Petition for Writ of Certiorari — Elizabeth Nelson, et vir, Petitioners v. Robert Scott, et al.
Supreme Court briefJan 5, 2026
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No. 24-2095
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ELIZABETH NELSON; ALBERT D. THROWER,
ROBERT SCOTT, et al.,
Defendants-Appellees.
Oct 6, 2025
KELLY L. STEPHENS, Clerk
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Plaintiffs-Appellants,
FILED
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
ORDER
Before: SUTTON, Chief Judge; BATCHELDER and NALBANDIAN, Circuit Judges.
Elizabeth Nelson and Albert D. Thrower, proceeding pro se, appeal the district court’s
judgment dismissing their civil action brought under 42 U.S.C. § 1983. This case has been referred
to a panel of the court that, upon examination, unanimously agrees that oral argument is not
needed. See Fed. R. App. P. 34(a). Because the district court did not err, we affirm.
The plaintiffs filed this lawsuit in July 2023, raising constitutional and state-law claims
arising from the towing of two vehicles from their residence. They sued the City of Warren and
several city officials (the City Defendants) and two towing companies and their employees (the
Towing Defendants) involved in the alleged trespass and towing.
In their second amended
complaint, they claimed that the defendants violated their constitutional rights and state law by
entering their basement apartment in March 2020 without a search warrant or other authority,
possibly exposing them to COVID-19, illegally towing the vehicles in question, illegally
conducting a “citizen’s arrest,” and forcing them to risk traveling during a pandemic to retrieve
the vehicles.
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No. 24-2095
-2-
The City Defendants moved to dismiss the second amended complaint or, in the alternative,
for summary judgment. A magistrate judge recommended dismissing the City Defendants because
the plaintiffs’ allegations against them failed to state a claim and were in part untimely. The district
court determined that the plaintiffs forfeited their objections to the report and recommendation by
filing them beyond the 14-day deadline. It therefore adopted the report and recommendation,
dismissed the federal claims against the City Defendants, and declined to exercise supplemental
jurisdiction over the state-law claims.
Meanwhile, the plaintiffs filed a third amended complaint, which the district court allowed
to proceed against the Towing Defendants. The plaintiffs claimed that the Towing Defendants
violated their constitutional rights by conspiring with the City Defendants to tow the vehicles and
execute the claimed unlawful arrest. The Towing Defendants moved to dismiss. The magistrate
judge recommended dismissing the claims against the Towing Defendants because they did not
qualify as state actors subject to suit under § 1983. Over the plaintiffs’ objections, the district court
adopted the report and recommendation, dismissed the remaining federal claims, and declined to
exercise supplemental jurisdiction over the state-law claims.
We review de novo a district court’s judgment granting a Federal Rule of Civil Procedure
12(b)(6) motion to dismiss. See Bickerstaff v. Lucarelli, 830 F.3d 388, 395-96 (6th Cir. 2016). To
avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pleadings drafted by pro se litigants should
be held to a less stringent standard than those drafted by lawyers and should be liberally construed,
Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004), but pro se litigants are not exempt from the
requirements of the Federal Rules of Civil Procedure, see Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989).
We begin with the dismissal of the City Defendants. The plaintiffs forfeited appellate
review of those dismissals by failing to file timely objections to the report and recommendation.
See Thomas v. Am, 474 U.S. 140, 155 (1985). Forfeiture is appropriate so “long as a party was
No. 24-2095
-3 properly informed of the consequences of failing to object.” Miller v. Currie, 50 F.3d 373, 380
(6th Cir. 1995). Here, the report and recommendation informed the plaintiffs that any objections
had to be filed within 14 days from service of the report and that “[f]ailure to file specific objections
constitutes a waiver of any further right of appeal.” The report and recommendation was served
on April 9, 2024, and the plaintiffs filed their objections on April 29, 2024, more than 14 days
later. The plaintiffs do not challenge the district court’s timeliness determination on appeal or
otherwise address the City Defendants’ forfeiture argument. Failure to timely object may be
excused “in the interests of justice,” Thomas, 474 U.S. at 155, but the plaintiffs provide no basis
for doing so here.
We therefore turn to the Towing Defendants and the district court’s determination that they
did not engage in state action for purposes of § 1983. Section 1983, by its terms, requires an act
“under color of any statute, ordinance, regulation, custom, or usage, of any State.” The Towing
Defendants are private entities, and thus they are not subject to suit under § 1983 unless certain
discrete circumstances transform their private actions into state actions. See Thomas v. Nationwide
Child, ’s Hosp., 882 F.3d 608,612 (6th Cir. 2018). We have recognized “three tests for determining
whether private conduct is fairly attributable to the state: the public function test, the state
compulsion test, and the nexus test.” Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir.
2009).
The plaintiffs have not satisfied the public function test because the Towing Defendants
did not exercise a power typically reserved to the state, such as elections or eminent domain. See
id. Nor have the plaintiffs satisfied the state compulsion and nexus tests because their allegations
do not support a plausible inference that the City Defendants significantly encouraged or coerced
the Towing Defendants or that there was a sufficiently close nexus between the two. See id. The
mere fact that the state hired the towing companies to tow the vehicles is insufficient; the plaintiffs
“must demonstrate ‘pervasive entwinement’ between the two entities surpassing that of a mere
contractual relationship.” Partin v. Davis, 675 F. App’x 575, 587 (6th Cir. 2017) (quoting
McCarthy v. Middle Tenn. Elec. Membership Corp., 466 F.3d 399,412 (6th Cir. 2006)). Although
No. 24-2095
-4the plaintiffs make conclusory assertions that the Towing Defendants “conspired” and were
“inextricably intertwined” with state actors, they did not allege concrete facts in the third amended
complaint sufficient to state a claim. See Moldowan, 578 F.3d at 395 (requiring that a conspiracy
claim be pled with specificity). And they did not show that the Towing Defendants are state actors
by virtue of their failure to stop a city official from conducting a “citizen’s arrest.”
For these reasons, we AFFIRM the district court’s judgment.
ENTERED BY ORDER OF THE COURT
Kelly L. Stephens, Clerk
/------ ------------------------- ------
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Oct 6, 2025
KELLY L. STEPHENS, Clerk
---
No. 24-2095
ELIZABETH NELSON; ALBERT D. THROWER,
Plaintiffs-Appellants,
v.
ROBERT SCOTT, et al.,
Defendants-Appellees.
Before: SUTTON, Chief Judge; BATCHELDER and NALBANDIAN, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the district court and was submitted on the
briefs without oral argument.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court
is AFFIRMED.
ENTERED BY ORDER OF THE COURT
Kelly L. S^hens, Clerk
V
United States Court of Appeals for the Sixth Circuit
U.S. Mail Notice of Docket Activity
The following transaction was filed on 10/06/2025.
