Kyles v. Cnty. of Oakland

TERRENCE G. BERG, United States District Judge

Daniel W. Cermak, Hasan Kaakarli, Hayden Pendergrass, Shereef H. Akeel, Akeel & Valentine, PLC, Troy, MI, for Plaintiff. Layla Rose Sizemore, Steven M. Potter, Trevor S. Potter, Potter DeAgostino O'Dea and Clark, Auburn Hills, MI, Robert C. Clark, Potter DeAgostino O'Dea & Patterson, Auburn Hills, MI, for Defendants Mark Goodrich, Kenneth Everingham. Holly S. Battersby, Margaret T. Debler, Michael T. Berger, Rosati Schultz Joppich & Amtsbuechler PC, Farmington Hills, MI, for Defendants Stewart Trepte, Nolan Gottschall. Jennifer L. Newby, U.S. Attorney, Defensive Litigation, Detroit, MI, for Defendant Stanley Christ. David W. Jones, Lindsey R. Johnson, Schenk & Bruetsch, PLC, Detroit, MI, for Defendant Gregory Townsend.

ORDER RESOLVING MOTIONS TO DISMISS (ECF NOS. 32 & 48); GRANTING OAKLAND COUNTY'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 53); AND GRANTING CITY OF PONTIAC'S MOTION FOR JUDGMENT ON THE PLEADINGS (ECF NO. 61)

TERRENCE G. BERG, United States District Judge

Anthony Kyles spent nearly 25 years in prison on four convictions for second-degree murder before the Oakland County Circuit Court vacated his convictions as wrongfully obtained. After his release from prison, Kyles sued Oakland County, the City of Pontiac, and several individuals involved in investigating and prosecuting him, raising claims for violations of his constitutional rights and state law.

Many of the defendants now seek dismissal of various claims. For the reasons below, the Motion to Dismiss filed by Oakland County, Goodrich, Everingham, and Shields (ECF No. 32) will be GRANTED; Christ's Motion to Dismiss (ECF No. 48) will be GRANTED IN PART and DENIED IN PART; Oakland County's Motion for Summary Judgment (ECF No. 53) will be GRANTED; and Pontiac's Motion for Judgment on the Pleadings (ECF No. 63) will be GRANTED.

I. FACTUAL ALLEGATIONS

The Court summarized some of the allegations in this case in its prior opinion, Kyles v. County of Oakland, 696 F. Supp. 3d 390 (E.D. Mich. Sept. 30, 2023), but additional detail is necessary.

A. The Fire

Early one morning in September 1995, Jacqueline Etchen and her boyfriend, Robert Perry, awoke to one of her six children screaming that their room in the couple's Pontiac, Michigan home was on fire. ECF No. 1, ¶¶ 15, 22. Perry jumped out of bed and rushed to the room. ¶ 23. As he tried to extinguish the fire, he yelled that a defective space heater was to blame; the couple's gas was shut off for nonpayment, and a well-meaning friend had tried to "fix" the heater—which had a bad power cord—by splicing it with a cable from a lamp. ¶¶ 16-17, 24-25. Etchen and three of her children managed to escape to safety, but Perry and the others perished in the burning building. ¶¶ 26, 30.

Etchen told first responders that the jerry-rigged heater was to blame for the devastation. ¶ 31. But, after visiting the house, Detective Stewart Trepte of the City of Pontiac Police Department decided to treat the fire as arson caused by an incendiary—and the deaths as homicides. ¶¶ 33-35. He insisted that the fire was the result of foul play even after tests for the presence of an accelerant on the front porch, where he theorized that the fire had started, came back negative. ¶¶ 34-35.

In short order, a Task Force—comprised of Pontiac Detective Nolan Gottschall, Oakland County Detectives Mark Goodrich and Kenneth Everingham, and FBI Special Agent Stanley Christ, in addition to Detective Trepte—was assigned to "investigate the circumstances of the fire and secure a conviction against anyone charged." ¶¶ 36-37.

B. The Investigation

Kyles says that, over the course of a two-year investigation, Task Force investigators conspired to fabricate evidence against him—in particular, by bullying a witness, Keith Hollimon, into testifying falsely that he saw Kyles start the fire. ¶¶ 38-39, 69.

It is unclear from the complaint why the Task Force zeroed in on Kyles as a suspect or even how Hollimon knew Kyles. What is clear is that Hollimon had a criminal history and had recently been arrested for burglarizing some apartments. ¶ 41.

During an interview about the burglaries, the complaint alleges, Detective Trepte "randomly" asked Hollimon if he knew anything about the fire—and offered to help with the burglary case if Hollimon could provide information. ¶¶ 42-44. Despite this promise, Hollimon maintained that he knew nothing. ¶ 45.

But Task Force investigators continued to bring the fire up to Hollimon over the course of multiple interviews. ¶ 46. The complaint alleges that Hollimon, faced with mounting pressure from his criminal case and increasingly improper methods of interrogation, eventually started telling shifting stories. ¶¶ 46-71. The complaint chronicles the evolution of those stories—which, according to Kyles, changed and became increasingly damning after off-the-record conversations with Task Force investigators:

• In October 1995, Hollimon told Goodrich and Gottschall that he overheard Kyles talking about the fire. ¶¶ 49-50.

• In December 1995, Hollimon told Gottschall that he had been in the vicinity of the fire and heard "a little faint crying" for help coming from the house but, at Gottschall's suggestion, changed his statement to say that he heard screams of "Help! Help me!" ¶ 52.

• In January 1996, Hollimon told an interview team comprising of Gottschall, Goodrich, and Christ that he saw Kyles standing across the street from the house in a crowd of people as the house burned—and, after several off-the-record conversations, added that Kyles himself had started the fire. ¶¶ 57-58.

Task Force detectives remained unsatisfied. When Hollimon tried to backtrack from any implication that he had seen Kyles start the fire—telling them "No, no, no, no . . . wait a minute, wait a minute . . . I seen him coming . . . away[,] I didn't see him start . . . the fire"—the improprieties multiplied. ¶¶ 66-68. Among other things, Goodrich and Gottschall told Hollimon they were going to "ship [Kyles] down to Terre Haute" and seek the death penalty, so Hollimon would need to "watch [his] back" if Kyles made it out of jail. ¶¶ 61-64. They further blustered:

You got the hand right now that can . . . put him into the federal system—into the death penalty. . . . They're gonna give him a hot shot. Its lethal injection.

They're gonna kill his ass. Do you understand what death penalty is? Same as if they shoot you? They hang you?

¶¶ 63-64. With questions such as these, along with promises of safety and threats of violence, Task Force investigators eventually secured Hollimon's full "cooperation." ¶¶ 61-64, 65, 68.

According to the complaint, Hollimon eventually agreed to tell the false story that Task Force investigators encouraged him to tell over the course of multiple off-the-record conversations: That he had witnessed Kyles light a Molotov cocktail and throw it at Etchen's home. ¶ 69. (Still later, Hollimon told investigators alternatively that the house was fire-bombed and pipe-bombed. ¶ 89.) When investigators had him take a polygraph test regarding these statements, he failed. ¶¶ 75-76. The complaint alleges that the investigators, knowing the Oakland County Prosecutor's Office would prosecute cases only if the lead witness passed a polygraph test, concocted a plan to hire their preferred polygrapher (not a party to this case) so that Hollimon would "pass" and Kyles could be charged and convicted in a high-profile murder case. ¶¶ 73-77. Ultimately, as a result of the statements he provided, Hollimon was sentenced to a single year in prison for the burglaries, despite being a habitual offender, in advance of Kyles's trial. ¶¶ 95, 107.

