Robinson v. White

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ISOKE ROBINSON, Case No. 23-12676

Plaintiff, F. Kay Behm

v. U.S. District Judge

JAMES WHITE, et al.,

Defendants.

___________________________ /

OPINION AND ORDER GRANTING PLAINTIFF LEAVE TO

FILE AN AMENDED COMPLAINT AND JURY DEMAND

(ECF No. 22)

The matter is before the court on Plaintiff’s Motion for Leave to

File Her First Amended Complaint and Jury Demand (“Plaintiff’s

Motion”) (ECF No. 22). Plaintiff Isoke1 Robinson (“Robinson”) filed this

lawsuit in October 2023 alleging violations of her constitutional rights

and resulting harms which allegedly occurred as a result of the Detroit

Police Department’s (“DPD”) seizure of her vehicle and belongings while

investigating a shooting. See Complaint, ECF No. 1-1. The original

Complaint also named Defendant Dion Corbin (“Corbin”) and nine other

1 Plaintiff notes that Ms. Robinson’s name was misspelled in earlier filings as

“Osoke” Robinson; the correct spelling is used in this order. See ECF No. 22,

unknown DPD officers. Id. The court held a hearing on the motion for

leave to amend via videoconference on October 21, 2024. For the

reasons set out below, the court GRANTS Plaintiff Leave to file an

amended complaint and jury demand within 14 days of entry of this

Order.

I. FACTUAL BACKGROUND

This case was removed to federal court on October 23, 2023, and

was delayed for much of the subsequent six months; after Robinson’s

first attorney withdrew due to a “breakdown of the attorney/client

relationship” and “failure of communication” between attorney and

client, Robinson at last obtained new counsel in March 2024. See ECF

No. 7, 11, 16. Much of the delay before Plaintiff’s current counsel took

over appears to be attributable to the alleged breakdown of the prior

attorney client relationship and the period when Robinson was

unrepresented by counsel.

On June 3, 2024, this court issued its first case management

order, which set an initial disclosures deadline of June 20, 2024, and a

deadline to amend the pleadings of July 8, 2024. ECF No. 20. On

September 4, 2024, after the deadline for amendments had passed,

Robinson moved for leave to file her first amended complaint. ECF No.

22. Robinson alleges that the reason for the delay in filing her amended

complaint was because she sought to add the proper defendants, i.e. the

other Detroit police officers involved in the incident at issue other than

Corbin, and it took some time to obtain that information. ECF No. 22,

PageID.112. In her motion, Robinson alleges that no other officers were

identified by name in Corbin’s initial disclosures in June 2024, and

therefore it was not until Corbin’s deposition in August 2024, and the

transcript of that deposition provided to Robinson on August 30, 2024,

that Plaintiff had sufficient information to amend their complaint with

the proper parties. ECF No. 22, PageID.113. In her Reply, she further

asserts that she did not have access to documents produced in response

to subpoenas until July 8. ECF No. 26, PageID.297. Plaintiff filed her

Motion to Amend her Complaint on September 4, 2024. Plaintiff’s

Motion, ECF No. 22. Defendant Corbin responded to Robinson’s Motion

on September 17, 2024, and she filed a Reply on September 24, 2024.

See Defendant’s Response, ECF No. 24; Plaintiff’s Reply, ECF No. 26.

Plaintiff’s “superseding” Amended Complaint, attached to their

Reply, proposes to name Corbin, Patrick Mifsud (“Mifsud”), Seamus

Waderlow (“Waderlow”), Kyle Arellea (“Arellea”), and the City of Detroit

(“Detroit”) as Defendants. ECF No. 26-6 (“Amended Complaint”). The

Amended Complaint alleges, essentially, that Robinson’s vehicle, a

white Dodge Charger, was identified as being similar to a car used in a

nearby shooting. See id. As a result, DPD officers, including Corbin,

Arellea, and Waderlow, detained Robinson while in her driveway and/or

garage in order to search and seize her vehicle. Mifsud aided Corbin in

identifying Robinson’s vehicle as the vehicle likely used in the shooting

using Detroit’s “Green Light District” cameras and the FLOCK license

plate reading system. Id. at PageID.317. However, the Amended

Complaint alleges that there was in fact no link between Robinson, her

car, and the shooting, and alleges a violation of her Fourth Amendment

rights against unreasonable search and/or seizure, as well as state law

negligence claims against Mifsud and Corbin. See id.