Case Name: Elizabeth Nelson, et al v. Robert Scott, et al
Case Number: 24-2095
Docket Text:
ORDER filed : We AFFIRM the district court's judgment, pursuant to FRAP 34(a)(2)(C).
Mandate to issue. Decision not for publication. Jeffrey S. Sutton, Chief Circuit Judge; Alice M.
Batchelder, Circuit Judge and John B. Nalbandian, Circuit Judge.
The following documents(s) are associated with this transaction:
Document Description: Order
Notice will be sent to:
Ms. Elizabeth Nelson
P.O. Box 1422
Warren, MI 48090
Mr. Albert D. Thrower
P.O. Box 6702
Cleveland, OH 44101
A copy of this notice will be issued to:
Mr. Sandro D. DiMercurio
Ms. Kinikia D. Essix
Mr. Thomas H. Stidham
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No: 24-2095
Filed: October 28, 2025
ELIZABETH NELSON; ALBERT D. THROWER
Plaintiffs - Appellants
v.
ROBERT SCOTT; SERVICE TOWING, INC.; ABLE TOWING, LLC; EDWARD D. HERTZ;
BRUCE HERTZ; SANDRA A. HERTZ; RANDY HERTZ; DENNIS HERTZ; JOHN DOE, City
of Warren Property Maintenance Division Employees; JAMES CUMMINS, Building
Department Director; CITY OF WARREN, MI ZONING DEPARTMENT EMPLOYEES;
CURTIS GAUSS, City of Warren Department of Maintenance; FRANK BADALAMENTE;
MARY MICHAELS; BRIAN KIJEWSKI; MARILYN TREMBATH; JOHN DOE, City of
Warren Police Officer; JOHN DOE, 1-2; CITY OF WARREN, MI; WILLIAM DWYER,
Warren Police Commissioner; WILLIAM REICHLING, Captain; JAMES R. FOUTS, Mayor;
KIMBERLY ELIZABETH BRANSON; JOHN DOE, Warren Policemen (4); EVERETT
MURPHY, City of Warren Field Inspector; PETE WARACK; ANNETTE GATTARI-ROSS; R.
LIPA, City of Warren Rental Inspector; RANDALL SULLIVAN
Defendants - Appellees
MANDATE
Pursuant to the court's disposition that was filed 10/06/2025 the mandate for this case hereby
issues today.
COSTS: None
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.947 Filed 11/20/24 Page 1 of 9
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELIZABETH NELSON, and
ALBERT THROWER
Case No. 2:23-cv-l 1597
Hon. Brandy R. McMillion
Mag. Judge Curtis Ivy, Jr.
Plaintiffs,
v.
ROBERT SCOTT, et. al.,
Defendants.
.
/
ORDER ADOPTING THE RECOMMENDED DISPOSITION OF
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
(ECF NO. 82), OVERRULING PLAINTIFFS’ OBJECTIONS (ECF NO. 83),
GRANTING DEFENDANTS’ MOTION TO DISMISS (ECF NO. 57), AND
DISMISSING THE THIRD AMENDED COMPLAINT (ECF NO. 55)
Plaintiffs Elizabeth Nelson and Albert Thrower (together, “Plaintiffs”) filed
this pro se civil rights action against Defendants City of Warren, James Fouts, Robert
Scott, James Cummins, Curtis Gauss, Frank Badalamente, Mary Michaels, Brian
Kijewski, Marilyn Trembath, Everett Murphy, Pete Warack, Annette Gattari-Ross,
R. Lipa, William Reichling, and William Dwyer (collectively, the “City of Warren
Defendants”) and Defendants Service Towing, Inc., Able Towing, LLC, Dennis
Hertz, Bruce Hertz, Sandra Hertz, Edward D. Hertz, and Randy Sullivan
(collectively, the “Towing Defendants”).
Plaintiffs allege violations of their
constitutional rights and various statutes, under the Fourth, Fifth, and Fourteenth
1
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.948 Filed 11/20/24 Page 2 of 9
Amendments. See generally ECF No. 29. Plaintiffs’ allegations concern the search
of Plaintiffs’ commercial property located in Warren, Michigan and the towing of
vehicles found on that property. Id.
On August 22, 2024, the Court issued an order dismissing the claims against
the City of Warren Defendants. ECF No. 78. Now pending before the Court is the
Towing Defendants’ Motion to Dismiss (ECF No. 57). The motion was fully briefed.
See ECF No. 67,72. On September 30,2024, Magistrate Judge Curtis Ivy, Jr. issued
a Report and Recommendation (R&R) recommending the Towing Defendants’
Motion to Dismiss be granted. Plaintiffs objected to that recommendation and the
Towing Defendants responded to those objections. See ECF No. 82-84.
Having reviewed the objections and conducting a de novo review of the record
and briefs, the Court concludes that Plaintiffs have failed to state a claim against the
Towing Defendants.
Reaching that conclusion, the Court overrules Plaintiffs’
objections and dismisses this case. Accordingly, the Court will ACCEPT AND
ADOPT the recommended disposition of the R&R (ECF No. 82), OVERRULE
Plaintiffs’ Objection (ECF No. 83); GRANT the Towing Defendants’ Motion to
Dismiss (ECF No. 57); and DISMISS WITH PREJUDICE Plaintiffs’ Third
Amended Complaint (ECF No. 55).
2
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.949 Filed 11/20/24 Page 3 of 9
I.
This case was originally filed on July 5, 2023, and the Complaint was
amended on August 18,2023, as a matter of right. See ECF Nos. 1, 25. On August
28, 2023, the Court granted Plaintiffs leave to file a Second Amended Complaint.
See ECF No. 29. On October 23, 2023, the City of Warren Defendants moved to
dismiss the Second Amended Complaint, or in the alternative for summary
judgment. ECF No. 35. The Court granted that motion. See ECF No. 78. The City
of Warren Defendant’s Motion to Dismiss was originally considered by Magistrate
Judge Ivy and he issued a R&R to the Court recommending that the motion be
granted. See ECF No. 46. As a part of that R&R, Magistrate Judge Ivy noted that
the only claims remaining in this case were against the Towing Defendants. Id.
After issuance of the R&R, Plaintiffs filed a Third Amended Complaint
without leave of the Court. See ECF No. 55. The Court found that the filing of the
Third Amended Complaint was premature because the Court had not yet ruled on
the Magistrate Judge’s R&R suggesting dismissal of the Second Amended
Complaint. See ECF No. 78, PageID.866-867, fol. However, the Court allowed the
Third Amended Complaint to stand as to the Towing Defendants because they had
filed a Motion to Dismiss the Third Amended Complaint (ECF No. 57). Therefore,
for the purpose of this Motion, the Third Amended Complaint is the operative
complaint.