According to the complaint, investigators also pressured other witnesses. For instance, Christ and Everingham insisted to one of Etchen's friends that Kyles started the fire until she began speculating about his possible motives to do so, even though she initially maintained that Kyles was not a killer and told them that several white males had previously threatened Etchen with "revenge" over a drug debt. ¶¶ 78-85. The officers never investigated these other suspects and instead concealed exculpatory remarks about Kyles from their files. ¶¶ 81-82, 85.

C. Arrest & Trial

In Spring 1997, Kyles was arrested and charged. ¶¶ 99-100. The arrest was highly publicized. At a press conference, Etchen made tearful statements, and Oakland County and City of Pontiac officials talked about the Task Force's purpose and success. Then-Oakland County Sheriff's Captain Damon Shields told reporters that the evidence showed Kyles "wanted to get even and didn't care who was in the home . . . This man intended for people's lives to be lost." ECF No. 1-13, PageID.335.

During Kyles's trial later that year, the state argued that Kyles intentionally started the fire at Etchen's house. According to the complaint, the prosecutor deliberately concealed from the jury the favorable plea deal Hollimon had received in exchange for his participation in the "arson" investigation. ¶¶ 107-08, 112-13.

In October 1997, a jury found Kyles guilty of four counts of second-degree murder, and he received a sentence of life in prison. ¶ 116.

D. Exoneration

Over a decade later, Hollimon recanted his testimony and explained in letters to Kyles's daughter how Task Force investigators pressured him into testifying falsely against Kyles. ¶¶ 117-25. Based on the recantation, Kyles applied to the Michigan Innocence Clinic, which found fire and electrical experts to challenge evidence from Kyles's trial. ¶¶ 125-35. These experts concluded that the cause of the fire at Etchen's home was the defective space heater and that no credible scientific information established it was an arson. ¶¶ 135, 139. Armed with their reports, the Michigan Innocence Clinic approached the Oakland County Prosecutor's Conviction Integrity Unit in 2021. ¶ 179. After the Unit's expert reviewed the evidence and agreed that the fire could not have been the result of an arson, the Unit joined a petition by the Michigan Innocence Clinic to have Kyles's convictions vacated. ¶¶ 180-82, 184, 187.

On October 12, 2022, the Oakland County Circuit Court entered an order vacating Kyles's convictions. ¶ 185. After spending nearly 25 years in prison for a crime that the evidence showed he did not commit, Kyles was released from prison. ¶ 188. According to the complaint, other wrongful convictions attributable to Task Force investigators have recently come to light. ¶¶ 143-59.

E. Claims & Pending Motions

In December 2022, Kyles filed a complaint against Oakland County, the City of Pontiac, the state prosecutor, Hollimon, and Task Force investigators. ¶¶ 5-14. The claims against the state prosecutor have been dismissed by separate order. ECF No. 62. The following claims remain:

• Count I: § 1983 claim for Brady violations against Trepte, Goodrich, Gottschall, and Everingham;

• Count II: § 1983 claim for fabrication of evidence against Trepte, Goodrich, Gottschall, and Everingham;

• Count III: § 1985 claim for conspiracy to violate Kyles's civil rights against Trepte, Goodrich, Gottschall, Everingham, Christ, and Hollimon;

• Count IV: § 1983 claim for malicious prosecution against Trepte, Goodrich, Gottschall, and Everingham:

• Count V: § 1983 claim for detention without probable cause against Trepte, Goodrich, Gottschall, and Everingham:

• Count VI: Monell claim against Oakland County and City of Pontiac for affirmative practices and policies;

• Count VII: Monell claim against Oakland County and City of Pontiac for failure to train;

• Count VIII: Bivens claim against Christ;

• Count IX: gross-negligence claim under MCL § 691.1407 against Trepte, Goodrich, Gottschall, and Everingham;

• Count X: malicious-prosecution claim under Michigan law against Trepte, Goodrich, Gottschall, and Everingham; and

• Count XI: defamation claim under MCL § 600.2911 against Oakland County and Shields.

Oakland County, Goodrich, Everingham, Shields, and Christ have filed motions to dismiss some, but not all, of the claims against them. Oakland additionally seeks the entry of summary judgment in its favor, and the City of Pontiac has moved for judgment on the pleadings.

II. MOTIONS TO DISMISS (ECF Nos. 32 & 48)

Goodrich and Everingham seek dismissal of Count III, the § 1985 claim, for failure to state a claim, and Oakland County and Shields ask for dismissal of Count XI, the defamation claim, on timeliness and immunity grounds. ECF No. 32. Separately, Christ moves for dismissal of all of the claims against him, echoing Goodrich and Everingham's arguments that Count III fails to state a claim and also challenging the cognizability of the Bivens claim in Count VIII. ECF No. 48.

A. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." A motion filed under Rule 12(b)(6) tests whether a complaint has satisfied that requirement. Fed. R. Civ. P. 12(b)(6). "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

In evaluating whether a plaintiff has set forth a plausible claim, the Court accepts as true all well-pleaded factual allegations. See Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001). "[M]ere conclusions," however, "are not entitled to the assumption of truth." Iqbal, 556 U.S. at 664, 129 S.Ct. 1937. And "[t]hreadbare recitals of the elements of a cause of action," devoid of further factual enhancement, will not do. Id. at 678, 129 S.Ct. 1937. The Court need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quotations omitted).

B. Count III , Civil Conspiracy under 42 U .S.C. § 1985

Section 1985 prohibits conspiracies to interfere with a plaintiff's civil rights. It contains three subsections, each directed at different kinds of conspiracies: the first subsection "prohibits conspiracies to interfere with federal officers in the performance of their duties," Fox v. Mich. State Police Dep't, 173 F. App'x 372, 376 (6th Cir. 2006); the second "prohibits conspiracies to influence parties, witness[es], or jurors in federal court proceedings . . . [and] conspiracies to interfere with due process in state courts with the intent to deprive persons of their equal protection rights," id.; and the third "prohibits conspiracies to deprive persons of their equal protection rights" and interfere with voting rights. Id. Each of these conspiracies under § 1985 have different elements and pleading requirements.

Kyles invokes subsections (2) and (3) in alleging that defendants conspired to secure his wrongful conviction by fabricating and withholding evidence. ¶¶ 226, 230, 231, 242. Goodrich, Everingham, and Christ contend that his complaint fails to state a claim because it does not plausibly allege that the conspiracy was motivated by racially discriminatory animus. Separately, Christ argues that Kyles failed even to establish that an agreement existed between the alleged conspirators, while Goodrich and Everingham advance the argument that the claim is time-barred.

1. Single Plan & Common Conspiratorial Objective

The Court begins with Christ's argument that Kyles failed to include enough specific factual matter in his complaint to plausibly establish the existence of an agreement between the alleged conspirators.

A conspiracy claim is a claim that two or more persons agreed to injure another by unlawful action. Gerber v. Herskovitz, 14 F.4th 500, 511 (6th Cir. 2021). A plaintiff must allege that: "(1) a single plan existed, (2) the defendants shared in the conspiratorial objective to deprive the plaintiff of his constitutional rights, and (3) an overt act was committed in furtherance of the conspiracy that caused the injury." Id. (quotations and alterations omitted); see also Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). And he must do so with some degree of factual specificity. Marvaso v. Sanchez, 971 F.3d 599, 606 (6th Cir. 2020); see also Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977) (discussing heightened pleading standard for conspiracy claims to curb frivolous cases).

Christ acknowledges that the complaint describes specific actions taken by each alleged conspirator. He maintains, however, that it describes nothing more than "parallel conduct"—that is, conduct by different actors committed at the same time, without any proof that it was the product of a "meeting of the minds." ECF No. 48, PageID.1254. While each individual action contributed to the net effect of bringing about Kyles's conviction, Christ says, the complaint fails to establish that the defendants came together and agreed to act in furtherance of a common, unlawful scheme. Id. at PageID.1254-56.

