Johns v. Oakland Cnty.

Decision Date18 August 2016
Docket NumberCase No. 15-cv-12924
PartiesCHELSIE JOHNS, Plaintiff, v. OAKLAND COUNTY, GENEFER HARVEY, DANIEL MANIER, HALE, and VEIT, in their individual and official capacities, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Honorable Laurie J. Michelson

Magistrate Judge Anthony P. Patti

OPINION AND ORDER GRANTING OAKLAND COUNTY'S MOTION TO DISMISS [6] AND GRANTING IN PART AND DENYING IN PART HARVEY, MANIER, HALE, AND VEIT'S MOTION TO DISMISS [17]

Plaintiff Chelsie Johns alleges that officers of the Oakland County Sheriff's Department violated her rights under the United States Constitution and Michigan civil-rights legislation by using excessive force to arrest her and then strip-searching her while booking her into jail. Defendants have moved to dismiss her claims, in part based on Johns' later plea of guilty to attempting to resist arrest based on the same incident. The Court agrees with Defendants that Johns has not stated a claim under Monell or Michigan's Elliott-Larsen Civil Rights Act. However, the Court finds that Heck v. Humphery, 512 U.S. 477 (1990), does not bar Johns' excessive force claim because "lack of excessive force" is neither an element of the resisting arrest statute nor an affirmative defense. And Johns' allegations that she was strip-searched in an abusive manner in the presence of male guards plausibly state a violation of a clearly-established constitutional right. Accordingly, Oakland County's motion to dismiss will be granted, and the officer-defendants' motion will be granted in part.

I. ALLEGATIONS OF THE COMPLAINT

The Court recites as fact the non-conclusory allegations of Johns' Complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

On August 24, 2013, Plaintiff Chelsie Johns attended a concert at DTE Music Theatre in Clarkston, Michigan. (R. 1 at ¶ 11.) At the time, she had a broken right ankle, which was wrapped in an ACE bandage with an air cast. (Id. at ¶ 13.) She was limping when she approached the entrance gate. (Id.) DTE Security mistakenly believed that Johns was intoxicated due to her limp and denied her entry to the venue. (Id. at ¶ 14.) Instead, they directed Johns to the first-aid tent. (Id. at ¶ 15.) Johns first refused, but then complied. (Id. at ¶¶ 15-16.)

At the tent, Officers Harvey and Manier approached Johns and asked her to receive first aid. (Id. at ¶ 18.) After Johns refused, Harvey and Manier escorted her away from the tent. (Id. at ¶ 19.) Harvey and Manier then "slammed Plaintiff to the ground," "pulled Plaintiff's head back and pushed her face into the ground," and finally, either Harvey or Manier "placed [his] knee on Plaintiff's back and forcefully handcuffed her." (Id. at ¶¶ 20-22.)

Plaintiff was then transported to the Oakland County Jail. (Id. at ¶ 23.) She was strip-searched by female Officers Hale and Veit, during which "her clothes were ripped from her body." (Id.) The strip search was conducted in the presence of male officers. (Id. at ¶ 24.)

Plaintiff was charged with one count of attempted assault of a police officer, Michigan Compiled Laws § 750.81D1, and one count of disorderly person—drunk, Michigan Compiled Laws § 750.1671E. (R. 17-2.) She was convicted of both offenses when she entered a plea of guilty on February 3, 2014. (Id.)

On August 17, 2015, Johns filed suit in this Court under 42 U.S.C. § 1983 and Michigan law. (R. 1.) She named as defendants Oakland County, Harvey, Manier, Hale, and Veit. (Id.) InCount I, she asserts that "Defendants," presumably Harvey and Manier, violated the Fourth Amendment of the United States Constitution by using excessive force when they arrested her. In Count II, she asserts that the strip search at the jail by "Defendants," presumably Hale, Veit, and Oakland County, violated her rights under the Fourth and Fourteenth Amendments. In Count III, she asserts that "Defendants," presumably Hale, Veit, and Oakland County, violated Michigan's Elliott Larsen Civil Rights Act ("ELCRA") by strip searching her in front of male officers. In Count IV, she asserts a Monell claim against Oakland County.

Oakland County filed its motion to dismiss on September 11, 2015, and the officer defendants filed their motion to dismiss on November 3, 2015. (R. 6, R. 17.) Both motions are fully briefed. After careful consideration of the briefs and thorough review of the pleadings, the Court finds that oral argument will not aid in resolving the pending motion. See E.D. Mich. LR 7.1(f)(2).

