Petition for Writ of Certiorari — Marc M. Susselman, Petitioner v. Washtenaw County Sheriff's Office, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Sixth Circuit (July 29, 2024) .............................. 1a

Judgment, U.S. Court of Appeals

for the Sixth Circuit (July 29, 2024) ................ 15a

Opinion and Order Granting Superior

Township’s Motion to Dismiss the Second

Amended Complaint and Granting Plaintiff’s

Motion for Leave to File a Sur-Reply

(May 4, 2023) .................................................... 17a

Opinion and Order Granting the Washtenaw

Defendants’ Corrected Motion to Dismiss the

Complaint and Granting Plaintiff’s Motion

for Leave To File a Sur-Reply

(June 21, 2022) ................................................. 24a

REHEARING ORDERS

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Sixth Circuit

(September 5, 2024).......................................... 41a

Opinion and Order Denying Plaintiff’s Motion for

Reconsideration, U.S. District Court Eastern

District of Michigan Southern Division

(July 6, 2022) .................................................... 43a

APPENDIX TABLE OF CONTENTS (Cont.)

STATUTORY PROVISIONS

Constiutional and Statutory Provisions Involved . 47a

U.S. Const., amend. I ......................................... 47a

U.S. Const., amend. XIV 1 ............................... 47a

42 U.S.C. § 1983 ................................................. 47a

M.C.L. 257.602.................................................... 48a

M.C.L. 750.167.................................................... 48a

App.1a

OPINION, U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(JULY 29, 2024)

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

MARC M. SUSSELMAN,

Plaintiff-Appellant,

v.

WASHTENAW COUNTY SHERIFF’S OFFICE;

JONATHAN KING; WASHTENAW COUNTY,

MICHIGAN; SUPERIOR TOWNSHIP, MICHIGAN,

Defendants-Appellees.

________________________

File Name: 24a0158p.06

No. 23-1486

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:20-cv-12278—Bernard A. Friedman,

District Judge.

Before: GIBBONS, BUSH, and MURPHY,

Circuit Judges.

App.2a

OPINION

JOHN K. BUSH, Circuit Judge.

Marc Susselman made a federal case out of a

traffic ticket. In February 2020, he drove around a

police cruiser parked across the eastbound lane of

traffic with its lights flashing. A Washtenaw County

Sheriff’s deputy issued him a ticket for failing to yield.

That ticket was dropped and, soon after, Susselman

received another citation arising from the same

incident for failing to obey a police officer directing

traffic. The Michigan circuit court ultimately dismissed

the second traffic ticket. In federal court, Susselman

asserted constitutional and state law claims against

Washtenaw County, the Washtenaw County Sheriff’s

Office, the sheriff’s deputy, and Superior Township,

Michigan. The district court granted the defendants’

motions to dismiss all claims against them. We affirm.

I.

On February 1, 2020, Susselman drove eastbound

on Plymouth Road in Superior Township, Michigan.

As he approached the intersection at Cherry Hill

Road, he came upon a Washtenaw County Sheriff’s

patrol car, lights flashing and parked horizontally

across the eastbound lane. Susselman did not observe

any barricades or see any officers directing traffic.

Nor did he see the fatal accident further down the

road. After checking for oncoming vehicles, Susselman

pulled into the unobstructed westbound lane and drove

past the cruiser.

Immediately, Deputy Sheriff Jonathan King ran

towards Susselman’s vehicle waving his arms. He

informed Susselman that he had just entered the

App.3a

scene of a fatal accident and would receive a ticket.

Another officer, Deputy Brian Webb, approached and

repeated that Susselman had entered the scene of an

accident. He asked for Susselman’s license and returned

to his patrol car to issue the citation. Susselman then

began to yell at Deputy King for failing to block the

entire road. Webb returned and handed Susselman a

ticket for $400, citing him under M.C.L. § 257.602 for

disobeying a police officer directing traffic flow.

Susselman pleaded not guilty and received a notice

to appear at a formal hearing on March 17, 2020. For

unknown reasons, the notice recorded a different

charge than the one that appeared on Susselman’s

ticket––instead of citing him for disobeying an officer,

it stated that he failed to yield under M.C.L. § 257.649.

Susselman emailed the prosecuting attorney, Jameel

Williams, requesting that he drop the case. He

explained the events preceding the ticket and why he

did not think he was guilty of violating M.C.L. § 257.

649. He added that he could not be punished for

arguing with King because that conduct was protected

by the First Amendment. Williams agreed to dismiss

the ticket for failing to yield.

Soon after, however, Susselman received a new

ticket in the mail––again for disobeying a police officer

directing traffic. As it turns out, Williams had emailed

Deputy King after receiving Susselman’s email.

Williams agreed that Susselman was not guilty of

failing to yield and suggested King issue a new ticket

for disobeying a police officer––the charge that King

initially told Susselman he would receive but that

inexplicably did not appear on the notice. Williams

wrote, “[p]rocedurally, I assume we would agree to

dismiss the original charge (make him think he is a

App.4a

badass and won something) and then issue the new

ticket under MCL 257.602.” R.33, PageID 679. King

replied, “I think that is a great plan!” Id. at 678.

Susselman pleaded not guilty to the second

ticket. After Williams declined to drop the charge,

Susselman asked the state court to dismiss the ticket.

He argued that there was no probable cause under

M.C.L. § 257.602 because no officer was near the patrol

car directing traffic. The court denied the motion to

dismiss and Susselman appealed. Because the prosecuting attorney’s office failed to file a response, the

Michigan circuit court reversed and dismissed the

ticket.

Susselman sued Washtenaw County, the Washtenaw County Sheriff’s Office, Superior Township, and

King under 42 U.S.C. § 1983 and Michigan state law.

His federal claims are essentially twofold: First

Amendment retaliation and Fourteenth Amendment

malicious prosecution. In Counts I and II, he claims

that King issued the second ticket in retaliation for

their argument and for his letter to Williams, violating his rights to speech and petition. In Counts IV

and VI, he claims that King and Superior Township

(through Williams) maliciously prosecuted him, violating his substantive due process rights.1 The remaining

federal claims derive from the First and Fourteenth

Amendment violations. He claims that Washtenaw

County and the Sheriff’s Office are liable for King’s

actions under Monell v. Department of Social Services,

1 Susselman also brought claims against King and Superior

Township for violating his procedural due process rights (Counts

III and V) but conceded before the district court that those claims

were not viable. He does not attempt to revive them on appeal.

App.5a

436 U.S. 658 (1978) (Count VII) and that King and

Superior Township civilly conspired to deprive him of

his constitutional rights (Count VIII). Finally, he

brings two state-law claims against King and Superior

Township for malicious prosecution and intentional

infliction of emotional distress (Counts IX and X). The

defendants moved to dismiss the claims against them.

The district court granted their motions in full and

Susselman timely appealed.

Before we consider Susselman’s arguments on

appeal, we address some preliminary matters. First,

he waived his state-law malicious prosecution and

intentional infliction of emotional distress claims as to

Superior Township by expressly disavowing them in

his reply brief. See Bannister v. Knox Cnty. Bd. of

Educ., 49 F.4th 1000, 1011 (6th Cir. 2022). Second, although Susselman includes the Washtenaw County

Sheriff’s Office as a defendant on appeal, the district

court held that 42 U.S.C. § 1983 does not recognize

that office as a “person” capable of being sued. He does

not dispute that and has therefore forfeited the issue.

Bannister, 49 F.4th at 1011–12. Lastly, although the

district court failed to address whether it retained supplemental jurisdiction over Susselman’s state-law

claims after it dismissed his federal claims, no party

raises the issue on appeal, so it is also forfeited. See

Gucwa v. Lawley, 731 F. App’x 408, 416 (6th Cir. 2018).

II.

This court reviews the district court’s decision to

grant a motion to dismiss de novo. Kovalchuk v. City

of Decherd, Tennessee, 95 F.4th 1035, 1037 (6th Cir.