"Express agreement among all the coconspirators is not necessary to find the existence of a civil conspiracy." Hooks, 771 F.2d at 944. A plaintiff does not need to show that each conspirator knew every detail of the illegal plan or even the identities of each participant—only that there was a single plan, and that a particular alleged conspirator joined it and shared in the general conspiratorial objective. Rudd v. City of Norton Shores, 977 F.3d 503, 517 (6th Cir. 2020).

Kyles's burden was only to set forth enough specific factual allegations to make it plausible that the conspirators had a single plan and objective. Id. He has met it. His complaint identifies a shared objective and a plan to achieve it—i.e., to unlawfully secure a high-profile conviction by fabricating and withholding evidence. It describes a number of overt acts taken by the alleged conspirators in furtherance of that plan, including: use of techniques by specific teams of interviewers on specific dates to elicit false statements; decisions to withhold exculpatory reports and statements; and other actions, like choreographed efforts to ensure that Hollimon passed a polygraph test. Kyles does not detail exactly when the plan was formed, but he did not need to. His allegations are sufficient to support an inference that, by the time investigators began pressuring Hollimon to give a statement implicating Kyles in the fire, the plan was well underway.

Christ responds that a single plan could not have existed because not every conspirator was involved in every phase of the investigation. He also attacks Hollimon's motivations. ECF No. 48, PageID.1254-55. But these arguments challenge the truth of Kyles's allegations, not their sufficiency. The analysis at this stage turns on whether Kyles has set forth enough specific facts to support a plausible inference that defendants were working together in furtherance of a common scheme, not whether there are other possible explanations for their behavior. Rudd, 977 F.3d at 519-20. At the motion to dismiss stage, the Court must take the allegations in the complaint to be true. Considering the specificity of his allegations, Kyles has met this burden.

Count III will not be dismissed on the ground that Kyles has failed to adequately allege a single plan and a shared objective.

2. Discriminatory Animus

Goodrich, Everingham, and Christ all contend that discriminatory animus is an element of Kyles's § 1985 claim and challenge the sufficiency of his allegations on this ground. Kyles offers two responses. First, he maintains that, at least for his theory under § 1985(2), there is no discriminatory-animus element. ECF No. 40, PageID.1122-23; ECF No. 50, PageID.1293-94. Second, he maintains that his allegations are sufficient to support an inference that the conspiracy was motivated by invidious discriminatory animus.

a. Elements of § 1985(2) and § 1985(3) Claims

The second clause of § 1985(2), which concerns conspiracies to obstruct state-court proceedings, and the first clause of § 1985(3), which discusses claims against two or more persons who "conspire or go in disguise on the highway or on the premises of another," contain language requiring that the conspirators' actions be motivated by an intent to deprive their victims of equal protection of the laws. Plaintiffs raising claims under these two theories must therefore allege that there was "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Fox, 173 F. App'x at 376 (quotations omitted). The Supreme Court has explained that these requirements exist, in large part, because these two subsections are directed at ensuring equal access to court proceedings and equal protection of the law and were enacted under Congress's power under the Thirteenth Amendment, which abolished slavery. Griffin v. Breckenridge, 403 U.S. 88, 104-105, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).

The first clause of § 1985(2), however, concerns obstruction of justice during federal-court proceedings and does not contain any language requiring an intent to deprive victims of equal protection. This has led the Supreme Court to conclude that "Congress did not intend to impose a requirement of class-based animus on persons seeking to prove a violation of their rights under the first clause of § 1985(2)." Kush v. Rutledge, 460 U.S. 719, 726, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). In reviewing the history behind the statute, the Supreme Court reasoned that, after the Civil War, "[p]rotection of the processes of the federal courts was an essential component of Congress' solution to disorder and anarchy in the southern States. Neither proponents nor opponents of the bill had any doubt that the Constitution gave Congress the power to prohibit intimidation of parties, witnesses, and jurors in federal courts." Id. at 727, 103 S.Ct. 1483.

To support his argument that his claim arises under the first clause of § 1985(2), such that he does not need to prove discriminatory animus, Kyles points to allegations suggesting that federal proceedings were contemplated against him at some point—if not actually pursued. He notes that Goodrich and Gottschall made several references to Terre Haute and the federal system while speaking with Hollimon.

But his argument that his allegations regarding federal court proceedings excuse him from needing to plead invidious discriminatory animus proves too much under the plain text of the statute. In full, subsection (2) prohibits the following two conspiracies:

If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or his being or having been such a juror;

or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for unlawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.

(emphasis added). The first clause of subsection (2) largely limits the cause of action it creates to parties, witnesses, and jurors. And as to these participants in a case, it extends only to those who were targeted to be deterred by threat or intimidation or injured on account of appearing or testifying in federal court. Kyles was not so threatened, intimidated, or injured, and he has no standing to prosecute a claim on behalf of Hollimon. His claim cannot arise under the first clause of subsection (2).

b. Sufficiency of the Allegations

Whether Kyles may proceed on his theories under the second clause of § 1985(2) or § 1985(3) turns on whether he has plausibly alleged discriminatory animus. He maintains that he has.

The Court has scoured the complaint for allegations relating to race or membership in a protected class and found only two:

• [K]nowing that Defendant Hollimon was African American, Defendant Goodrich played on Hollimon's fears and described further how they wanted Plaintiff killed—as if he was going to be hanged—by stating to Hollimon: "If we prove this . . . that Kyles committed this crime, they're gonna ship him down to Terre Haute, Indiana and they're gonna give him the big shot. They're gonna give him a hot shot. Its lethal injection. They're gonna kill his ass. Do you understand what death penalty is? Same as if they shoot you? They hang you?" ¶ 64.

• [Another witness who was pressured to make statements] told Defendant Christ of several white males who had threatened Ms. Etchen and promised to get revenge. Defendant Christ ignored this information about other suspect(s), with motives other than Mr. Kyles, knowing the house fire was not the result of arson. ¶¶ 81-82.

These allegations barely hint at the thinnest of racial overtones. Even accepting them as true and drawing inferences in Kyles's favor, they suggest at best only a possibility that the conspirators might have targeted Kyles, bullied Hollimon, and refused to investigate white suspects because of discriminatory motives. But the complaint is lacking in detail; Kyles did not even allege his own membership in a protected class, leaving it to the Court to infer it. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." (quotations omitted)). Yet he expressly alleged that the conspirators were motivated to secure high-profile convictions. And he included a list of other wrongful convictions to which the defendants have contributed, more suggestive of defendants' valuing guilty verdicts over doing justice than of some kind of racially discriminatory motives.

The equal protection provisions of § 1985 are directed at invidious discrimination and do not demand a showing of scienter or specific intent. Azar v. Conley, 456 F.2d 1382, 1385-86 (6th Cir. 1972). Plaintiffs may satisfy the intent requirement either directly or circumstantially "by alleging and proving discriminatory conduct, practices, or the existence of significantly racially disproportionate impact." Ready v. Ford Motor Co., 848 F.2d 193 (Table), 1988 WL 41153, at *4 (6th Cir. 1988) (quotations omitted). But a plaintiff must still plead specific facts from which discriminatory animus may be plausibly inferred. Fox, 173 F. App'x at 376; see also Sawyer v. Lexington-Fayette Urban Cty. Gov't, 18 F. App'x 285, 287-88 (6th Cir. 2001) (allegations that officer unlawfully arrested plaintiff and conspired to fabricate evidence insufficient, without more, to show discriminatory animus); Kondrat v. Byron, 762 F.2d 1008 (Table), 1985 WL 13199 (6th Cir. 1985) (allegations that judges and law director conspired to render adverse decisions in state court insufficient). Two oblique references to race buried in a 74-page complaint are not enough.

