Szappan v. Meder

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS GARABELLI, SHIELDS, AND SAGINAW COUNTY'S MOTION TO DISMISS AND/OR MOTION FOR PARTIAL SUMMARY JUDGMENT AND DISMISSING COUNTY OF SAGINAW AND MARK GARABELLI

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On February 10, 2016, Plaintiff, Matthew Szappan, was charged with three felony counts of maintaining a methamphetamine laboratory, possession by a felon of a firearm when ineligible to do so, and felony firearm based on a July 18, 2015 search executed on his property in Chesaning, Michigan. ECF No. 1; ECF No. 32-7 at PageID.1204. On July 18, 2015, a CPS officer and three police officers arrived at Plaintiff and Plaintiff's wife's property to conduct a wellness check. ECF No. 29-4 at PageID.751-755. During the welfare check, two police officers investigated the property and later obtained a search warrant for a full search of the property based in part on the investigation. Id. at PageID.754-762. Between the investigation and the subsequent search, Plaintiff's wife was detained on the property for an hour and a half. ECF No. 29-4 at PageID.789-790. Plaintiff was arrested, but released a day later pending further investigation. ECF No. 1 at PageID.8; ECF No. 29-3 at PageID.728-729.

         Plaintiff was arrested again on May 11, 2016. He was arraigned on May 12, 2016, released on bond on June 16, 2016, and bound over to Saginaw County Circuit Court on November 3, 2016. ECF No. 1 at PageID.8-9. On January 5, 2017, Plaintiff's attorney filed a motion to suppress evidence seized from the warrantless investigation of his property on July 18, 2015 that preceded the later search warrant. The motion was granted on June 21, 2017. Id. at PageID.9-10. The Saginaw County Prosecuting Attorney filed a nolle prosequi in July 2017. Id. Plaintiff initiated this action on July 17, 2018.

         Plaintiff filed his complaint against Defendants Michigan State Police Trooper Troy Meder, Saginaw County Sergeant Mark Garabelli, Saginaw County Deputy Shields, and Saginaw County. ECF No. 1. Plaintiff alleged violations of his fourth amendment rights for an unlawful search, unlawful arrest, and malicious prosecution by Meder, Garabelli, and Shields. Id. Plaintiff also alleged violations of state law for invasion of privacy and intentional infliction of emotional distress against Meder, Garbelli, and Shields. Id. Lastly, Plaintiff alleged Monell liability against Saginaw County. Id. Defendant Meder filed a motion to dismiss and/or motion for summary judgment on October 12, 2018. ECF No. 6. The motion was granted in part for the unlawful arrest, malicious prosecution, invasion of privacy, and intentional infliction of emotional distress claims and denied with respect to the unlawful search and seizure claim. ECF No. 14. Accordingly, the only outstanding claim against Defendant Meder is the unlawful search and seizure claim.

         On October 8, 2019, Defendants Garabelli, Shields, and Saginaw County filed a motion to dismiss and/or for partial summary judgment. ECF No. 29. Defendants Garabelli and Shields seek dismissal of the invasion of privacy and intentional infliction of emotional distress (“IIED”) claims for failure to state a claim. They separately seek dismissal of the unlawful search, unlawful arrest, and malicious prosecution claims because they contend probable cause existed for the search, arrest, and prosecution. They also contend that they are entitled to qualified immunity, in any event. Id. Garabelli also seeks dismissal of the unlawful search claim because he did not participate in the search. Id. Saginaw County seeks dismissal of the Monell claim because Plaintiff failed to show Defendant had an official policy or practice sufficient to prove liability. Id. Although Local Rule 7.1(e)(1)(B) requires “[a] response to a dispositive motion must be filed within 21 days after service of the motion, ” Plaintiff's response was filed over three weeks late without explanation. ECF No. 22. Defendants filed a timely reply. ECF No. 33. As explained below, Defendants Garabelli, Shields, and Saginaw County's Motion will be granted in part and denied in part.

         I.