II. STANDARD OF REVIEW

Fed. R. Civ. P. 15(a) provides that for amendments to the

pleadings before trial, “[t]he court should freely give leave when justice

so requires.” Generally, courts will only deny a motion to amend “where

there is undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, futility of the amendment, etc.” Miller v. Campion

Enters., Inc., 346 F.3d 660, 690 (6th Cir. 2003) (quoting Morse v.

McWhorter, 290 F.3d 795, 800 (6th Cir. 2003) (internal quotation marks

omitted)). However, a party’s ability to freely amend its complaint may

be limited by a scheduling order if it sets a deadline for amended

pleadings, and Fed. R. Civ. P. 16(b)(4) provides that a scheduling order

may only be modified for “good cause and with the judge’s consent.”

When determining whether a party has established good cause courts

consider whether the moving party was diligent in meeting the

deadlines set forth in the scheduling order and whether the non-moving

party will be prejudiced by granting the motion. Leary v. Daeschner,

349 F.3d 888, 907–909 (6th Cir. 2003).

“A proposed amendment is futile if the amendment could not

withstand a Rule 12(b)(6) motion to dismiss.” Parchman v. SLM Corp.,

896 F.3d 728, 738 (6th Cir. 2018) (quoting Beydoun v. Sessions, 871

F.3d 459, 469 (6th Cir. 2017)).

III. ANALYSIS

Plaintiff asserts that they have provided proof of due diligence and

that there is therefore good cause to amend their complaint beyond the

time set forth in the scheduling order. Defendant, however, asserts that

Robinson’s proposed amendment will cause undue delay, undue

prejudice to Corbin, and is futile. For the reasons set out below, the

court declines to adopt any of Defendant’s arguments, and grants

Plaintiff leave to amend.

A. Whether there is good cause to allow late amendment

When determining whether a party has established good cause

courts consider (1) whether the moving party was diligent in meeting

the deadlines set forth in the scheduling order and (2) whether the non-

moving party will be prejudiced by granting the motion. See Leary v.

Daeschner, 349 F.3d 888, 907–909 (6th Cir. 2003).

Here, the court does not find undue prejudice to the opposing

party other than the ordinary prejudice of having to defend from a

lawsuit. From Defendant’s perspective, this motion sought (at the time

it was filed) a roughly 60-day extension to the scheduling order.

Defendant is likely correct that the addition of new defendants may add

time to this case, but Defendant was on notice that any or all officers

involved in the incident alleged in Robinson’s original complaint would

be brought in as defendants. See ECF No. 1-1. It is not entirely clear

whether Corbin has standing to assert prejudice on behalf of the

proposed new defendants, see Phillips v. Hinds, No. 1:19-cv-331, 2020

U.S. Dist. LEXIS 258376, at *3 (W.D. Mich. Oct. 19, 2020) (citing cases).

But as far as any new individual defendants are concerned, given that

discovery in this case only began in earnest in June 2024, and this

motion was filed less than 60 days after the beginning of discovery, the

court finds it is not unreasonable to allow amendment to add those

parties at this (relatively) early stage of the litigation.