Increasingly, courts have begun acknowledging "the pervasive and systemic racism so often evident in interactions between the police and people of color." Alexander v. Cty. of Wayne, 689 F. App'x 441, 443 (6th Cir. 2017) (Clay, J., dissenting). It may very well be possible that Defendants' investigation of Kyles proceeded in a manner that an investigation of a similarly-situated person of another race would not have. But Kyles has not adduced enough detail to nudge this inference from possible to plausible, so Count III must be DISMISSED as against Goodrich, Everingham, and Christ. This dismissal is without prejudice. If Kyles has additional facts to cure this deficiency, he may file a motion to amend his complaint, and Defendants may respond as to whether the proposed amendments would be futile.

3. Timeliness

Goodrich and Everingham also argue that Kyles's § 1985 claim is time-barred. Although the Court has concluded that Kyles failed to plausibly allege discriminatory animus, it will address this argument for the sake of completeness.

Because § 1985 does not contain a statute of limitations, courts look to state law to determine the limitations period. Burnett v. Grattan, 468 U.S. 42, 49, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). A claim for conspiracy to deprive a plaintiff of his civil rights is most analogous to a personal-injury claim. MCL § 600.5805(2) supplies three-year limitations period for this time of claim. Dabish v. McMahon, 818 F. App'x 423, 427 (6th Cir. 2020).

In determining the commencement of the limitations period, the key issue is when Kyles's § 1985 claim accrued. Goodrich and Everingham insist that the clock began ticking when the last overt act was taken in furtherance of the conspiracy which, they say, could have occurred no later than Kyles's conviction in October 1997. ECF No. 32, PageID.1002-04. Kyles responds that his claim did not accrue until his convictions were set aside. ECF No. 40, PageID.1125.

Under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a plaintiff may not bring civil rights claim if its success would imply the invalidity of a state conviction. Because of this so-called Heck bar, such a claim cannot accrue until the conviction is reversed or expunged. Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005).

Kyles's § 1985 claim is this kind of claim. Its merits depend on his ability to prove that the conspirators caused him to be convicted unlawfully by fabricating and concealing evidence, and its success would imply the invalidity of his convictions, so he could not have raised it until his convictions were set aside in October 2022. He waited only until December 2022 to file his lawsuit, so his claim is timely.

Count III will not be dismissed on the ground that it is time-barred.

C. Count VIII , Bivens Claim

Christ asks for dismissal of Count VIII, Kyles's Bivens claim, contending Kyles's case is substantially different from the three situations in which the Supreme Court has recognized Bivens claims and that Bivens should not be extended to cover it.

A Bivens claim is a judicially created remedy designed to provide individuals with a cause of action against federal officials who have violated their constitutional rights. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). At a minimum, a plaintiff seeking to assert a Bivens claim must establish that he was "deprived of rights secured by the Constitution or laws of the United States" and that "the defendants who allegedly deprived [him] of those rights acted under color of federal law." Marie v. Am. Red Cross, 771 F.3d 344, 364 (6th Cir. 2014).

If a plaintiff can make this showing, the Court engages in a two-step inquiry to determine whether to permit a Bivens claim:

• First, it asks whether the case presents "a new Bivens context"— i. e., whether it differs "meaningfully" from the three cases in which damages actions have previously been recognized;

• Second, if the claim arises in a new context, it asks whether any "special factors" suggest that Congress is better equipped than the Judiciary to "weigh the costs and benefits of allowing a damages action to proceed."

Egbert v. Boule, 596 U.S. 482, 492, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022) (quotations omitted).

Bivens itself concerned claims that agents from the Federal Bureau of Narcotics violated the plaintiff's Fourth Amendment rights by entering his apartment and arresting him in front of his wife and children without a warrant or probable cause. 403 U.S. at 389, 91 S.Ct. 1999. In the decade following it, the Supreme Court twice created new Bivens claims—first, for a former congressional staffer's Fifth Amendment sex-discrimination claim, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and second, for a federal prisoner's inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

After Passman and Carlson, however, the Court's attitude towards creating claims changed, and it has since declined to recognize Bivens actions in any additional contexts. See, e.g., Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (no First Amendment claims against federal employers); Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (no race-discrimination claims against military officers); United States v. Stanley, 483 U.S. 669, 671-72, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (no substantive due-process claims against military officers); Schweiker v. Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (no procedural due-process claims against Social Security officials); FDIC v. Meyer, 510 U.S. 471, 473-74, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (no procedural due-process claims against federal agencies for wrongful termination); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (no Eighth Amendment claims against private prison operators); Wilkie v. Robbins, 551 U.S. 537, 547-48, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (no due-process claims against Bureau of Land Management officials). It has advised that "expanding the Bivens remedy is now a disfavored judicial activity." Ziglar v. Abbasi, 582 U.S. 120, 135, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017) (quotations omitted).

The rubric of cases against which this Court must evaluate Kyles's claim thus consists of the following:

• A Fourth Amendment claim against FBI agents for handcuffing a man in his own home without a warrant while carrying out routine police duties;

• A Fifth Amendment claim against a Congressman for firing his female secretary; and

• An Eighth Amendment claim against federal prison officials for failure to treat an inmate's asthma.

Abbasi, 582 U.S. at 139-40, 137 S.Ct. 1843.

According to Christ, Kyles's Bivens claim arises in a new context because the quadruple-homicide investigation in which he is alleged to have fabricated evidence is fundamentally different from the search-and-seizure operation in Bivens, during which federal agents did nothing more than arrest the plaintiff in his home without a warrant. ECF No. 48, PageID.1260-61. He relies on several out-of-circuit decisions, including Farah v. Weyker, 926 F.3d 492, 496 (8th Cir. 2019), Cantu v. Moody, 933 F.3d 414, 421-22 (5th Cir. 2019), and Annappareddy v. Pascale, 996 F.3d 120, 136 (4th Cir. 2021), to argue that actions such as speaking to witnesses, drafting reports, and sharing information with prosecutors are case-building activities that represent a different part of police work than effectuating a seizure—the context of Bivens.

What constitutes a "new context" for the purpose of a Bivens claim is broad: "[T]he context is new if it differs in virtually any way from the Bivens trilogy." Elhady v. Unidentified CBP Agents, 18 F.4th 880, 883 (6th Cir. 2021). "A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized." Hernandez v. Mesa, 589 U.S. 93, 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020). In Ziglar v. Abassi, the Supreme Court provided the following non-exhaustive list of ways in which a proposed Bivens claim might differ "meaningfully" from one that has been previously recognized in declining to recognize a remedy for non-U.S. citizens detained in the aftermath of the September 11 attacks:

A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Abassi, 582 U.S. at 139-40, 137 S.Ct. 1843.

A year after the Abbasi decision, the Court affirmed the dismissal of a Bivens claim regarding a cross-border shooting incident in Hernandez v. Mesa, 589 U.S. 93, 140 S. Ct. 735, 206 L.Ed.2d 29 (2020), which concerned a U.S. Border Patrol official shooting and killing a young Mexican national. The Court found it "glaringly obvious" that plaintiffs' claims arose in a new context because "Bivens concerned an allegedly unconstitutional arrest and search carried out in New York City," whereas the incident in Hernandez occurred at the international border. Id. at 743-44.

Abbasi and Hernandez concerned claims with international implications. Courts have long recognized that "[f]oreign policy and national security decisions are delicate, complex, and involve large elements of prophecy for which the Judiciary has neither aptitude, facilities, nor responsibility." Hernandez, 140 S. Ct. at 749 (quotations and alterations omitted). But the decisions contain guidance about Bivens reaching beyond matters of terrorism and national security.

