Trevino v. Kelly

TIM TREVINO, Plaintiff, v. JANE KELLY, BURKE CASTLEBERRY, ESCOTT, RINEY AND JACOB PIFER, Defendants.

Case No. 14-14376

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 14, 2017

David M. Lawson United States District Judge

Stephanie Dawkins Davis United States Magistrate Judge

REPORT AND RECOMMENDATION DEFENDANTS' MOTION TO DISMISS (Dkt. 38) and DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. 50)

I. PROCEDURAL HISTORY

Plaintiff, a prisoner in the custody of the State of Michigan, filed the pro se civil rights complaint against a variety of government officials involved in his arrest and prosecution. (Dkt. 1).¹ District Judge David M. Lawson referred this matter to the undersigned magistrate judge for all pretrial proceedings. (Dkt. 25). On June 21, 2016, defendants Castleberry and Pifer filed a motion to dismiss the complaint based on immunity and failure to state a claim. (Dkt. 38). Plaintiff filed a response on July 7, 2016 and defendants filed their reply on July 27, 2016. (Dkt. 42, 44). Defendant Riney filed a motion for summary judgment on October 17,2016, which has also been fully briefed. (Dkt. 50, 57, 60). These matters are now ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that defendants' motion to dismiss be GRANTED as to plaintiff's excessive force claim (against all defendants) and that the remainder of plaintiff's claims (against all defendants) be DISMISSED without prejudice under the Heck v. Humphrey doctrine.² The undersigned further RECOMMENDS that the pending motion for summary judgment be TERMINATED as moot, given the foregoing resolution of all pending claims against all defendants.³

II. FACTUAL BACKGROUND

In his amended complaint, plaintiff alleges that on August 24, 2012, Blissfield Police Chief Jane Kelly entered into his home with defendants Pifer,Escott, and Riney, acting in concert with defendant Castleberry without a search warrant. (Dkt. 17, Pg ID 62-63). Plaintiff also alleges that he was arrested and his person was searched in his home without a warrant. He further asserts that he was tasered and suffered physical and emotional injury as a result. Plaintiff claims the defendants violated the Fourth, Fifth, Eighth, and Fourteenth Amendments under the United States Constitution. Id. Plaintiff requests that defendants be held liable for money damages, including compensatory, emotional distress damages, and punitive damages for their actions in entering his home without a search warrant, tasering him, and illegally arresting him. (Dkt. 17, Pg ID 62).

III. DISCUSSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first comply with Rule 8(a)(2), which requires "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The United States Supreme Court raised the bar for pleading requirements beyond the old "no-set-of-facts" standard of Conley v. Gibson, 355 U.S. 41, 78 (1957), that had prevailed for the last few decades. Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009) (citingAshcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Twombly, 550 U.S. at 555. In Iqbal, the Supreme Court explained that a civil complaint only survives a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678. The Sixth Circuit observed that this new standard is designed to screen out cases that, while not utterly impossible, are "implausible." Courie, 577 F.3d at 629. "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." Iqbal, 556 U.S. at 678. And although the Court must accept all well-pleaded factual allegations in the complaint as true, it need not "'accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Iqbal, 556 U.S. at 678. The Sixth Circuit noted that "[e]xactly how implausible is 'implausible' remains to be seen, as such a malleable standard will have to be worked out in practice." Courie, 577 F.3d at 629.

Where a plaintiff is proceeding without the assistance of counsel, the court is required to liberally construe the complaint and hold it to a less stringent standard than a similar pleading drafted by an attorney. See e.g. Simmons v. Caruso, 2009 WL 2922046, at *4 (E.D. Mich. Sept. 8, 2009) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir.1999)). Thus, the Court must read plaintiff's pro se complaint indulgently and accept plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (finding that the Court of Appeals improperly departed "from the liberal pleading standards set forth by Rule 8(a)(2)" and failed to "liberally construe" the pro se complaint at issue).

B. Heck v. Humphrey

The doctrine set forth in Heck v. Humphrey precludes the court from recognizing plaintiff's constitutional claims against all defendants (save the excessive force claim, which is discussed separately below) because plaintiff has not alleged or achieved a favorable termination of his conviction. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010). The Heck v. Humphrey doctrine is applicable and requires the following:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.

Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010) (citing Heck v. Humphrey, 512 U.S. 477, 484 (1994)). In Heck, the Supreme Court held that actions premisedon § 1983 require the final adjudication of the criminal proceeding to be decided in the favor of the accused in order to prevent the possibility of contradictory resolutions of a claimant from succeeding in a tort action, yet being convicted in the criminal action. Heck, 512 U.S. at 484. Essentially, "a claim of damages bearing that relationship to a conviction or sentence [that] has not been so invalidated is not cognizable under § 1983. Id. at 487. As explained by the Supreme Court, permitting a § 1983 action that necessarily requires the plaintiff to prove the unlawfulness of his conviction or confinement, would contravene the strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction. Id. The Heck court stated as follows:

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

512 U.S. at 486-87.

Heck makes clear that any § 1983 claims for an unconstitutional conviction, arrest or imprisonment are barred unless and until the underlying conviction is set aside. The Heck doctrine applies equally to plaintiff's claims for unlawful searchand seizure. Indeed, this case involves facts similar to those presented in Fox v. Michigan State Police Dep't, 173 Fed. Appx. 372, 373-74 (6th Cir. 2006):

On July 3, 2001, Michigan State Police officers went to Fox's home, in response to an alleged violation of a Michigan state court personal protection order. Lynn Fox, the appellant's wife, had obtained the personal protection order against Fox in favor of herself and her children following an alleged incident of domestic assault. Upon arrival at the Fox home, officers Nate McGuire and Mark Hagerman found Jamie Fox outside the home. McGuire and Hagerman noticed that Fox was carrying a knife on his side. They searched Fox and his vehicle and arrested Fox. Fox was charged with one count each of domestic violence, absconding, possession of a mechanical contrivance (switchblade), possession of an unregistered firearm, and carrying a concealed weapon. Fox reached a plea agreement with the prosecutor in which he agreed to plead guilty to domestic violence and possession of a mechanical contrivance (switchblade) in exchange for the dismissal of all other charges. Fox entered his guilty plea on August 22, 2001.

The Sixth Circuit concluded that the plaintiff's claim that he was unlawfully searched was barred by Heck v. Humphrey because a finding in favor of the plaintiff on his claim that defendants unlawfully searched his person would "necessarily imply the invalidity of his conviction" for possession of a switchblade. Id. at 377 (quoting Heck, 512 U.S. at 487); see also Schilling v. White, 58 F.3d 1081, 1086 (6th Cir. 1995) ("The language of Heck plainly refutes the argument that Fourth Amendment claims are exempted from the requirement that a conviction must be set aside as a precondition for this type of § 1983 suit.").

Here, plaintiff is challenging the role that each of the defendants played in his alleged false arrest, unlawful search and seizure, and false imprisonment based on the defendants' allegedly "un...