United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
F. Cox, United States District Judge.
man named Terrance Kellom was shot and killed on April 27,
2015, when a United States Marshal Detroit Fugitive
Apprehension Team was attempting to arrest him at his
father's home in Detroit, Michigan. This is the second
federal lawsuit that attorney Nabih Ayad has filed on behalf
of the family members and Estate of Terrance Kellom that is
based upon that shooting. While the original complaint
included the Estate as a plaintiff in this second case,
Plaintiffs' Counsel filed an amended complaint that
dropped the Estate as a plaintiff. Thus, the only remaining
Plaintiffs are various family members who assert Federal Tort
Act Claims against the United States, in their individual
capacities. The United States filed a Motion to Dismiss under
Fed.R.Civ.P. 12(b)(6) but it references and relies on
materials outside of the pleadings. As such, the Court is
treating it as a summary judgment motion. The parties have
fully briefed the issues and the Court concludes that a
hearing is not necessary. Local Rule 7.1(f). For the reasons
set forth below, the Court shall GRANT the motion and dismiss
the claims in this case with prejudice.
Kellom was shot and killed on April 27, 2015, when a United
States Marshal Detroit Fugitive Apprehension Team was
attempting to arrest him at this father's home in
Detroit, Michigan. At the time of the shooting, Terrance
Kellom's father (Kevin Kellom) and sister (Teria Kellom)
were present inside the home.
the second federal lawsuit that attorney Nabih Ayad has filed
on behalf of the family members and Estate of Terrance Kellom
that is based upon that shooting.
Number 17-11084 (“Kellom I”)
April 6, 2017, Plaintiff Nelda Kellom, as Personal
Representative of the Estate of Terrance Kellom, Deceased
(“the Estate”), filed the first federal case,
Case Number 17-11084.
Estate's original complaint named the following
Defendants: 1) Immigration and Customs Enforcement Agent
Mitchell Quinn; 2) Detroit Police Officer Darell Fitzgerald;
and 3) Detroit Police Officer Treva Eaton. The Estate's
original complaint included the following four counts: 1)
“Bivens Claim” (Count I); 2) “42
U.S.C. § 1983 - Excessive Force and/or Unlawful Use of
Deadly Force” (Count II); 3) “§ 1983
Conspiracy by Defendants” (Count III); and 4)
“Wrongful Death [under] Michigan Wrongful Death Act,
Mich. Comp. Laws § 600.2922 et seq, ”
(Count IV). The Estate's original complaint acknowledged
Defendant Quinn's federal employment and his
participation in a federal task force during the incident.
(See Compl. at ¶ 11) (“Defendant Mitchell
Quinn is, and at all relevant times herein was, a federal law
enforcement agent employed by Immigration and Customs
Enforcement, a federal agency organized and existing under
the laws of the United States. Defendant Quinn was at all
relevant times herein a member of the Detroit Fugitive
Apprehension Team who shot and killed Terrance. Defendant
Quinn acted . . . within the course and scope of his
employment, and under color of federal law.”).
Estate did not submit an administrative claim to the
Department of Homeland Security before filing Case Number
17-11084 on April 6, 2017.
April 25, 2017, acting through its counsel, the Estate
submitted an administrative tort claim to the Department of
Homeland Security. (ECF No. 7-4).
30, 2017, the Estate filed a motion seeking to extend the
summonses in Kellom I. Thereafter, the Defendants
were served with the summons and complaint.
Department of Homeland Security denied the Estate's
administrative claim in a letter mailed on February 1, 2018.
(ECF No. 7-6). That letter expressly advised that, if the
Estate disagreed with the denial, it could file suit in
federal court “not later than sixth months after the
date of mailing of this notification of denial. 28 U.S.C.
§ 2401(b).” (Id.).
detailed e-mail sent to the Estate's Counsel on February
21, 2018, Counsel for the United States explained that the
Estate's FTCA claim that had been asserted in Kellom
I was premature, lacked jurisdiction, and that the
Estate's FTCA claim could only be saved by filing a
timely new lawsuit on behalf of the Estate:
In Kellom v. Quinn et al., it was good to meet you
yesterday. As we discussed, there is a path to properly
pleading a tort claim against the United States, now that you
have received a dismissal of the administrative claim.
The current complaint, however, was obviously filed before
that denial. Amending this complaint to include a tort claim
against the proper defendant, the United States, would still
be jurisdictionally defective. See Duplan v. Harper,
188 F.3d 1195, 1199 (6th Cir. 1999) (generally, a
“complaint cannot be cured through amendment, but
instead, [a] plaintiff must file a new suit.”)