3
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.950 Filed 11/20/24 Page 4 of 9
The Third Amended Complaint alleges that Plaintiffs’ Fourth, Fifth, and
Fourteenth Amendment rights were violated when the Towing Defendants conspired
with the City of Warrant Defendants to unlawfully tow their vehicles. ECF No. 55,
PageID.600-601. Plaintiffs assert that the Towing Defendants were acting under the
color of state law when they acted in concert with the City of Warren Defendants.1
Id. The Towing Defendants move to dismiss the complaint on the basis that they are
not state actors subject to suit under 42 U.S.C. §1983. Magistrate Judge Ivy found
that alone as a basis for dismissal. ECF No. 82, PageID.885. Magistrate Judge Ivy
also recommends, with dismissal of the federal claims, the Court decline to exercise
supplemental jurisdiction and dismiss the state law claims against the Towing
Defendants as well. Id. at PageID.889.
II.
Pursuant to Federal Rule of Civil Procedure 72(b), if a party objects to a
Magistrate Judge’s report and recommendation, the District Judge, in conducting a
de novo review, can “accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed.
R. Civ. P. 72(b)(3). Objections must be stated with specificity. Thomas v. Am, 474
U.S. 140, 151 (1985) (citation omitted); Mira v. Marshall, 806 F.2d 636, 637 (6th
1 Neither party has objected to the recitation of facts as found in the R&R (ECF No. 82,
PageID.881-883), so the Court will adopt those facts as the basis for its decision.
4
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.951 Filed 11/20/24 Page 5 of 9
Cir. 1986). “A general objection to the entirety of the magistrate’s report has the
same effects as would a failure to object.” Howard v. Sec ’y ofHealth & Hum. Servs.,
932 F.2d 505, 509 (6th Cir. 1991).
Moreover, an objection that “merely restates the arguments previously
presented does not sufficiently identify alleged errors on the part of the magistrate
judge.” See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004). The
Court “is not obligated to address objections made in this form because the
objections fail to identify the specific errors in the magistrate judge’s proposed
recommendations, and such objections undermine the purpose of the Federal
Magistrate’s Act, which serves to reduce duplicative work and conserve judicial
resources.” See Owens v. Comm’rofSoc. Sec., No. l:12-CV-47,2013 WL 1304470
at *3, 2013 U.S. Dist. LEXIS 44411 at *8 (W.D. Mich. Mar. 28, 2013) (citations
omitted).
When a party objects to portions of a Magistrate Judge’s report and
recommendation, the Court reviews those portions de novo. See Fed.R.Civ.P.
72(b)(3); Lyons v. Comm ’r ofSoc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004).
The Court has no duty to conduct an independent review of the portions of the R&R
to which the parties did not object. Thomas, 474 U.S. at 153. However, a de novo
review of proper objections requires at least a review of the evidence before the
Magistrate Judge; and the Court may not act solely on the basis of a Magistrate
5
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.952 Filed 11/20/24 Page 6 of 9
Judge’s report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1215
(6th Cir. 1981).
III.
Plaintiffs submit nine objections to the Magistrate Judge’s R&R, however
none of the objections address the legal basis of the recommended disposition of the
Towing Defendants’ motion. See generally ECF No. 83. The Magistrate Judge
recommends dismissal of the federal claims against the Towing Defendants because,
as alleged in their motion, Plaintiffs fail to show any state action on the part of the
private towing defendants as required to successfully allege a § 1983 claim. See
ECF No. 82, PageID.884-889. This Court agrees.
To hold a private entity liable under a § 1983 claim, a plaintiff must show that
the entity’s actions are reasonably attributable to the state. This can be done through
the Public Function Doctrine, state compulsion, or a close nexus between the state
and the private entity. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Because Plaintiffs do not address the Magistrate Judge’s analysis of this specifically,
the Court accepts the Magistrate Judge’s recommended disposition on this issue.
However, the Court will still address each of Plaintiffs’ objections in turn.
Objection Nos. 1,3,4, 6:
Plaintiffs lodge several objections that relate to the City of Warren Defendants
or other aspects of the facts alleged in this case. Each of these objections is unrelated
6
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.953 Filed 11/20/24 Page 7 of 9
to the any allegations against the Towing Defendants. Because these objections do
not address any facts or conclusions of law at issue in the Towing Defendants’
Motion to Dismiss or the Magistrate Judge’s R&R, each of these objections are
overruled.
Objection No. 2:
Plaintiffs state that Magistrate Judge Ivy erred by stating Plaintiffs did not
state a Fourth, Fifth, or Fourteenth Amendment claim. This objection merely
disagrees with the Magistrate Judge generally and does nothing to address any
specific objection to the Magistrate Judge’s analysis of state action in dismissing
Plaintiffs’ claims against the Towing Defendants. General objections to the entirety
of an R&R have the same effects as a failure to object. See Howard, 932 F.2d at
509. Consequently, this objection is overruled.
Objection No. 5:
Plaintiffs state that an appeal has been filed and as result the trial court is
divested of any further jurisdiction. This objection is also overruled. There was no
final judgment issued in this case with respect to the Towing Defendants. The Court
previously adopted the Magistrate Judge’s R&R recommending dismissal of the
Second Amended Complaint as to the City of Warren Defendants. The Towing
Defendants remained active defendants in this case, and later filed their own motion
to dismiss. The R&R currently before the Court is that recommending dismissal of
7
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.954 Filed 11/20/24 Page 8 of 9
all claims against the Towing Defendants; and the Court has jurisdiction to rule on
these remaining claims.
Objection Nos. 7,8;
Plaintiffs state that the Magistrate Judge erred by not accepting the Second
Amended Complaint (ECF No. 29) as the operative complaint. As noted earlier,
Plaintiffs filed a Third Amended Complaint, in response to the Magistrate Judge’s
recommendation to dismiss the Second Amended Complaint. See supra at fnl.
Therefore, the Third Amended Complaint became the operative complaint.
Accordingly, these objections are overruled.
Objection No. 9:
Objection No. 9 is merely a restatement of previous argument, previous court
filings, and other facts already considered. A rehashing of previous claims is not a
proper objection, and the Court is not require to entertain repeat argument. See
VanDiver, 304 F.Supp.2d at 937. Therefore, this objection is overruled.
IV.
The R&R also recommends that the Court decline to exercise supplemental
jurisdiction and dismiss all state law claims against the Towing Defendants. ECF
No. 82, PageID.889. With dismissal of the federal civil rights claims, the Court
agrees that it would be proper to also dismiss the state law claims against the Towing
Defendants. See Sharwell v. Selva, 4 F. App’x 226,227 (6th Cir. 2001).
