Searcy v. County of Oakland

735 F.Supp.2d 759

John SEARCY, Plaintiff,

v.COUNTY OF OAKLAND, Michael J. Bouchard, City of Pontiac, John Doe 1-2, Defendants.

Case No. 09-13007.

United States District Court,

E.D. Michigan,

Southern Division.

Aug. 30, 2010.

Diana L. McClain, Diana L. McClain and Assoc., Pontiac, MI, for Plaintiff.

Mary M. Mara, William G. Pierson, Pontiac, MI, Eric S. Goldstein, Berry, Johnston, Troy, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT, DISMISSING CERTAIN COUNTS, REQUIRING ANSWERS TO THE COMPLAINT, AND SETTING SCHEDULING CONFERENCE

DAVID M. LAWSON, District Judge.

The defendants have raised several issues in their motions to dismiss this civil rights case presently pending before the Court. The main issue relating to the timeliness of the complaint-and whether the plaintiff has avoided the statute of limitations bar-presents the following question: Is an action "commenced" under Federal Rule of Civil Procedure 3 when a complaint is submitted electronically through the Court's Case Management/Electronic Case Filing (CM/ECF) system, even though the filing fee is not paid at that time? Pre-CM/ECF Sixth Circuit precedent suggests a negative answer to that question. However, under current practice and the Court's CM/ECF Policies and Procedures, the Court determines that a complaint is "filed" when it is lodged electronically with the Clerk. The non-payment of the fee may subject the complaint to later dismissal, but it does not upset its status as "filed" under Rule 3. Despite this determination, some of the counts in the complaint are untimely, and the plaintiff has made no effort to identify and name certain "John Doe" defendants. Consequently, for the reasons set out in detail below, the Court will grant in part and deny in part the defendants' motions to dismiss.

I.

The plaintiff contends that he was falsely arrested, the officers who arrested him used excessive force, and he was detained without the opportunity to post bond. His complaint alleges various constitutional violations via 42 U.S.C. § 1983 and several state law causes of action against two municipal defendants and three police officers, two of whom are identified by John Doe pseudonyms.

According to the complaint's allegations, which the defendants do not contest for the purpose of their motions, on July 13, 2006, plaintiff John Searcy received a letter from "M.I.B." inviting him participate in research concerning some new vehicles and offering an opportunity to win a new car. The letter instructed the plaintiff to go to 409 North Telegraph Road in Pontiac, Michigan on July 29, 2006. The plaintiff alleges that this letter was actually part of a sting operation set up by the City of Pontiac police department and the Oakland County Sheriff's Department to apprehendfugitives with outstanding warrants.

When the plaintiff arrived at 409 North Telegraph Road, he was asked to present the letter he received and a form of identification. Two or three unidentified individuals began showing the plaintiff the vehicles. When they reached the final vehicle, one individual allegedly said "Nothing in this life is free" and the officers escorted the plaintiff to the back of the building. There, he was greeted by two plain-clothes police officers and handcuffed. The plaintiff was not told that he was under arrest, but he did not resist the officers' actions. Nonetheless, he contends that the officers threw him against a wall and injured his head, right shoulder, and back. He alleges that he was denied medical treatment when he requested it. At some point later, the plaintiff was told that he was being arrested for an outstanding warrant. When he denied that he had any warrants, an officer allegedly told him to "shut up."

The plaintiff was transported to the Pontiac Police Department. The officers allegedly refused to release him on bond when his family arrived with the necessary bond money. The plaintiff says he informed a deputy that he would be fired if he did not appear for work. His pleas fell on deaf ears, and he was detained in jail over the weekend and was not brought to court until the following Monday, August 1, 2006. On that date, the plaintiff was returned to the jail and released without being brought before a judge and without any charges brought against him. The plaintiff alleges that he was forced to sign papers releasing the police department and the City of Pontiac from liability and states that signing these papers was a condition of his release.

