United States District Court, E.D. Michigan, Southern Division
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
Gershwin A. Drain United States District Court Judge.
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
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.
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.
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.
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).
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).
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.
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.
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.
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.
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
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).
Defendants B&G Towing, LLC, Anthony Thomas, and Michael
Lucas's Motion to Dismiss; Defendants City of Hamtramck