# Chaaban v. City of Detroit

> District Court, E.D. Michigan · September 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10219145

## Case

- **Court:** District Court, E.D. Michigan
- **Decided:** September 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10219145

## How later opinions describe it (automated extraction)

- noting it is “generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity”
- discussing Taylor v. Riojas, --- U.S. ----, 141 S. Ct. 52, 53 (2020), and explaining that qualified immunity can be denied without a prior case on point when “no reasonable correctional officer could have concluded that the challenged action was constitutional”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ZAINAB CHAABAN,
Plaintiff, Case No. 20-cv-12709
v. Honorable Nancy G. Edmunds
CITY OF DETROIT, MICHIGAN
DEPARTMENT OF CORRECTIONS,
DETROIT DETENTION CENTER,
HEIDI E. WASHINGTON, and
JODI DEANGELO,

Defendants.
_______________________________/

ORDER DENYING MOTION FOR RECONSIDERATION [38]

This is a civil rights case in which Plaintiff Zainab Chaaban, a Muslim woman who
wears a hijab, accuses Defendants City of Detroit, Michigan Department of Corrections
(“MDOC”), Heidi E. Washington (Director of MDOC), and Jodi DeAngelo (Warden) of
violating her rights under the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), the First Amendment, and the Michigan State Constitution when they forced
Plaintiff to remove her hijab for a booking photograph at the Detroit Detention Center.
Defendants filed motions to dismiss Plaintiff’s Amended Complaint and the Court granted
in part and denied in part those motions. (ECF Nos. 25, 30, 37.) Before the Court is a
motion for reconsideration of that decision, filed by the Michigan Department of
Corrections, Heidi Washington, and Jodi DeAngelo (together, “MDOC Defendants”).
(ECF No. 38.) MDOC Defendants ask the Court to reconsider its decision denying
qualified immunity for Defendants Washington and DeAngelo. (Id., PageID.446-47.)
I. Legal Standard
To prevail on a motion for reconsideration, a movant must “demonstrate a palpable
defect by which the court and the parties . . . have been misled” and “show that correcting
the defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3).1 “A
‘palpable defect’ is ‘a defect that is obvious, clear, unmistakable, manifest, or plain.’ ”

United States v. Lockett, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004) (quoting United
States v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001)). A motion for reconsideration
should not be granted if it “merely present[s] the same issues ruled upon by the court,
either expressly or by reasonable implication,” E.D. Mich. LR 7.1(h)(3), or if it “raise[s]
new legal arguments that could have been raised before a judgment was issued.” Roger
Miller Music, Inc. v. Sony/ATV Publ'g, 477 F.3d 383, 395 (6th Cir. 2007); see Versah, LLC
v. UL Amin Indus., No. 2:20-cv-12657-TGB-RSW, 2021 WL 493385, at *2 (E.D. Mich.
Feb. 10, 2021) (“[I]t is well-settled law that parties cannot use a motion for reconsideration
to raise new arguments or evidence that could have been presented earlier.”)

II. Analysis
Qualified immunity shields government officials performing discretionary functions
from civil liability unless their conduct violated clearly established statutory or
constitutional rights that would have been known to a reasonable person. Harlow v.

1 The Eastern District of Michigan amended its local rules effective December 1,
2021. The Court will follow the version of the local rules that applied when Plaintiff filed
her motion. See Menefee v. M.D.O.C., No. 20-CV-13399, 2022 WL 1792757 (E.D. Mich.
June 1, 2022) (applying motion for reconsideration standard in place at time of filing);
Joseph v. Sec'y of Dep't of Veterans Affs., No. 19-CV-10828, 2022 WL 1303173 (E.D.
Mich. May 2, 2022) (same).

