Howard v. Livingston Cnty.

• Decision Date: 29 September 2021
• Docket Number: 20-11236
• Parties: SHALIMAR HOWARD, Plaintiff, v. LIVINGSTON COUNTY, CRAIG CARBERRY, WILLIAM VAILLIENCOURT, and MIKE TAYLOR, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

SHALIMAR HOWARD, Plaintiff,
v.
LIVINGSTON COUNTY, CRAIG CARBERRY, WILLIAM VAILLIENCOURT, and MIKE TAYLOR, Defendants.

No. 20-11236

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

September 29, 2021

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS

DAVID M. LAWSON, United States District Judge.

Plaintiff Shalimar Howard, a probation officer employed by the Michigan Department of Corrections (MDOC), alleges in a complaint that she was persecuted and falsely charged and arrested by the defendants after she publicly criticized their abuse of prosecutorial discretion when making charging decisions affecting her probationers. The matter is before the Court on motions to dismiss filed by defendant Craig Carberry, a Michigan State Police investigator, and by Livingston County and its prosecutors. The plaintiff also filed a motion to strike defendant Carberry's reply brief on the ground that it raises new issues that were not addressed in the opening motion brief or the plaintiff's response. Although defendant Carberry's reply brief mostly presents proper rebuttal arguments, the attached exhibits and arguments referencing them are improper and will be stricken. The plaintiff's claim against Carberry based on the Fourteenth Amendment is duplicative of and subsumed by her Fourth Amendment claim, so the former claim will be dismissed. The plaintiff's claims against defendants Vailliencourt and Taylor under the Fourth Amendment are barred by prosecutorial and sovereign immunity. However, the complaint states sufficient facts to support the remaining claims against the defendants and overcomes any

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immunity defenses asserted at this stage of the case. Therefore, the Fourteenth Amendment claim against defendant Carberry and the Fourth Amendment claim against defendants Vailliencourt and Taylor will be dismissed. The motions to dismiss will be denied in all other respects.

I.

The defendants have challenged the sufficiency of the pleadings under Federal Rule of Civil Procedure 12(b)(6), so the following facts are stated as alleged in the complaint.

Defendant Craig Carberry is a detective sergeant with the Michigan State Police. In 2017, defendant William Vailliencourt was the elected prosecutor of Livingston County, Michigan, and defendant Mike Taylor was an assistant prosecutor. Plaintiff Shalimar Howard has been a probation officer for the State of Michigan's Department of Corrections since 2002. Since February 2010, she was assigned to the MDOC's Livingston County Probation Office, where she frequently worked with the defendants in the course of her duties.

Howard alleges that the MDOC had a policy of “collaborative case management, ” which afforded probation officers substantial discretion when deciding how to handle violations by their probationers and whether to seek formal charges based on a violation. She asserts that defendant Vailliencourt had a “heavy handed” policy toward probationers and frequently sought to override probation officers' charging decisions. Also, Howard observed that Vailliencourt exercised his charging discretion in a discriminatory manner, selectively choosing to pursue charges against certain classes of probationers and not others.

On March 23, 2017, Howard was called as a witness to testify in a domestic civil matter in Livingston County, Michigan circuit court, where one of her probationers was involved. She gave truthful testimony, although the judge interrupted her frequently and refused to allow her to explain

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certain parts of her testimony. Howard was not called to participate in a later hearing in the same case in June 2017, although it involved the same probationer.

Howard alleges that, after the March 23, 2017 hearing, defendants Vailliencourt and Taylor “undertook a secretive investigation” that included reviewing a video recording of the hearing, ordering a transcript, and obtaining copies of the plaintiff's notes from the probationer's MDOC file. Vailliencourt subsequently asked defendant Carberry to investigate whether Howard committed perjury during her hearing testimony.

On August 18, 2017, Vailliencourt sent a letter to the plaintiff's supervisor in which he accused the plaintiff of committing perjury at the March 23rd hearing. The letter further stated that the plaintiff would not be called by Livingston County prosecutors to testify in any proceeding, the prosecutor's office would not pursue charges against any probationer in response to any request by her, and she was banned from entering the Livingston County prosecutor's offices. The MDOC's internal affairs division investigated the perjury allegations and took the plaintiff's statement, but the department eventually determined she had done nothing wrong, and the plaintiff was not disciplined in any way.