8
Case 2:23-cv-11597-BRM-CI ECF No. 86, PagelD.955 Filed 11/20/24 Page 9 of 9
V.
Accordingly, the Court ACCEPTS AND ADOPTS the recommended
disposition of Magistrate Judge Ivy’s Report and Recommendation (ECF No. 46).
The Towing Defendants’ Motion to Dismiss (ECF No. 57) is GRANTED.
Plaintiff’s Objections (ECF No. 83) are OVERRULED.
IT IS HEREBY ORDERED that all federal claims as to the Towing
Defendants are DISMISSED WITH PREJUDICE. Plaintiffs’ state law claims
against the Towing Defendants are DISMISSED WITHOUT PREJUDICE to be
refiled in state court, if the Plaintiffs so desire.
THIS IS A FINAL ORDER THAT CLOSES THE CASE.
IT IS SO ORDERED.
Dated: November 20, 2024
s/Brandv R. McMillion
Brandy R. McMillion
United States District Judge
9
Case 2:23-cv-11597-BRM-CI ECF No. 46, PagelD.526 Filed 04/09/24 Page 1 of 25
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELIZABETH NELSON and
ALBERT THROWER,
Plaintiffs,
v.
Brandy R. McMillion
United States District Judge
ROBERT SCOTT, etal.,
Defendants.
Curtis Ivy, Jr.
United States Magistrate Judge
Case No. 23-11597
______________________________________ /
REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION TO
DISMISS AND FOR SUMMARY JUDGMENT (ECF No. 35)
I.
PROCEDURAL HISTORY
Plaintiffs Elizabeth Nelson and Albert Thrower filed this case on July 5,
2023. (ECF No. 1). The operative amended complaint was filed on August 25,
2023. (ECF No. 29). Defendants Badalamente, Cummins, Dwyer, Fourts, Gauss,
Kijewski, Lipa, Michaels, Murph, Reichling, Ross, Scott, Trembath, Warack, the
City of Warren, and City of Warren zoning department moved to dismiss the
amended complaint and for summary judgment. (ECF No. 35). The motion is
fully briefed. This matter was referred to the undersigned for all pretrial matters.
(ECF No. 44).
For the reasons discussed below, the undersigned recommends that the
motion to dismiss be GRANTED.
Case 2:23-cv-11597-BRM-CI ECF No. 46, PagelD.527 Filed 04/09/24 Page 2 of 25
II.
AMENDED COMPLAINT ALLEGATIONS
This lawsuit is about a search of Plaintiffs’ residential building located in
Warren, Michigan, and about the City of Warren towing Nelson’s cars that were
parked on the property. At the time of the alleged events, Thrower was trying to
evict tenant Kimberly Branson, who occupied the upper level of the Warren
property, but the eviction was stayed beginning in March 2020 because of the
Covid-19 pandemic. (ECF No. 29, PageID.87, 91). Thrower told Branson that
she was only allowed in the basement for emergency purposes. While they
primarily resided in Ohio, Nelson and Thrower used the basement as their
residence (Id. at PageID.89). On March 11, 2020, Branson used her key to the
basement and allowed Defendants Scott, Cummins, Gauss, Badalemente, Kijewski,
Murphy, Warack, Lipa, and Ghaham to enter it. These Defendants did not have a
search warrant and despite the ongoing pandemic did not wear a mask inside the
premises. (Id. at PageID.90). Plaintiffs assert that Branson allowed the
Defendants in the basement because she was a “secret informant” for the City of
Warren. (Id. at PageID.90). Plaintiffs learned of Defendants’search of the
residence on April 23, 2020.1 (Id. at PageID.91).
1 Plaintiff’s wrote “4/23.” Read in context, they did not mean that they found out about
the search during April 2023; rather, they became aware on April 23,2020.
2
Case 2:23-cv-11597-BRM-CI ECF No. 46, PagelD.528 Filed 04/09/24 Page 3 of 25
On July 7, 2021, Judge Chumra of the 37th District Court issued a warrant
to tow vehicles on Plaintiffs property. The warrant authorized towing of
“inoperable vehicles.” (Id. at PageID.93). Two vehicles were towed from the
property that day, but according to Plaintiffs they were towed before Judge
Chumra’s order was issued. The same day Defendant Scott wrote a ticket for
having an unsafe structure for human habitation at Plaintiffs and Branson’s
Warren residence. (Id.). Some Defendants removed Plaintiffs’ property that
included grills, wood, and drainage piping, and charged Plaintiffs $687.50 for
“illegally” taking that property. (Id. at PageID.94).
On July 8, 2021, Thrower went to the tow yard to retrieve the vehicles.
Defendant Hertz stalled Thrower while Defendant Scott was on his way to the tow
yard. When Scott arrived, he threw Thrower against the wall and conducted a
citizen’s arrest for the unsafe structure-for-habitation ticket. (Id. at PageID.94-95).
While restraining him, Scott searched through Thrower’s bag. (Id. at PageID.95).
Thrower alleges that Scott lacked authority to conduct a citizen’s arrest for a
misdemeanor charge. Warren police then arrived but did not arrest Scott for
kidnapping; instead they arrested Thrower on the misdemeanor housing violation.
(frZ).
The claims are as follows. Claim One alleges that Scott, Gauss, Cummins,
Badalamente, Kijewski, Lipa, Murphy, Warack, Michaels, Trembeth, and Ross
3
Case 2:23-cv-11597-BRM-CI ECF No. 46, PagelD.529 Filed 04/09/24 Page 4 of 25
violated the Fourth and Fourteenth Amendments by illegally entering the basement
apartment without a search warrant or other authority. (Id. at PageID.97). In
Claim Two, Plaintiffs assert that those same Defendants entered the property
without wearing masks or gloves, thereby exposing Plaintiffs to a “state created
risk” of contracting Covid-19 in violation of the Fourth, Fifth, and Fourteenth
Amendments. (Id.). Claim Three alleges that towing the vehicles on July 7, 2021,
violated the Fourth, Fifth, and Fourteenth Amendments because both cars were
operable and Plaintiffs were not given notice and an opportunity to be heard before
the cars were taken. (Id. at PagelD.97-98). Claim Four says that Scott violated the
Constitution by conducting a citizen’s arrest, restraining Thrower and spitting on
him which exposed Thrower to Covid-19. (Id. at PageID.98). Claim Five alleges
that Scott’s actions during the alleged arrest constituted assault, battery, and
kidnapping. (Id.). In Claim Six, Plaintiffs stated that the Defendants’ actions as
stated in the complaint exposed them to a state created risk because they had to
retrieve the towed vehicles during a pandemic. (Id. at PageID.99). Finally, in
Count Seven, Plaintiffs assert that “Per facts rewritten herein intentional infliction
of emotional distress.” (Id.).