Fitzgerald, 457 U.S. 800, 818 (1982). There are two prongs to the Court’s analysis on this
issue: (1) whether the plaintiff has alleged (on a 12(b)(6) motion to dismiss) or shown (on
a motion for summary judgment) a violation of a constitutional right; and (2) whether that
right was “clearly established” at the time of the defendant’s alleged misconduct. Pearson
v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

MDOC Defendants challenge the Court’s analysis of the second prong of the test and
argue it was palpable error for the Court not to rule in their favor. (ECF No. 38,
PageID.456-57, 59.) In addition, MDOC Defendants accuse the Court of committing
palpable error to the extent it found that it is inappropriate for a district court to grant a
Rule 12(b)(6) motion based on qualified immunity. (ECF No. 38, PageID.457.) The Court
will address each argument beginning with the appropriateness of the Court’s decision to
not grant qualified immunity at this stage of the litigation.
A. The Court Did Not Err By Noting It Was Premature To Grant Qualified
Immunity to Defendants Washington and DeAngelo.
MDOC Defendants first accuse the Court of committing palpable error to the extent
the Court relied on Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015), to find it was
inappropriate to decide the issue of qualified immunity on a Rule 12(b)(6) motion to
dismiss. (ECF No. 38, PageID.457.) In its Opinion and Order denying qualified immunity,
the Court stated:
At this stage in the proceeding, The MDOC Defendants have
not established a “legitimate penological interest” for the
conduct alleged. Accordingly, Plaintiff states a claim for relief
and Defendants Washington and DeAngelo are not immune
from suit based upon qualified immunity. See Wesley v.
Campbell, 779 F.3d 421, 433 (6th Cir. 2015) (noting it is
“generally inappropriate for a district court to grant a 12(b)(6)
motion to dismiss on the basis of qualified immunity”); Evans-
Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist.,
428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J, concurring)
(observing that it is generally “difficult for a defendant to claim
qualified immunity on the pleadings before discovery and
before the parties (much less the courts) know what is being
balanced against what.”) (emphasis in original).
(ECF No. 37, PageID.438.) In response, MDOC Defendants argue that “this case is
precisely the type of case where it is clear from the pleadings that Defendant Washington
is entitled to qualified immunity,” and that they should be spared the costs and burdens
of litigation. (ECF No. 38, PageID.460) (citing Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). Afterall, they state, “the Supreme Court does, in fact, routinely consider qualified
immunity after a defendant’s interlocutory appeal of a motion to dismiss.” Id. (citing Wood
v. Moss, 572 U.S. 744, 756 (2014); Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009); Wilkie
v. Robbins, 551 U.S. 537, 548 (2007); Behrens v. Pelletier, 516 U.S. 299,301 (1996)).
At the time the Court issued its Opinion and Order, Sixth Circuit caselaw on the
issue of whether it is appropriate to grant qualified immunity on a motion to dismiss was
somewhat contradictory. In one line of cases, as the Court noted in its Opinion and Order,
the Sixth Circuit indicated that qualified immunity was a subject best left for a motion for
summary judgment. See, e.g., Wesley, 779 F.3d at 433 (noting it is “generally
inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of
qualified immunity”); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist.,
428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J, concurring) (observing that it is generally
“difficult for a defendant to claim qualified immunity on the pleadings before discovery and
before the parties (much less the courts) know what is being balanced against what”). In
other cases, however, the opposite approach was taken by appellate courts. See, e.g.,

Mitchell, 472 U.S. 511, 526 (1985) (“[u]nless the plaintiff’s allegations state a claim of
violation of clearly established law, a defendant pleading qualified immunity is entitled to
dismissal before the commencement of discovery.”). In addition, MDOC Defendants are
correct that the Supreme Court regularly affirms dismissals of lawsuits on qualified
immunity grounds. See, e.g., Iqbal, 556 U.S. 662, 680–82 (2009) (plaintiff failed to plead
unconstitutional actions); Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011) (law was not
clearly established).

