Michael Dwayne THOMAS, Plaintiff-Appellant, v. Lynn NODER-LOVE, et al., Defendants-Appellees.
No. 13-2495.
United States Court of Appeals, Sixth Circuit.
July 17, 2015.
825
The District Judge placed more weight on the nature and circumstances of the offense for which Martinez was sentenced than on his prior criminal history. To be sure, Martinez‘s recidivism played a role in the district court‘s decision to vary upward from the mandatory-minimum sentence, but the court did not put an impermissible amount of weight on Martinez‘s criminal history. Martinez therefore cannot meet his “much greater burden” to show that the district court‘s sentence was substantively unreasonable. Adkins, 729 F.3d at 571.
Applying abuse-of-discretion review, the District Judge did not place an impermissible amount of weight on Martinez‘s criminal history. We accordingly hold that Martinez‘s sentence is substantively reasonable.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
Rosalind Rochkind, Garan Lucow Miller, Detroit, MI, Mark E. Shreve, Garan Lucow Miller, Troy, MI, Thomas Carey O‘Brien, David Danny O‘Brien, Miller Canfield, Ann Arbor, MI, for Defendants-Appellees.
BEFORE: COLE, Chief Judge; KETHLEDGE, Circuit Judge; and OLIVER, District Judge.*
OPINION
OLIVER, District Judge.
Plaintiff Michael Thomas (“Plaintiff” or “Thomas“), appeals from the order of the district court granting Defendants’ Motion to Dismiss pursuant to
I. FACTUAL AND PROCEDURAL HISTORY
On June 24, 2011, an unknown man assaulted another man with a stun gun in the University of Michigan hospital. A surveillance camera captured the assailant as he was leaving the scene of the assault. Lynn Noder-Love (“Noder-Love“), a hospital manager, reviewed the surveillance footage (“Footage“) and misidentified the assailant as Thomas, a former employee. Detective Ryan Cavanaugh (“Cavanaugh“) and Washtenaw County Sheriff‘s Deputies Scott Heddle (“Heddle“) and William Coggins (“Coggins“) then arrested Thomas on June 27, 2011.
Two days later, Cavanaugh appeared before a Michigan district court judge for a probable-cause hearing. At the time of the hearing, Cavanaugh had a copy of a photo of the assailant from the Footage (“Footage Photo“) and Thomas‘s booking photo (“Booking Photo“) “and knew that [Thomas] was not the individual in the surveillance footage.” (First Am. Compl. at ¶ 13.) Yet Cavanaugh swore before the judge that a witness had positively identified Thomas as the man in the Footage. Cavanaugh also failed to inform the judge that, even though the assault victim knew Thomas, the victim did not identify Thomas as his assailant after the victim viewed the Footage. Cavanaugh did not show the judge the Footage, Footage Photo, or Booking Photo during the hearing.
Based on Cavanaugh‘s statements, the judge issued a warrant for Thomas‘s arrest and detention. Thomas was then arraigned on weapons and assault charges. A week later, the charges were dropped after the prosecutor reviewed the Footage and Booking Photo and determined that Thomas was not the man in the Footage.
In June 2013, Thomas brought
II. STANDARD OF REVIEW
We review a
In deciding a
III. ANALYSIS
Plaintiff raises a number of issues on appeal in support of his argument that the trial court improperly granted Defendants’ Motion to Dismiss. He asserts that the Motion should not have been granted because his time to respond to Defendant‘s Motion had not expired at the time the district court dismissed the case. (Id. at 16.) He also maintains that the court improperly converted Defendant‘s Motion to Dismiss into a Motion for Summary Judgment when the court compared the Footage Photo to the Booking Photo; in so doing, the court impermissibly weighed the evidence. (Appellant‘s Br. at 6.). In addition, he asserts that such Motion should not have been considered without his having the opportunity to conduct discovery
All Defendants argue that the Motion to Dismiss was properly granted for failure to state a claim. Additionally, Defendants the Regents and Cavanaugh argue that Plaintiff‘s claims against them are barred under the Eleventh Amendment doctrine of sovereign immunity and the Michigan Governmental Tort Liability Act.