Furthermore, the documents provided by Plaintiff in her motion

describing the interactions between the parties since the first

scheduling order in June 2024 indicate that there has not been

significant delay since Robinson obtained her current counsel, and

Plaintiff’s counsel has been reasonably diligent in meeting the deadlines

set forth in the scheduling order. See ECF 22-6. The timeline alleged

by Plaintiff – that Plaintiff received documents which were necessary to

draft this amendment from Defendant in early July, sought to depose

Corbin in July but instead did so in August because Corbin was

unavailable in July, and days after receiving the transcript of that

deposition filed this Motion at the beginning of September – does not

show an unreasonable lack of diligence when measured against the first

case management order being entered, and discovery beginning, less

than 60 days ago in June 2024.

B. Whether there is undue delay, undue prejudice, or

futility of amendment

Defendant first asserts that this amendment will prejudice Corbin

and is futile because Corbin (and any other individual officer) is entitled

to qualified immunity. See ECF No. 24, PageID.279. That could end up

being the case. But as Corbin’s assertion that he was about to file a

Motion for Summary Judgment indicates (ECF No. 24, PageID.278),

Robinson’s existing Fourth Amendment claim had already raised the

issue of qualified immunity by asserting constitutional violations by

Corbin. See ECF No. 1-1, PageID.15. It was foreseeable that, once

Defendants removed this case to federal court, Robinson would present

(as she does now) additional facts in anticipation of the need to survive

a dispositive motion regarding qualified immunity. To that end,

Robinson seeks to amend her Complaint to include facts regarding how,

precisely, DPD identified her car as relevant to their investigation,

including the use of the FLOCK license-plate reader system and “Green

Light District” cameras, facts which are critical to the probable cause

analysis. See ECF No. 26-6. She also seeks to add factual allegations

regarding where the incident took place, which officers were involved,

and adds claims for municipal liability.2 Id.

Defendant’s first argument runs roughly like this: there was

ample evidence to support probable cause to search and seize

Robinson’s vehicle (ECF No. 24, PageID.281), and therefore the officers

involved are entitled to qualified immunity and no claim can lie against

the proposed Defendant City of Detroit. See Pearson v. Callahan, 555

U.S. 223, 237 (2009) (one step of the qualified immunity analysis is

whether there is a constitutional violation at all); Monell v. Dep't of Soc.

Servs., 436 U.S. 658 (1978) (municipal liability requires underlying

constitutional violation). This court is not convinced. In the court’s

view, Robinson alleges enough additional facts in her proposed

amended complaint that, viewed in the light most favorable to her, raise

an issue of law of whether the named officers had probable cause to

search or seize her vehicle while she was in her driveway. Under

Plaintiff’s amended facts, Plaintiff alleges that the only evidence officers

used to determine they had probable case was that Robinson’s car looks

2 Defendant and Plaintiff allege divergent facts regarding the harm of the

incident itself (such as the length of time in handcuffs), but that disagreement has

little to do with whether Robinson can plausibly allege a violation of her

constitutional rights as a result of the search and/or seizure. See Defendant’s

similar to the car used in the shooting, and that her car was spotted by

the FLOCK license-plate reader system two miles from the shooting’s

location, 15 minutes before the shooting occurred. ECF No. 26,

PageID.299 (emphasis added). The location where the system allegedly

spotted her car? Point-three miles from her home. ECF No. 26-6,

PageID.318. Plaintiff alleges that in the general area of Plaintiff’s

home, there are currently 241 2013–2016 Dodge Chargers, at least

some of which, the court presumes at this stage, are also painted white.

Id. Plaintiff has also alleged that the FLOCK license-plate reader

system does not provide comprehensive coverage of the City of Detroit.

See id. at 317. In a given area, then, there might be many cars at any

given time, but a FLOCK camera will only capture some (at this point

unknown) percentage of those vehicles. In other words, this patchwork

surveillance means that the fact that a single matching result returned

by a FLOCK system search does not provide any proof that it was the

only matching car actually in that area, and provides no information

about cars which may have been in nearby, unmonitored streets or

intersections at that same time.