III.
ANALYSIS AND RECOMMENDATIONS
A.
Governing Standards
4
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When deciding a motion to dismiss under Rule 12(b)(6), the Court must
“construe the complaint in the light most favorable to plaintiff and accept all
allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim
need not contain “detailed factual allegations,” but it must contain more than
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action”). Facial plausibility is established “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an
inference depends on a host of considerations, including common sense and the
strength of competing explanations for the defendant's conduct.” 16630 Southfield
Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
The Court holds pro se complaints to “less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Yet
even in pleadings drafted by pro se parties, “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77
(6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
5
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“[C]ourts may not rewrite a complaint to include claims that were never presented
... nor may courts construct the Plaintiffs legal arguments for him. Neither may
the Court ‘conjure up unpled allegations^]”’ Rogers v. Detroit Police Dept., 595
F. Supp. 2d 757, 766 (E.D. Mich. 2009) (Ludington, J., adopting report and
recommendation of Binder, M.J.); see also, Evans v. Mercedes Benz Fin. Servs.,
LLC, No. 11-11450, 2011 WL 2936198, at *2 (E.D. Mich. July 21, 2011) (Cohn,
J.) (“Even excusing plaintiffs failure to follow Rules 8(a)(2) and 10(b), a pro se
plaintiff must comply with basic pleading requirements, including Rule
12(b)(6)”).
B.
Discussion
Some background on Plaintiffs’ prior litigation is necessary before
addressing Defendants’ motion. Plaintiffs sued many of the same defendants in a
2022 lawsuit challenging the towing of four vehicles during May 2020 from the
same property. See Case No. 22-10918. That case was dismissed following
motions to dismiss and for summary judgment being granted. Defendants here
point to the similarity of the claims in the cases to argue that this lawsuit should
also be dismissed. (ECF No. 35). Some claims are similar, such as Plaintiffs’
claims that defendants exposed them to Covid-19. But the claims are different
enough that the undersigned does not rely on the 2022 case here.
1.
Thrower’s Pro Se Status
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At the outset of their brief, Defendants assert that the Court should not give
Thrower’s complaint the same latitude it would other pro se complaints because
Thrower is an experienced litigator having filed many lawsuits here and in Ohio,
and in some courts is banned from filing lawsuits without leave because of the
frivolous and vexatious nature of his claims. (ECF No. 35, PagelD. 173-75).
The undersigned will evaluate the complaint under the Fed. R. Civ. P.
12(b)(6) standards and will give due consideration to the fact that Plaintiffs are
unrepresented. This means that that undersigned holds the complaint to less
stringent standards, but it does not mean that the undersigned will plead facts for
the Plaintiffs to support conclusory allegations.
2.
Covid-19 and State Created Danger
Defendants argue that the claims related to exposing Plaintiffs to Covid-19,
by entering the residence without masks and forcing them to go the tow yard
during the pandemic, should be dismissed for failure to state a “state created
danger” claim. The undersigned agrees that the claims should be dismissed for
two reasons.
First, Defendants are correct that Plaintiffs did not state a viable claim. The
“state created danger” doctrine is a substantive due process claim that can provide
for holding a government actor liable for injury to a private person. To succeed on
the claim, the plaintiff must show “(1) an affirmative act by the governmental actor
7
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either created or increased the risk that the plaintiff would be exposed to the
injurious conduct of the private person; (2) the governmental actor’s act especially
endangered the plaintiff or a small class of which the plaintiff was a member; and
(3) the governmental actor had the requisite degree of culpability.” Hunt v.
Sycamore Cmty. Sch. Dist. Bd. ofEduc., 542 F.3d 529, 534 (6th Cir. 2008)
(citation omitted). Plaintiffs’ claims cannot succeed because their allegations do
not show that any of the Defendants especially endangered their safety. And
importantly, as Defendants note, they did not create the pandemic and the dangers
of the virus were not limited to just Plaintiffs. (ECF No. 35, PagelD. 189).
The second reason why this claim fails is Plaintiffs lack standing.2 This
issue is the basis for dismissing similar claims in the 2022 lawsuit. As stated there,
“[t]o have Article III standing to sue in federal court, plaintiffs must demonstrate,
among other things, that they suffered a concrete harm. No concrete harm, no
standing.” Transunion LLC v. Ramirez, 594 U.S. 413,417 (2021). Despite
Plaintiffs’ allegations about being at risk for Covid-19 complications, they do not
allege that they caught the virus while in Michigan. Had they, the claim would still
fail because placing the blame on Defendants’ conduct, in the early days of the
global pandemic, is too tenuous.
2 Because the standing issue goes to this Court’s subject matter jurisdiction, it can be
raised sua sponte. Loren v. Blue Cross & Blue Shield ofMich., 505 F.3d 598, 607 (6th Cir.
2007).
8
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3.
Defendants City of Warren, Dwyer, Fonts, and Reichling
Defendants City of Warren, Dwyer, Fonts, and Reichling argue they should
be dismissed because Plaintiffs pleaded no facts establishing that they violated a
federal or state law. They point out that Plaintiffs use the universal “Defendants”
to attempt to state claims against all defendants, but made no specific, non-
conclusory allegations against them. Plaintiffs did not address this argument in
response.
It is true that Plaintiffs did not name either of these defendants in Counts
One through Five of the amended complaint. In Count Six, Plaintiffs stated that
“Defendants” actions exposed them to a State Created Danger. (ECF No. 29,
PageID.99). The undersigned has already recommended that the “state created
danger” claims be dismissed. Count Seven, for intentional infliction of emotional
distress, names no Defendants, so presumably it is addressed to all Defendants.
Allegations that reference these defendants by name are conclusory.
Plaintiffs allege that the City of Warren “is being sued for ‘failure to train’ [its]
employees.” (ECF No. 29, PageID.88). To successfully sue a municipality for
failure to train, Plaintiffs needed to address the “adequacy of the training program
in relation to the tasks the particular officers must perform.” City of Canton v.
Harris, 489 U.S. 378, 390 (1989). There are no such allegations in the complaint.
The City of Warren should be dismissed.
