Gillespie v. City of Battle Creek

• Citation: 100 F.Supp.3d 623
• Decision Date: 30 March 2015
• Docket Number: Case No. 1:13–CV–1320.
• Parties: Laurie GILLESPIE, et al., Plaintiffs, v. The CITY OF BATTLE CREEK, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

100 F.Supp.3d 623

Laurie GILLESPIE, et al., Plaintiffs

v.The CITY OF BATTLE CREEK, et al., Defendants.

Case No. 1:13–CV–1320.

United States District Court, W.D. Michigan, Southern Division.

Signed March 30, 2015.

Adam Christopher Sturdivant, Stephen R. Drew, Drew Cooper & Anding, Grand Rapids, MI, Hugh M. Davis, Jr., Constitutional Litigation Associates PC, Detroit, MI, for Plaintiffs.

Brad H. Sysol, Miller Canfield Paddock & Stone PLC, Michael S. Bogren, Plunkett Cooney, Kalamazoo, MI, Jill H. Steele, City of Battle Creek, Battle Creek, MI, for Defendants.

OPINION

ROBERT HOLMES BELL, District Judge.

This civil rights action against the City of Battle Creek and six law enforcement officers arises out of surreptitious audio and video recording inside the Battle Creek Police Department women's locker room. (ECF No. 14.) The City has filed a motion to dismiss, and the Individual Defendants have filed a motion for partial judgment on the pleadings. (ECF No. 17.) For the reasons that follow, the motions will be granted in part and denied in part.

I.

The following is a summary of the relevant facts alleged in Plaintiffs' first amended complaint. (ECF No. 5.)

Plaintiff Laurie Gillespie was an officer with the City of Battle Creek from April 10, 1989, to March 18, 2013. (¶¶ 5, 38.) Plaintiff Jennifer McCaughna has been an officer with the Battle Creek Police Department since June 19, 1989. (¶ 6). Plaintiff Shawn O'Bryant has been an officer with the Battle Creek Police Department since October 2008. (¶ 7).

At all relevant times, Defendant Jackie Hampton was the Chief of Police and the highest ranking law enforcement officer for the City of Battle Creek. (¶ 9). Defendant James Saylor was the Deputy Chief of Police, the coordinator of the patrol division, and second in command of the Battle Creek Police Department. (¶ 10). Defendant Maria Alonso was an inspector and head of the Internal Affairs Division for the Battle Creek Police Department (Office of Professional Standards). (¶ 11). Defendant Randy Reinstein was a deputy inspector and the chief assistant in the Internal Affairs Division of the Battle Creek Police Department (Office of Professional Standards). (¶ 12). Sergeant Fickle was an officer with the Battle Creek Police Department Special Investigations Unit. (¶ 13). Defendant Stephen Bush was a patrol lieutenant of the Battle Creek Police Department. (¶ 14.)

In November and/or December of 2012, Inspector Alonso received information that money and property had been stolen on various occasions from the women's locker room of the Battle Creek Police Department. (¶ 15.) The women's locker room was equipped with a security door. (¶ 16.) Access to the women's locker room was only available by card access. (¶ 17.) On January 15, 2013, after consulting with and receiving the agreement/approval of Chief Hampton, Lt. Bush, and Deputy Inspector Reinstein, Inspector Alonso installed a camera and audio/video recording device in the women's locker room. (¶ 19.) Defendants acted in concert in installing the audio/video recording device. (¶ 20.)

On January 16, 2013, the camera recorded Plaintiff Gillespie in her uniform going through at least two open lockers of other officers. (¶¶ 21, 30.) Plaintiffs do no know how long the camera remained installed. or how many videos ever existed of female officers in the women's locker room. (¶¶ 22–23.) Plaintiffs had no knowledge of any audio and/or video equipment ever being installed for surveillance of the women's locker room. (¶ 24.) The City denied Plaintiff McCaughna's FOIA request for copies of the videotapes. (¶ 25.)

Plaintiff Gillespie was unaware of any taping until she viewed some of the video recordings in a “Garrity hearing” on or about January 24, 2013. (¶ 28.) Defendants Saylor, Alonso, Reinstein, as well as union representatives Brad Duck and Scott Eager, were present during the January 24, 2013 hearing. (¶ 29.) The video was intentionally shown on a large projection screen. It appeared that the tape had been edited, showing Gillespie in her uniform going through at least two (2) open lockers. (¶ 30.) Inspector Alonso suggested that the men turn around because Plaintiff Gillespie would be removing her clothing. (¶ 31.) Defendants continued to play the recording showing Gillespie removing all of her clothing except her underwear. She had no bra on and the recording showed her naked breasts. (¶ 32.) During the screening, Plaintiff Gillespie became extremely embarrassed and began crying. (¶ 33.) The recording was played in the presence of Defendants Saylor, Alonso, Reinstein, Brad Duck, and Scott Eager, all males [sic]. (¶ 35.) Defendant Alonso was operating the audio/visual equipment. (¶ 36). Plaintiff Gillespie was told not to say anything about the recording or she would be fired. (¶ 37.) Plaintiff Gillespie was subsequently fired on March 18, 2013. (¶ 38.)

