Rogan v. Tomlinson

Matthew F. Leitman, United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (ECF NO. 47), AND REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S COMPLAINT

DAVID R. GRAND, UNITED STATES MAGISTRATE JUDGE

A. Background

Pro se Plaintiff Ryan Rogan (“Rogan”) brings this action pursuant to 42 U.S.C. § 1983 against defendants the City of Roseville (“Roseville”) and its City Attorney, Timothy Tomlinson (“Tomlinson”), (collectively “Defendants”).^[1] (ECF Nos. 1, 6, 34). Rogan's case arises out of his arrest in August 2015 when Roseville police officers found him in his car, acting disorderly and in possession of marijuana. Rogan refused to take certain sobriety tests, and he then faced a series of administrative and legal proceedings. In his second amended complaint, Rogan asserted claims for violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution, as well as various

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state law claims. (ECF No. 34).

On December 18, 2020, this Court issued a Report and Recommendation to Grant in Part and Deny in Part Without Prejudice Defendants' Motion to Dismiss and for Summary Judgment (the “R&R”). (ECF No. 42). In the R&R, the Court recommended that Defendants' motion be denied without prejudice as to Rogan's federal due process claim, the remainder of Rogan's federal claims be dismissed with prejudice, and the Court decline to exercise supplemental jurisdiction over Rogan's state law claims. (Id.). On March 23, 2021, the Honorable Matthew F. Leitman issued an order adopting the R&R over Rogan's objections. (ECF No. 46).

On March 30, 2021, Rogan filed the instant motion for leave to file a third amended complaint. (ECF No. 47). In his motion, Rogan seeks to add three new defendants - Roseville police officers Mitchell Berlin, Matthew Gerebics, and Scott Burley - and he proposes nine causes of action: (1) breach of fiduciary duties; (2) fraud in the inducement; (3) gross negligence; (4) prosecutorial vindictiveness; (5) prosecutorial misconduct; (6) police misconduct; (7) “Violation of the Constitution (42 U.S.C. 1983)”; (8) civil conspiracy; and (9) intentional infliction of emotional distress. (Id.). On June 4, 2021, Defendants filed a response to Rogan's motion (ECF No. 50), and on July 10, 2021, Rogan filed a reply (ECF No. 59). Having reviewed the pleadings and other papers on file, the Court finds that the facts and legal issues are adequately presented in the parties' briefs and on the record, and it declines to order a hearing at this time.

B. Standard of Review

Fed. R. Civ. P. 15(a)(2), which governs Rogan's motion for leave to amend his

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complaint, states that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” However, courts should deny a motion to amend “if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party or would be futile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995) (citing cases). “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Thiokol Corp. v. Dep't of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993)).

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests a complaint's legal sufficiency. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 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.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556. Put another way, the complaint's allegations “must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 550 U.S. at 555-56).

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In deciding whether a plaintiff has set forth a “plausible” claim, the Court must accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). That tenet, however, “is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” to prevent a complaint from being dismissed on grounds that it fails to comport sufficiently with basic pleading requirements. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555; Howard v. City of Girard, Ohio, 346 Fed.Appx. 49, 51 (6th Cir. 2009). Ultimately, “[d]etermining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

Pleadings filed by pro se litigants are entitled to a more liberal reading than would be afforded to formal pleadings drafted by lawyers. See Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). Nonetheless, “[t]he leniency granted to pro se [litigants] ... is not boundless[, ]” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), and “such complaints still must plead facts sufficient to show a redressable legal wrong has been committed[.]” Baker v. Salvation Army, No. 09-11424, 2011 WL 1233200, at *3 (E.D. Mich. Mar. 30, 2011).

“In ruling on a motion to dismiss, the Court may consider the complaint as well as … documents that are referenced in the plaintiff's complaint and that are central to plaintiff's claims[.]” O'Dell v. Hope Network West Michigan/Michigan Educ. Corps., No. 20-11192, 2021 WL 308116, at *4 (E.D. Mich. Jan. 29, 2021); see also Armengau v. Cline, 7 Fed.Appx. 336, 344 (6th Cir. 2001) (“We have taken a liberal view of what matters fall

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within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings.”).

C. Analysis

In their response to Rogan's motion for leave to amend, Defendants argue that the motion should be denied because:

1) it is defective on its face, 2) all of [Rogan's] existing and proposed new claims are barred by a release, 3) his newly proposed claims are futile, 4) the proposed amendment seeks to completely transform the nature of his complaint after 1.5 years of litigation, which upends judicial efficiency and significantly prejudices both the existing defendants and proposed new defendants from undue delay, 5) [Rogan] has exhausted the leave permitted by the court upon filing and which was freely given to him in one prior amended complaint and justice does not require that he be given a third opportunity to amend, and 6) the proposed amendment appears to be the product of a bad faith attempt to avoid dismissal of his case by changing its direction and purpose in adding parties and claims

(ECF No. 50, PageID.705-06). Having reviewed the parties' submissions, the Court determines that it need not address each of Defendants' arguments in detail because all of Rogan's existing and proposed claims are either (1) barred by the release he executed on October 13, 2017; (2) barred by law holding that he cannot convert what are essentially breach of contract claims into federal constitutional claims; or (3) barred as a matter of law.

1. Factual Background^[2]

On August 9, 2015, Rogan was sitting in his car with the engine running, playing music loudly enough that a person had called the police to complain. A Roseville police

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officer approached Rogan's car and asked for his license. As the officer was writing Rogan a ticket for the loud music, Rogan cranked it up louder. The officer asked him to step out of the car, and when Rogan did, the officer noticed that he was unsteady on his feet and his breath smelled of intoxicants. The officer asked Rogan to perform field sobriety tests, but Rogan refused. The officer also requested that Rogan take a preliminary breath test (“PBT”), but he again refused. Rogan's refusal to take the PBT constituted a civil infraction. See M.C.L. § 257.625a(2)(d).

Rogan was arrested, and during a search of his vehicle, officers found marijuana. Rogan was taken to the police station where he was asked to take a chemical test, but he refused. Pursuant to the applicable statute, the arresting officer confiscated Rogan's driver's license, issued him a temporary one, and advised the Secretary of State of Rogan's refusal to take a chemical test. See M.C.L. § 257.625a(6)(b)(v) (“[r]efusing a peace officer's request to take a [chemical test] will result in the suspension of his or her operator's or chauffeur's license and vehicle group designation or operating privilege and in the addition of 6 points to his or her driver record”); MCL § 257.625d (“If a person refuses the request of a peace officer to submit to a chemical test offered under section 625a(6) … [a] written report shall immediately be forwarded to the secretary of state by the peace officer. The report shall state that the officer had reasonable grounds to believe that the person had [been operating a vehicle...