A. Proper Timing of Granting 12(b)(6) Motion
Plaintiff argues that the district court erroneously granted Defendants’ Motion before Plaintiff‘s time to respond had expired. Specifically, Plaintiff argues that Defendants filed an amended pleading on September 26, 2013, giving Plaintiff until October 10, 2013, to file a response pursuant to
Under
Defendants filed the Motion to Dismiss on August 19, 2013. Under Eastern District of Michigan Local Rule 7.1(e)(1), a party must file a response to a dispositive motion within twenty-one days of service. E.D. Mich. LR 7.1(e)(1)(B). Therefore, Plaintiff‘s response was due on September 12, 2013. See id.;
B. Transformation of Motion to Dismiss into Summary Judgment Motion
This court reviews whether the district court erroneously considered the Footage Photo and Booking Photo in deciding Defendants’ Motion to Dismiss, thereby converting the Motion into a motion for summary judgment.
This court finds that the district court‘s evaluation of the likeness between the man in the Footage Photo and the man in the Booking Photo was erroneous. Documents outside of the pleadings that may typically be incorporated without converting the motion to dismiss into a motion for summary judgment are “public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.” Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); see also Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000) (holding that the district court was obligated to either not consider photographs of an apartment complex submitted on a motion to dismiss or convert the motion into a motion for summary judgment).
While the Footage and Booking Photo were both referred to in the Complaint and central to the claims contained therein, deciding whether the man in the Footage Photo and the man in the Booking Photo looked similar in appearance was not a matter appropriate for resolution by a motion to dismiss. Such a comparison raises issues of fact that are only properly resolvable at trial. Here, the judge assumed that the Footage Photo and Booking Photo attached to the motion to dismiss were the photos referenced in the Complaint, determined for himself that the two men pictured looked alike, and then rejected the Complaint‘s allegations as implausible. The court may not dismiss a complaint for failure to state a claim “based on a judge‘s disbelief of a complaint‘s factual allegations.” City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 665 (6th Cir. 2005). Though the district court judge found that the two men resembled each other, the Complaint alleges that at least two other people did not think that the man in the Footage looked like Thomas: Detective Cavanaugh, and the prosecutor. (See First Am. Compl. at ¶¶ 13, 24.) A reasonable jury could find that the two men did not look similar. Thus, this court finds that the issue of whether the two men in the Footage and Photo appear similar raises a genuine dispute of a material fact. Thus, it was inappropriate for the court to resolve this issue on a motion to dismiss or a motion for summary judgment.
Even though the district court erred in part, we may affirm the dismissal of Thomas‘s Complaint for any reason supported by the record. Hensley Mfg. v. ProPride, 579 F.3d 603, 609 (6th Cir. 2009). Thus, we will review the record to determine whether dismissal was otherwise warranted.
C. Consideration of the Motion to Dismiss
In his Complaint, Plaintiff asserts six causes of action: (1) gross negligence against Cavanaugh, Heddle, Coggins, and Noder-Love; (2) intentional infliction of emotional distress against Cavanaugh, Heddle, Coggins, and Noder-Love; (3) violation of
1. Defendants Regents of University of Michigan and Detective Cavanaugh
Defendants the Regents and Detective Cavanaugh argued, both at the district court level and here at the appellate level, that they are immune from all claims based on sovereign immunity under the Eleventh Amendment, as well as the Michigan Governmental Tort Liability Act (“MGTL“). Plaintiff has not briefed or responded to this particular issue. Because the court finds Defendants’ Eleventh Amendment argument to be well-taken, there is no need to address the state tort claims as explained hereafter.
This court has previously determined that the Board of Regents of the University of Michigan is a state entity protected by Eleventh Amendment sovereign immunity. See Estate of Ritter by Ritter v. Univ. of Michigan, 851 F.2d 846, 851 (6th Cir. 1988). Thus, the Eleventh Amendment renders both Defendants University of Michigan and University of Michigan Health System immune to all of Plaintiff‘s claims. As an officer of the University of Michigan, Defendant Cavanaugh is also a state agent protected by sovereign immunity if sued in his official capacity.
