Loyd v. Marable

• Decision Date: 12 November 2021
• Docket Number: 2:20-cv-13099
• Parties: CA'RON ELESTRIOUS-GEND LOYD, Plaintiff, v. HERMAN MARABLE and JEREMY DRIGGETT, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

CA'RON ELESTRIOUS-GEND LOYD, Plaintiff,
v.
HERMAN MARABLE and JEREMY DRIGGETT, Defendants.

No. 2:20-cv-13099

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

November 12, 2021

Sean F. Cox District Judge

REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION TO DISMISS (ECF No. 17)

Kimberly G. Altman United States Magistrate Judge

I. Introduction

This is a civil rights complaint brought under 42 U.S.C. § 1983. Plaintiff Ca'Ron Loyd, now incarcerated and proceeding pro se, sued twenty-eight defendants for actions involving his alleged assault, arrest, and conviction. Upon screening of the complaint, his claims were dismissed against all but two defendants, police officer Jeremy Driggett and state district judge Herman Marable, Jr. (ECF Nos. 1, 6). On May 17, 2021, all pretrial matters were referred to the undersigned. (ECF No. 10).

Driggett answered the complaint on May 26, 2021, and on June 24, 2021, Marable filed a motion to dismiss in lieu of an answer. (ECF Nos. 14, 17). Loyd

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was ordered to respond to Marable's motion by July 26, 2021, but this order was returned as undeliverable. See ECF Nos. 20, 23. A second order requiring a response was sent to Loyd's corrected address on September 7, 2021, and Loyd filed his response on September 30, 2021. See ECF Nos. 25, 29. Marable has not filed a reply.

For the reasons that follow, the undersigned recommends that Marable's motion to dismiss be GRANTED in part and DENIED in part. Specifically, the undersigned recommends that Loyd's § 1983 claim against Marable be dismissed with prejudice, and that the Court decline to exercise supplemental jurisdiction over any state law claims against Marable, dismissing them without prejudice.

II. Background

In considering the sufficiency of the complaint as challenged by a 12(b)(6) motion, the Court draws the facts from the allegations of the complaint. (ECF No. 1). In its prior order dismissing Loyd's claims against all defendants other than Driggett and Marable, the Court summarized the relevant allegations as follows:

On September 10, 2018, state district judge Herman Marable Jr., was intoxicated and started some fights at the Autumn Lounge on Fenton Road in Flint, Michigan. About 10:45 p.m that night, Plaintiff and Marable had a conversation without incident. Marable, however, called police officer Jeremy Driggett and asked Driggett to arrest Plaintiff. Driggett apprehended Plaintiff about half a mile away from the lounge and proceeded to punch Plaintiff in the face four times and sweep him to the ground. Plaintiff hit the back of his head on the ground and hurt his neck, back, and shoulder as well Driggett stomped on Plaintiff's

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chest and put his right knee in the middle of Plaintiff's chest, causing Plaintiff to have an asthma attack.

Driggett arrested Plaintiff for resisting and obstructing an officer and brought Plaintiff back to the Autumn Lounge so that Marable could identify him. Plaintiff told the officers at the scene (Kirt Bierlein, Brett White, Vincent Villarreal, Nickolas White, Justin McLeod, Quion Wheeler, and Nickoy Edwards) that Driggett had assaulted him, but the officers did not take him to the Hurley Medical Center for treatment. Instead, they allowed him to remain in Driggett's custody.

Chief Genesee County Prosecutor David S. Leyton subsequently charged Plaintiff with a felony even though Plaintiff merely committed a misdemeanor by pulling his arm away from an officer. Genesee County Circuit Judge F. Kay Behm allowed Marable to stalk and intimidate Plaintiff, and she created a biased outcome in her courtroom. She also put Plaintiff's court appearances on YouTube without his permission and sentenced Plaintiff to forty-eight months in prison. While incarcerated in the Genesee County Jail, another inmate assaulted Plaintiff.

Plaintiff now seeks money damages for the physical assaults, mental anguish, loss of wages and other financial benefits, invasion of privacy, and imprisonment, which he claims was unlawful. He also contends that he was sent to prison with an asthma condition even though state correctional facilities have a high percentage of COVID-19 positive cases. Id. at PageID.8.

(ECF No. 6, PageID.27, referring to ECF No. 1, PageID.5-8).

As noted above, the only claims remaining are those described against Driggett and Marable.

III. Standard for Dismissal

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “construe the complaint in the light most favorable to

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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 (citation omitted). “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).

Furthermore, 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). However, 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 Fed.Appx. 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Moreover, “courts may not rewrite a complaint to include claims

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that were never presented ... nor may courts construct the Plaintiff's legal arguments for him.... [N]either 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.).

IV. Analysis

A. Federal Claim

1. General

Loyd has sued Marable for violation of his constitutional civil rights under 42 U.S.C. § 1983. Section 1983 “imposes civil liability on those individuals who, acting under color of state law, deprive a citizen of, among other things, his federally guaranteed constitutional rights.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015). “To state a claim under § 1983, a plaintiff must set forth facts that, when favorably construed, establish: (1) the deprivation of a right secured by the Constitution or laws of the United States; (2) caused by a person acting under the color of state law.” Id. A private actor may be considered a person acting under color of state law (a state actor) if “(1) the deprivation complained of was ‘caused by the exercise of some right or privilege created by the state' and (2) the offending party ‘acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.' ” Tahfs v. Proctor,

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316 F.3d 584, 590-91 (6th Cir. 2003) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).

2. Application

Marable contends that there is no allegation that he was acting under color of state law, as required for liability under § 1983. He cites West v. Atkins, 487 U.S. 42, 50 (1988) for the proposition that “generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”

The Sixth Circuit applies three tests for determining whether private action is fairly attributable to the state:

A private party's actions constitute state action under section 1983 where those actions may be fairly attributable to the state. The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.

Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003) (internal citations and quotations omitted). Under the public function test, a private party is deemed a state actor if he or she exercised powers “traditionally reserved exclusively to the state.” Id. This test is “interpreted narrowly” and limited to specific functions such as holding elections, exercising eminent domain, or operating a company-owned town. Id. (citations omitted).

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“The state compulsion test requires that a state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). For the activities of a private actor to constitute state action under this test, more is required than merely the approval or acquiescence of the state in the decisions or actions of...