With this background about the fallibilities of the FLOCK system,

in the court’s view, there merely being a similar-looking car on the

roads in a given metropolitan area of Detroit would not be

independently sufficient to establish probable cause. Compare United

States v. Donelson, No. 2:22-cr-20133, 2023 U.S. Dist. LEXIS 28499, at

*10 (W.D. Tenn. Feb. 21, 2023) (Flock alert license plate match, exact

matching car, proximity to the relevant area, and elements of the

physical description of suspect gave rise to reasonable suspicion), with

United States v. Thompson, 591 F. App’x 652, 657 (10th Cir. 2014)

(officer had reasonable suspicion to stop and probable cause to arrest

when he arrested a man sitting alone in the driver’s seat of a black

Buick LaCrosse only moments after the same officer had actually seen a

lone person with the same description driving a black Buick LaCrosse

commit a traffic infraction); see also MY COUSIN VINNY (Twentieth

Century Fox 1992) (examination of Mona Lisa Vito) (showing how easily

a person could mistake a 1964 Buick Skylark for the 1963 Pontiac

Tempest which had the same body length, height, width, weight, wheel

base, wheel track, and was also available in metallic mint-green paint).

The opposite result would be odd indeed; the FLOCK system

apparently permits Detroit police to input a vehicle description, and

instantly pull up images of vehicles from all over the city. ECF No. 22-

2, PageID.135 (Deposition of Dion Corbin). At the push of a few

buttons, investigating officers can sweep into their investigation every

car that has passed by one of these cameras in the city in a specified

time period – though it bears repeating, not necessarily every car that is

actually in that area. The theory that Defendant implicitly asks this

court to adopt is that any vehicle that the FLOCK camera system dubs

the best result for a given input may be subject to search by police, and

that no further investigation, verification, or check on that search is

required (this theory also implicitly assumes a low-to-nil error rate by

the FLOCK system). The court disagrees that that single FLOCK

result “matching” a vehicle’s appearance would be sufficient to establish

probable cause; thus, Plaintiff’s proposed amended complaint

sufficiently alleges a lack of probable cause. Accordingly, permitting

amendment to establish facts challenging whether police had probable

cause in this case is not futile.

Alternatively, Robinson also alleges that her vehicle was within

the curtilage of her home because it was in her garage, which, again

viewed in the light most favorable to her, raise a separate issue of

whether the charged officers needed a warrant to search her car,

regardless of whether they had probable cause. See Plaintiff’s Proposed

Amended Complaint attached to Plaintiff’s Reply, ECF No. 26-6,

PageID.331-32; Collins v. Virginia, 584 U.S. 586, 588 (2018); United

States v. May-Shaw, 955 F.3d 563, 570 (6th Cir. 2020). Because the

officers in this case did not have a warrant, amendment to properly

plead a warrant requirement is similarly not futile. The court notes

that because on either or both issues of law, Plaintiff has adequately

alleged sufficient facts to establish a Fourth Amendment violation, her

proposed claim against the City of Detroit requires no further analysis

on this motion; the City’s argument that her Monell claims are futile is

without merit where the City only argued that such claims failed

because there was no underlying constitutional violation.

Defendant’s second argument on qualified immunity roughly

equates to: even if there was a constitutional violation here, the

individual officers are entitled to qualified immunity for reasonable but

mistaken judgments, and therefore this amended complaint would not

survive a motion to dismiss as to those officers and is futile. See ECF

No. 24, PageID.281, citing Sova v. City of Mt. Pleasant, 142 F.3d 898

(6th Cir. 1998). But that puts the cart before the horse; here, if

Robinson eventually prevails on any of her Fourth Amendment claims

because there was a constitutional violation, it is not a foregone

conclusion that the officers are nonetheless entitled to qualified

immunity. See, e.g., Morgan v. Fairfield Cty., 903 F.3d 553, 564 (6th

Cir. 2018) (addressing clearly established law as to warrantless

searches on the curtilage of a home); United States v. Kincaide, 145

F.3d 771, 779 (6th Cir. 1998) (probable cause required to search vehicle

without a warrant). It is plausible from the face of the complaint, for

example, that officers proceeded immediately to searching Robinson’s

vehicle upon arriving at her home based only on the vehicle “match”