2024). The complaint should be construed in the light

most favorable to the plaintiff, its allegations accepted

App.6a

as true, and all reasonable inferences drawn in the

plaintiff’s favor. Jackson v. Sedgwick Claims Mgmt.

Servs., Inc., 731 F.3d 556, 562 (6th Cir. 2013) (en banc).

“Against that backdrop, we ask whether the complaint

contains sufficient factual matter to state a claim to

relief that is plausible on its face.” Royal Truck &

Trailer Sales & Serv., Inc. v. Kraft, 974 F.3d 756, 758

(6th Cir. 2020) (cleaned up). “Although a complaint is

to be liberally construed, it is still necessary that the

complaint contain more than bare assertions or legal

conclusions.” Total Benefits Plan. Agency, Inc. v.

Anthem Blue Cross & Blue Shield, 552 F.3d 430,

434 (6th Cir. 2008). And the court need not accept unwarranted factual inferences. Id.

III.

A.

Claims against Deputy King

1. Substantive Due Process Claim

Susselman asserts a 42 U.S.C. § 1983 claim

against King under the Fourteenth Amendment,

contending that King violated his right to substantive

due process when he maliciously prosecuted him by

issuing the second ticket. The viability of such a

claim is unclear, but assuming Susselman can bring

the claim, he still fails to plausibly allege a constitutional violation or behavior by King to support it.

Section 1 of the Civil Rights Act of 1871, now

codified at 42 U.S.C. § 1983, created a cause of action

allowing individuals to vindicate violations of their

constitutional rights. To succeed on a § 1983 claim, a

plaintiff must first identify a constitutional right, then

show that a person acting under the color of state law

App.7a

deprived him of that right. Troutman v. Louisville

Metro Dep’t of Corr., 979 F.3d 472, 482 (6th Cir. 2020).

An initial hurdle for Susselman’s substantive due

process claim is whether the Fourteenth Amendment

provides a right to be free from malicious prosecution.

At one time, this circuit recognized such a claim

when a malicious prosecution “shocks the conscience.”

See, e.g., Henry v. Metro. Sewer Dist., 922 F.2d 332,

341 (6th Cir. 1990); Cale v. Johnson, 861 F.2d 943,

949–50 (6th Cir. 1988). But in Albright v. Oliver, the

Supreme Court held that a constitutional malicious

prosecution claim cannot lie under the Fourteenth

Amendment in the context of an unreasonable seizure.

510 U.S. 266, 274–75 (1994) (plurality opinion). A

plurality rejected the plaintiff’s § 1983 claim, holding

that, because his claim was based on a seizure, it must

be brought under the Fourth Amendment, not the

Fourteenth. Id. at 271. In Thompson v. Clark, the

Court confirmed that a malicious prosecution claim may

be brought under the Fourth Amendment. 596 U.S.

36, 42 (2022). The claim “requires the plaintiff to show

a favorable termination of the underlying criminal

case against him,” and the wrongful initiation of

charges without probable cause resulting in a seizure.

Id. at 43–44; see Chiaverini v. City of Napoleon, 144 S.

Ct. 1745, 1750–51 (2024).

Despite the clarification the Court has provided

for malicious prosecution claims under the Fourth

Amendment, the question remains: may a plaintiff

bring a malicious prosecution claim under the Fourteenth Amendment? In Thompson, the Court mused

that “[i]t has been argued that the Due Process Clause

could be an appropriate analytical home for a malicious

prosecution claim under § 1983. If so, the plaintiff

App.8a

presumably would not have to prove that he was seized

as a result of the malicious prosecution.” 596 U.S. at

43 n.2 (citation omitted). Though far from a fullthroated confirmation of a substantive due process

right to be free from malicious prosecution, this dictum

leaves open the possibility that such a right exists.

Assuming that Susselman has a substantive due

process right to be free from malicious prosecution, he

still fails to plausibly allege a claim. To do so, a plaintiff must identify either “a violation of an explicit constitutional guarantee (e.g., a fourth amendment illegal

seizure violation)” or a “behavior by a state actor that

shocks the conscience.” Braley v. City of Pontiac, 906

F.2d 220, 225 (6th Cir. 1990). Susselman does not

base his malicious prosecution claim on a violation of

any constitutional guarantee, so his claim requires

that he plausibly allege that King’s conduct shocks the

conscience. He has not done so. Although the standard

is vague, we have found police conduct to shock the

conscience in cases involving excessive force. Id. at

226 (citing Wilson v. Beebe, 770 F.2d 578 (6th Cir.

1985)). Susselman contends that King’s conduct

shocks the conscience because he lacked probable

cause to issue the second ticket and therefore acted

“arbitrarily and capriciously.” Apt. Br. 32. But this

court has already held that issuing a ticket without

probable cause does not shock the conscience. Vasquez

v. City of Hamtramck, 757 F.2d 771, 773 (6th Cir.

1985) (per curiam). Because he cannot point to

conduct by King that shocks the conscience,

Susselman’s substantive due process claim fails.

App.9a

2. First Amendment Retaliation

Susselman next asserts a § 1983 claim against

King under the First Amendment. He contends that

King’s issuance of the second ticket was retaliation for

his exercise of his First Amendment rights: first, for

yelling at King during their encounter, an exercise of

his right to free speech, and second, for asking

Williams to dismiss the first ticket, an exercise of his

right to petition.

A First Amendment retaliation claim has three

elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394

(6th Cir. 1999) (en banc). A plaintiff must plausibly

show (1) that he was “engaged in protected conduct,”

(2) that the defendant took adverse action against him

“that would deter a person of ordinary firmness from

continuing to engage in that conduct,” and (3) that the

protected conduct caused the adverse action, at least

in part. Id.

We consider the last prong first. To show causation, a plaintiff must plausibly allege that the defendant would not have taken the adverse action “absent

the retaliatory motive.” Nieves v. Bartlett, 587 U.S. 391,

398–99 (2019). In other words, that retaliation was

the but-for cause of the action. Id. at 399. If the

defendant decides to take the adverse action before

the plaintiff engaged in the protected conduct, but-for

causation does not exist. Id. at 398 (explaining that

there must be “a ‘causal connection’ between the

government defendant’s ‘retaliatory animus’ and the

plaintiff’s ‘subsequent injury’” (emphasis added) (citation

omitted)); cf. Clark Cnty. Sch. Dist. v. Breeden, 532

U.S. 268, 272–73 (2001) (Title VII retaliation); Natofsky

v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)

(same); see Mickey v. Zeidler Tool & Die Co., 516 F.3d

App.10a

516, 529 (6th Cir. 2008) (Batchelder, J., concurring)

(“One cannot [retaliate] for something that has not yet

happened.”).

Susselman has not plausibly alleged that King’s

issuance of the second ticket was caused by First

Amendment protected conduct. His complaint states

that, immediately after approaching Susselman’s

vehicle, King informed him that he would receive a

ticket “for avoiding an emergency vehicle with its

lights on and entering a crime scene.” R.33, PageID

598. Only later did Susselman yell at King and, much

later, send the letter to Williams. Id. at 598, 600.

Thus, by Susselman’s own account, his conduct cannot

have been the but-for cause of the second ticket because King had already decided to issue him a citation

for failing to comply with an officer’s direction of

traffic when it occurred. See Nieves, 587 U.S. at 398;

cf. Breeden, 532 U.S. at 272. Susselman offers nothing

more than speculation to support that the second

ticket was issued in retaliation. Because Susselman

cannot establish causation, we need not address the

other First Amendment retaliation factors.

3. Civil Conspiracy

Susselman’s third and final § 1983 claim against

King is civil conspiracy. He contends that King, with

Superior Township, conspired to deprive him of his

First and Fourteenth Amendment rights. A civil

conspiracy is “an agreement between two or more

persons to injure another by unlawful action.” Revis v.

Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). As noted,

however, Susselman has not plausibly alleged that

receiving the second ticket deprived him of his constitutional rights. Thus, any “plan” between King and

App.11a

Williams to issue that ticket cannot establish an

agreement to engage in unconstitutional conduct.