         The allegations in a plaintiff's complaint are to be presumed true in addressing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)^[1] and are as follows. On or about July 18, 2015, personnel from the Michigan Department of Health and Human Services, Child Protective Services (“CPS”), “received information^[2] regarding possible drug use or manufacture at Plaintiff's residence located at 13100 S. Graham Road in Chesaning, Michigan.” Compl. ¶ 8. Acting upon the information, CPS personnel decided to check on the welfare of Plaintiff's children at Plaintiff's residence. Id. ¶ 9. CPS personnel contacted the Saginaw County Sheriff Department and requested that personnel from the Saginaw County Sheriff Department accompany the CPS personnel to the residence while they performed their welfare check. Id. ¶ 10. In response to this request, at approximately 1:30 PM, Sergeant Garabelli and Deputy Shields were dispatched to the residence to assist the CPS workers to perform their welfare check. Id. ¶ 11.

         Michigan State Police Trooper Meder overheard the dispatch, contacted Sergeant Garabelli, offered his assistance, and then proceeded to the residence to assist Sergeant Garabelli and Deputy Shields. Id. ¶ 12. Trooper Meder met with the CPS worker north of the residence. Id. ¶ 13. Shortly thereafter, Sergeant Garabelli and Deputy Shields arrived and met with Trooper Meder and the CPS worker. Id. ¶ 14. Trooper Meder briefed Sergeant Garabelli and Deputy Shields regarding what he had learned from the CPS worker and the foursome proceeded to the residence located just south of where they had met. Id. ¶ 15.

         Upon arriving at the residence, the foursome discovered the home surrounded by a fence with an unlocked gate across the driveway. Id. ¶ 16. They parked on the road and yelled at the house until Plaintiff's wife came out to meet with them. Id. A short time later, Plaintiff's wife exited the residence and met the foursome by the driveway gate. Id. ¶ 17. The CPS worker explained the purpose of their presence at the property, and Plaintiff's wife opened the gate and allowed them entry onto the property. Id. ¶ 19. Trooper Meder observed a barn on the rear part of the property behind the residence. Id. ¶ 20. The barn door was open and lights were on inside. Id. Without obtaining consent, Trooper Meder and Deputy Shields proceeded to the barn seeking to locate Plaintiff. Id. ¶ 21.

         Trooper Meder and Deputy Shields began their search for Plaintiff without looking for Plaintiff's children. Id. ¶ 22. When Trooper Meder and Deputy Shields entered the backyard of the residence, Trooper Meder observed marijuana plants. Id. ¶ 23. Trooper Meder and Deputy Shields proceeded to the barn and entered a workshop on the south side of the barn. Id. ¶ 24. During the search of the barn, Trooper Meder discovered a one-pound container of table salt located on a table near a work bench. Id. ¶ 29. Trooper Meder further discovered a one-gallon container of acetone on a table, a one-gallon container of Coleman camp fuel, a one-quart size container of Coleman camp fuel, and a container of Lye. Id. ¶ 30. Although Trooper Meder did not observe any methamphetamine being manufactured, he nonetheless concluded that these items could be used to manufacture methamphetamine, and at least two of the items had no logical use in a workshop with no plumbing. Id. ¶ 31. Only after they conducted their search of the barn did Trooper Meder and Deputy Shields proceed back to the residence where they met the CPS worker and Sergeant Garabelli who was speaking with Plaintiff and his wife. Id. ¶ 32.

         Trooper Meder then contacted a Saginaw County Assistant Prosecuting Attorney who advised Trooper Meder that the evidence he discovered during his warrantless search of the barn could be used in support of a search warrant to search the remainder of the property. Id. ¶ 33. The Saginaw County Assistant Prosecuting Attorney agreed to meet with Trooper Meder and to draft an Affidavit and Search Warrant for the premises. Id. ¶ 34.

         Trooper Meder and Sergeant Garabelli decided that Plaintiff and his wife should leave the premises pending the execution of the Search Warrant. Id. ¶ 35. Sergeant Garabelli and Deputy Shields then began escorting Plaintiff and his wife to a parked car in the driveway. Id. ¶ 36. Trooper Meder instructed Sergeant Garabelli and Deputy Shields to conduct a search of the vehicle before allowing Plaintiff and his wife to remove it from the premises. Id. ¶ 37. Plaintiff disclosed that his wife's shotgun was present in the vehicle. Id. ¶ 38. Trooper Meder then searched the vehicle and seized the shotgun. Id. ¶ 39.