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They allege that Warren Mayor Fonts acted in conspiracy with the other
individual defendants to violate Plaintiffs constitutional rights. (ECF No. 29,
PageID.87). To state a conspiracy claim under § 1983, a plaintiff must show, not
merely conclude: (1) a single plan, (2) that the alleged co-conspirator shared in the
general conspiratorial objective, and (3) that an overt act was committed in
furtherance of the conspiracy that deprived the plaintiff of his or her civil
rights. Hooks v. Hooks, 771 F.2d 935, 943-44 (6thCir. 1985). Merely stating that
the defendant was part of a conspiracy to violate the plaintiffs rights does not
satisfy the pleading standards and fails to state a conspiracy claim. Plaintiffs also
allege that Fonts issued an emergency declaration on February 20, 2020, about
Covid-19. (Id. at PageID.90). This fact does not establish any wrongdoing. They
later allege that Fonts issued a news release about bad landlords, which Plaintiffs
allege is part of the conspiracy. (Id. at PageID.96). This allegation does not state a
conspiracy claim, nor does the issuance of a news release, without more facts,
establish entitlement to any relief. Fouts should be dismissed.
Defendant Warren Police Commissioner Dwyer is included in the same
conclusory statements about being part of a conspiracy to violate Plaintiffs’ rights;
the conspiracy claim should be dismissed. (Id. at PageID.87). Plaintiffs also state
that Dwyer was among ten other defendants who failed to find out about whose
cars were parked at the property on July 7,2021, or whether the cars were
10
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operable. {Id. at PageID.96). First, it is unclear how failure to discover the
ownership of the vehicles entitles Plaintiffs to relief considering their claim is that
the order permitting taking the cars specified that only inoperable cars could be
taken. Second, the allegation against the Commissioner of the Warren Police
Department that he failed to figure out whether the vehicles were operable appears
to be a claim that he violated the order to tow inoperable vehicles. As much as this
is a federal claim, it sounds in supervisory liability. Plaintiffs allege that Dwyer is
sued in his individual capacity for failure to train his police officers. {Id. at
PageID.88-89). This assertion not only lacks factual support about a faulty
training program, but it also appears to be an attempt to sue Dwyer for the actions
of his subordinates. To establish supervisory liability, a plaintiff must establish
that the supervisory official “encouraged the specific incident of misconduct or in
some other way directly participated in it.” Phillips v. Roane Cnty., 534 F.3d 531,
543 (6th Cir. 2008) (citation and quotation marks omitted). There are no such
allegations in the amended complaint. Dwyer should be dismissed.
Plaintiffs mention that Fouts and Dwyer, as policymakers, had a custom and
policy of violating constitutional rights in their response brief. {See, e.g., ECF No.
40, PageID.407). Even if the allegations made for the first time in the response
brief were sufficient to state a claim to relief, which they are not, statements in a
response brief are not part of the complaint and are not considered here.
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See Johnson v. Metro. Gov’t ofNashville & Davidson Cnty., Tenn., 502 F. App’x
523, 541-42 (6th Cir. 2012) (“The court may not... take into account additional
facts asserted in a memorandum opposing the motion to dismiss, because such
memoranda do not constitute pleadings under Rule 7(a).”) (citation omitted).
Lastly, as to Defendant Captain Reichling, Plaintiffs allege he participated in
the conspiracy with all other defendants, he was at the scene when the two cars
were towed and, like Dwyer, he did not nothing to ascertain the ownership of the
cars. (ECF No. 29, PageID.87, 89, 96). As mentioned, the conspiracy allegation is
conclusory. Riechling’s presence at the scene and failure to learn of ownership,
without more, does not illuminate a claim to relief under the Fourth or Fourteenth
Amendments. To the extent that Plaintiffs seek to hold Reichling responsible for
the actions of subordinates, these allegations are insufficient as explained above.
Reichling should be dismissed.
4.
Entry Into Plaintiffs’ Basement Residence - Claim Two
Plaintiffs allege that the remaining Defendants’ search of the basement
residence at Thrower’s property without a warrant on March 11, 2020, violated the
Fourth and Fourteenth Amendments. In the opening brief, Defendants argue that
this claim is time barred. Plaintiffs alleged they found out about the search on
April 23, 2020, but filed the lawsuit on July 5, 2023, beyond the statute of
limitations. (ECF No. 35, PagelD. 185-86).
12
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Plaintiffs’ response brief moves between claims and arguments without
much structure, making it difficult to understand their response to Defendants’
motion. That said, in their response, Plaintiffs argue that the search was illegal—
they did not give permission to enter the basement residence and Defendants did
not obtain an administrative warrant to enter the property. (ECF No. 40,
PagelD.406-07). Next, they state that Thrower did not learn of the illegal entry
until May 22, 2020, and Nelson did not become aware until June 22, 2020. (Id. at
PageID.410). They contend that the “covid tolling statute” in effect from March
10, 2020, through June 22, 2020, tolled the three-year statute of limitations by 102
days. (Id. at PageID.412-13). Thus, they posit that the statute of limitations began
to run on June 22, 2020. But then they contend that the discovery rule would apply
to toll the statute further. Contrary to their earlier representations, Plaintiffs now
say they found out about the illegal entry on August 21, 2020. (Id. at PageID.413).
This would make their July 5, 2023, timely. They also appear to assert that the
continuing violations doctrine applies as well. (Id. at PageID.415).
In reply, Defendants argue that even if the Michigan Supreme Court’s
Administrative Order tolling limitations periods for Covid-19 applied to the claims,
it would only toll the claim until June 21, 2023, so the July 5, 2023, complaint is
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untimely.3 (ECF No. 43, PageID.518). Defendants did not address the
inconsistency in Plaintiffs’ argument about when they discovered the allegedly
illegal entry. They next argue that even if the claim is not time-barred, it should be
dismissed for failure to state a claim. They insist that the tenant’s consent to the
search was sufficient to permit them entrance into the residence without a warrant.
(Id. at PageID.518-19).
The undersigned will first address the argument, raised in reply, that the
warrantless search was lawful because the co-tenant gave permission and entrance
into the basement residence. It is dubious whether the Court can even consider this
argument given that it was raised for the first time in reply to arguments about the
statute of limitations. Plaintiffs had no chance to respond to this argument. As a
general rule, issues raised for the first time in a reply brief are waived. Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008). But even if the Court were
to consider the argument, which it is not, it would be a losing one.
“To the Fourth Amendment rule ordinarily prohibiting the warrantless entry
of a person’s house as unreasonable per se, one ‘jealously and carefully drawn’
exception recognizes the validity of searches with the voluntary consent of an
3 The Michigan Supreme Court issued administrative orders tolling all Michigan statutes
of limitations for 102 days during the COVID-19 pandemic in 2020. See Carter v. DTN Mgmt.
Co., 2023 WL 439760, at *3 & n.2 (Mich. Ct. App. Jan. 26, 2023) (discussing the Michigan
Supreme Court’s tolling orders and noting that they excluded the counting of days starting on
March 10, 2020, until June 20, 2020).