4. State-Law Claims

Susselman brings two state-law tort claims against

King for malicious prosecution and intentional infliction

of emotional distress. They fail as well.

To state a claim for malicious prosecution under

Michigan law, a plaintiff must plausibly show that (1)

the defendant “initiated a criminal prosecution against

him,” (2) “the criminal proceedings terminated in his

favor,” (3) the defendant “lacked probable cause for

his actions,” and (4) “the action was undertaken with

malice or a purpose . . . other than bringing the offender

to justice.” Alman v. Reed, 703 F.3d 887, 902 (6th Cir.

2013) (quoting Matthews v. Blue Cross & Blue Shield

of Mich., 572 N.W.2d 603, 609–10 (Mich. 1998)). The

fourth prong sets a high bar, and the plaintiff must

demonstrate that the defendant took actions that are

“willful, wanton, or reckless, or against the accuser’s

sense of duty.” Sottile v. DeNike, 174 N.W.2d 148,

150 (Mich. Ct. App. 1969). He can do so by providing

proof of “bad blood, ill will or retribution.” Id. A lack

of probable cause does not alone suffice. Alman, 703

F.3d at 902. When a malicious prosecution claim is

brought against a police officer, he may avoid liability

by showing that he made a “full and fair disclosure of

the material facts” to the prosecutor. Matthews, 572

N.W.2d at 610.

Susselman has not plausibly alleged a malicious

prosecution claim against King. Specifically, he does

not point to any evidence that establishes malice. By

Susselman’s own account, King immediately informed

him that he would be issuing him a ticket for driving

App.12a

around an emergency vehicle. Only later did Susselman

yell at King. That sequence forecloses the possibility

that King had any improper motive in issuing

Susselman a ticket for failing to obey a police officer

directing traffic. Susselman points to the fact that

King signed the second ticket, which included an

incorrect date and time, and to Williams’s “bad-ass”

comment. But a minor timestamp error on a computergenerated ticket does plausibly push King into the

realm of malicious intent. Nor does a comment made

by another party.

To the extent Michigan recognizes a claim for

intentional infliction of emotional distress, the tort requires evidence of (1) “extreme and outrageous conduct,”

(2) “intent or recklessness,” (3) causation, and (4)

“severe emotional distress.” Lucas v. Awaad, 830 N.W.

2d 141, 150 (Mich. Ct. App. 2013) (quoting Dalley v.

Dykema Gossett PLLC, 788 N.W.2d 679, 694 (Mich.

Ct. App. 2010)). The defendant’s conduct must be “so

outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a

civilized community.” Id. (quoting Doe v. Mills, 536

N.W.2d 824, 833 (Mich. Ct. App. 1995)).

King’s conduct plainly falls short of that high bar.

A police officer does not commit extreme and outrageous

conduct by issuing a traffic ticket. Cebulski v. City of

Belleville, 401 N.W.2d 616, 618 (Mich. Ct. App. 1986).

Nor does he do so by enforcing the law, even if it causes

a plaintiff to experience emotional distress. Stobbe v.

Parrinello, 1998 WL 1988741, at *2 (Mich. Ct. App.

Nov. 24, 1998). Here, King issued Susselman a traffic

ticket and, when the prosecuting attorney informed

him that the ticket listed the wrong charge, King issued

App.13a

a corrected ticket. Susselman insists that, unlike the

officers in Cebulski and Stobbe, King intended to

cause him emotional distress by issuing a ticket. But

regardless of King’s intent, Susselman has not

plausibly alleged that his conduct was extreme.

B.

Monell Claims Against Washtenaw County

and Superior Township

Finally, Susselman asserts various municipal

liability claims against Washtenaw County and

Superior Township. Because he fails to identify any

constitutional violation or municipal policy or custom

resulting in a constitutional violation, these claims

also fail.

A plaintiff can hold a municipality liable under

§ 1983 for constitutional injuries perpetrated by its

agents. Monell, 436 U.S. at 694. To do so, he must

allege that the municipality’s official policy or custom

“was ‘the moving force behind the constitutional violation.’” Nugent v. Spectrum Juv. J. Servs., 72 F.4th

135, 138 (6th Cir. 2023) (quoting City of Canton v.

Harris, 489 U.S. 378, 389 (1989)). A plaintiff can prove

that a municipality has a custom or policy that led to

his constitutional injury in multiple ways, including

by showing that the injury was caused by the decision

of an official with final authority to establish municipal policy respecting such activity. See Pembaur v. City

of Cincinnati, 475 U.S. 469, 481–84 (1986)

(plurality opinion).

Susselman has not plausibly alleged any claim

against Washtenaw County or Superior Township.

Foremost, Susselman has not plausibly alleged any

underlying constitutional violation. Robertson v. Lucas,

753 F.3d 606, 622 (6th Cir. 2014). Next, he has not

App.14a

alleged that either Washtenaw County or Superior

Township has a pattern of committing constitutional

violations like those he alleges. Finally, he has not

alleged that King or Williams has final, unreviewable

decision-making authority for Washtenaw County or

Superior Township, respectively. Susselman insists

that King had final authority over ticketing decisions

for Washtenaw County, and Williams had final authority for prosecutorial decisions for Superior Township.

But discretion to issue a ticket or pursue a prosecution

is not the same as the authority to make final municipal policy. Susselman’s claims against Washtenaw

County and Superior Township therefore were properly

dismissed.

IV.

For the foregoing reasons, we AFFIRM the district court’s order.

App.15a

JUDGMENT, U.S. COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(JULY 29, 2024)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

MARC M. SUSSELMAN,

Plaintiff-Appellant,

v.

WASHTENAW COUNTY SHERIFF’S OFFICE;

JONATHAN KING; WASHTENAW COUNTY,

MICHIGAN; SUPERIOR TOWNSHIP, MICHIGAN,

Defendants-Appellees.

________________________

No. 23-1486

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit.

Before: GIBBONS, BUSH, and MURPHY,

Circuit Judges.

JUDGMENT

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED

that the judgment of the district court is AFFIRMED.

App.16a

ENTERED BY ORDER OF THE COURT

/s/ Kelly L. Stephens

Clerk

App.17a

OPINION AND ORDER GRANTING SUPERIOR

TOWNSHIP’S MOTION TO DISMISS THE

SECOND AMENDED COMPLAINT AND

GRANTING PLAINTIFF’S MOTION FOR

LEAVE TO FILE A SUR-REPLY

(MAY 4, 2023)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

MARC M. SUSSELMAN,

Plaintiff,

v.

WASHTENAW COUNTY

SHERIFF’S OFFICE, ET AL.,

Defendants.

________________________

Civil Action No. 20-cv-12278

Before: Hon. Bernard A. FRIEDMAN,

Senior United States District Judge.

OPINION AND ORDER GRANTING SUPERIOR

TOWNSHIP’S MOTION TO DISMISS THE

SECOND AMENDED COMPLAINT AND

GRANTING PLAINTIFF’S MOTION FOR

LEAVE TO FILE A SUR-REPLY

App.18a

I.

Introduction

Attorney Marc M. Susselman commenced this 42

U.S.C. § 1983 action against, among others, Superior

Township alleging that it violated his federal constitutional rights during state court proceedings initiated

against him for disobeying a deputy sheriff’s traffic instructions.

Before the Court is the Township’s motion to

dismiss the second amended complaint (“SAC”). (ECF

No. 53). Susselman responded. (ECF No. 57). The

Township filed a reply. (ECF No. 58). Susselman then

filed a motion for leave to file a sur-reply. (ECF No.

59). The Court will decide the motions without oral

argument pursuant to E.D. Mich. LR 7.1(f)(2). For the

following reasons, the Court shall (1) grant the

Township’s motion to dismiss the SAC, and (2) grant

Susselman’s motion for leave to file a sur-reply.

