THOMAS B. RUSSELL, Senior District Judge.
This matter comes before the Court on Defendant Lonnie Bell's Motion to Dismiss. [R. 50.] Plaintiff Bob Anderson responded, [R. 51], and Bell replied, [R. 52]. Fully briefed, this matter is ripe for adjudication. For the reasons stated herein, Bell's Motion to Dismiss, [R. 50], is
The general factual background of this case can be found in the Court's previous Memorandum Opinion and Order from November 28, 2018, [R. 41.] The Motion to Dismiss before the Court solely involves the claims against Lonnie Bell, a member of the Critical Incident Response Team ("CIRT"),
On October 4, 2018, Anderson filed the First Amended Complaint, in which he alleged eight causes of action, including "[v]iolation of Fourth, Fifth, Eighth, and Fourteenth Amendments Pursuant to 42 U.S.C. § 1983," "negligence/gross negligence," battery, wrongful death, loss of consortium, hindrance of prosecution, perjury, and abuse of public office, against nine defendants. [Id. at 9-11.]
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In order to survive a motion to dismiss under Rule 12(b)(6), a party must "plead enough `factual matter' to raise a `plausible' inference of wrongdoing." 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible "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 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the Court must presume all of the factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). "The court need not, however, accept unwarranted factual inferences." Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Should the well-pleaded facts support no "more than the mere possibility of misconduct," then dismissal is warranted. Iqbal, 556 U.S at 679. The Court may grant a motion to dismiss "only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief." Garceau v. City of Flint, 572 F. App'x. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677-79).
In the Amended Complaint, Bell is included amongst the listed defendants for Anderson's claims of "[v]iolation of Fourth, Fifth, Eighth, and Fourteenth Amendments Pursuant to 42 U.S.C. § 1983," "negligence/gross negligence," battery, wrongful death, loss of consortium, hindrance of prosecution, perjury, and abuse of public office. [R. 25 at 9-11.] In response to Anderson's § 1983 claim, amongst other arguments, Bell maintains that he is entitled to absolute immunity. [R. 50 at 5.] As for the state claims asserted against him, Bell argues that Anderson has failed to state a claim. [Id. at 14-18.] The Court will address each of these issues in turn.
In his Motion to Dismiss, Bell asserts that he is absolutely immune from Anderson's § 1983 claim against him as it is based on his testimony in front of the Grand Jury. [R. 50 at 5-6.] In the Amended Complaint, Anderson claims that after Bell investigated the incident involving McClure's fatal shooting:
[R. 25 at 8.] Bell argues that "[m]isstatements and even outright lies to the grand jury would not support a claim under 42 U.S.C. § 1983." [R. 50 at 5.] The Court agrees that Bell is entitled to absolute immunity concerning his grand jury testimony.
The United States Supreme Court has stated: "grand jury witnesses should enjoy the same immunity as witnesses at trial. This means that a grand jury witness has absolute immunity from any § 1983 claim based on the witness' testimony." Rehberg v. Paulk, 566 U.S. 356, 369 (2012). Additionally, "this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness' testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution." Id. This is because, "[w]ere it otherwise, `a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.'" Id. (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993) (Kennedy, J., concurring in part and dissenting in part)). Here, the factual allegations in the Amended Complaint that support Anderson's § 1983 claim revolve around Bell's grand jury testimony. Therefore, Bell has absolute immunity from any § 1983 claim based on his grand jury testimony. The Court acknowledges Anderson's argument that "Bell's misconduct was not the product of a splitsecond decision on his part after taking the stand" but was part of "a cover-up conceived beforehand." [R. 51 at 3-4.] However, as explained above, Anderson may not circumvent the rule of absolute immunity for grand jury testimony by "claiming that a grand jury witness conspired to present false testimony . . . ." Rehberg, 566 U.S. at 369. Thus, the Court finds that Bell enjoys absolute immunity and Anderson's § 1983 claim against him shall be dismissed.
In response, Anderson essentially provides three arguments why he believes this assessment of absolute immunity is false. First, Anderson argues that despite Bell's claim of immunity, he still has a cause of action for "denial of due process and access to the courts under the Fourteenth Amendment where law enforcement officers intentionally engaged in a cover-up `that interfered with [the plaintiff's] exercise of [his] constitutionally protected right to institute a wrongful death suit.'" [R. 51 at 4 (citing Ryland v. Shapiro, 708 F.2d 967, 971-73 (5th Cir. 1983)).] In support of this assertion, Anderson cites to the Fifth Circuit's findings in Ryland v. Shapiro, in which the court held that two prosecutors were not entitled to prosecutorial immunity when they acted outside their roles as prosecutors by falsifying a death certificate and covering up a murder for eleven months. Ryland, 708 F.2d at 975. As highlighted by Bell in his Reply, [R. 52 at 2], this case did not involve the immunity of a grand jury witness. Thus, Ryland, is easily distinguishable from the matter at hand. Furthermore, the precedent of the Fifth Circuit is not binding on this Court.