Under the “course of proceedings” test, this court looks to the Complaint and how Plaintiff describes the defendant to determine whether the cause of action is being brought against Defendant in his official or individual capacity. See Moore, 272 F.3d at 772. Specifically, the court looks to (1) whether the defendant is referred to by his official title, (2) whether Plaintiff implies that Defendant acted outside of his official capacity, and (3) whether Plaintiff alleges that Defendant was acting on behalf of himself or his employer. Id. at 772-73. The Complaint indicates that Plaintiff only sued Defendant Cavanaugh in his official capacity. First, in the Complaint, Plaintiff consistently refers to Cavanaugh by his official title, “detective.” Second, Plaintiff‘s Complaint alleges that Cavanaugh “at all relevant times . . . was a police officer who worked for the University of Michigan Police Departments, and was at all times material to this cause of action performing his duties as a police officer....” (First Am. Compl. at ¶ 6.)
Further, Plaintiff did not make any additional filings before dismissal to clarify the nature of his claims. Defendant Cavanaugh also did not defend against Thomas‘s claims by asserting qualified immunity. Thus, considering all the relevant factors, Cavanaugh did not have sufficient notice of an individual-capacity suit. See, e.g., Shepherd v. Wellman, 313 F.3d 963, 968-69 (6th Cir. 2002). Therefore, sovereign immunity also attaches to Defendant Cavanaugh in this case.
Thus, all claims against Defendants University of Michigan, University of Michigan Health System, and Cavanaugh are dismissed for lack of subject-matter jurisdiction, without having to address the sufficiency of Plaintiff‘s pleadings.
2. Defendants Heddle and Coggins
As sheriff‘s deputies for the Washtenaw Sheriff Department, Defendants
In his Complaint, Plaintiff asserts five causes of action against Defendants Heddle and Coggins: (1) violation of
This court finds, as did the district court, that Plaintiff‘s Complaint is lacking in factual support for any of the legal allegations made in respect to his
The only facts alleged in paragraphs 1-25 that are specific to Coggins or Heddle are that they were police deputies for the Washtenaw Sheriff Department working in their official capacities, (First Am. Compl. at ¶¶ 8-9), and that they arrested Plaintiff on June 27, 2011, (id. at ¶ 12f). The only factual allegations in the Complaint regarding the events leading to Thomas‘s arrest is that Noder-Love reviewed the Footage and identified Thomas, her former employee, as the man in the Footage. An eyewitness identification—standing alone—is sufficient to establish probable cause unless the officer has some reason to believe at the time of the arrest that the eyewitness is lying or mistaken. Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999).
3. Defendant Noder-Love
The court also finds that Plaintiff insufficiently pled his claims against Noder-Love. In his Complaint, Plaintiff asserts four causes of action against Noder-Love: (1) gross negligence; (2) intentional infliction of emotional distress; (3) violation of
The only facts alleged in paragraphs 1-25 that are specific to Noder-Love are that she was an employee of the University of Michigan and the University of Michigan Health System, (id. at ¶¶ 3, 5), and that she identified Plaintiff as the person in the Footage, (id. at ¶ 12e). Taken together, these facts are insufficient to state a plausible claim against Noder-Love for any of the causes of action Plaintiff asserts.
Thus, this court affirms the district court‘s dismissal of all claims against Noder-Love.
D. Dismissal as to Non-Moving Parties
Plaintiff argues that the district court erred in granting the Motion to Dismiss as to all Defendants where only Defendants the Regents and Cavanaugh filed the Motion and no other Defendants joined it. Defendants maintain on appeal that this argument was waived because Plaintiff did not raise it before the trial court in his Motion for Reconsideration. This court agrees that under the precedent of this circuit, this argument was waived. See Hayward v. Cleveland Clinic Foundation, 759 F.3d 601, 614 (6th Cir. 2014). Even absent waiver, Plaintiff‘s argument is not well-taken. For example, he claims that “[t]he facts alleged by Plaintiff to support the claims against Noder-Love, Heddle and Coggins are different than the facts which are alleged to support the claims against Cavanaugh.” (Appellant‘s Br. at 15.) This is clearly incorrect. As previously discussed, in resolving the false arrest claims against all three, the district court had to review substantially the same factual allegations. Thus, the district court properly dismissed all of the claims that depend on a lack of probable cause for his original arrest, including all claims against Heddle and Coggins. Similarly, the court properly considered and dismissed all claims against Noder-Love, as the factual underpinnings of the claims against her were closely intertwined with those of the other Defendants. Thus, the district court properly dismissed the claims against all Defendants.
For the foregoing reasons, we AFFIRM the order of the district court granting Defendants’ Motion to Dismiss and AFFIRM dismissal of all claims against all Defendants.
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