II. Background

A. Factual History

Assuming the parties’ familiarity with the facts

alleged in the SAC, the Court incorporates by reference

the factual history summarized in its June 21, 2022

opinion and order. (ECF No. 49, PageID.1161-64). The

claims against the Township exclusively stem from

Township prosecuting attorney Jameel Williams’s decision to charge Susselman with an amended traffic

citation. See Mich. Comp. Laws § 257.602. Susselman

contends that the charge lacked probable cause and

that Williams instituted state court proceedings against

him because of personal animus.

App.19a

B. Procedural History

Susselman filed this lawsuit against the Township

(and others) but declined to sue Williams. (ECF No.

33). The SAC asserts that the Township violated his

Fourteenth Amendment rights to procedural and

substantive due process (Counts III & IV),1 as well as

state law claims for malicious prosecution (Count IX)

and intentional infliction of emotional distress (Count

X). The SAC further alleges that Washtenaw County

Deputy Sheriff Jonathan King conspired with the

Township to violate Susselman’s federal constitutional rights (Count VIII).2 The Township now moves

to dismiss all the above claims. (ECF No. 40).

III. Legal Standards

When reviewing a motion to dismiss the complaint

for failing to state a claim, the Court must “construe

the complaint in the light most favorable to the plaintiff and accept all factual allegations as true.” Daunt

v. Benson, 999 F.3d 299, 308 (6th Cir. 2021) (cleaned

up); see also Fed. R. Civ. P. 12(b)(6). “The factual

allegations in the complaint need to be sufficient to

give notice to the defendant as to what claims are

alleged, and the plaintiff must plead sufficient factual

matter to render the legal claim plausible.” Fritz v.

1 Because Susselman waives the procedural due process claim

against the Township (Count III) that cause of action is dismissed.

(ECF No. 57, PageID.1427).

2 The SAC asserts causes of action against Washtenaw County,

the Washtenaw County Sheriff’s Office, and Deputy Sheriff

Jonathan King. (ECF No. 33, PageID.608-10, 612-16, ¶¶ 58-66,

74-92). The Court dismissed those claims in its June 21, 2022

opinion and order. (ECF No. 49, PageID.1176-77).

App.20a

Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.

2010) (quotation omitted). The Court may consider

“exhibits attached to the complaint” to decide the

motion. Amini v. Oberlin College, 259 F.3d 493, 502

(6th Cir. 2001).

IV. Analysis

A. Violation of Substantive Due Process

(Count IV)

Susselman alleges that the Township deprived

him of substantive due process when Williams (1)

encouraged Deputy King to issue an amended traffic

ticket, and then (2) refused to dismiss the citation for

lack of probable cause. (ECF No. 33, PageID.611, ¶¶ 7173). This claim fails for the same reasons the Court

previously dismissed the analogous count against

Deputy King (Count VI). (ECF No. 49, PageID.1168-70).

To begin with, the United States Supreme Court

declined to recognize this exact cause of action over 25

years ago in Albright v. Oliver, 510 U.S. 266 (1994).

There, the Court concluded that the Fourteenth

Amendment’s Due Process Clause does not create a

substantive right “to be free from criminal prosecution

except upon probable cause.” Id. at 268; see also Lester

v. Roberts, 986 F.3d 599, 606 (6th Cir. 2021) (noting

that Albright overturned earlier Sixth Circuit

precedents suggesting that “defendants had a substantive-due-process right under the Fourteenth Amendment to be free from malicious prosecutions that

‘shock the conscience.’”). The SAC advances the same

outmoded theory that Albright repudiated.

Nor would Susselman prevail if he instead

designated this cause of action a Fourth Amendment

App.21a

malicious prosecution claim. At the pleading stage,

malicious prosecution requires plausible allegations

that (1) the defendant “made, influenced, or participated

in the decision to prosecute,” (2) the government lacked

probable cause, (3) the proceeding caused the plaintiff

to suffer a deprivation of liberty, and (4) the prosecution terminated in the plaintiff’s favor. Jones v. Clark

County, 959 F.3d 748, 756 (6th Cir. 2020).

The SAC omits any allegations that the state

court proceedings against Susselman deprived him of

his liberty, i.e., the third prong. He was “never arrested

or incarcerated, required to post bail or bond, or subjected to any travel restrictions.” Noonan v. Cty. of

Oakland, 683 F. App’x 455, 463 (6th Cir. 2017). And

“despite the aggravation, financial cost, and personal

humiliation” that Susselman may attribute to defending

against the amended traffic ticket, none of these factors

constitute “a deprivation of liberty” under the Fourth

Amendment. Id.

Since the substantive due process claim finds no

support in either the Supreme Court’s or the Sixth

Circuit’s jurisprudence it must be dismissed.3

B. Civil Conspiracy (Count VIII)

Section 1983 civil conspiracy claims require

plausible allegations of “a single plan, where each

3 Susselman maintains that the Supreme Court retreated from

Albright because it recently speculated about the elements that

would be necessary to establish a malicious prosecution claim

under the Due Process Clause. (ECF No. 57, PageID.1429-31). See

Thompson v. Clark, 142 S. Ct. 1332, 1337 n.2 (2022). Because the

Supreme Court ultimately concluded that “we have no occasion to

consider such an argument here,” Thompson never displaced

Albright as binding precedent. Id.

App.22a

alleged coconspirator shares in the general conspiratorial objective, and an overt act committed in furtherance of the conspiracy that causes injury to the

plaintiff.” Marvaso v. Sanchez, 971 F.3d 599, 614 (6th

Cir. 2020). The plaintiff’s injuries must stem from a

violation of federal law when section 1983 is implicated.

Id.

The SAC posits that Deputy King and Williams

“acted in concert to violate Plaintiff’s 1st Amendment

and 14th Amendment procedural and substantive due

process rights.” (ECF No, 33, PageID.614, ¶ 84). But

Susselman already waived his procedural due process

claim, and since he fails to plausibly assert that the

Township otherwise violated his constitutional rights,

the section 1983 conspiracy claim does not state a cause

of action upon which the Court may grant relief. See

Stricker v. Twp. of Cambridge, 710 F.3d 350, 365 (6th

Cir. 2013) (affirming the dismissal of a section 1983

conspiracy claim because the plaintiff failed to

plausibly allege an underlying constitutional harm).

C. Malicious Prosecution (Count IX) &

Intentional Infliction of Emotional Distress

(Count X)

Finally, Susselman seeks to impute liability to

the Township for malicious prosecution and intentional

infliction of emotional distress on the ground that

Williams prosecuted him without probable cause.

(ECF No. 33, PageID.615, ¶¶ 85-89).

Since Michigan law views both causes of action as

intentional torts, the Township is “entitled to

immunity because it cannot be held liable for the

intentional torts of its employees.” Payton v. City of

Detroit, 211 Mich. App. 375, 393 (1995); Alexander v.

App.23a

Riccinto, 192 Mich. App. 65, 71-72 (1991); see also

Bradley v. Detroit Pub. Schools, No. 292749, 2011 Mich.

App. LEXIS 199, at *13 (Mich. Ct. App. Jan. 27, 2011)

(noting that claims for malicious prosecution and intentional infliction of emotional distress are intentional

torts). Neither state law claim can, therefore, withstand

the Township’s motion to dismiss the SAC. Accordingly,

IT IS ORDERED that the Township’s motion to

dismiss the SAC (ECF No. 53) is granted.

IT IS FURTHER ORDERED that Susselman’s

motion for leave to file a sur-reply (ECF No. 59) is

granted.

IT IS FURTHER ORDERED that this opinion

and order disposes of all the claims remaining in this

case.

SO ORDERED.

/s/ Hon. Bernard A. Friedman

Senior United States District Judge

Dated: May 4, 2023

Detroit, Michigan

App.24a

OPINION AND ORDER GRANTING THE

WASHTENAW DEFENDANTS’ CORRECTED

MOTION TO DISMISS THE COMPLAINT AND

GRANTING PLAINTIFF’S MOTION FOR

LEAVE TO FILE A SUR-REPLY

(JUNE 21, 2022)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

MARC M. SUSSELMAN,

Plaintiff,

v.

WASHTENAW COUNTY

SHERIFF’S OFFICE, ET AL.,

Defendants.

