United States District Court, E.D. Michigan, Northern Division
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
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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) and are as follows. On or
about July 18, 2015, personnel from the Michigan Department
of Health and Human Services, Child Protective Services
information 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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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
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).
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)).
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