14
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individual possessing authority.” Georgia v. Randolph, 547 U.S. 103, 109 (2006)
(quoting Jones v. United States, 357 U.S. 493, 499 (1958)) (internal citations
omitted). A co-occupant who shares common authority over the premises to be
inspected can grant consent for a search of that area. Id. This means that persons
who share living space may consent to a search of common areas in the home, but
may not consent to the search of the other occupant’s private space, such as a
bedroom. See United States v. Tapia-Rodriguez, 968 F.3d 891, 895 (8th Cir. 2020)
(“But a co-tenant’s unrestricted consent to search leased property will not justify a
warrantless search of a room ‘set aside for [the defendant’s] own private use.’”)
quoting United States v. Heisman, 503 F.2d 1284, 1288 (8th Cir. 1974) (reversing
conviction because, viewed objectively, the consenting co-tenant did not have
“joint access or control” over defendant's room)).
Considering the complaint allegations as true, Plaintiffs’ note that the tenant
knew she could only access the basement in an emergency.
Defendants’ reliance on Georgia, 547 U.S. at 109, as a case factually
analogous to the allegations raised here is misplaced. There, a co-occupant
consented to search the premises without a warrant, but the other occupant was
also present and declined consent to the search. The officers searched the property
anyway. That search was held to be invalid as to the non-consenting occupant. Id.
at 120. That is not what happened here, according to Plaintiffs. Plaintiffs’ absence
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from the house did not give the co-occupant authority over the entire premises. So
Defendants’ argument that they had authority to conduct the warrantless search is
not well taken.
Turing to the statute of limitations, Michigan has a three-year statute of
limitations for claims brought under 42 U.S.C. § 1983. This statute of limitations
applies to the Fourth and Fourteenth Amendment claims. The statute of limitations
was tolled in Michigan between March 10,2020, and June 20, 2020. See
Gottsleben v. Informa Media, Inc., 2023 WL 4397226, at *3 (W.D. Mich. July 7,
2023). Plaintiffs’ unlawful search claim would begin to be counted, at the earliest,
on June 21, 2020. A claim that accrued during June 2020 needed to be filed in
June 2023, so Plaintiffs’ July 5, 2023, complaint would be untimely.
Defendants did not address Plaintiffs’ changing facts in their response brief.
For the first time in their brief, they said they learned of the unlawful search not in
April 2020, but in August 2020. (ECF No. 40, PageID.413). Plaintiffs did not
explain the change in story from the amended complaint.4 As stated above,
allegations made in a response brief are not part of the complaint and cannot be
considered as facts establishing a claim. Plaintiffs were on notice that their
amended complaint states they became aware of the search in April 2020, yet did
4 They also did not mention the search of the basement residence in their affidavits.
(ECF No. 40, PageID.465-69).
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not move to amend the complaint to change the allegation.5 Plaintiffs’ litigation
history gives the Court confidence that they are aware of the procedures for
amending their complaint as they have successfully done so often.
Because their amended complaint alleges that they became aware of the
search in April 2020, the limitations period began to run at the expiration of the
Covid-19 tolling period in June 2020. The continuing violations doctrine does not
save the claim. “A continuing violation is occasioned by continual unlawful acts,
not continual ill effects from an original violation.” Broom v. Strickland, 579 F.3d
553, 555 (6th Cir. 2009) (punctuation modified). The allegedly unlawful search in
March 2020 and the allegedly illegal seizure of vehicles in July 2021 are not
continual unlawful acts. Plaintiffs July 2023 complaint about the unlawful search
is time-barred, and the claim should be dismissed.
5.
Towing Operable Vehicles - Claim Three
In Claim Three, Plaintiffs allege that Defendants Scott, Gauss, Cummins,
Badalamente, Kijewski, Warack, Murphy, Lipa, Michaels, Trembeth, and Ross
unlawfully towed their two vehicles from the property on July 7, 2021. This
instance of towing the vehicles was allegedly unlawful because the court order to
5 They assert that they sought to amend their complaint in their earlier case at Case No.
22-10918 to add the unlawful search claim, but review of the motions to amend does not show
that they sought to amend their complaints to add this claim or that they found out about the
search later in 2020.
17
tow the cars was issued after the cars were towed and it was limited to inoperable
vehicles, but both cars were operable. (ECF No. 29, PageID.97-98). Plaintiffs also
allege the order was issued without permitting them an opportunity to be heard.
(Id. at PageID.98).
Defendants assert that is it unclear from the allegations who towed the
vehicles, who failed to give Plaintiffs notice, and who violated the July 7, 2021,
order. They contend that the lack of specific pleading does not rise the level of
plausibility, so the claim should be dismissed. (ECF No. 35, PagelD. 186-87).
Plaintiffs offer little clarity on this claim in the response brief. Aside from
restating (and sometimes copying) the complaint allegations, they add that
Defendants Michaels, Trembath, and Ross conferred with non-defendant Judge
/
Chumra to obtain a misdemeanor warrant on July 7, 2021, and that Defendants
Reichling and Dwyer and an unknown officer ordered that the cars be towed.
(ECF No. 40, PageID.421-23). In concluding their argument, they again list
twelve defendants as responsible for towing the vehicles. (Id. at PageID.423).
The only defendants named in Claim Three mentioned in the response are
Trembath and Michaels. For the remaining Defendants there is no articulation of
how they were involved in towing the vehicles. “When suing an individual actor .
.. for constitutional violations under § 1983, a plaintiff must demonstrate that the
actor ‘directly participated’ in the alleged misconduct, at least by encouraging,
18
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implicitly authorizing, approving or knowingly acquiescing in the misconduct, if
not carrying it out himself.” Flagg v. City ofDetroit, 715 F.3d 165, 174 (6th Cir.
2013). Indeed, “it is particularly important in such circumstances that the
complaint make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or
her, as distinguished from collective allegations against the state.” Jack-Bey v.
Michigan Dep’t of Corr., 2014 WL 1255910, at *5 (W.D. Mich. Mar. 26, 2014)
(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (emphasis
omitted)). True, it is not impermissible to refer to Defendants collectively in a
complaint, but generic or blanket allegations about “defendants” or lumping
defendants together, without accompanying allegations showing how each of those
defendants violated the Constitution or federal laws, is insufficient. See Rouse v.
Washington, 2021 WL 2434196, at *8 (E.D. Mich. June 15, 2021).
Because of the manner of Plaintiffs’ pleading, it is impossible to tell
whether, for instance, it is plausible that Defendant Gauss-violated the Fourth or
Fourteenth Amendment as it relates to towing the two vehicles. We do not know
what Gauss did or did not do. And while additional facts in a response brief are
not considered here, not even in the response do we learn what Gauss did or did
not do to violate Plaintiffs’ rights. At most, from the response brief, we know that
Trembath and Michaels spoke with Judge Chumra about the order to tow the
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vehicles. We do not know if Trembath and Michaels were also present at the
scene, or if they knew the vehicles were towed before the order was signed, or if
they knew the vehicles were operable. Conferring with a judge about a warrant,
without more, does not violate the Constitution or federal law.