________________________

Civil Action No. 20-cv-12278

Before: Hon. Bernard A. FRIEDMAN,

Senior United States District Judge.

OPINION AND ORDER GRANTING THE

WASHTENAW DEFENDANTS’ CORRECTED

MOTION TO DISMISS THE COMPLAINT AND

GRANTING PLAINTIFF’S MOTION FOR

LEAVE TO FILE A SUR-REPLY

App.25a

I.

Introduction

Attorney Marc M. Susselman commenced this

42 U.S.C. § 1983 action against Washtenaw County,

the Washtenaw County Sheriff’s Office, and Deputy

Sheriff Jonathan King (collectively, the “Washtenaw

Defendants”) alleging they violated his federal constitutional rights during a state court criminal proceeding initiated against him for disobeying Deputy King’s

traffic instructions.

Before the Court is the Washtenaw Defendants’

corrected motion to dismiss the complaint. (ECF No.

40). Susselman responded. (ECF No. 43). The

Washenaw Defendants filed a reply. (ECF No. 45).

Susselman then filed a motion for leave to file a surreply. (ECF No. 46). The Court will decide the motions

without oral argument pursuant to E.D. Mich. LR

7.1(f)(2). For the following reasons, the Court shall (1)

grant the Washtenaw Defendants’ corrected motion to

dismiss the complaint, and (2) grant Susselman’s

motion for leave to file a sur-reply.

II. Background

A. Factual History

Susselman was driving eastbound on Ann Arbor

Road on the afternoon of February 1, 2020, when he

saw a Washtenaw County Sheriff’s patrol car “parked

horizontally across the eastbound lane, with its lights

flashing.” (ECF No. 33, PageID.597, ¶¶ 9-10, 12). The

cruiser blocked the entire eastbound lane while the

westbound lane remained open. (Id.). Susselman did

not observe “any flares, traffic cones, or barricades of

any kind in the vicinity of the patrol car.” (Id.). There

App.26a

did not appear to be an officer directing traffic. (Id.,

¶ 13).

After checking for oncoming vehicles, Susselman

pulled into the westbound lane and drove past the

cruiser. (Id., ¶ 14). He then noticed Deputy King

running towards his car in the westbound lane, waving

his arms. (Id., ¶ 15). The officer approached the driver’s

side window, informed Susselman that “he had entered

the scene of a fatal accident,” and said that he was

issuing Susselman a ticket for avoiding an emergency

vehicle with its lights flashing, as well as entering a

crime scene.1 (Id., ¶ 16).

Although Susselman claims that he initially

spoke with Deputy King “in a civil tone,” he began

arguing with the officer, “yelling at him that he had

been negligent for failing to block the entire road with

his vehicle and failing to put down any barricades to

alert motorists” of the accident ahead. (Id., ¶¶ 16, 1819). Deputy King eventually permitted Susselman to

take pictures of the officer’s cruiser, its proximity to

Susselman’s car, and the surrounding roadway. (Id.,

¶ 20). When he finished, King’s partner, Deputy

Briant Webb, handed Susselman a ticket for disobeying

a police officer while directing the flow of traffic and

instructed “him to leave.” (Id., ¶¶ 20-21; PageID.620).

Susselman pled not guilty to the charge and

requested a formal hearing in state district court. (Id.,

1 There are countless reasons why an unattended emergency

vehicle, with flashing lights, would block a roadway in the manner

Susselman describes. An approaching motorist should exercise

the utmost caution–along with a healthy dose of common sense–

and refrain from venturing past the emergency vehicle into unknown and potentially dangerous circumstances.

App.27a

¶ 23). He drafted a letter to Superior Township

prosecuting attorney, Jameel Williams, explaining what

had happened and requesting that Williams move to

dismiss the ticket. (Id., ¶ 27; PageID.629-31). Williams

agreed to dismiss the charge “without costs on the

People’s motion” and informed Susselman that an

impending hearing on the ticket “will be cancelled.”

(Id., ¶¶ 28, 30-31; PageID.633, 637). The saga could

very well have ended when the state district court dismissed the ticket on August 4, 2020–unfortunately, it

didn’t. (Id., PageID.504, ¶ 42; PageID.657).

Prior to the ticket’s dismissal, Williams emailed

Deputy King on July 29, 2020, expressing his concern

that “Susselman makes some valid points [in his

defense], and I’m afraid he may be correct with regards

to the Failed Yield charge.” Williams suggested that:

it appears the appropriate charge for Mr.

Susselman would be M.C.L. 257.602 Failure

to Comply with Orders or Directions of

Police Officers, . . . [p]rocedurally, I assume

we would agree to dismiss the original charge

(make him think he is a badass and won

something) and then issue the new ticket

under MCL 257.602. . . . I want to make sure

that we have done everything correct within

our control to get the outcome that we

deserve. Does that make sense to you?

(ECF No. 33, PageID.679). Deputy King agreed to the

plan and confirmed in a July 31, 2020 email that “[t]he

new citation will be sent [to Susselman] via certified

mail this morning.” (Id., PageID.677-78).

Susselman received the second ticket through

certified mail on August 6, 2020. (Id., ¶ 32; PageID.

App.28a

640). Like the previous one, the second ticket charged

him with disobeying a police officer while directing the

flow of traffic. Except this time the ticket misstated the

date and time the incident occurred, creating a

discrepancy of nearly six months. (Id., PageID.602,

¶¶ 35-37). Deputy King wrote in the ticket’s “remarks”

that the “vehicle went around patrol vehicle parked in

the middle of the road with its lights on during a[n]

injury accident investigation. Ticket was rewritten per

PAO [prosecuting attorney’s office] then mailed to

subject.” (Id., PageID.640). Susselman again pled not

guilty, requested a formal hearing, and moved to

dismiss the ticket for lack of probable cause. (Id.,

PageID.603-04, ¶¶ 40, 47; PageID.650, 652).

At the motion hearing, the state district court

permitted Williams to “amend the ticket back to the

date and time of the original ticket” after concluding

that the information on the second ticket “had been

automatically generated by the court’s computer

system.” (Id., PageID.605, ¶ 49). And at a subsequent

hearing, the court ultimately denied Sussleman’s

motion to dismiss, concluding that sufficient probable

cause existed to support the charge. (Id., PageID.60506, ¶ 50; PageID.664-74). Susselman appealed the

decision to the Washtenaw County Circuit Court

without opposition. (Id., PageID.605-07, ¶¶ 50, 54).

On August 20, 2021, the circuit court issued an

opinion and order reversing the state district court,

granting Susselman’s motion, and dismissing the

second ticket. (Id., PageID.607, ¶ 54; PageID.681-82).

The prosecuting attorney’s office declined to appeal.

(Id., PageID.607, ¶ 54).

App.29a

B. Procedural History

Susselman filed this lawsuit on August 21, 2020.

(ECF No. 1). The second amended complaint (“SAC”)

asserts that Deputy King violated his First Amendment

rights to free speech (Count I) and to petition the government (Count II), his Fourteenth Amendment

rights to procedural and substantive due process

(Counts V & VI), 2 as well as state law claims for

malicious prosecution (Count IX) and intentional

infliction of emotional distress (Count X). The SAC

further alleges that Deputy King conspired with

Superior Township to violate Sussleman’s constitutional

rights and it includes a municipal liability claim

against the Washtenaw County Sheriff’s Office and

Washtenaw County.3 The Washtenaw Defendants now

move to dismiss the claims leveled against them.

(ECF No. 40).

III. Legal Standards

When reviewing a motion to dismiss the complaint

for failing to state a claim, the Court must “construe

the complaint in the light most favorable to the plaintiff and accept all factual allegations as true.” Daunt

v. Benson, 999 F.3d 299, 308 (6th Cir. 2021) (cleaned

up); see also Fed. R. Civ. P. 12(b)(6). “The factual

2 Because Susselman waived the procedural due process claim

against Deputy King (Count V) that cause of action is dismissed.