provided by the FLOCK search result, and/or that her vehicle was

within the curtilage of her home when it was searched. On the facts

alleged and in the light most favorable to Robinson, she has fairly

alleged constitutional violations that, if true, would violate clearly

established law and the defendant officers would thus not be entitled to

qualified immunity. Without the benefit of further development of

these issues, the court declines to dismiss the proposed amendment as

futile.

As to Robinson’s proposed state law claims, Defendant asserts

that amendment will be futile because a governmental employee has

broad immunity from liability for alleged intentional torts under certain

circumstances. Odom v. Wayne Cnty., 482 Mich. 459, 480 (2008); see

Ross v. Consumers Power Co., 363, 420 Mich. 567, 633–34 (1984); Mich.

Comp. Laws § 691.1407(2) (statutorily setting the standard for

negligent torts). Governmental immunity is an affirmative defense that

must be raised and established by the defendant.3

When a plaintiff alleges negligence, to avoid governmental

immunity they must prove that the defendant claiming immunity a)

was not acting or did not reasonably believe they were acting within the

scope of their authority, b) was not engaged in the exercise or discharge

of a governmental function, or c) the defendant’s conduct “amounted to

gross negligence that was the proximate cause of the injury or damage.”

Odom, 482 Mich. at 480; Mich. Comp. Laws § 691.1407(2). “Gross

negligence” as used in the governmental immunity statute means

“conduct so reckless as to demonstrate a substantial lack of concern for

whether an injury results.” Mich. Comp. Laws § 691.1407(8)(a); Dubay

v. Craze, 327 F. Supp. 2d 779 (E.D. Mich. 2004).

Generally, affirmative defenses must be raised as a motion for

summary judgment because the defendant bears the burden of proof

and must present evidence to support the defense. See, e.g., Jones v.

3 Originally, Plaintiff proposed to add claims for intentional torts. See ECF

No. 22-4. However, Plaintiff has since proposed to replace those claims with only a

negligence claim. See ECF No. 26-6. The court treats the intentional tort claims as

abandoned, see ECF No. 26, PageID.301, and addresses only the proposed

Bock, 549 U.S. 199, 204 (2007) (noting that a defendant must plead and

prove an affirmative defense). When, however, the allegations in the

complaint establishes the facts necessary for the affirmative defense, a

motion to dismiss raising the defense may be granted. See Estate of

Barney v. PNC Bank, 714 F.3d 920, 926 (6th Cir. 2013). Because “[a]

proposed amendment is futile if the amendment could not withstand a

Rule 12(b)(6) motion to dismiss[,]” the analysis of a 12(b)(6) motion to

dismiss and a responsive pleading arguing futility of amendment of a

complaint merge. See Parchman v. SLM Corp., 896 F.3d 728, 738 (6th

Cir. 2018) (citation omitted). Therefore, if the proposed amended

complaint here would establish all the facts of Defendant’s proposed

governmental immunity (even while viewing all facts in the light most

favorable to the plaintiff), Robinson’s motion to amend may be denied.

With that in mind, some of the elements of governmental

immunity are met here; engaging in an investigation of a crime, for

example, is a governmental function. Tate v. City of Grand Rapids, 256

Mich. App. 656, 661 (2003). State governmental immunity in Michigan

is based on a policy of deferring to employees engaged in discretionary

acts, which allows the employee to resolve problems without constant

fear of legal repercussions. Odom, 482 Mich. at 476. Police officers

must use their judgment to determine whether there is reasonable

suspicion to investigate or probable cause to arrest. Id. But the instant

motion is a somewhat awkward vehicle to effectively dismiss Plaintiff’s

proposed state law claims because to do so would force this court to

accept Defendant’s version of events. Robinson has asserted that the

officers’ actions were so grossly negligent that they essentially could not

have held a good-faith belief that he had probable cause to search her

vehicle. ECF 26-6, PageID.325. In fact, she further alleges the officers

involved had actual knowledge that they had no basis to arrest her or

seize her vehicle and that the investigation was insufficient to provide

probable cause to do so. See id. (“Defendant Arella can be overheard

brainstorming justifications to arrest Ms. Robinson.”) (“Defendant

Waderlow explain[ed] that there is no basis for an arrest but state[d]