         Saginaw County District Court Judge Terry Clark issued a search warrant the same day. Id. ¶ 43. BAYANET and the Third District Methamphetamine Response Team then searched Plaintiff's property, including the home, the curtilage, and all vehicles and outbuildings. Id. ¶ 44. Nine suspected marijuana plants and a 12-gauge Mossberg pump shotgun were seized. Id. ¶ 46. Plaintiff was arrested^[3] but released two days later pending investigation. Id. ¶ 47; ECF No. 29-3 at PageID.728. On February 10, 2016, Plaintiff was charged with three felony counts. ECF No. 1 at ¶ 48. He was arrested on May 11, 2016. Id. ¶ 49. The Saginaw County Circuit Court granted Mr. Szappan's motion to suppress and “ordered that the evidence obtained by Defendants as well as the poisonous fruits of that evidence be suppressed.” Id. ¶ 55. The Saginaw County Prosecuting Attorney filed a Motion for an Order of Nolle Prosequi due to “lack of evidence, ” which the court entered. Id. ¶ 56-57.

         II.

         Defendants frame their arguments as, alternatively, a motion to dismiss or a motion for summary judgment. Notably the significant difference is the standard of review. Defendants contend that Plaintiff fails to state a claim for the invasion of privacy and intentional infliction of emotional distress claims. ECF No. 29 at PageID.701-705. Accordingly, the argument will be analyzed applying the Rule 12(b)(6) legal standard.

         Second, Defendants advance additional arguments seeking summary judgment with respect to other claims. They argue the unlawful search claim against Defendant Garabelli should be dismissed due to lack of evidence. ECF No. 29 at PageID.692-693. Defendants also argue Plaintiff's unlawful arrest and malicious prosecution claims fail because there was probable cause for the arrest and prosecution or alternatively because the officers have qualified immunity. Id. at PageID.693-701. Defendant Shields argues the unlawful search and seizure claim against him should be dismissed because he is entitled to qualified immunity. Id. at PageID.695-697. Finally, Defendants assert that Plaintiff's Monell claim against Saginaw County should be dismissed because he failed to identify any official policy or practice. Id. at PageID.697-701. The arguments on the unlawful search, unlawful arrest, malicious prosecution, and Monell claims will be addressed applying the Rule 56 standard of review.

         III.

         A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” and “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678- 79 (quotations and citation omitted).

         A.

         Michigan recognizes four distinct types of privacy torts: 1) intrusion upon seclusion, 2) public disclosure of embarrassing private facts, 3) publicly painting the plaintiff in a false light, and 4) appropriation of the plaintiff's likeness. Doe v. Mills, 536 N.W.2d 824, 828 (1995).

         Plaintiff claims “Defendants invaded [his] privacy by obtaining information about the matter by a method that would be objectionable to a reasonable person.” ECF No. 1 at PageID.14. As such, Defendants read Plaintiff's complaint to be an intrusion upon seclusion claim. The three elements to an intrusion upon seclusion claim are: “(1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man.” Doe v. Mills, 536 N.W.2d 824, 832 (Mich. Ct. App. 1995) (citing Tobin v. Michigan Civil Service Commission, 331 N.W.2d 184, 189 (Mich. 1982)).

         Plaintiff's complaint summarily recites the elements of an intrusion upon seclusion claim. ECF No. 1 at PageID.14. It does not factually identify the matter that was private, nor explain his right to maintain the information private, nor explain how the invasion of privacy would be objectionable to a reasonable person. Plaintiff attempts to address the deficiency in his response by stating he “had a reasonable expectation of privacy in the barn within the curtilage of his home.” ECF No. 32 at PageID.1074. However, Plaintiff has not sought to amend his complaint. Further, the sole focus of a motion to dismiss are the facts alleged by Plaintiff in his complaint. While the federal pleading standard does not require detailed factual analysis, Plaintiff cannot survive a motion to dismiss where a complaint simply provides factual allegations unconnected to the elements of the claim. A simple recitation of the elements ...