(ECF No. 43, PageID.1014 n.7).

3 The SAC asserts several claims against Superior Township,

seeking to hold it responsible for Williams’s actions as the

Township’s prosecuting attorney. The Washtenaw Defendants’

motion does not address the Township’s liability. So neither will

this opinion and order.

App.30a

allegations in the complaint need to be sufficient to

give notice to the defendant as to what claims are

alleged, and the plaintiff must plead sufficient factual

matter to render the legal claim plausible.” Fritz v.

Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.

2010) (quotation omitted). The Court may consider

“exhibits attached to the complaint” to decide the

motion. Amini v. Oberlin College, 259 F.3d 493, 502

(6th Cir. 2001).

IV. Analysis

A. Violation of the First Amendment’s Free

Speech Clause (Count I)

The SAC’s first cause of action–the First Amendment free speech retaliation claim–alleges that Deputy

King issued the second ticket because Susselman

“shouted at” him during their February 1, 2020 altercation. (ECF No. 33, PageID.608-09, ¶ 62).

To plead this claim, Susselman must plausibly

show (1) that the First Amendment protects his speech,

(2) that he suffered an injury that would deter a person

of “ordinary firmness” from continuing to speak out,

and (3) that Deputy King’s actions were motivated at

least in part by Susselman’s speech. Kesterson v. Kent

State Univ., 967 F.3d 519, 525 (6th Cir. 2020).

Assuming the SAC plausibly establishes the first

two elements, Susselman’s own allegations demonstrate

that Deputy King issued the second ticket solely at

Williams’s behest, not because of any personal animus

towards Susselman.

According to their July 29, 2020 email, Williams

asked Deputy King to issue the second ticket because

App.31a

“it appears the appropriate charge for Mr. Susselman

would be M.C.L. 257.602 Failure to Comply with

Orders or Directions of Police Officers.” (ECF No. 33,

PageID.678-79). Williams then proposed that “[p]rocedurally, I assume we would agree to dismiss the original charge [failure to yield] . . . and then issue the new

ticket under MCL 257.602 [because] I want to make

sure that we have done everything correct within our

control to get the outcome that we deserve.” (Id.,

PageID.679).

Two days later, Deputy King confirmed that “the

new citation will be sent via certified mail [to

Susselman] this morning.” (Id., PageID.677). And he

specifically indicated on the second ticket that it “was

rewritten per PAO [prosecuting attorney’s office] then

mailed to subject.” (Id., PageID.640) (emphasis

added).

Viewing the documentary evidence in Susselman’s

favor, none of the SAC’s factual allegations suggest

that Deputy King issued the second ticket to retaliate

against Susselman for yelling at him during their February 1, 2020 encounter. Consequently, the SAC falls

short of plausibly demonstrating that Deputy King’s

actions were motivated at least in part by

Susselman’s speech. Kesterson, 967 F.3d at 525.

B. Violation of the First Amendment’s

Petition Clause (Count II)

Susselman alleges in a similar vein that Deputy

King violated his First Amendment right to petition

the government because the officer issued the second

ticket in retaliation for Susselman’s successful defense

against the first citation. (ECF No. 33, PageID.609,

¶ 66). The First Amendment forbids state actors from

App.32a

“abridging . . . the right of the people . . . to petition the

Government for a redress of grievances.” U.S. Const.

amend. I. Today, the Petition Clause encompasses

“the submission of complaints and criticisms to

nonlegislative and nonjudicial public agencies like a

police department.” Gable v. Lewis, 201 F.3d 769, 771

(6th Cir. 2000).

Susselman presupposes that mounting his criminal

defense against the first citation is a form of petitioning

the government. (ECF No. 33, PageID.609, ¶ 65). The

Sixth Circuit Court of Appeals expressly rejected this

view in Peffer v. Thompson, 754 F. App’x 316, 319 (6th

Cir. 2018). In that case, the Sixth Circuit found no

authorities holding “that the right to access courts

under the Petition Clause of the First Amendment

extends to a defendant’s actions in a criminal proceeding.” Id. And like the defendants in Peffer, Susselman

failed to locate any himself. The right to petition claim,

therefore, cannot withstand Rule 12(b)(6) dismissal.

C. Violation of Substantive Due Process

(Count VI)

Susselman next asserts that Deputy King deprived

him of substantive due process when the officer issued

the second ticket without probable cause. (ECF No. 33,

PageID.613, ¶¶ 78-79). This claim faces two insurmountable obstacles.

To begin with, the United States Supreme Court

declined to recognize this exact cause of action over 25

years ago in Albright v. Oliver, 510 U.S. 266 (1994).

There, the Court concluded that the Fourteenth

Amendment’s Due Process Clause does not create a

substantive right “to be free from criminal prosecution

except upon probable cause.” Id. at 268; see also Lester

App.33a

v. Roberts, 986 F.3d 599, 606 (6th Cir. 2021) (noting

that Albright overturned earlier Sixth Circuit

precedents suggesting that “defendants had a substantive-due-process right under the Fourteenth

Amendment to be free from malicious prosecutions

that ‘shock the conscience.’”). The SAC advances the

same outmoded theory that Albright repudiated.

Nor would Susselman prevail if he instead

labeled the substantive due process claim as a Fourth

Amendment malicious prosecution claim. At the pleading stage, malicious prosecution requires plausible allegations that (1) the defendant “made, influenced, or

participated in the decision to prosecute,” (2) the government lacked probable cause, (3) the proceeding

caused the plaintiff to suffer a deprivation of liberty,

and (4) the prosecution terminated in the plaintiff’s

favor. Jones v. Clark County, 959 F.3d 748, 756 (6th

Cir. 2020).

The SAC omits any allegations that the state

court proceedings against Susselman deprived him of

his liberty, i.e., the third prong. He was “never arrested

or incarcerated, required to post bail or bond, or subjected to any travel restrictions.” Noonan v. Cty. of

Oakland, 683 F. App’x 455, 463 (6th Cir. 2017). And

“despite the aggravation, financial cost, and personal

humiliation” that Susselman may attribute to

defending against the second ticket, none of these

factors constitute “a deprivation of liberty” under the

Fourth Amendment. Id.

Since the substantive due process claim finds no

support in either the Supreme Court’s or the Sixth

Circuit’s jurisprudence it must be dismissed.

App.34a

D. Civil Conspiracy (Count VIII)

Section 1983 civil conspiracy claims require

plausible allegations of “a single plan, where each

alleged coconspirator shares in the general conspiratorial objective, and an overt act committed in furtherance of the conspiracy that causes injury to the

plaintiff.” Marvaso v. Sanchez, 971 F.3d 599, 614 (6th

Cir. 2020). The plaintiff’s injuries must stem from a

violation of federal law when section 1983 is implicated.

Id.

The SAC posits that Deputy King and Williams

“acted in concert to violate Plaintiff’s 1st Amendment

and 14th Amendment procedural and substantive due

process rights.” (ECF No, 33, PageID.614, ¶ 84). But

Susselman already waived his procedural due process

claim, and since he fails to plausibly assert that

Deputy King otherwise violated his constitutional

rights, the section 1983 conspiracy claim does not

state a claim upon which the Court may grant relief.

See Stricker v. Twp. of Cambridge, 710 F.3d 350, 365

(6th Cir. 2013) (affirming the dismissal of a section

1983 conspiracy claim because the plaintiff failed to

plausibly allege an underlying constitutional harm).

E. Municipal Liability (Count VII)

Susselman attributes Deputy King’s alleged constitutional violations to the Washtenaw County Sheriff’s

Office and Washtenaw County through the doctrine

of municipal liability. (ECF No. 33, PageID.613-14,

¶ 82).

Municipalities may be held accountable under

section 1983 only where their policies or customs cause

the alleged constitutional violation. Monell v. Dep’t of

App.35a

Soc. Servs., 436 U.S. 658, 694 (1978). “Municipal

liability may attach for policies promulgated by the

official vested with final policymaking authority for

the municipality.” Miller v. Calhoun County, 408 F.3d

803, 813 (6th Cir. 2005).