Courts have struggled to interpret this guidance—and, in particular, with how it affects claims that federal agents falsified evidence during an investigation. Some have taken a fresh look at their precedents authorizing such Bivens claims and concluded that, under Abbasi, they actually arise in "new contexts" because investigation and information-gathering activities are qualitatively different from the arrest and detention operation in Bivens. They then have determined that special factors counsel against allowing the claims. See, e.g., Annappareddy, 996 F.3d at 135-38 (affirming dismissal of Bivens actions against federal agents who allegedly falsified search warrant affidavits); Cantu, 933 F.3d at 423-24 (affirming denial of Bivens relief where plaintiff alleged that defendants lied in warrant application); Farah, 926 F.3d at 498-502 (reversing denial of motion to dismiss where plaintiffs alleged that agents provided false information and deceived prosecutors and grand jury into instituting charges).

But not all courts (or even panels) agree. These other courts conclude that Abbasi does not require them to disregard their existing Bivens precedent authorizing claims of falsified evidence so long as it is not inconsistent with the decision. The Seventh Circuit, for instance, has not been persuaded that Abbasi required reconsideration of its precedent authorizing claims for fabricated domestic warrants because the claims do not require "novel intrusion into law enforcement operations," and inquiries about such fabrications are already "common in criminal cases where an accused defendant seeks to suppress evidence because statements in an affidavit supporting a warrant were . . . false." Greenpoint Tactical Income Fund LLC v. Pettigrew, 38 F.4th 555, 564 (7th Cir. 2022) (Hamilton, J.). And a Fourth Circuit panel concluded that a Bivens claim by a Secret Service agent for a wrongful detention by a Park Police agent was "not an extension of Bivens so much as a replay." Hicks v. Ferreyra, 965 F.3d 302, 311 (4th Cir. 2020).

The source of this tension stems from Abbasi's seemingly contradictory admonitions that the decision was "not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context" and "the undoubted reliance upon it as a fixed principle in the law," 582 U.S. at 134, 137 S.Ct. 1843, but that courts were failing to appreciate the number of ways in which a case could differ "in a meaningful way from previous Bivens cases," id. at 139-40, 137 S.Ct. 1843.

The Sixth Circuit, for its part, falls into the camp of courts that has not elected to re-examine its existing Bivens precedent. In Jacobs v. Alam, 915 F.3d 1028, 1038 (6th Cir. 2019), it rejected an invitation to do so in a context comparable to the one here.

In Jacobs, the plaintiff sued a team of Detroit and Wayne County officers—who were deputized as Special Deputy U.S. Marshals—under Bivens for excessive force, fabrication of evidence, civil conspiracy, false arrest, and malicious prosecution after he was acquitted of various assault and obstruction charges in state court. 915 F.3d at 1035. Officers from the team shot the plaintiff after he arrived unexpectedly at his home while they were executing a federal immigration warrant for another individual. Id. at 1033-35. Broadly speaking, the plaintiff asserted that, after unreasonably discharging their weapons, the officers conspired to fabricate evidence to conceal their wrongdoing, including by planting a .9mm bullet on the floor and falsely testifying in state court that the plaintiff had fired at them first. Id. at 1035, 1042.

The Sixth Circuit rejected the argument that the plaintiff's claims were "meaningfully different" from the "standard law enforcement operations" at issue in Bivens. Id. at 1038. While defendants made much out of the factual differences between the plaintiff's case and Bivens, they failed to articulate under Abbasi's rubric how the case arose in a new context. Id. The case did not deal with any overarching challenges to federal policy choices made by top executive officials, as in Abbasi, but instead directed claims against line-level officers for constitutional violations during a routine investigation. Id. And there was plenty of "guidance to individual line officers for how to comply with the Fourth Amendment while carrying out their routine police duties." Id.

In Jacobs, the panel recognized that the Sixth Circuit has, for some time, recognized Bivens claims for malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy. Id.; see also Webb v. United States, 789 F.3d 647, 667-70 (6th Cir. 2015) (reversing entry of summary judgment on Bivens claims for malicious prosecution and fabrication of evidence). In affirming the district court's refusal to dismiss the claims, the Court of Appeals wrote that it was "hew[ing] to this 'settled law . . . in th[e] common and recurrent sphere of law enforcement' [in] find[ing] plaintiff's garden-variety Bivens claims to be viable post-Ziglar and Hernandez." 915 F.3d at 1038-39 (quoting Abbasi, 137 S.Ct. at 1856-57).

In Webb, meanwhile, Judge Boggs had made it clear that "[i]t is well established that a person's constitutional rights are violated when evidence is knowingly fabricated and a reasonable likelihood exists that the false evidence would have affected the decision of the jury." 789 F.3d at 667 (quotations omitted). The panel in Webb did not hesitate to reverse an entry of summary judgment on fabrication-of-evidence claims brought under Bivens notwithstanding independent, untainted evidence establishing probable cause. In so doing, it instructed that, "even if independent evidence establishes probable cause against a suspect, it would still be unlawful for law-enforcement officers to fabricate evidence in order to strengthen the case against that suspect." Id. at 670.

Viewing the allegations in the complaint in the light most favorable to Kyles, the Court cannot discern any meaningful difference between Kyles's claims here and the plaintiffs' claims in Jacobs and Bivens. Kyles claims that Christ worked with a team of investigators to gin up a false story about his guilt, pressure a vulnerable witness to falsely corroborate this story over the course of multiple improper and off-the-record interviews, arrange for this witness to pass a polygraph test about these statements despite knowing they were false, create false reports, and conceal exculpatory evidence. If an officer convinces a witness to testify to material facts that he and the witness know to be untrue, that is evidence fabrication. This is what Kyles asserts happened. Whether Kyles ultimately will be able to marshal evidence supporting these accusations is a consideration for a later stage in the proceedings.

Kyles's claims are similar—if not identical—to the evidence fabrication claims in Jacobs and Webb, and there is no suggestion that Christ was a higher-ranking agent than the Bivens agents. Just as in Bivens, Kyles seeks to hold accountable a line-level agent for violating the Constitution during a standard law-enforcement investigation. The Court does not see any presence of "special" factors prior Bivens cases did not consider. Kyles's claim does not challenge any large-scale policy decisions but only Christ's actions as an individual officer. A decision on the merits does not present any danger of altering FBI policy or risk interfering with executive functions. The duties are already guided by a well-established roster of Sixth Circuit decisions, and agents are already subject to similar oversight by the Court during criminal proceedings.

In asking for dismissal of the Bivens claim, Christ essentially argues that this Court should reevaluate the settled law of the Sixth Circuit in light of decisions from other circuits that declined to allow Bivens claims arising in different contexts. But Sixth Circuit precedent is binding on this Court. This is the case even when following and understanding that precedent is made harder by decisions such as Cain v. Rinehart, No. 22-1893, 2023 WL 6439438 (6th Cir. July 25, 2023), where a different panel of the Sixth Circuit declined to recognize unlawful-arrest claims against local officers deputized as U.S. Marshals executing an immigration warrant because the plaintiff's claims involved "the U.S. Marshals Service, while Bivens concerned the actions of agents of the Federal Bureau of Narcotics"—a conclusion that is frankly contrary to Jacobs. Nonetheless, Cain is unpublished, and Jacobs and Webb have not been overruled. And Jacobs and Webb recognize the claim that Kyles is seeking to raise as falling squarely within the scope of existing Bivens contexts. It is not an expansion of the remedy to a new context as currently recognized under Sixth Circuit precedent.

Accordingly, Christ's motion to dismiss Count VIII is DENIED.

D. Count XI , Defamation Claim under MCL § 600 .2911

Oakland County and Shields ask for dismissal of Count XI, the defamation claim. They argue that the claim is time-barred and, even if it is not, they are entitled to governmental immunity against it.

1. Timeliness

In Michigan, "[t]he period of limitations is 1 year for an action charging libel or slander." MCL § 600.5805(11). Because the statements that are the subject of Kyles's defamation preceded his conviction in October 1997, Oakland County and Shields argue that the claim is time-barred by several decades. ECF No. 32, PageID.1005-06.