The plaintiff alleges that on January 12, 2018, Carberry, Taylor, and Vailliencourt “procured a warrant” for Howard's arrest. The plaintiff asserts, however, that defendant Carberry's investigation, on which the criminal complaint was based, was a “sham” and “merely repeated” the cursory inquiries that defendants Vailliencourt and Taylor had performed, which had not produced any evidence that the plaintiff lied under oath. The pleadings are vague on the specific basis of the perjury charges, but it appears that they arose from the defendants' belief that the plaintiff had testified falsely during the domestic proceeding that her probationer had not violated the terms of his probation, when her notes in the case file memorialized several instances

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where he had violated various probation conditions but was not formally charged. In response to the filing of perjury charges, the MDOC suspended the plaintiff without pay.

In May 2019, the state district court held a preliminary examination, during which defendant Vailliencourt withdrew one of the perjury charges. On August 2, 2019, the state trial court granted the plaintiff's motion to dismiss and quash the remaining two charges and dismissed the case against her, after it found that there was no probable cause to suspect that she had committed any perjury offense.

The complaint in this case pleads claims via 42 U.S.C. § 1983 for (1) false arrest and detention without probable cause under the Fourth Amendment, (2) First Amendment retaliation in response to the plaintiff's protected public speech about the defendants' discriminatory practices, (3) arbitrarily and capriciously pursuing an unwarranted criminal prosecution that tarnished the plaintiff's reputation, in violation of her substantive due process rights under the Fourteenth Amendment, and (4) conspiracy by the individual defendants to pursue an unfounded prosecution despite the knowledge by all defendants that there was no evidence that the plaintiff had committed any crime. The complaint further pleads that Livingston County is liable for the actions of defendants Taylor and Vailliencourt because it failed adequately to train and discipline its employees and to enforce policies against making improper charging decisions, and defendant Vailliencourt was the final authority and acted for the County when he decided to pursue the unfounded charges against the plaintiff. Finally, the complaint pleads one count under state law of tortious interference with the plaintiff's employment relationship with MDOC, based on the defendants' obstruction of her job duties and instigation of an unwarranted investigation.

Defendant Carberry responded to the complaint with a motion to dismiss, arguing that the complaint does not state sufficient facts to support the conclusory allegations of wrongdoing

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against him. The Livingston County defendants (Vailliencourt, Taylor, and the County) also filed a motion to dismiss raising multiple arguments, including that the pleading is factually deficient and interposing various immunity defenses. The motions are fully briefed, and oral argument will not aid in their disposition. Therefore, the Court will decide the motions on the papers submitted. E.D. Mich. LR 7.1(f)(2).

II.

The defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) test the viability of the complaint. The Court accepts the pleaded facts (but not the unsupported conclusions) as true and determines whether the plaintiff is entitled to legal relief after crediting all the factual allegations in the complaint. Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). All reasonable inferences are drawn in favor of the plaintiff. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). To survive the motion, the plaintiff “must plead ‘enough factual matter' that, when taken as true, ‘state[s] a claim to relief that is plausible on its face.' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007). Unsupported conclusions will not suffice. Plausibility requires showing more than the ‘sheer possibility' of relief but less than a ‘probab[le]' entitlement to relief. Ashcroft v. Iqbal, [556 U.S. 662, 678] (2009).” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010).

A.

To begin, the plaintiff takes issue with defendant Carberry's reply brief in support of his motion to dismiss, contending that it addresses issues not raised in the opening motion brief and attempts to raise new issues not addressed in either the motion or response. She points out that two new arguments were raised that purportedly were supported by exhibits extrinsic to the

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pleadings that were attached to the reply, consisting of the criminal complaint for perjury and Carberry's investigation report. And she says that the arguments that merely challenge the truth of the pleaded facts are irrelevant to a motion under Rule 12(b)(6), which should focus on the adequacy of the complaint standing alone.

Defendant Carberry argues...