that it is above his pay grade and he does not care.”). Plaintiff also

asserts that this was a pattern with this particular unit, and if true, the

fact that this has happened more than once is another indication of

gross negligence by the investigating officers (i.e. a substantial and

reckless lack of concern for continuing constitutional violations). Id. at

316 (“Number nine do another half investigation?” “Yeah, it tends to

happen.”). At this stage the court can only consider whether the facts

as alleged by the Plaintiff and in the light most favorable to Plaintiff (as

it would on a motion brought under Rule 12(b)(6)). Here, Plaintiff has

alleged that the officers subjectively believed that there was no reason

to arrest Plaintiff, that their investigation was insufficient to provide

probable cause to search her vehicle, and that this deficient

investigation was part of a pattern of repeat violations by at least some

of the officers involved. Considered in totality, this disregard for

plaintiff’s constitutional rights would establish “conduct so reckless as

to demonstrate a substantial lack of concern for whether an injury

results.” See Mich. Comp. Laws § 691.1407(8)(a). Alternatively, the

statements Plaintiff alleges the officers made could also show that the

officers involved could not have reasonably believed that they were

acting within the scope of their authority. Thus the state law counts

are not futile at this stage.4

Finally, Defendant also claims that the need to add additional

officers to this case will cause undue delay. See ECF No. 24,

4 To the extent that Defendant also appears to contest that Corbin can be

liable at all because he was not the proximate cause of the search and/or arrest, see

ECF No. 24, PageID.284, the court finds this argument undeveloped on this set of

briefings. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“It is not

sufficient for a party to mention a possible argument in the most skeletal way,

PageID.278. The court also notes its own concern that the original

complaint in this case was filed almost a year ago, and at least some of

the delay in filing an amended complaint appears to be fairly

attributable to Plaintiff. Nonetheless, neither Defendant nor the new

named defendants can plausibly claim surprise that Robinson seeks to

add the very officers who were at the scene described in her original

allegations – as she further indicated in her original complaint by

including nine additional unnamed officers. ECF 1-1, PageID.11. This

amendment to add these officers also comes, according to Plaintiff, after

having received the materials necessary to identify them in early July

2024, and having been only able to depose Defendant Corbin in August

2024. ECF No. 26, PageID.298. Though the court anticipates this

amendment will add time to the case, the delay, as indicated in Part

III.A, is not an undue one.

IV. CONCLUSION

The court therefore finds that there is good cause to permit

Plaintiff’s amendment to her complaint. The court also finds that

Defendant will not be unduly prejudiced by granting the motion, the

case will not be unduly delayed, and the amendment is not futile. The

court therefore GRANTS Plaintiff’s Motion for Leave to file an

amended complaint and jury demand (ECF No. 22) and ORDERS that

Plaintiff must file their superseding proposed amended complaint (ECF

No. 26-6) within 14 days of entry of this Order. No further amendments

will be allowed. A new scheduling order will be issued extending the

current case deadlines by four months. Plaintiff is reminded that in

future filings, they must follow Local Rule 7(d)(2) regarding the

required form of briefs.

It is further ORDERED that the docket and case caption be

corrected to reflect the correct spelling of Plaintiff’s name as “Isoke

Robinson.”

SO ORDERED.

Date: October 25, 2024 s/F. Kay Behm

F. Kay Behm

United States District Judge