Kyles argues that Shields's statements technically were not "false" before his convictions were set aside, so his claim could not have accrued until his convictions were set aside. ECF No. 40, PageID.1128-30. Alternatively, he says, he is entitled to equitable tolling because his wrongful convictions were extraordinary circumstances that prevented him from asserting his claim sooner. Id. at PageID.1130-31.

The Michigan legislature has "comprehensively establish[ed] limitations periods, times of accrual, and tolling for civil cases." Trentadue v. Buckler Lawn Sprinkler, 479 Mich. 378, 738 N.W.2d 664, 671 (2007). Under MCL § 600.5827, a defamation claim accrues when the defamatory statement was made—regardless of when the damage results. See Mitan v. Campbell, 474 Mich. 21, 706 N.W.2d 420, 422 (2005) (applying § 600.5827 to defamation claim). Kyles's defamation claim accrued when the statements were made in 1997 and is untimely by several decades.

The Court acknowledges that Kyles's wrongful convictions were extraordinary circumstances; indeed, they likely would have provided Shields and Oakland County with a defense if Kyles had raised the claim sooner. See, e.g., Ireland v. Edwards, 230 Mich.App. 607, 584 N.W.2d 632, 639 n.10 (1998) (recognizing "substantial truth" defense). And the purpose of equitable tolling is to preserve a claim "when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control." Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000); see also McDonald v. Farm Bureau Ins. Co., 480 Mich. 191, 747 N.W.2d 811, 819 (2008).

Kyles has supplied no authority approving equitable tolling of defamation claims, however. In effect, he asks the Court to apply some sort of discovery rule to his claim—i.e., to conclude that, because he could not have "discovered" his claim until his convictions were vacated, it would be inequitable to bar him from bringing them now.

Michigan courts have been reluctant to toll claims in the absence of express statutory exceptions and have generally disavowed the "discovery" rule Kyles asks this Court to apply. Trentadue, 738 N.W.2d at 670 ("[T]he statutory scheme is exclusive and thus precludes this common-law practice of tolling accrual based on discovery."); see also Green v. Lansing Automakers Fed. Credit Union, No. 342373, 2019 WL 3812108, at *6 (Mich. Ct. App. Aug. 13, 2019) ("This state has, for some time, refused to apply any sort of discovery rule to a statute of limitations unless the statute itself provides for such a rule."); Gary v. Comcast Entertainment Grp., No. 304720, 2012 WL 3640294, at *1-*2 (Mich. Ct. App. Aug. 23, 2012) (rejecting argument that defamation claim accrued when plaintiff discovers it). The Michigan Supreme Court has also recognized that the legislature deliberately selected a "relatively short limitations" period for defamation claims. Mitan, 706 N.W.2d at 422.

Tolling Kyles's defamation claim would subvert the legislature's decision to keep the limitations period for defamation claims short and require the parties to embark on a difficult search for, at the very least, the truth about what Shields knew or should have known when he spoke to the press in 1997. Kyles's argument—that the statements at issue were "not false, and therefore not injurious, at the time of publication"—illustrates the difficulty of allowing his claim to proceed so long after the alleged defamatory statements were made. Limitations periods exist to "protect defendants and the courts from having to deal with cases in which the search for the truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading members, disappearance of documents, or otherwise." United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). The Court therefore cannot conclude that equitable tolling is appropriate in this case.

Accordingly, Count XI must be DISMISSED as time-barred.

2. Governmental Immunity

Oakland County and Shields further argue that Count XI must be dismissed because defamation under MCL § 600.2911 is an intentional tort for which they are entitled to immunity under the Michigan Governmental Liability for Negligence Act, MCL § 691.1407.

The Governmental Liability for Negligence Act provides immunity from tort liability under delineated circumstances for government agencies and employees. The statute states, in relevant part:

(1) [A] governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. . . .

(2) [W]ithout regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency . . . is immune from tort liability for an injury to a person or damage to property caused by the officer [or] . . . while in the course of employment . . . if all of the following are met:

a. The officer . . . is acting or reasonably believes he or she is acting within the scope of his or her authority.

b. The governmental agency is engaged in the exercise or discharge of a governmental function.

c. The officer's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage.

MCL § 691.1407. It defines "gross negligence" as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Id. § 691.1407(8)(a).

Kyles retorts that making statements to the press is not a governmental function of the Oakland County Sheriff's Office. ECF No. 40, PageID.1132. He notes that MCL § 51.76, which sets forth some of the statutory duties of a sheriff's department, does not contain any mention of communications with the press. Id. He charges that, since the Oakland County Sheriff's Department must have known that the only evidence against Kyles consisted of fabricated testimony from a jailhouse informant and inconsistent statements from a non-eyewitness, Shields's statements were grossly negligent. And because they were made under his authority as Captain of the Department, he urges that Oakland County is vicariously liable for them. Id. at PageID.1132-34.

MCL § 51.76 is one of many statutes establishing the duties of a sheriff. Other duties include, but are not limited to, maintaining jails, serving process, and recovering drowned bodies. See MCL §§ 51.76-51.302.

But Michigan courts have been reluctant to cabin what falls within the scope of exercise of a governmental duty so narrowly. See, e.g., Pardon v. Finkel, 213 Mich.App. 643, 649, 540 N.W.2d 774 (1995) ("[T]he focus must be on the general activity, not the specific conduct involved at the time of the tort." MCL § 691.1401(b) defines a "governmental function" as one that is "expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law." (emphasis added)). The immunity statute is intended to "ensure[ ] that a governmental employee will not be afforded immunity when committing ultra vires acts" but to "protect[ ] a governmental employee who reasonably believes that he was authorized to take certain actions [and] later learns that he was mistaken." Odom v. Wayne Cty., 482 Mich. 459, 760 N.W.2d 217, 224 (2008).

The duties of a sheriff include investigating allegations of criminal conduct. Schied v. Rezmierski, No. 303715, 2013 WL 238538, at *6 (Mich. App. Ct. Jan. 22, 2013). Answering press questions relating to investigations—though not expressly enumerated in a statute—is a logical extension of this duty. See Am. Transmissions, Inc. v. Attorney General, 454 Mich. 135, 560 N.W.2d 50, 53 (1997) (attorney general's responses to press questions about investigation fell within the discharge of executive authority); see also Bowles v. Mich. Comm'n on Law Enforcement Standards, No. 362685, 2023 WL 7979951, at *5 (Mich. Ct. App. Nov. 16, 2023) (responding to press questions about investigation was protected by governmental immunity).

Here, the allegedly defamatory statement was limited to an opinion about what the evidence would show in response to a reporter's questions:

Oakland County Sheriff's Capt. Damon Shields said Kyles, who is currently in prison on drug and theft charges, wanted to get even and didn't care who was in the home.

"That is almost a given," Shields said.

"There is ample evidence to show this went beyond that. This man intended for people's lives to be lost."

ECF No. 1-13, PageID.335.

Kyles acknowledges that Shields made this statement as Oakland County's Sheriff. He falls short of plausibly alleging that this statement was made with gross negligence. Apart from Shields's employment at the Oakland County Sheriff, he has no facts suggesting that Shields oversaw the investigation or otherwise should have known that the evidence against Kyles was fabricated; he even acknowledges that the statement was technically "true" when it was made. See, e.g., Zentgraf v. Gates, No. 203375, 1998 WL 1988718, at *1 (Mich. Ct. App. Dec. 4, 1998) (" 'Gross negligence' requires more than ordinary negligence." (citations omitted)). Shields is therefore entitled to governmental immunity. And even assuming for the sake of argument that Shields was not acting within the scope of his duties as sheriff when he made this statement, Oakland County is nonetheless entitled to immunity because it cannot be held liable for the intentional torts of its employees. Payton v. City of Detroit, 211 Mich.App. 375, 536 N.W.2d 233, 242 (1995).

For this additional reason, Count XI must be DISMISSED.

