United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING THE MOTION OF DEFENDANTS
GODBEE, LEWIS, WALTON, SVENKENSEN, WILLIAMS, MOORE, AND LEVER
TO DISMISS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
This
matter is presently before the Court on the motion of
defendants Godbee, Lewis, Walton, Svenkensen, Williams,
Moore, and Lever for judgment on the pleadings or to
dismiss[1][docket entry 60]. Plaintiff has filed a
response in opposition. Pursuant to E.D. Mich. 7.1(f)(2), the
Court shall decide this motion without a hearing.
Plaintiff,
a former Detroit police officer, alleges that he was
wrongfully suspended (in 2010), prosecuted (in 2011), and
discharged (in 2013) after being falsely accused of receiving
pay for hours he had not worked. He also alleges that certain
of the defendants withheld information that would have
enabled him to disprove this accusation. Plaintiff asserts
claims against defendants, nine current and former members of
the Detroit Police Department, for violation of his due
process and equal protection rights, treating him differently
than similarly situated female police officers, negligence,
tortious interference with his rights under a collective
bargaining agreement, fraud, emotional distress, and
malicious prosecution.
Defendants
make a number of arguments in their motion, but the Court
finds one to be dispositive: “Plaintiff's claims
against Defendants fail to state a claim upon which relief
can be granted where [plaintiff] fails to establish any
connection between any Defendant and the allegations in his
Second Amended Complaint” (“SAC”).
Defs.' Mot. at 2. Plaintiff's response does not
address this aspect of defendants' motion. While
plaintiff addresses defendants' other arguments (e.g.,
whether the complaint complies with the Bankruptcy
Court's order, whether the complaint is timely, and
whether the claims relate back under Fed.R.Civ.P. 15(c)), he
says nothing in response to defendants' argument that the
SAC fails to state a claim.
The
Court has searched the SAC and can find no substantive
allegations directed specifically to any of the defendants.
Defendants are identified in the “Parties”
section of the SAC ¶¶ 5-13, but specific
allegations as to particular defendants are all but
non-existent. The only allegations naming particular
defendants are the following. The SAC alleges that defendant
Lewis was plaintiff's supervisor at the Ninth Precinct
beginning in 2006, id. ¶ 21-22; that Lewis
posted plaintiff's schedule and provided copies to
defendants Godbee, Moore, and Dolunt, id. ¶ 25;
that Lewis gave a Garrity[2] statement in July 2010,
id. ¶ 36; that defendant Svenkensen took
Lewis' statement, id. ¶ 37; that
“Moore, Walton, Serta, [3] Dolunt, Lewis, and Williams are
liable to Plaintiff for violating his Constitutional rights .
. . by withholding material exculpatory evidence, e.g.,
Lewis' Garrity” and by violating his due process
rights and his “right to equal treatment without regard
to gender, ” id. ¶ 49; that
“Godbee, Craig, Lever, Lewis, Dolunt, Moore, Walton,
Sevenkesen [sic], and Williams” violated his rights
under the Michigan Constitution “by denying him fair
and just treatment in the investigation which resulted in his
wrongful termination, ” id. ¶ 55; and
that “Godbee, Lewis, Dolunt, Moore, Walton, Sevenkesen
[sic], and Defendants, [sic] Hall and Lever . . . unjustly
instigated DPD's breach of its contract with Plaintiff,
based on allegations that they knew or should have known to
be false and pursued on [sic] investigatory/hearing
procedures they knew to be partisan and inadequate . . . when
they caused DPD to terminate Plaintiff, ” id.
¶ 73.
Under
Fed.R.Civ.P. 12(c),
[j]udgment on the pleadings is proper “when no material
issue of fact exists and the party making the motion is
entitled to judgment as a matter of law.” Paskvan
v. City of Cleveland Civil Serv. Comm'n, 946 F.2d
1233, 1235 (6th Cir. 1991). The “complaint must contain
direct or inferential allegations respecting all the material
elements under some viable legal theory.”
Commercial Money Ctr., Inc. v. Ill. Union Ins., 508
F.3d 327, 336 (6th Cir. 2007). Accordingly, the court
construes the complaint in the light most favorable to the
nonmoving party, accepts the well-pled factual allegations as
true, and determines whether the complaint contains enough
facts to make the legal claims facially plausible.
Id. (citing United States v. Moriarty, 8
F.3d 329, 332 (6th Cir. 1993)).
Arsan v. Keller, No. 18-3858, 2019 WL 3494330, at *5
(6th Cir. Aug. 1, 2019). Similarly, under Fed.R.Civ.P.
12(b)(6), dismissal for failure to state a claim is proper if
the complaint does not “contain sufficient factual
matter . . . to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of all the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. “Factual allegations must
be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555.
Going
through the defendants one by one, plainly no claim is stated
as to Lewis, as the only substantive allegation as to her is
that she supervised plaintiff, posted his schedule, shared
the schedule with other defendants, and gave a
Garrity statement. No. claim is stated as to
Svenkensen, as plaintiff's only substantive allegation as
to him is that he took Lewis' statement. No. claim is
stated as to Godbee or Moore, as plaintiff's only
substantive allegation as to them is that they were aware of
plaintiff's schedule.