Plaintiff McCaughna regularly used the women's locker room and could have at various times been recorded in states of undress. (¶ 40.) Plaintiff O'Bryant regularly uses the women's locker room and believes she was taped on or about Sunday, January 20, 2013, when she returned from a leave of absence. (¶¶ 42, 43.)

Plaintiffs filed a nine count First Amended Complaint. Plaintiffs allege eight claims against all defendants: Count 1, Violation of the Fourth Amendment to the United States Constitution for invasion of privacy; Count 3, civil conspiracy under 42 U.S.C. § 1983 ; Count 4, violation of the Federal Wiretap Act, 18 U.S.C. § 2520(a) ;¹ Count 5, violation of Michigan's Eavesdropping statute, Mich. Comp. Laws § 750.539 et seq.; Count 6, invasion of privacy/intrusion upon seclusion; Count 7, invasion of privacy/embarrassing private facts; Count 8, negligent infliction of emotional distress; and Count 9, intentional infliction of emotional distress. Plaintiffs allege an additional claim against the City: Count 2, Municipal liability under § 1983.

The City moves for dismissal of the complaint against it in its entirety under Rule 12(b)(6) for failure to state a claim on which relief can be granted. The Individual Defendants move for partial summary judgment on the pleadings under Rule 12(c).

II.

Rule 12(b)(6) permits a court to dismiss a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The standard of review for a motion for judgment on the pleadings pursuant to Rule 12(c) is the same. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir.2010).

Plaintiffs contend that the Individual Defendants' 12(c) motion should be dismissed as untimely because it was filed before the pleadings were closed. In response, the Individual Defendants characterize Plaintiffs' argument as a “trick bag construction” that exalts form over substance in light of the fact that Rule 12(b)(6) and Rule 12(c) are reviewed under identical standards.

Plaintiffs' contention is not a “trick bag construction.” Plaintiffs are correct that the Individual Defendants are not technically in a position to bring either a Rule 12(b)(6) or a Rule 12(c) motion. A Rule 12(b)(6) motion “must be made before pleading,” Fed.R.Civ.P. 12(b), and the Individual Defendants had already filed their answer before they filed their motion. (Am. Answ. to Am. Compl., ECF No. 16.) The Individual Defendants' Rule 12(c) motion, on the other hand, is premature. Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c) ; see also F.R.C. Int'l, Inc. v. United States, 278 F.3d 641, 642 (6th Cir.2002) ( “Although the parties refer to the judgment as a judgment on the pleadings under Fed.R.Civ.P. 12(c), judgment under that rule was technically unavailable because the government had not filed an answer and thus the pleadings were not closed as required by the rule.”). The pleadings in this case are not closed because the City has not filed an answer.

It appears, however, that district courts in this circuit have permitted parties to file post-answer Rule 12(b)(6) motions. See, e.g., Horen v. Bd. of Educ. of Toledo, 594 F.Supp.2d 833, 840 (N.D.Ohio 2009) (construing premature pre-answer Rule 12(c) motion as Rule 12(b)(6) motion to dismiss); Collins v. Muskegon Cnty. Sheriff's Dep't, No. 1:05–CV–666, 2007 WL 426586, at *5 (W.D.Mich. Feb. 1, 2007) (noting that it is not improper to treat a premature, pre-answer Rule 12(c) motion as a motion to dismiss under Rule 12(b)(6) ). Other courts have agreed to construe a premature Rule 12(c) motion as a Rule 12(b)(6) motion only on grounds that have been raised in their answer. Telesca v. Long Island Housing P'ship, Inc., 443 F.Supp.2d 397, 405 (E.D.N.Y.2006) (“Although courts will generally rule on an untimely motion to dismiss that is filed after the answer, the defendant's previously-filed answer must expressly preserve the defense.”); Anderson v. Sullivan, No. 03CV4064 (DRH)(MLO), 2005 WL 1123772, at *2 (E.D.N.Y. May 9, 2005) (“In the present case, Defendant clearly moved for Rule 12(b)(2) dismissal after serving his answer. His motion would thus seem facially untimely. Federal courts, however, will generally make an exception to the above rule, and deem a Rule 12(b)(2) motion timely, if the...