II. LEGAL STANDARD

When a defendant moves to dismiss pursuant to Rule 12(b)(6), the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), governs. Under that standard, a court first culls legal conclusions from the complaint, leaving only factual allegations to be accepted as true. Iqbal, 556 U.S. at 679. The inquiry then becomes whether the remaining assertions of fact "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Although this plausibility threshold is more than a "sheer possibility that a defendant . . . acted unlawfully," it is not a "'probability requirement.'" Id. (quoting Twombly, 550 U.S. at 556). Whether a plaintiff has presented enough factual matter to "'nudg[e]'" his claim "'across the line from conceivable to plausible'" is "a context-specific task" requiring this Court to "draw on itsjudicial experience and common sense." Iqbal, 556 U.S. at 679, 683 (quoting Twombly, 550 U.S. at 570).

III.ANALYSIS

The pending motions implicate issues of both substantive law and proper pleading. Johns' excessive force claim requires the Court to address an issue that is fairly new: whether, given the Michigan Supreme Court's holding in People v. Moreno, 814 N.W.2d 624 (Mich. 2012), the Michigan statute criminalizing resisting arrest requires the prosecution to show a lack of excessive force such that success on an excessive-force claim in a subsequent civil suit would necessarily imply that the conviction is invalid. The Court holds it does not, and therefore Johns' excessive force claim will survive. Defendants' other arguments implicate Rule 12(b)(6)'s plausibility requirements. While the Court finds that Johns has adequately pled her § 1983 claim relating to the strip search, her claims under Monell and ELCRA will be dismissed as inadequately pled.

A. Count I: § 1983 Excessive Force

Under Heck v. Humphery, a plaintiff may not assert a § 1983 claim that would "necessarily imply the invalidity" of an underlying criminal conviction. 512 U.S. 477, 487 (1990). This rule is based on "concerns for finality and consistency," and a general trend of "declin[ing] to expand opportunities for collateral attack" of state-court convictions. Id. at 485. Therefore, under Heck, "in order to recover damages for . . . harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction . . . has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus[.]" Id. at 486-87.

The Supreme Court has pointed out that in Heck, it "stress[ed] the importance of the term 'necessarily.'" Nelson v. Campbell, 541 U.S. 637, 647 (2004). So "[t]he mere fact that the conviction and the § 1983 claim arise from the same set of facts is irrelevant if the two are consistent with one another." Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010). With respect to excessive force, a conviction is inconsistent only if (1) "the criminal provision makes the lack of excessive force an element of the crime," id., or (2) "excessive force is an affirmative defense to the crime[.]" Id.

Because Johns pled guilty to attempted assault of a police officer under Michigan Compiled Laws § 750.81d(1), the question here is whether lack of excessive force is an element of that offense, or an affirmative defense to that offense, such that Johns' § 1983 claim is barred by Heck. Schrieber, 596 F.3d at 334. (R. 17 at 4.) For the reasons that follow, the Court finds that Heck does not bar Johns' excessive force claim.

Prior to People v. Moreno, 814 N.W.2d 624 (Mich. 2012), the Michigan Court of Appeals held that "lawfulness of the arrest" was not an element of Michigan Compiled Laws § 750.81d. People v. Ventura, 262 Mich. App. 370 (Mich. Ct. App. 2004). The Court reasoned that there was no reference to "lawfulness" in the statutory language, and further, the common-law right to resist an unlawful arrest was "outmoded." Id. at 376. Thus, in Schrieber, the Sixth Circuit, relying in part on Ventura, held that a plaintiff convicted under Michigan Compiled Laws § 750.81d(1) could still pursue an excessive force claim. Schreiber, 596 F.3d at 334 ("[T]he Court of Appeals of Michigan has found that a lawful arrest is not one of the elements of § 750.81d(1)." (citing Ventura, 686 N.W.2d at 752)); see also Shirley v. City of Eastpointe, No. 11-14297, 2013 WL 4666890, at *7 (E.D. Mich. Aug. 30, 2013) (allowing an excessive forceclaim to proceed despite Defendants' Heck argument because "The ruling in Schreiber applies with full force here.").

But in Moreno, the Michigan Supreme Court overruled Ventura. 814 N.W.2d at 634. After examining the statute's legislative history and the common-law "right to resist an unlawful act by an officer," the Court concluded that Michigan Compiled Laws § 750.81d did not "abrogate" the "common law right to resist an unlawful arrest." Id. While the Court in Moreno "did not explicitly state, in so many words, that the lawfulness of the officers' actions is an 'element' of resisting or obstructing a police officer," it was "clear that under Moreno, as at common law, the prosecution must establish that the officers acted lawfully as an actual element of the crime of resisting or...

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