Second, Anderson implies that immunity does not prohibit his claim due to the Fifth Circuit's finding that "if state officers conspire . . . in such a way as to defeat or prejudice a litigant's rights in state court, that would amount to a denial of equal protection of the laws by persons acting under color of state law." [R. 51 at 4 (quoting Dinwiddie v. Brown, 230 F.2d 465, 469 (5th Cir.), cert. denied, 351 U.S. 971 (1956)).] Besides the fact that this case law is over fifty years old and not binding on this court, it is also distinguishable from the matter at hand. Once again, the Fifth Circuit's findings in Dinwiddie do not concern the issue of immunity; thus, it is inapplicable to the case before the Court.
Lastly, Anderson argues that he is "entitled to at least file suit and pursue discovery to determine whether Bell's misconduct has rendered this action ineffective in compensating the injuries to Mr. McClure's estate and minor children." [R. 51 at 5.] In support of this assertion, Anderson cites to the Sixth Circuit case of Swekel v. City of River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997). In Swekel, the Sixth Circuit affirmed the dismissal of a § 1983 claim arguing that the defendants denied the plaintiff access to the courts when the plaintiff failed to present evidence that the defendants' actions rendered a state court remedy ineffective. Id. Unlike the matter at hand, Swekel did not involve the issue of absolute immunity for grand jury testimony. Thus, Swekel is not applicable in this circumstance.
In conclusion, the Court finds that Bell has absolute immunity from any § 1983 claim based on his grand jury testimony. As the factual allegations in the Amended Complaint that support Anderson's § 1983 claim revolve around Bell's grand jury testimony, Anderson's § 1983 claim against Bell is dismissed. Bell's Motion to Dismiss, [R. 50], as it pertains to Anderson's § 1983 claim, is GRANTED.
Remaining before the Court are the following claims: battery,
[R. 25 at 8.] Directly following this assertion, the Amended Complaint provides:
[Id. at 8-9.] It is unclear to the Court how either of these generic assertions concerning all of the defendants together relates to the four remaining claims as they relate to Bell. Furthermore, the individual causes of action, as listed in the Amended Complaint, provide little assistance:
[R. 25 at 10.] The Supreme Court has stated that "[a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Id. The Court finds that, at best, these limited factual allegations, along with the broad, conclusory statements mentioned, support no "more than the mere possibility of misconduct." Id. at 679.
Anderson attempts to bring some specificity to the group of claims in his Response by stating, in reference to all four claims, "Plaintiff is not claiming that Bell participated in the killing of Mr. McClure; Plaintiff is claiming that Bell participated in a conspiracy of cover-up that led Buckingham to believe he could kill Mr. McClure with impunity." [R. 51 at 5.] Still, absent from Anderson's Response is any factual allegation as to how Bell participated in a "conspiracy of cover-up," or any explanation as to how this conspiracy relates to the four remaining causes of action. The only case Anderson cites in support of these assertions is Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997), in which the Sixth Circuit explained that "there are circumstances under which police officers can be held liable for failure to protect a person from the use of excessive force." However, the case did not involve absolute immunity for grand jury testimony. As explained above, the Court has already denied Anderson's claim of excessive force under his § 1983 claim due to absolute immunity. Thus, Anderson's further arguments in his Response do not save his claims against Bell.
As an alternative argument, at the end of his Response, Anderson asserts that if "the Court believes there still exists a deficiency in Plaintiffs' Original or the tendered First Amended Complaint that renders it vulnerable to dismissal, it `must permit a curative amendment, unless an amendment would be inequitable or futile.'" [R. 51 at 6 (quoting Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).]. Although a request to amend should normally be freely given under Federal Rule of Civil Procedure 15(a), the Sixth Circuit has held that "an informal request contained in a brief in opposition to a motion to dismiss is not deemed a Rule 15 motion to amend." Gonzalez v. Kovacs, 687 F. App'x 466, 470 (6th Cir. 2017) (citing Begala v. PNC Bank, 214 F.3d 776, 784 (6th Cir. 2000)). In PR Diamonds, Inc. v. Chandler, 364 F.3d 671 (6th Cir. 2004), the Sixth Circuit explained:
PR Diamonds, Inc., 364 F.3d at 699. Under these circumstances, the Court finds that it has no obligation to grant Anderson's informal request to amend. Gonzalez, 687 F. App'x at 470. Furthermore, considering that the complaint has already been amended once and the Motion to Dismiss was filed in April, the Court finds that Anderson had plenty of opportunities to file a motion to amend his complaint.
In conclusion, the Court finds that Anderson has failed to state a claim regarding his four remaining causes of action. Therefore, Bell's Motion to Dismiss, [R. 50], as it pertains to the remaining causes of action, i.e., battery, negligence/gross negligence, wrongful death, and loss of consortium, is GRANTED.
For the foregoing reasons,
Defendant Bell is DISMISSED from this action as there are no more claims remaining against him. The Clerk of Court is DIRECTED to remove Defendant Bell from the docket of this action.
[Id. at 6-7.]