For his part, Susselman neglects to pinpoint the

policies, customs, or established practices that violated

his constitutional rights. Shamaeizadeh v. Cunigan,

338 F.3d 535, 557 (6th Cir. 2003) (affirming the

dismissal of a municipal liability claim where the

plaintiff failed to “allege any facts linking the conduct

of individual officers to a policy of the City of Richmond

or its police department.”). The SAC fails to identify

the final policymaker(s) who purportedly authorized

Deputy King to include “fabricated and perjured

statements” in the second ticket. (ECF No. 33,

PageID.613-14, ¶ 82); Mills v. County of Lapeer, 498

F. App’x 507, 513 (6th Cir. 2012) (upholding the

dismissal of a municipal liability claim where the plaintiff could not identify the final policymaker). And the

Court already concluded that none of Deputy King’s

individual actions ran afoul of the federal constitution. Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir.

2007) (“There can be no Monell municipal liability

under § 1983 unless there is an underlying unconstitutional act.”). For all these reasons, Susselman cannot

proceed with his municipal liability claim against the

Washtenaw County Sheriff’s Office and Washtenaw

County.4

4 The Washtenaw Defendants overlooked yet another reason

why the municipal liability claim against the Washtenaw County

Sheriff’s Office lacks merit. “In Michigan, county sheriff’s departments . . . are not legal entities capable of being sued.”

Desandre v. Cty. of Oscoda, No. 20-12209, 2021 U.S. Dist. LEXIS

App.36a

F. Malicious Prosecution (Count IX)

To state a plausible claim for malicious prosecution

under Michigan law, the plaintiff must allege that (1)

the defendant initiated a criminal prosecution against

him, (2) the criminal proceedings terminated in his

favor, (3) the private person who instituted or

maintained the prosecution lacked probable cause for

his actions, and (4) the action was undertaken with

malice or a purpose in instituting the criminal claim

other than bringing the offender to justice. Walsh v.

Taylor, 263 Mich. App. 618, 632-33 (2004).

Any police officer, though, “who makes a full and

fair disclosure to the prosecutor is not subject to an

action for malicious prosecution.” Payton v. City of

Detroit, 211 Mich. App. 375, 395 (1995). Police officers

may be held liable for malicious prosecution “only”

where they “knowingly swear to false facts in a complaint, without which there is no probable cause.” Id.

(cleaned up).

Susselman points to two “fabrications” in the

second ticket from which he asks the Court to infer

that Deputy King issued the citation with malice: (1)

the incorrect date and time of the incident, and (2)

Deputy King’s statement that his cruiser was parked

“in the middle of the road,” which purportedly conflicts

162432, at *18 (E.D. Mich. Aug. 27, 2021) (cleaned up); see also

Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991) (holding

that “the Sheriff’s Department is not a legal entity subject to suit”);

Hughson v. County of Antrim, 707 F. Supp. 304, 306 (W.D. Mich.

1988) (same). The appropriate municipal party is Washtenaw

County itself. Nallani v. Wayne County, 665 F. App’x 498, 512

(6th Cir. 2016) (holding that “a suit against a county sheriff in

his or her official capacity is nothing more than a suit against the

county itself”) (internal quotation marks omitted).

App.37a

with Susselman’s photograph depicting the vehicle

“parked in the middle of the eastbound lane” with “the

westbound lane entirely open.” (ECF No. 33, PageID.

602, ¶ 34; PageID.618). Neither of these inaccuracies

plausibly demonstrate that Deputy King lied about the

circumstances of his February 1, 2020 encounter with

Susselman.

Regarding the mistaken timeframe, the state

district court permitted Williams to orally amend the

second ticket after finding that the date and time “had

been automatically generated by the court’s computer

system and therefore Deputy King had not committed

perjury.” (ECF No. 33, PageID.605, ¶ 49). And because the state district court already decided this

question, the Court lacks the authority to disturb its

determination. See Hancock v. Miller, 852 F. App’x

914, 920 (6th Cir. 2021) (stating that the RookerFeldman doctrine precludes “a lower federal court”

from reviewing “a state court order”).

More importantly, due to the six-month disparity

between February 1 (the actual date of Susselman’s

altercation with Deputy King) and July 31 (the

second ticket’s incorrect date), it is implausible that

Deputy King would perjure himself, and jeopardize

his law enforcement career, by subscribing to the

patent falsehood that Susselman was somehow involved

in two identical incidents, with the same officers, at

the same location, only months apart. See Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (holding that the

plaintiff fails to state a claim “where the well-pleaded

facts do not permit the court to infer more than the

mere possibility of misconduct”).

Even Susselman himself acknowledged in an

August 27, 2020 letter to Williams:

App.38a

Deputy King has falsely alleged that the

events which are the basis of the new ticket

occurred on July 31, 2020, at 6:58 A.M.

Deputy King has thus claimed that I committed the same traffic violation on two

different days, at two different times, six

months apart, and that he was present on

both occasions investigating the same traffic

accident. The probability of such a coincidence

happening in this universe, rather than in a

parallel universe, is infinitesimal.

(ECF No. 33, PageID.661).

Sussleman’s belief that Deputy King committed

perjury by conjuring up such a far-fetched, demonstrably false narrative is just as unlikely. See Illumina,

Inc. v. BGI Genomics Co., No. 19-03770, 2020 U.S.

Dist. LEXIS 19216, at *16-17 (N.D. Cal. Feb. 5, 2020)

(holding that the defendant’s assertion that the

plaintiff’s “attorneys and their expert would knowingly

make patently false statements about prior art that

were contradicted by materials they cited and that

could be readily exposed by the opposing party” was

“implausible”).

As for the second “fabrication,” whether Deputy

King actually parked his cruiser “in the middle of the

road” amounts to a quibble over semantics. Susselman’s

photograph shows the patrol vehicle located perpendicular to the flow of traffic, entirely blocking the eastbound lane of Ann Arbor Road, with a portion of the

westbound lane left open. (ECF No. 33, PageID.618).

Although the cruiser is not precisely centered, Deputy

King’s colloquial use of the phrase “in the middle of

the road” is accurate enough that it cannot plausibly

App.39a

be construed as untrue, let alone knowingly false.

Payton, 211 Mich. App. at 395.

Because Susselman does not allege that Deputy

King lied about any other aspect of their encounter,

he cannot plausibly establish that the officer failed to

make a “full and fair disclosure” on the second ticket.

Id. As a result, the malicious prosecution claim is

dismissed.

G. Intentional Infliction of Emotional Distress (Count X)

To state a plausible claim for intentional infliction

of emotional distress under Michigan law, the plaintiff

must allege “(1) extreme and outrageous conduct, (2)

intent or recklessness, (3) causation, and (4) severe

emotional distress.” Hayley v. Allstate Ins. Co., 262

Mich. App. 571, 577 (2004). The purported conduct

must be “so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious and utterly

intolerable in a civilized community.” Graham v. Ford,

237 Mich. App. 670, 674 (1999).

Susselman maintains that Deputy King’s issuance

of the second ticket reaches this high threshold because the officer resorted to “perjured testimony in

order to charge” him “with a criminal offense.” (ECF

NO. 33, PageID.615). Because the Court already

concluded, however, that Deputy King fully and

fairly disclosed his interactions with Susselman, and

since the SAC relies exclusively upon threadbare conclusions that Deputy King issued the second ticket

intending to cause Susselman severe emotional distress, the intentional infliction of emotion distress

claim lacks the requisite plausibility to survive a

App.40a

motion dismiss. See Cebulski v. Belleville, 156 Mich.

App. 190, 195 (1986) (affirming the dismissal of an

intentional infliction of emotional distress claim where

the complaint failed to allege that “the officer stopped

and detained plaintiff for the purposes of inflicting

severe emotional distress.”); Stobbe v. Parrinello, No.

201237, 1998 Mich. App. LEXIS 825, at *7 (Mich. Ct.

