Fareed v. G4S Secure Solutions (USA) Inc., Case No. 12–14300.

942 F.Supp.2d 738

Khalil FAREED, Plaintiff,

v.G4S SECURE SOLUTIONS (USA) INC., Doe No. 1, and Doe No. 2, Defendants.

Case No. 12–14300.

United States District Court,

E.D. Michigan,

Southern Division.

April 29, 2013.

Nabih H. Ayad, Nabih H. Ayad Assoc., Canton, MI, for Plaintiff.

Emily M. Petroski, Kimberly A. Yourchock, Jackson Lewis LLP, Southfield, MI, for Defendants.

OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT

DAVID M. LAWSON, District Judge.

Plaintiff Khalil Fareed was to be a witness in a landlord-tenant lawsuit scheduled for a hearing in the Thirty–Sixth District Court in Detroit, Michigan on May 4, 2012. He was wearing a kufi, which is a head covering commonly worn by Muslims as a religious observance, when he attempted to gain entrance. He asserts in his complaint that two security guards employed by defendant G4S Secure Solutions (USA), Inc. forced him to either remove his kufi or be removed from the court building, even after Fareed explained the religious significance of the headwear and asserted his First Amendment rights. Fareed submitted to the guards' authority and removed the kufi, but he now brings this lawsuit asserting several constitutional violations via 42 U.S.C. § 1983 and state law. Before the Court presently is the defendants' motion to dismiss in which they argue that the plaintiff has not alleged that they were engaged in state action, and they are protected by various forms of immunity. The Court heard oral argument on April 22, 2012 and now determines that the motion must be denied.

I.

The plaintiff describes his encounter with the security guards as follows:

10. On May 4, 2012, Plaintiff attempted to attend a hearing before the Honorable Marilyn Atkins at the 36th District Court in the City of Detroit.

11. Prior to Judge Atkins taking the bench, Defendant Jane Doe Officer I ordered Plaintiff to remove his Kufi.

12. Plaintiff responded by informing Defendant Jane Doe Officer I that he wears the Kufi in accordance with the tenets of his Islamic Faith.

13. Defendant Jane Doe Officer replied that she did not care about the reason why Plaintiff wore the Kufi and that if Plaintiff refused to remove his Kufi that he would be forced to leave the 36th District Court.

14. Plaintiff continued to protest; again informing Defendant Jane Doe Officer I that the Kufi is a religious item, and further informed Defendant Jane Doe Officer I that she had no legal authority to order Plaintiff to remove the Kufi under the First Amendment to the United States Constitution.

15. In response Defendant Jane Doe Officer I requested support from her supervisor—Defendant John Doe Officer II.

16. ... Defendant John Doe Officer II heard the respective arguments of both parties before informing Plaintiff that if he did not remove the Kufi he would be removed from the Courtroom and the 36th District Court.

17. Plaintiff then asked if a similar rule would be applied to the Jewish Yarmulke or a Catholic Nun's Habit.

18. Defendants Jane Doe Officer I and John Doe Officer II demanded that Plaintiff remove his Kufi.

19. Under duress and over objection, Plaintiff removed his Kufi in order to testify in the 36th District Court.

Compl. ¶¶ 10–19.

The guards, the plaintiff alleges, wore police uniforms festooned with Thirty–Sixth District Court insignias and utility belts equipped with handcuffs and other tools of the trade. He says they perform typical police security work in the court, such as transporting and maintaining custody of prisoners and coordinating their activity with other police personnel and court staff.

The plaintiff says that he protested his treatment by sending a letter to the judge presiding over the case, Judge Marilyn Atkins, on May 8, 2012. On May 17, 2012, the judge replied, writing:

[The removal of religious attire] has never been an issue that was brought to my attention the entire 21 years I have served this Court. I never instructed any court officer to deny a person from wearing any clothing item that is worn for religious purposes.

...

Please accept my apology for this incident.

Compl. ¶ 21.

The plaintiff filed his complaint on September 27, 2012 alleging a violation of the First Amendment's Free Exercise Clause (count I), a violation of the Equal Protection Clause (count II), denial of access to the courts (count III), a violation of the state civil rights statute (count IV), and negligence (count V). The defendants filed their motion to dismiss, and the Court ordered that they also answer the complaint. The plaintiff filed a timely response to the motion, and the defendants replied.

II.

The defendants' motion to dismiss is brought under the authority of Federal Rule of Civil Procedure 12(b)(6). “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true.” Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir.2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993)). Under Rule 12(b)(6), the complaint is viewed in the light most favorable to plaintiffs, the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of plaintiffs. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir.2008). As the Sixth Circuit explained,

[t]o survive a motion to dismiss, [a plaintiff] must plead “enough factual matter” that, when taken as true, “state[s] a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires showing more than the “sheer possibility” of relief but less than a “probab[le]” entitlement to relief. Ashcroft v. Iqbal, , 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir.2010). Stated differently, under the new regime ushered in by Twombly and Iqbal, pleaded facts must be accepted by the reviewing court, but conclusions ought not be accepted unless they are plausibly supported by the pleaded facts. “[B]are assertions,” such as those that “amount to nothing more than a ‘formulaic recitation of the elements' ” of a claim, can provide context to the factual allegations, but are insufficient to state a claim for relief and must be disregarded. Iqbal, 556 U.S. at 681, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, as long as a court can “ ‘draw the reasonable inference that the defendant is liable for the misconduct alleged,’ a plaintiff's claims must survive a motion to dismiss.” Fabian, 628 F.3d at 281 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937).

A. State action

One key element of a claim under 42 U.S.C. § 1983 is that the defendants were acting “under color of law.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir.2009) (stating that a section 1983 plaintiff must “establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law” (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006))). The defendants, who are a private corporation and its employees, contend that the plaintiff has not pleaded sufficient facts on that element to go forward with his complaint.

It is true that under section 1983, the party charged with violating the plaintiff's constitutional rights “must be a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). But the term “state actor” is not confined to employees of the state or its political subdivisions or agencies. Id. at 941, 102 S.Ct. 2744. (stating that “[t]o act ‘under color of law’ does not require that the accused be an officer of the State”). A person may be a state actor within the meaning of section 1983 if “he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Ibid.

“The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.” Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir.2003). “Under the public function test, a private party is deemed a state actor if he or she exercised powers traditionally reserved exclusively to the state.” Ibid. Other courts have found that private security guards can be state actors under the public function test. For instance, the Sixth Circuit has held that private security guards operating entirely on the private property of their employers may be state actors, where state law grants them “plenary police power” while in uniform and on the employer's premises. Romanski v. Detroit Entertainment, LLC, 428 F.3d 629 (6th Cir.2005). Similarly, the United States District Court for the Middle District of Tennessee, dealing with a remarkably similar case earlier this year, found that this same defendant's security guards working at a local courthouse engaged in state action when they barred a kufi-wearing litigant from the building. Al–Qadir v. G4S Secure Solutions (USA) Inc., No. 11–0357, 2013 WL 64779 (M.D.Tenn. Jan. 3, 2013). The district court found that the complaint adequately pleaded state action under the public function test, because the private G4S guards were carrying out the state's obligation to control access to all courthouses, a duty explicitly imposed on the county sheriff under Tenn.Code Ann. § 5–7–108(a)(1). The court explained that

the plaintiff has alleged that the state ... delegated that duty to G4S, and that the defendant accepted this delegation by providing security and safety services at the Juvenile Justice Center. Thus, construing the factual allegations of the Amended Complaint in the light most...