Fortunately, the Sixth Circuit has offered additional guidance on this issue in the
time since MDOC Defendants filed their motion. In Crawford v. Tilley, the Sixth Circuit
considered an appeal from a district court decision denying qualified immunity to the
defendants on their motion to dismiss. 15 F.4th 752, 756 (6th Cir. 2021). In denying
qualified immunity, the lower court noted at four separate points in its opinion that it is
“generally inappropriate” for a district court to grant a 12(b)(6) motion to dismiss on the
basis of qualified immunity. Crawford v. Tilley, No. 5:18-CV-623-CHB, 2020 WL 6947479,
at *8 (E.D. Ky. Nov. 25, 2020), rev'd and remanded, 15 F.4th 752 (6th Cir. 2021). On
review, the Sixth Circuit found this generality to be “imprecise.” Crawford, 15 F.4th at 763.

Rather than applying an all-or-nothing rule, the court explained that district courts should
consider which of the two prongs of the qualified immunity analysis was in dispute. Id. at
764-65.
The Crawford court found existing Sixth Circuit and Supreme Court caselaw to be
consistent with the idea that the reluctance to dismiss cases on qualified immunity does
not apply to the violation-of-a-constitutional-right prong. Id. at 764. “After all, asking
whether there was a violation of a constitutional right resembles the Rule 12(b)(6)
question” and district courts need only determine whether the plaintiff pled facts that state
a claim for relief in the complaint. Id. Supreme Court procedural precedent (i.e., Iqbal),
and common sense both support this conclusion. Id. at 765. This is because if a defendant
moves to dismiss under Rule 12(b)(6), the district court applies Iqbal to the motion—“[s]o
it would be nonsensical, and even ironic, to enforce a presumption against dismissing the
same complaint” if the defendant raises qualified immunity as a defense. Id.
On the other hand, the Crawford court held that the general preference to not grant

motions to dismiss on qualified immunity “might have more vitality in the clearly
established context” where “the application of qualified immunity . . . can turn on minute
factual distinctions.” Id. (citing Latits v. Phillips, 878 F.3d 541, 552-53 (6th Cir. 2017)).
Indeed, the court stated, “[d]ismissing for qualified immunity on [the clearly established
prong] is sometimes difficult because the . . . inquiry may turn on case-specific details
that must be fleshed out in discovery.” Id. (citing Siefert v. Hamilton County, 951 F.3d
753, 761 (6th Cir. 2020)).
Applying this guidance to the facts here, it was not error for the Court to find it was
premature to reach a final decision on the applicability of qualified immunity. It is the

second prong that is in dispute in this case. (See ECF No. 38, PageID.459.) Thus, the
question is whether Plaintiff’s right to wear her hijab under the circumstances was clearly
established. But this “turn[s] on case specific details that must be fleshed out in
discovery.” Crawford, 15 F.4th at 765. Specifically, discovery is needed to determine
“whether the state of the law . . . gave [the defendants] fair warning that [the plaintiff’s]
alleged treatment was unconstitutional.” Id. at 437 (citing Hope v. Pelzer, 536 U.S. 730,
731 (2002)). Plaintiff plausibly alleged in her complaint that prison officers threatened to
make Plaintiff “sleep on the concrete floor of the booking cell without a bed, blanket,
mattress or pillow” if she did not remove her hijab. (See ECF No. 1, PageID.11.) Taking
this and other allegations in Plaintiff’s complaint as true, as the Court was required on
MDOC Defendants’ motion to dismiss, the Court properly determined that qualified
immunity is not appropriate at this time. See Moderwell v. Cuyahoga County, Ohio, 997
F.3d 653, 660 (6th Cir. 2021) (discussing Taylor v. Riojas, --- U.S. ----, 141 S. Ct. 52, 53
(2020), and explaining that qualified immunity can be denied without a prior case on point

when “no reasonable correctional officer could have concluded that the challenged action
was constitutional”).
B. The Court Did Not Err By Denying Qualified Immunity to Defendants
And Did Not Improperly Shift The Burden To Defendants.