The
only mention of the other defendants (Walton, Williams, and
Lever) appears in ¶¶ 55 and 73, where plaintiff
claims that all of the defendants violated his constitutional
and collective bargaining rights. But these allegations, as
noted above, provide no specific information as to what each
defendant allegedly did. Rather, these are precisely the sort
of “unadorned, the-defendant-unlawfully-harmed-me
accusation[s], ” Iqbal, 556 U.S. at 678, that
fail to satisfy basic pleading requirements. This failure
occurs repeatedly under every count of the SAC:
“Defendants . . . depriv[ed] Plaintiff of his liberty
and property interests, ” SAC ¶ 48;
“defendants, in their arbitrary and capricious actions,
treated plaintiff differently than other persons who were
similarly situated, ” id. ¶ 51;
“Defendants Godbee, Craig, Lever, Lewis, Dolunt, Moore,
Walton, Sevenkesen [sic], and Williams . . . deprived
plaintiff of his liberty and property interests, ”
id. ¶ 55; “Defendants . . .
discriminatorily determined that unlawful discrepancies
existed between Plaintiff's daily activity logs and his
official schedule, ” id. ¶ 60;
“Defendants . . . discriminatorily revoked
Plaintiff's law enforcement certification as a police
officer, ” id. ¶ 61; “As a . . .
result of Defendants' policies, practices, customs,
failure to train or improperly-provided training, Plaintiff
was deprived of his constitutionally protected rights,
” id. ¶ 64; “Defendants breached
their duties . . . by their refusal after being requested
repeatedly to provide to Plaintiff or his attorneys copies of
all documents . . . that were pertinent to the disciplinary
charges against him, ” id. ¶ 67;
“Defendants . . . unjustly instigated DPD's breach
of its contract with Plaintiff, based on allegations that
they knew or should have known to be false, ”
id. ¶ 73; “Defendants . . . wrongly
terminated Plaintiff, ” id. ¶ 78;
“Defendants[] treated similarly situated female
employees . . . differently by according them lesser
punishments for similar infractions, ” id.
¶ 79; “Defendants . . . suppress[ed] Sgt. Lewis
Garrity's [sic] which contained sworn testimony that was
directly exculpatory as to Plaintiff, ”[4] id.
¶ 83; “Defendants . . . acted in an extreme and
outrageous manner when . . . they haphazardly . . . imposed
on Plaintiff a series of disciplinary measures that
culminated in his wrongful discharge, ” id.
¶ 85; and “Defendants were actively instrumental
in causing Plaintiff to be prosecuted . . . by withholding
exculpatory evidence, ” id. ¶ 90.
As is
apparent, plaintiff alleges almost exclusively that
“defendants, ” collectively, violated his rights
without alleging specifically how each defendant did so. In
Marcilis v. Twp. of Redford, 693 F.3d 589
(6th Cir. 2012), the Sixth Circuit affirmed the partial
dismissal of the complaint due to plaintiff's similarly
general pleading style:
On appeal, Doyle and Livingston argue that the
Marcilises' complaint fails because it is a generalized
pleading that refers to all defendants generally and
categorically. Though we have not yet addressed this issue in
a published opinion, we have found, in an unpublished
opinion, that a complaint failed where a plaintiff “did
not allege that particular defendants performed the acts that
resulted in a deprivation of [plaintiff's] constitutional
rights. This is a requirement in Bivens actions such
as this one.” Kesterson v. Moritsugu, 149 F.3d
1183, No. 96-5898, 1998 WL 321008, at *4 (6th Cir. June 3,
1998) (unpublished table decision). The Tenth Circuit has
found that a complaint containing only collective references
to defendants does not adequately state a Bivens
claim. See Robbins v. Oklahoma, 519 F.3d 1242, 1250
(10th Cir. 2008) (“Given the complaint's use of
either the collective term ‘Defendants' or a list
of the defendants named individually but with no distinction
as to what acts are attributable to whom, it is impossible
for any of these individuals to ascertain what particular
unconstitutional acts they are alleged to have
committed.”); see also Atuahene v. City of
Hartford, 10 Fed.Appx. 33, 34 (2d Cir. 2001) (“By
lumping all the defendants together in each claim and
providing no factual basis to distinguish their conduct, [the
plaintiff's] complaint failed to satisfy [the] minimum
standard” that “a complaint give each defendant
fair notice of what the plaintiff's claim is and the
ground upon which it rests.” (internal quotation marks
omitted)). We have made similar statements in the context of
non-Bivens constitutional tort claims against
government actors. See, e.g., Lanman v. Hinson, 529
F.3d 673, 684 (6th Cir. 2008) (“This Court has
consistently held that damage claims against government
officials arising from alleged violations of constitutional
rights must allege, with particularity, facts that
demonstrate what each defendant did to violate the asserted
constitutional right.”). Requiring that federal
defendants be identified with particularity is also in accord
with how the Supreme Court discussed Bivens
liability in Iqbal: “Absent vicarious
liability, each Government official, his or her title
notwithstanding, is only liable for his or her own
misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,
677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The complaint mentions Doyle and Livingston only in paragraph
six, for the purposes of identifying them as employees of the
Drug Enforcement Administration. Otherwise, the complaint
makes only categorical references to
“Defendants.” We conclude that the district court
did not err in dismissing the claims against Doyle and
Livingston for failing to “allege, with particularity,
facts that demonstrate what each defendant did to violate the
asserted constitutional right.” Lanman, 529
F.3d at 684.
Id. at 596-97. This Court, following
Marcilis, has also dismissed the complaint where
“the complaint consists almost entirely of generalized
allegations against ‘defendants' collectively, as
opposed to specific allegations as to ‘what each
defendant did to violate the asserted constitutional
right.'” Campbell v. ...