On July 29, 2009, three years to the day after the arrest, the plaintiff's attorney submitted his complaint for filing to this Court via the CM/ECF electronic filing system. The complaint names as defendants Oakland County, Sheriff Michael J. Bouchard, and a John Doe Deputy Sheriff from Oakland County (the Oakland County defendants); and the City of Pontiac and a John Doe police officer from the Pontiac police department (the Pontiac defendants). The complaint includes counts for gross negligence, intentional infliction of emotional distress, false arrest, false imprisonment, assault and battery, and three counts under 42 U.S.C. § 1983 for violating the plaintiff's Fourth and Eighth Amendment rights.

Plaintiff's counsel did not pay the filing fee at the time the complaint was submitted electronically. The Clerk of Court issued a Notice of Filing Fee Not Paid on July 30, 2009, which directed the plaintiff to pay the filing fee "within seven calendar days," i.e., by August 6, 2009, or face dismissal. Inexplicably, the plaintiff did not pay the filing fee until August 12, 2009. The Clerk then issued summonses for the named defendants on August 13, 2009. The record does not indicate when these defendants were served, but the defendants assert (and the plaintiff admits) that they were not served with the summons and complaint until December 9, 2009.

Plaintiff's counsel also has asserted that she became ill on October 14, 2009, but did not seek medical attention until October 21, 2009. She was diagnosed with the H1N1 influenza virus and suffered complications with her diabetes as a result. She says she took a medical leave from work until November 9, 2009 under doctor's orders.

On December 22 and 29, 2009, the defendants filed dispositive motions. The plaintiff did not respond to these motions within the deadlines established by the local rules. The Court scheduled a hearing on these motions for May 3, 2010.Five days before the hearing-and four months after the dismissal motions were filed-the plaintiff's attorney filed an emergency motion for an extension of time to file responses to the dispositive motions. The Court heard oral argument on this motion on May 3, 2010. Plaintiff's counsel explained that her office had been burglarized in November 2009 and her office computer was stolen. She said she lost her records of pending cases and her calendar deadlines. Despite the fact that the defendants filed their motions after the computer theft, the Court granted the plaintiff's motion due to other non-case-related difficulties encountered by the plaintiff's attorney and permitted the plaintiff to file responses by May 10, 2010. Remarkably, the plaintiff filed responsive briefs-without explanation-one day late, on May 11, 2010.

II.

The Oakland County defendants filed a motion to dismiss. The Pontiac defendants styled their motion as one for summary judgment; however, they reference only the complaint and have not attached materials beyond the pleadings, so the Court will treat both motions under Rule 12. All the defendants argue that the plaintiff's claims are barred by the three-year statute of limitations. The Pontiac defendants seem to argue that a two-year limitations period applies, which may be true for the state law claims but is incorrect as to the federal claims, as explained below. The defendants acknowledge that the complaint was submitted to the Court on the last possible day, but they insist that the complaint cannot be considered "filed" until the filing fee is paid. Since the filing fee was not paid within the three-year period, they reason, the statute of limitations bars the plaintiff's claims. The defendants also contend that they were not served with the summons and complaint until December 9, 2009, which was 133 days after the complaint was submitted to court, 119 days after the filing fee was paid, and 118 days after the summons was issued by the clerk. They contend that defect requires dismissal. The Pontiac defendants argue that the John Doe defendants were never identified or served and therefore should be dismissed from the case, since the plaintiff has had a generous amount of time to investigate and learn their identities. Finally, the Pontiac defendants allege that the John Doe defendants are necessary parties to the case, and the case cannot proceed against the municipalities after they are dismissed.

A. Statute of limitations

"A motion to dismiss based on the expiration of the statute of limitations is analyzed under [Federal] Rule [of Civil Procedure] 12(b)(6)." Moseke v. Miller & Smith, Inc., 202 F.Supp.2d 492, 501 (E.D.Va.2002). Rule 12(b)(6) authorizes federal courts to dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). When deciding a motion under this Rule, the court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Like other Rule 12(b)(6) motions to dismiss, a motion to dismiss on statute of limitations grounds should be granted 'when the statement of the claim affirmatively shows that the plaintiff can prove no set of facts that would entitle him to relief.' " New Eng. Health Care...