Defendants next accuse the Court of improperly shifting the burden from Plaintiff
to Defendants by requiring Defendants to demonstrate that MDOC’s photograph policy
served a legitimate penological interest instead of considering whether Plaintiff’s right to
wear her hijab in the booking photo was clearly established. (ECF No. 38, PageID.464.)
Requiring Defendants to make such a demonstration would be in error as it is well-
established that once a defendant invokes qualified immunity, the plaintiff bears the
burden of overcoming such an entitlement. Barber v. Miller, 809 F.3d 840, 844 (6th Cir.
2015).
In its Opinion and Order, the Court found that Plaintiff had plausibly alleged a
violation of her constitutional right to express her religion by wearing her hijab at all times
while in the presence of men. (ECF No. 37, PageID.436.) The Court then proceeded to
analyze whether Plaintiff’s right was “clearly established” by considering whether the
MDOC photograph policy violates established law and whether MDOC Defendants were
“on notice” of the alleged violation. (ECF No. 37, PageID.437) (citing Hope, 536 U.S. at
731).
Citing Turner v. Safley, 482 U.S. 78, 89 (1987), the Court inferred that Plaintiff
plausibly alleged a violation of established law because “[t]he First Amendment forbids
all laws ‘prohibiting the free exercise’ of religion” and “[e]ven in a prison setting,
established law forbids regulations that would arbitrarily and capriciously impinge on an
inmate’s constitutional rights.” (ECF No. 37, PageID.437.) Thus, because Plaintiff alleged

the free exercise of her religion was prohibited by the MDOC photograph policy, and
insinuated that this policy was arbitrary and capricious by providing numerous examples
of federal, state, and local government policies that recognize a religious interest in the
hijab and permit it to be worn in official photographs, (See ECF No. 37, PageID.438),
Plaintiff met her burden and the Court did not err in denying qualifying immunity to
Defendants Washington and DeAngelo.
The confusion here comes from the Court’s second citation to Turner which relates
not to Plaintiff’s initial burden of overcoming Defendants’ entitlement to qualified immunity
on a motion to dismiss, but to MDOC Defendants’ ability to show its policy is not “arbitrary

and capricious” by establishing the policy’s relation “to legitimate penological interests.”
(ECF No. 37, PageID.437) (citing Turner, 482 U.S. at 89 (“when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related
to legitimate penological interests.”)). Note the use of the word show—chosen here
because of its connection to a motion for summary judgment, which was not the motion
before the Court.2 See Pearson, 555 U.S. 223, 232 (noting that a plaintiff must only

2 In many cases, it is simply not possible for a Court to determine whether a prison
policy is related to legitimate penological interests because such interests are not always
apparent from the face of the complaint. Indeed, Defendants recognize this in a footnote
to their motion. (See ECF No. 38, PageID.464 n.3) (wherein Defendants note they did not
put forward any arguments regarding MDOC legitimate penological interests in the
“allege” facts in response to a Rule 12(b)(6) motion but must “show” them in response to
a Rule 50 or Rule 56 motion). Thus, the inclusion of the second Turner citation and the
Court’s recognition that Defendants have not yet established a “legitimate penological
interest” (See ECF No. 37, PageID.438) was perhaps unnecessary in its Opinion and
Order on Defendants’ motion to dismiss. But there was no error here. The Court’s brief

note on this topic did not shift the burden to Defendants, it simply served the purpose of
illuminating an avenue forward for Defendants to argue they are entitled to qualified
immunity at a later date.
III. Conclusion
For the foregoing reasons, MDOC Defendants’ motion for reconsideration (ECF
No. 38) is DENIED.
SO ORDERED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: September 2, 2022

photograph policy because that would require declarations or affidavits from MDOC staff
which would convert their motion to dismiss into one for summary judgment.) The
Crawford court noted “a basic incongruity between pleading requirements under Federal
Rule of Civil Procedure 8, which require only that a plaintiff state a claim, and affirmative
defenses, like qualified immunity.” Crawford, 15 F.4th at 763. Plaintiffs are not generally
required to negate affirmative defenses in their complaints, but the validity of those
defenses may nevertheless be apparent from the face of the complaint. Id. In those cases,
a motion to dismiss is appropriate. Id.
I hereby certify that a copy of the foregoing document was served upon counsel of record
on September 2, 2022, by electronic and/or ordinary mail.

s/Lisa Bartlett
Lisa Bartlett
Case Manager

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10219145. Public record. Not legal advice.