III. OAKLAND COUNTY'S MOTION FOR SUMMARY JUDGMENT (ECF No. 53)

Oakland County has filed a motion for summary judgment, asserting it is entitled to judgment as a matter of law because there is no material factual dispute that Kyles waived his claims against it by accepting an award under the Michigan Wrongful Imprisonment Compensation Act (WICA), MCL § 691.1751 et seq. ECF No. 53.

A. Legal Standard

A party is entitled to summary judgment if it "shows that there is no genuine factual dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine material factual dispute exists if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

At summary judgment, the Court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in its favor. Id. The non-moving party's evidence need not be in an admissible form. Celotex Corp. v. Catrett, 477 U.S. 317, 332, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). But it must "show that [it] can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists." Alexander v. Care-Source, 576 F.3d 551, 558 (6th Cir. 2009).

B. Analysis

To its motion, Oakland County attached a copy of a stipulated judgment entered in the Michigan Court of Claims on June 7, 2023, signed by Kyles and his attorney. ECF No. 53-2. The document orders the Michigan Department of Treasury to issue a check to Kyles for $1,248,389.87 under the WICA. Oakland County argues that, under the WICA's plain language, Kyles's acceptance of the award waived all his claims against it.

The WICA waives Michigan's sovereign immunity and allows persons who were wrongfully convicted to seek compensation from in the Court of Claims, subject to conditions and limitations. See Ricks v. State, 507 Mich. 387, 968 N.W.2d 428, 431 (2021). As relevant here, under MCL § 691.1755(8), a plaintiff releases his claims for wrongful imprisonment against political subdivisions of the state if he accepts a WICA award:

The acceptance by the plaintiff of an award under this act, or of a compromise or settlement of the claim, must be in writing and, unless it is procured by fraud, is final and conclusive on the plaintiff, constitutes a complete release of all claims against this state, and is a complete bar to any action in state court by the plaintiff against this state

based on the same subject matter. However, the acceptance by the plaintiff of an award under this act, or of a compromise or settlement of the plaintiff's claim, does not operate as a waiver of, or bar to, any action in federal court against an individual alleged to have been involved in the investigation, prosecution, or conviction that gave rise to the wrongful conviction or imprisonment.

(emphasis added). For purposes of the WICA, "[t]his state" means "the state of Michigan and its political subdivisions, and the agencies, departments, commissions, and courts of this state and its political subdivisions." MCL § 691.1752(e).

Kyles does not dispute he accepted a WICA award, or that his acceptance of the award was voluntary. Instead, he takes the position that plain text of the statute makes clear that it bars suits only in state courts and presents no obstacle to his § 1983 claims in federal court. ECF No. 56, PageID.1439-42. He urges that a contrary interpretation would render the express bar on suits in state court surplusage and, in any event, would run afoul of the Supremacy Clause by placing the statute in conflict with 42 U.S.C. § 1983. Id. at PageID. 1442-59.

1. Plain Language

The Michigan Supreme Court and the Michigan Court of Appeals have yet to interpret the MCL § 691.1755(8)'s release-of-claims provision, so this Court must apply Michigan principles of statutory interpretation to predict how they would do so in the first instance. Bevan v. Assocs. LPA v. Yost, 929 F.3d 366, 374 (6th Cir. 2019). The primary goal is "to give effect to the [Michigan] Legislature's intent." Ricks, 968 N.W.2d at 432. In Michigan, the focus of the analysis is on "the statute's express language," which Michigan courts consider to be "the most reliable evidence of the Legislature's intent." Sanford v. State, 506 Mich. 10, 954 N.W.2d 82, 84 (2020) (quotations omitted). A statutory phrase should not be viewed in isolation but in the context of the statute as a whole. Badeen v. PAR, Inc. 496 Mich. 75, 853 N.W.2d 303, 306 (2014).

Four courts in this District have concluded that the plain language of the statute unambiguously bars all claims, even federal ones, against Michigan and its political subdivisions by plaintiffs who have accepted WICA awards. Smith v. Cty. of Wayne, No. 21-12070, 2023 WL 8788944, at *10 (E.D. Mich. Dec. 19, 2023) (Lawson, J.); Deering v. Oakland Cty., No. 22-11809, 2023 WL 5808831, at *5 (E.D. Mich. Sept. 7, 2023) (Goldsmith, J.); Clark v. Abdallah, No. 21-1001, 2023 WL 4851410, at *2 (E.D. Mich. July 28, 2023) (Roberts, J.); DeJesus v. Harvey, No. 22-12879, 2023 WL 4372682, at *4 (E.D. Mich. July 6, 2023) (Kumar, J.). This Court finds their reasoning to be well supported. The plain language of the WICA provides that "acceptance by the plaintiff of an award under this act . . . constitutes a complete release of all claims against this state" and defines "this state" to include political subdivisions like Oakland County.

Kyles argues that at least two courts have reached contrary conclusions. First, he notes that a magistrate judge agreed with his interpretation of WICA's release-of-claims provision in a Report & Recommendation in Deering. Judge Goldsmith, however, disagreed with the Report & Recommendation and rejected it. Its precedential value is therefore questionable. Second, Kyles notes that in Ansari v. Jimenez, No. 20-10719 (E.D. Mich. Apr. 22, 2022), Judge Murphy wrote that "[n]othing in Section 1755(8)'s plain text prevents Plaintiff from suing the City [of Detroit] in federal court for claims based on his wrongful conviction. The Michigan Legislature could have simply written Section 1755(8) to bar claims 'in state and federal court' or 'in any court,' but it did not." But context is important. Judge Murphy reached this conclusion in assessing whether to grant the City of Detroit's request for fees and costs after the plaintiff moved to voluntarily dismiss his claims against it. The question before Judge Murphy did not require interpreting the statute but instead required determining whether the plaintiff's interpretation of it was so frivolous that the City was entitled to costs. And determining whether an argument is frivolous is not the same as determining whether it is meritorious.

In Deering, Judge Goldsmith wrestled with the question whether the Court's interpretation of the release-of-claims provisions renders the WICA's express bar on state-court actions superfluous. 2023 WL 5808831, at *4. After examining the WICA's revision history, he ultimately said no. He reasoned that, in connection with the statute's express authorization of federal actions against individuals, "[i]t makes sense to infer that the Legislature recognized its inability to curtail federal court jurisdiction" because only Congress has that power. Id. But while a state is powerless to limit the scope of federal jurisdiction, it may contract for a "release" of both state and federal claims. Id.

In a sur-reply, Kyles takes issues with this reasoning. He argues that Deering's reliance on the WICA's revision history to justify its conclusions was "flimsy" because it did not consider any legislative reports, committee notes, or testimony that would shed light on purpose behind the language that was ultimately adopted. ECF No. 60, PageID.1539. Further, he argues that the decision relied on improper sources—namely, hornbooks and treatises—to interpret the statute.

Michigan courts generally disapprove of consulting legislative history at all if the plain text of a statute is unambiguous. In re Certified Question from U.S. Court of Appeals for Sixth Circuit, 468 Mich. 109, 659 N.W.2d 597, 601-02 (2003). The plain language of the statute allows only for claims against individual state employees in federal court. Judge Goldsmith merely used the legislative history to confirm his interpretation of the plain text. In so doing, he concluded that it would be irrational to construe a statute authorizing the payment of millions of dollars to claimants with the intention of stopping litigation in a manner that simply shifted the situs of the litigation from state to federal court.

2. Preemption

Relying on Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), Kyles urges that this District's interpretation of the WICA's release-of-claims provision improperly interferes with Congress's intentions behind fashioning the remedy for civil rights violations in 42 U.S.C. § 1983.

