Herring v. City of Ecorse
| Decision Date | 07 February 2023 |
| Docket Number | 22-11109 |
| Parties | CORNELIUS HERRING and GEOFFREY HOWARD, Plaintiffs, v. CITY OF ECORSE, LAMAR TIDWELL, MICHAEL MOORE and NARDA BRUNO, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
On May 20, 2022, Plaintiffs filed this action against Defendants alleging First Amendment retaliation in connection with Plaintiffs' employment as police officers with Defendant City of Ecorse (“Ecorse”). The matter is presently before the Court on Defendants' motion to dismiss based on the doctrine of res judicata. (ECF No. 7.) The motion has been fully briefed. (ECF Nos. 9, 10.) Finding the facts and legal issues adequately presented in the parties' briefs, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).
Defendants' motion is filed pursuant to Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). “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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In deciding whether the plaintiff has set forth a “plausible” claim, the court must accept the factual allegations in the complaint as true. Erickson v Pardus, 551 U.S. 89, 94 (2007). This presumption is not applicable to legal conclusions, however. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Ordinarily, the court may not consider matters outside the pleadings when deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir. 1989)). However, “[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the] defendant's motion to dismiss, so long as they are referred to in the [c]omplaint and are central to the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
Plaintiffs are former long-time veterans of Ecorse's Department of Safety (“police department”). (Compl. ¶¶ 12, 18, ECF No. 1 at Pg ID 7, 5.) Plaintiffs are African American. (
Defendant Lamar Tidwell is Ecorse's Mayor and its chief law enforcement officer. (Compl. ¶ 7, ECF No. 1 at Pg ID 4.) Defendant Michael Moore was the Director of the police department during the relevant period. (Id. 8, Pg ID 5.) Defendant Narda Bruno was the Deputy Director of the police department during the relevant period. (Id. ¶ 9, Pg ID 5.)
In July 2018, Plaintiffs learned “that police officers were using impounded vehicles for their personal [use] or other improper purpose and [were] directing tow company personnel to falsify information to insurance companies regarding the nature of the impound or property.” (Id. ¶ 31, Pg ID 9.) This information related to Ecorse police officer Kevin Barkman, as well as officers in other metropolitan Detroit police departments. (Id. ¶¶ 32, 34, Pg ID 9, 10.) On October 31, 2018, Plaintiffs shared this information with the United States Federal Bureau of Investigations Public Corruption Task Force, as Plaintiffs believed the activity constituted insurance fraud and theft or conversion of seized vehicles. (Id. ¶ 33, Pg ID 10.)
Plaintiffs spoke with FBI Special Agent Peter Ackerly on that date.[1](Id. ¶ 34, Pg Id. 10.) Plaintiffs “provided information in federal and state investigations into one or more criminal vehicle seizure schemes reportedly orchestrated by police officers in metro-Detroit [police] departments and involving illegal police raids[,] police taking, misuse and/or conversion of seized vehicles[,] falsification of LEIN records[,] and/or insurance fraud.” (Id.) Plaintiffs directly participated in these external investigations. (Id. ¶ 35, Pg ID 10.)
In July 2018, Plaintiffs filed separate complaints in state court against Ecorse, Mayor Tidwell, and Director Moore (hereafter collectively “Defendants”),[2] which were amended in October 2019. (Herring State Compl., ECF No. 7-4; Howard State Am. Compl. ECF No. 7-5; Herring State Am. Compl., ECF No. 93.)[3]The attorneys representing Plaintiffs in the pending lawsuit also represented them in the state court proceedings. (Id.) The lawsuits were consolidated. Both complaints alleged discrimination and retaliation in violation of Michigan law.[4](Id.)
In his state-court pleading, Howard took issue with a disciplinary warning he received after lighting a cigar when on duty inside the Ecorse police department, when other employees were not disciplined, suspended, or terminated for committing more serious offenses. ( Howard alleged that he complained about misconduct by fellow employees, including a social media posting offensive to African-American individuals, but no action was taken against these co-workers. (See e.g., id. ¶¶ 17-19, Pg ID 100.) Howard also alleged facts concerning the preferential treatment of Deputy Director Bruno.
Herring alleged in his complaint that in August 2017, he “exposed Defendant Moore and a coworker for violation of LEIN procedures, possibly being a criminal offense [sic] and failed [sic] to forfeit vehicles for financial purpose.” ( Herring further alleged that he had “requested an investigation against a coworker for not removing stolen vehicles from LEIN and failing to notify the owner[s] regarding the recovery of their vehicles.” (Id. ¶ 19, Pg Id. 89.) According to Herring, he was confronted by the coworker who cussed at Herring. (Id. ¶ 16, Pg ID 89.) Herring complained to Director Moore regarding the co-worker's behavior, but Director Moore did nothing. (Id. ¶¶ 17, 18, Pg ID 89.)
Herring asserted that Director Moore ignored the misconduct of co-workers (that described above as well as other instances) while rules and policies were enforced against Herring in retaliation for his protected conduct, which included his requests for investigations concerning misuse of the LEIN system along with other perceived misconduct by co-workers. (See generally id.) According to Herring, Director Moore charged Herring with insubordination and neglect of duty for identifying a vehicle as “abandoned” rather than “stolen” in the LEIN system, although a coworker provided the false information in LEIN to forfeit vehicles in Ecorse. (Id. ¶ 32, Pg ID 91.) Herring alleged that Director Moore and a co-worker “used this false information to make money and to forfeit vehicles” and that “[m]isuse of the LEIN system is illegal.” (Id. ¶ 33, Pg ID 91.) Herring also alleged that he had been treated differently than Caucasian officers and that Deputy Director Bruno received preferential treatment. (Id. ¶¶ 35-36, 41, Pg ID 91, 92.)
In the count of their state court complaints alleging retaliation, Herring and Howard alleged that they “opposed and complained about Defendant's unlawful harassment, discrimination[,] and retaliation against [them] and against other employees” and that they were “retaliated against . . . because of such opposition complaints and charge.”
Defendants filed a motion for summary disposition as to Howard's state court claims on February 6, 2020, arguing in part that Howard failed to demonstrate an adverse employment action on which to base his claims. (MSD as to Howard, ECF No. 7-9.) In response to Defendants' motion, Howard asserted that he was “being punished because of his cooperation with the Michigan Attorney General's Office with regards to driving vehicles that were reported stolen or abandoned[.]” (Howard MSD Resp. at 10, ECF No. 7-11 at Pg ID 615.) Howard also asserted that he was “being intimidated and harassed by the Chief [Director Tidwell], Mayor, and coworkers for attempting to shed some light on a possible public corruption scandal.” (Id.) As one example, Howard pointed to Director Moore's state court deposition testimony, where he described Howard and Herring as a “cancer to the department” and “poison[ing a coworker.]” (Id. at 12, Pg ID 617.)
The state court granted Defendants' summary disposition motion as to Howard on August 18, 2020, finding insufficient evidence that Howard was subjected to an adverse employment action. (State Ct. Op. & Order in Howard, ECF No. 7-7.) The decision discussed evidence offered by Howard, including an October 11, 2018 letter to him from Director Moore. (Id. at 2-3, Pg ID 121-22.) In that letter, Director Moore addressed discussions between Howard and Herring concerning “the manner in which the City's Mayor and a police department corporal had ‘obtained their personal vehicles,'...
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