingly participated in a scheme to defraud in order to obtain money. . . from the payment of false claims to insurance companies . . . .” Id. Plaintiff is set to be sentenced on September 26, 2019. No. 17-cr-20830, Dkt. No. 58.

         Based on the foregoing, on April 22, 2019, Defendants Hamtramck and Stout filed their Second Motion to Dismiss. Dkt. No. 40. The Second Motion asserts that Plaintiff cannot bring his claims that Defendants violated his rights because he pleaded guilty to the type of crime that Defendants raided his business and home to investigate, among other things. Id. Plaintiffs opposed the Motion on May 13, 2019. Dkt. No. 44. Defendants replied on May 20, 2019. Dkt. No. 47.

         III. Legal Standard

         Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss. The court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. See Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must “allege enough facts to make it plausible that the defendant bears legal liability.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016). The facts need to make it more than “merely possible that the defendant is liable; they must make it plausible.” Id. “Bare assertions of legal liability absent some corresponding facts are insufficient to state a claim.” Id.

         A claim will be dismissed “if the facts as alleged are insufficient to make a valid claim or if the claim shows on its face that relief is barred by an affirmative defense.” Riverview Health Inst., LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). The district court generally reviews only the allegations set forth in the complaint in determining whether to grant a Rule 12(b)(6) motion to dismiss, however “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).

         IV. Discussion

         1. Defendants B&G Towing, LLC, Anthony Thomas, and Michael Lucas's Motion to Dismiss; Defendants City of Hamtramck ...


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