In Felder, the Supreme Court struck down a notice-of-claims provision in a Wisconsin statute that prevented plaintiffs from suing state or local governmental entities or officers without giving them 120 days of advance notice and allowing them an additional 120 days to consider the proposed claims and relief requested after the Wisconsin Supreme Court extended the provision to § 1983 claims raised in federal court. 487 U.S. at 134, 108 S.Ct. 2302. The notice-of-claims provision was part of a broader statute that, like the WICA, abrogated in part Wisconsin's sovereign immunity. The Court concluded that, while Wisconsin had the authority to control how claims would be brought against it, it lacked authority to interfere with and burden how litigants brought federal claims in federal courts. Id. at 144-46, 108 S.Ct. 2302. Such a condition on a right of recovery authorized by Congress was impermissible, and Wisconsin's reasons for doing it—minimizing governmental liability—was "manifestly inconsistent with the purposes" of § 1983. Id. at 141, 108 S.Ct. 2302.

The Court is not persuaded that the notice-of-claims provision in Felder, which was essentially a state rule of procedure, is analogous to the WICA's release-of-claims provision. The WICA does not prescribe any sort of checklist a plaintiff must satisfy before he may sue in federal court. Instead, the release-of-claims provision operates much like a settlement agreement in a civil lawsuit, in which a plaintiff agrees to accept some forms of relief in exchange for waiving his rights to pursue others. The Supreme Court has previously determined that similar agreements to waive § 1983 claims are enforceable. See generally Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987) (upholding release-dismissal agreement in which criminal defendant waived the right to pursue § 1983 claims in exchange for dismissal of case).

As Judge Roberts noted in Clark v. Abdallah, No. 21-10001, 2023 WL 4851410, at *7 (E.D. Mich. July 28, 2023), the WICA's release-of-claims provision contains language very similar to language in a statute challenged in Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946, 948 (6th Cir. 1987) (en banc). In Leaman, the Sixth Circuit rejected a challenge to the constitutionality of an Ohio statute that provided for "a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any state officer of employee" once that filing party brought suit against the state under the Ohio Court of Claims. The court reasoned that the statute did "not deprive claims of their federal forum" but "simply offer[ed] to make available an otherwise unavailable deep-pocket defendant, and an alternative forum, if prospective plaintiffs who think they have claims against individual state employees voluntarily elect to waive suit against the employees in favor of the suit against the employee in favor of suit against the employer." Id. at 953.

Kyles says that this issue in Clark is currently under review by the Sixth Circuit. Not so. There is an appeal pending in Clark, but it concerns the denial of qualified immunity to two officer defendants.

Though Kyles urges otherwise, the situation is similar here. The WICA represents a legislative decision to make available to plaintiffs who meet its criteria $50,000 for each year they were imprisoned subject to a wrongful conviction. The decision to accept a WICA award represents a decision that accepting the statutory sum outweighs the potential benefits of initiating a federal action against a political subdivision. The statute carries certain safeguards to ensure that the decision to accept the award is voluntary—namely, the agreement must be in writing, and a claimant's acceptance of the award must not be fraudulently induced. Kyles had the advice of counsel and was represented at the time he accepted the award, so there is no suggestion that his acceptance of the award was fraudulently induced.

As Kyles points out, a § 1983 claim has no damages cap. But unlike a plaintiff who accepts a statutory award, a § 1983 plaintiff risks recovering nothing after years of litigation. In exchange for a guaranteed sum, the State of Michigan asks plaintiffs to agree not to bring any claims—state or federal—against any political subdivisions of the state, although they remain free to pursue federal claims against individual employees. Such an agreement is more generous than the one approved in Leaman, which required claimants to relinquish all claims—even those against individual employees.

Kyles retorts that Leaman was plagued with dissents and has been the target of scholarly criticism. ECF No. 60, PageID.1544. This may be so, but Leaman remains the law in this Circuit. Kyles further protests that, because the WICA has provisions requiring him to reimburse the State of Michigan if he prevails on any claims against individual defendants, see MCL § 691.1755(13), the Court's interpretation of the release-of-claims provision undermines § 1983's twin goals of compensation and deterrence. It does not. Like many other wrongful conviction compensation statutes, it contains an offset provision to balance the goal of guaranteeing some compensation for individuals who were wrongfully compensated with protecting taxpayers. It does not take away a plaintiff's right to vindicate constitutional violations in federal court. It does not force any claimant to accept a statutory offer. It does, however, waive their claims against political subdivisions as a condition of accepting that offer and attach certain other conditions.

Accordingly, Oakland County's Motion is GRANTED.

IV. CITY OF PONTIAC'S MOTION FOR JUDGEMENT ON THE PLEADINGS (ECF No. 61)

The City of Pontiac has filed a Motion for Judgment on Pleadings, asserting that—like Oakland County—it is entitled to judgment because, by accepting the $1,248,389.87 award under WICA, Kyles released on his claims against it.

A. Legal Standard

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) generally follows the same rules as a motion to dismiss a complaint under Rule 12(b)(6). Bates v. Green Farms Condominium Ass'n, 958 F.3d 470, 480 (6th Cir. 2020). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment." JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quotations and citations omitted).

B. Analysis

In opposing City of Pontiac's motion, Kyles does not point out the obvious—namely, that Pontiac is relying on evidence outside the pleadings to support its entitlement to judgment, so its motion is more properly interpreted as a summary-judgment motion.

Under Rule 12(c), the Court is generally obligated to give notice to the parties of its intention to reconstrue a 12(c) motion as a summary-judgment motion, and to give them "reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 502 (6th Cir. 2006) (quoting Fed. R. Civ. P. 12(c)).

But the evidence upon which Pontiac relies is identical to the evidence relied on by Oakland County in its summary judgment motion: it has simply attached a copy of the Michigan Court of Claims judgment memorializing Kyles's acceptance of the WICA award. Kyles has had an opportunity respond to it and does not dispute that he signed the judgment, or that his acceptance of the WICA award was voluntary.

Kyles does not raise any arguments in opposing Pontiac's motion the Court did not address above. Pontiac is a political subdivision of the State of Michigan and is, for the same reasons as Oakland County, entitled to judgment in its favor.

Accordingly, Pontiac's motion is GRANTED.

V. CONCLUSION

For the reasons above, the motion to dismiss filed by Oakland County, Goodrich, Everingham, and Shields (ECF No. 32) is GRANTED; Christs' motion to dismiss (ECF No. 48) is GRANTED IN PART and DENIED IN PART; Oakland County's motion for summary judgment (ECF No. 53) is GRANTED; and City of Pontiac's motion for judgment on the pleadings (ECF No. 63) is GRANTED.

IT IS ORDERED THAT Counts VI, VII, and XI are DISMISSED with prejudice, and Defendants Oakland County, City of Pontiac, and Shields are terminated from this action. Count III is DISMISSED without prejudice as to Goodrich, Everingham, and Christ. If Kyles has additional facts to plead curing the deficiencies outlined above with respect to Count III, he may file a motion to amend the complaint, and defendants may respond as to whether the amendment would be futile.

The following claims and defendants remain in this action:

• Count I: § 1983 claim for Brady violations against Trepte, Goodrich, Gottschall, and Everingham;

• Count II: § 1983 claim for fabrication of evidence against Trepte, Goodrich, Gottschall, and Everingham;

• Count III: § 1985 claim for conspiracy to violate Kyles's civil rights against Trepte, Gottschall, and Hollimon;

• Count IV: § 1983 claim for malicious prosecution against Trepte, Goodrich, Gottschall, and Everingham:

• Count V: § 1983 claim for detention without probable cause against Trepte Goodrich, Gottschall, and Everingham:

• Count VIII: Bivens claim against Christ;

• Count IX: gross-negligence claim under MCL § 691.1407 against Trepte, Goodrich, Gottschall, and Everingham; and

• Count X: malicious-prosecution claim under Michigan law against Trepte, Goodrich, Gottschall, and Everingham.

SO ORDERED, this 25th day of March, 2024.