App. Nov. 24, 1998) (same). Accordingly,

IT IS ORDERED that the Washtenaw Defendants’

corrected motion to dismiss the complaint (ECF No.

40) is granted.

IT IS FURTHER ORDERED that Deputy King,

the Washtenaw County Sheriff’s Office, and Washtenaw

County are dismissed from this case with prejudice.

IT IS FURTHER ORDERED that Susselman’s

motion for leave to file a sur-reply (ECF No. 46) is

granted.

/s/ Hon. Bernard A. Friedman

Senior United States District Judge

Dated: June 21, 2022

Detroit, Michigan

App.41a

ORDER DENYING PETITION FOR

REHEARING EN BANC, U.S. COURT

OF APPEALS FOR THE SIXTH CIRCUIT

(SEPTEMBER 5, 2024)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

MARC M. SUSSELMAN,

Plaintiff-Appellant,

v.

WASHTENAW COUNTY SHERIFF’S OFFICE;

JONATHAN KING; WASHTENAW COUNTY,

MICHIGAN; SUPERIOR TOWNSHIP, MICHIGAN,

Defendants-Appellees.

________________________

No. 23-1486

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit.

Before: GIBBONS, BUSH, and MURPHY,

Circuit Judges.

ORDER

The court received a petition for rehearing en

banc. The original panel has reviewed the petition

for rehearing and concludes that the issues raised in

the petition were fully considered upon the original

submission and decision of the case. The petition then

App.42a

was circulated to the full court. No judge has requested

a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Kelly L. Stephens

Clerk

 Judge Davis recused herself from participation in this ruling.

App.43a

OPINION AND ORDER DENYING

PLAINTIFF’S MOTION FOR

RECONSIDERATION, U.S. DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

(JULY 6, 2022)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

________________________

MARC M. SUSSELMAN,

Plaintiff,

v.

WASHTENAW COUNTY

SHERIFF’S OFFICE, ET AL.,

Defendants.

________________________

Civil Action No. 20-cv-12278

Before: Hon. Bernard A. FRIEDMAN,

Senior United States District Judge.

OPINION AND ORDER DENYING

PLAINTIFF’S MOTION FOR

RECONSIDERATION

I.

Introduction

Attorney Marc M. Susselman commenced this

42 U.S.C. § 1983 action against Washtenaw County,

App.44a

the Washtenaw County Sheriff’s Office, and Deputy

Sheriff Jonathan King (collectively, the “Washtenaw

Defendants”) alleging they violated his federal constitutional rights during a state court criminal proceeding

initiated against him for disobeying Deputy King’s

traffic instructions.

Before the Court is Susselman’s motion for

reconsideration of the Court’s June 21, 2022 opinion

and order granting the Washtenaw Defendants’ corrected motion to dismiss the complaint. (ECF No. 50).

The Court will decide the motion without oral argument pursuant to E.D. Mich. LR 7.1(h)(3). For the

following reasons, the Court shall deny the motion.

II. Background

The Court assumes the parties’ familiarity with

the allegations in the second amended complaint

(“SAC”). (ECF No. 33).

Susselman filed this lawsuit on August 21, 2020.

(ECF No. 1). The SAC asserts that Deputy King

violated his First Amendment rights to free speech

(Count I) and to petition the government (Count II),

his Fourteenth Amendment rights to procedural and

substantive due process (Counts V & VI), as well as

state law claims for malicious prosecution (Count IX)

and intentional infliction of emotional distress (Count

X). The SAC further alleges that Deputy King conspired

with Superior Township to violate Sussleman’s constitutional rights and it includes a municipal liability

claim against the Washtenaw County Sheriff’s Office

and Washtenaw County.

The Washtenaw Defendants moved to dismiss

the claims leveled against them. (ECF No. 40). In its

App.45a

June 21, 2022 opinion and order, the Court granted

the Washtenaw Defendants’ motion and dismissed

Deputy King, the Washtenaw County Sheriff’s Office,

and Washtenaw County with prejudice. (ECF No. 49).

Susselman now moves for reconsideration of that

decision. (ECF No. 50).

III. Legal Standards

A party may move for reconsideration of a nonfinal order under E.D. Mich. LR 7.1(h)(2). Because

they are “disfavored,” such motions may be brought

exclusively upon the following grounds:

(A) The court made a mistake, correcting the

mistake changes the outcome of the prior

decision, and the mistake was based on the

record and law before the court at the time of

its prior decision;

(B) An intervening change in controlling law

warrants a different outcome; or

(C) New facts warrant a different outcome and

the new facts could not have been discovered

with reasonable diligence before the prior

decision.

Id.

IV. Analysis

Reconsideration motions are not vehicles for

presenting arguments that could have been raised

before the Court decided the original motion. See Roger

Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d

383, 395 (6th Cir. 2007); DiPonio Const. Co. v. Int’l

Union of Bricklayers & Allied Craftworkers, 739 F.

Supp. 2d 986, 1004 (E.D. Mich. 2010).

App.46a

Nor is it appropriate on a reconsideration motion

to reiterate the same arguments the Court previously

rejected. See Fischer v. United States, No. 19-13020,

2022 U.S. Dist. LEXIS 10234, at *2 (E.D. Mich. Jan.

19, 2022) (“A motion for reconsideration that merely

reasserts the same facts and legal arguments previously

asserted is not proper. . . . ”) (collecting cases);

Saltmarshall v. VHS Children’s Hosp. of Mich., Inc.,

402 F. Supp. 3d 389, 393 (E.D. Mich. 2019) (“A motion

for reconsideration is not intended as a means to allow

a losing party simply to rehash rejected arguments or

to introduce new arguments [that the party could

have raised previously].”).

Susselman’s reconsideration motion falls far short

of the necessary showing under Local Rule 7.1(h)(2).

Since his main theories primarily comprise those

arguments he already raised, and as well as those he

neglected to raise initially, none of them justify

reconsidering the June 21, 2022 opinion and order.

Accordingly,

IT IS ORDERED that Susselman’s motion for

reconsideration (ECF No. 50) is denied.

/s/ Hon. Bernard A. Friedman

Senior United States District Judge

Dated: July 6, 2022

Detroit, Michigan

App.47a

CONSTIUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

U.S. Const., amend. XIV 1

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

App.48a

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.

M.C.L. 257.602.

Compliance with order or

direction of police officer.

A person shall not refuse to comply with a lawful

order or direction of a police officer when that

officer, for public interest and safety, is guiding,

directing, controlling, or regulating traffic on the

highways of this state.

M.C.L. 750.167

Disorderly person

(1) A person is a disorderly person if the person is

any of the following:

(a) A person of sufficient ability who refuses or

neglects to support his or her family.

(b) A common prostitute.

(c) A window peeper.

(d) A person who engages in an illegal occupation

or business.

(e) A person who is intoxicated in a public place

and who is either endangering directly the

safety of another person or of property or is

App.49a

acting in a manner that causes a public

disturbance.

(f)

A person who is engaged in indecent or

obscene conduct in a public place.

(g) A vagrant.

(h) A person found begging in a public place.

(i)

A person found loitering in a house of ill fame

or prostitution or place where prostitution

or lewdness is practiced, encouraged, or

allowed.

(j)

A person who knowingly loiters in or about a

place where an illegal occupation or business

is being conducted.

(k) A person who loiters in or about a police

station, police headquarters building, county

jail, hospital, court building, or other public

building or place for the purpose of soliciting

employment of legal services or the services

of sureties upon criminal recognizances.

(1) A person who is found jostling or roughly

crowding people unnecessarily in a public

place.

(2) If a person who has been convicted of

refusing or neglecting to support his or

her family under this section is charged

with subsequent violations within a

period of 2 years, that person shall be

prosecuted as a second offender or third

and subsequent offender as provided in

section 168, if the family of that person

is then receiving public relief or support.

App.50a

(3) A mother’s breastfeeding of a child or

expressing breast milk does not constitute indecent or obscene conduct under

subsection (1) regardless of whether or

not her areola or nipple is visible during

or incidental to the breastfeeding or

expressing of breast milk.