(internal quotations and citation omitted); Van Horn v.
Walton, Case No. 12-11880; 2013 WL 119252, *2 (E.D.
Mich. Jan. 9, 2013) (rejecting as futile an effort to cure
jurisdictional defect in a prematurely filed complaint
through amendment); see also McNeil v. United
States, 508 U.S. 106, 111-12, 113 (1998) (affirming
dismissal of suit filed before exhaustion of administrative
If, however, you filed a new, additional complaint with a
tort claim under the FTCA against the United States, that
hurdle would not be present. Assuming you filed a second
complaint, you would note the current complaint on the civil
cover sheet. Then we could provide a joint proposal to
consolidate the second complaint with the first complaint.
That way, all of the claims would travel together, with no
inconvenience to the Court.
Also, the first complaint would remain pending, with no
effect on your existing claims under Bivens against
Agent Mitchell Quinn. We would suggest, however, that you
voluntarily dismiss the tort claim against him (though only
that claim), since your second complaint would include a
proper FTCA claim against the United States. That would
resolve at least one issue in the pending dismissal motion.
So, my proposal is as follows:
1. Plaintiff files a second complaint under the FTCA against
the United States, noting the first complaint on the civil
2. After the second complaint is filed, we submit a proposed
order to consolidate the second case with the first case
(proposal attached). . . .
Please let me know if you have any questions or concerns . .
(ECF No. 7-7)
receiving that February 21, 2018 email, however, the
Estate's Counsel did not file a new lawsuit in order to
assert the Estate's then-exhausted FTCA claims.
4, 2018, Plaintiff's Counsel filed a First Amended
Complaint in Kellom I, adding named parties and
claims. In addition to the Estate, seven of the
Decedent's family members asserted claims in
Plaintiffs' First Amended Complaint in their individual
capacity (Nelda Kellom, Kevin Kellom, Teria Kellom, Lawanda
Kellom, Terrell Kellom, and Janay Williams, on behalf of
Terrance Kellom's two minor children). The Court will
refer to these parties, collectively, as the
“Non-Estate Plaintiffs.” The First Amended
Complaint included the following eight counts: 1) a
Bivens excessive force claim (Count I); 2) a §
1983 excessive force claim (Count II); 3) a § 1985
conspiracy claim (Count III); 4) a Bivens conspiracy
claim (Count IV); 5) a wrongful death claim under Michigan
law (Count V); 6) a claim for intentional infliction of
emotional distress under Michigan law (Count VI); 7) a
Steagald claim (Count VII); and 8) a § 1983
Monell liability claim (Count VIII).
than two weeks later, on May 16, 2018, the United States
filed a Motion to Dismiss asserting, among other things, that
the FTCA claims asserted by the Non-Estate Plaintiffs must be
dismissed because they failed to present their claims to the
agency before filing suit in Kellom I. (ECF No. 35).
After that motion was filed, Plaintiffs' Counsel did not
submit an administrative claim to the Department of Homeland
Security on behalf of the Non-Estate Plaintiffs.
number of claims were dismissed in connection with motions to
dismiss filed by the various Defendants. (ECF No. 52). Among
other things, this Court's August 29, 2018 Opinion &
Order dismissed the FTCA claims of the Non-Estate Plaintiffs
for failure to exhaust. (Id. at PageID.566) (The
“Court concludes that all Non-Estate Plaintiffs failed
to exhaust their administrative remedies prior to filing the
First Amended Complaint. Thus, as Plaintiffs' Counsel
acknowledged at the hearing, Count V & VI must be
dismissed as to the Non-Estate Plaintiffs for failure to
exhaust administrative remedies.”).
October 3, 2018 - nearly five months after the Government
filed its motion noting the failure to exhaust -
administrative tort claims were submitted to the Department
of Homeland Security on behalf of the Non-Estate Plaintiffs.
(ECF No. 7-8). The Agency ultimately denied the claims of the
Non-Estate Plaintiffs on February 1, 2019. (ECF No. 7-5).
Kellom I proceeded with the claims and Defendants
that remained. Following the close of discovery, Defendants
filed summary judgment motions as to the remaining claims.
Opinion and Order issued on May 21, 2019, this Court denied
Defendant Mitchell Quinn's request for summary judgment
as to the Estate's excessive force claim. As to all
remaining claims, this Court granted summary judgment in
favor of Defendants.
Court's May 21, 2019 Opinion and Order did not dispose of
all claims in Kellom I and no judgment was issued.
Nevertheless, on May 31, 2019, Plaintiffs' Counsel filed