Plaintiffs are the masters of their complaint. The Court does not create
additional allegations to save a claim in a complaint. This claim should be
dismissed without prejudice to Plaintiffs’ ability to file an amended complaint in
which they expressly allege personal involvement by the individuals named.
6.
Claims Four and Five Against Defendant Scott
Plaintiff Thrower alleges that Scott attempted a citizen’s arrest for
misdemeanor housing violations on July 8, 2021, and in doing so committed
assault, battery, and kidnapping, and violated the Fourth, Fifth, and Fourteenth
Amendments. More specifically, Thrower alleges that Scott restrained him, spat
on him, and went through his bag. (ECF No. 29, PageID.98). He says that Scott
told him during the interaction that he was “doing a citizens arrest.” (Id. at
PageID.95). Warren police officers arrived at the scene and arrested Plaintiff for
housing violations.
Defendant Scott argues that the claim should be dismissed because Plaintiff
did not show the arrest was made without probable cause and because he did not
arrest Plaintiff, the Warren Police Department did. He also argues that the assault,
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battery, and kidnapping claims should be dismissed because they consist entirely
of legal conclusions. (ECF No. 35, PagelD. 187-88).
To begin with, the undersigned is unconvinced by Scott’s argument that the
claim fails because he was not the person who ultimately arrested Thrower. The
argument is not well-taken because the allegations establish that Scott restrained
Plaintiff, telling Plaintiff he was conducting a citizen’s arrest, and it can be inferred
he held Plaintiff until the Warren police arrived to take Plaintiff into custody. He
cites no authority to suggest that he could only be liable for his actions if he took
Plaintiff into custody.
Plaintiff alleges that Scott’s conduct violated both federal and state law. As
to any federal violation, Plaintiffs claim of unlawful arrest or seizure is properly
analyzed under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395
(1989) (“Because the Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims.”).
False arrest provides the framework closest to the conduct Plaintiff contests.
See Tsao v. Dessert Palace, Inc., 698 F.3d 1128,1142 (9th Cir. 2012) (evaluating
claim of unlawful citizens’ arrest under framework for Fourth Amendment false
arrest after finding citizen arrester to be state actor). To prevail on a claim of
21
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unlawful arrest, a plaintiff must demonstrate that the officer lacked probable cause
to arrest him or her. Halasah v. City ofKirtland, Ohio, 574 F. App’x 624, 629 (6th
Cir. 2014); United States v. Torres-Ramos, 536 F.3d 542, 554 (6th Cir. 2008)
(unreasonable seizure); Weser v. Goodson, 965 F.3d 507, 513 (6th Cir. 2020) (false
arrest). Probable cause is “reasonable grounds for belief, supported by less than
prima facie proof but more than mere suspicion.” Sykes v. Anderson, 625 F.3d
294, 306 (6th Cir. 2010).
As Scott noted, Plaintiffs did not allege that the citizens’ arrest (or his
ultimate arrest by police officers) was affected without probable cause. What is
more, Thrower alleges his arrest by the Warren Police Department was pursuant to
misdemeanor housing violations, suggesting there was probable cause for the
arrest. See Devenpeck v. Alford, 543 U.S. 146, 153, 155 (2004) (“[The officer’s]
subjective reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause.”). In their response brief, Plaintiffs
acknowledge that there was a warrant for Plaintiffs arrest for housing violations.
(ECF No. 40, PageID.422). Plaintiffs were on notice of the lack of allegations
about probable cause in the amended complaint, yet did not seek to amend their
complaint. So neither the allegations nor the briefing establishes that he was
arrested without probable cause. The undersigned therefore recommends that
Thrower’s federal claim about the interaction with Scott be dismissed.
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7.
Remaining State-Law Claims
Having recommended that all the federal claims be dismissed, the
undersigned further recommends that the Court decline supplemental jurisdiction
over Plaintiffs’ state-law claims. Under 28 U.S.C. § 1367, a district judge
may decline to exercise supplemental jurisdiction over state-law claims if “the
district court has dismissed all claims over which it has original jurisdiction. . .
28 U.S.C. § 1367(c)(3). “When all federal claims are dismissed before trial, the
balance of considerations usually will point to dismissing the state law claims
[.]” Musson Theatrical, Inc. v. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir.
1996). Indeed, the Sixth Circuit has repeatedly advised that the district courts
should not exercise supplemental jurisdiction over state-law claims where all
original jurisdiction claims have been dismissed. See, e.g., Brown v.
Cassens Transp. Co., 546 F.3d 347, 363 (6th Cir. 2008). The undersigned
recommends Plaintiffs’ state-law claims be dismissed without prejudice.
IV.
RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that the
motion to dismiss (ECF No. 35) be GRANTED and that all federal claims be
DISMISSED, but that the claims about the allegedly unlawful seizure of the two
vehicles be DISMISSED WITHOUT PREJUDICE. The undersigned further
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RECOMMENDS that the state-law claims be DISMISSED WITHOUT
PREJUDICE.
The parties to this action may object to and seek review of this Report and
Recommendation, but are required to file any objections within 14 days of service,
as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule
72.1(d). Failure to file specific objections constitutes a waiver of any further right
of appeal. Thomas v. Am, 474 U.S. 140 (1985); Howard v. Sec ’y ofHealth and
Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some
issues but fail to raise others with specificity will not preserve all the objections a
party might have to this Report and Recommendation. Willis v. Sec ’y ofHealth
and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of
Teachers Loc. 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule
72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
etc. Any objection must recite precisely the provision of this Report and
Recommendation to which it pertains. Not later than 14 days after service of an
objection, the opposing party may file a concise response proportionate to the
objections in length and complexity. Fed. R. Civ. P. 72(b)(2), Local Rule 72.1(d).
The response must specifically address each issue raised in the objections, in the
same order, and labeled as “Response to Objection No. 1,” “Response to Objection
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Case 2:23-cv-11597-BRM-CI ECF No. 46, PagelD.550 Filed 04/09/24 Page 25 of 25
No. 2,” etc. If the Court determines that any objections are without merit, it may
rule without awaiting the response.
s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge
Date: April 9, 2024.
CERTIFICATE OF SERVICE
The undersigned certifies that this document was served on counsel of
record and any unrepresented parties via the Court’s ECF System or by First Class
U.S. mail on April 9, 2024.
s/Sara Krause
Case Manager
(810)341-7850
25
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