CATHERINE NICOLE DONKERS and SYLVIA V. DONKERS, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Plaintiffs, Case Number 07-11220 v. Honorable David M. Lawson Mag. Judge Mona K. Majzoub REBECCA A. CAMARGO, KEVIN BAUR, DONNA KAY ZARRAS, VICTOR STAPLES, DUGGAN LACEY, LORA JABTECKI, LINDA SMITH, JOHN DOES 1-3, JANE DOE, WAYNE COUNTY AIRPORT AUTHORITY and DENNIS FRANK MARTINI, Defendants, / ORDER ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE S REPORT AND RECOMMENDATION, SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF S OBJECTIONS, GRANTING IN PART AND DENYING IN PART DEFENDANT S MOTION TO DISMISS AND DISMISSING CERTAIN COUNTS OF THE COMPLAINT WITH PREJUDICE This matter is before the Court on the plaintiff s objections to a report by Magistrate Judge Mona K. Majzoub recommending that a motion by defendant Rebecca A. Camargo, styled as a motion for summary judgment but treated as a to dismiss, be granted. The plaintiffs filed a pro se complaint against the defendants raising multiple claims that allegedly arose from an altercation at one of the passenger screening booths at the Detroit Metropolitan Airport and the arrest and state prosecutions that followed. The complaint lists thirty-nine causes of action against a variety of defendants, most of whom are employees of the Transportation Security Administration (TSA). Nine of these counts are against Rebecca Camargo, who is a Wayne County assistant prosecutor who prosecuted plaintiff Catherine Nicole Donkers in two separate cases related to the arrest. The parties stipulated to dismiss counts thirty-seven and thirty-nine, leaving seven counts against Ms. Camargo
alleging malicious prosecution, assault, slander, and violation of the plaintiff s due process rights. Catherine s mother, Sylvia Donkers, is a co-plaintiff, but she has not brought any claims against Rebecca Camargo. On August 28, 2007, Camargo filed her motion seeking dismissal of all claims against her, which the magistrate judge entertained under an order of reference for general case management. On October 17, 2007, Judge Majzoub issued her report recommending that the motion be granted on the ground of prosecutorial immunity. The plaintiff filed timely objections. The Court has conducted a de novo review of the matter and now concludes that the plaintiff s objections to the report and recommendation lack merit for the most part, except with respect to one count of the complaint, and the magistrate judge was correct that all the counts of the complaint should be dismissed on the basis of the immunity Camargo enjoys as a county prosecuting official, with the exception of count 29, which alleges assault. As to that count, the Court finds that the complaint states a claim for relief under state law. Therefore, the Court will overrule the objections in part, adopt the magistrate judge s recommendation in part, grant the motion to dismiss the remaining counts of the complaint against Camargo except count 29. I. As the magistrate judge stated, the complaint arises from an incident at the Detroit Metropolitan Wayne County Airport on February 28, 2005. According to the complaint, Catherine Donkers was traveling with her mother, Sylvia Donkers, from Detroit to Las Vegas. After passing through security screening, Donkers was waiting for her mother who allegedly was screened multiple times. Airport Police were summoned when Sylvia Donkers allegedly refused to allow TSA agents to search her. While waiting for her mother, Catherine was approached by police officers who asked for identification in connection with this incident. She provided her name and -2-
Nevada mailing address. Catherine Donkers s name was then checked in the law enforcement information (LEIN) system. The LEIN check showed apparently an outstanding warrant for disorderly conduct for a person of the same name with a Livonia, Michigan address. Believing her to be this person after Catherine s mother confirmed that Catherine previously had lived in Livonia, Catherine Donkers was placed under arrest for the outstanding warrant as well as for violation of a local ordinance. Camargo was the assistant Wayne County prosecutor assigned to prosecute Donkers in two separate cases arising out of the airport incident. Both of these cases were dismissed by the Michigan s Thirty-Fourth District Court, the first on May 11, 2006, and the second on December 8, 2006. The plaintiff alleges that during a pretrial conference on April 20, 2006, Camargo assaulted Catherine Donkers when Camargo swore at Donkers (using the F word) and forcefully and aggressively came across the meeting table and repeatedly shouted at Catherine. Compl. 440-41. Catherine also claims that Camargo defamed her when she told a Romulus police officer that Donkers was being prosecuted in Wayne county for another matter involving physical contact with law enforcement officials. Compl. 581. Finally, Donkers alleges that Camargo violated Donkers federal due process rights by withholding Brady material (an airport videotape and audiotape). The plaintiffs filed their complaint in the Wayne County, Michigan circuit court on October 19, 2006. It was removed to this Court by the United States on March 21, 2007. The complaint contains 683 numbered paragraphs and thirty-nine causes of action. The counts naming Camargo consist of claims for malicious prosecution (counts 28, 33, 34), assault (count 29), defamation (count 35), and deprivation of the right to due process of law because evidence was withheld (counts 36, -3-
37, 38, 39). The plaintiff agreed to dismiss her state law claims in counts thirty-seven and thirtynine relating to the withholding of evidence. The magistrate judge concluded that each of these claims against Camargo related to her prosecutorial duties and were an integral part of the judicial process, so Camargo was entitled to absolute immunity under the rule of Imbler v. Pachtman, 424 U.S. 409 (1976). The plaintiff filed fourteen objections to Judge Majzoub s Report and Recommendation. They can be summarized as follows: 1. The magistrate judge erroneously recited the date Sylvia Donkers (the plaintiff s mother) was selected for secondary screening (February 28, 2005), when it actually occurred three days earlier (February 25, 2005). 2. The magistrate judge found that the plaintiff alleged two malicious prosecution claims when in fact there were three claims. 3. The case number cited by the magistrate judge for one of the state prosecution cases was wrong, since the cited case number was the third case brought against the plaintiff, not the second. 4. The magistrate judge s incorrectly found that the plaintiff was charged with attempt to violate Mich. Comp. Laws 750.81(d) when she was actually charged under Mich. Comp. Laws 750.92. 5. The magistrate judge relied only on the factual allegation contained in 44 of the plaintiff s complaint for the assault claim. 6. The magistrate judge found that the plaintiff was seeking only monetary damages when non-monetary damages were also sought with regards to Defendant Martini. 7. The magistrate judge improperly made finding of facts in connection with the plaintiff s assault and defamation claims; the plaintiff believes that the magistrate judge relied on the defendant s statement of facts and thus did not meet the 12(b)(6) requirements. 8. The magistrate judge recited an incorrect date as to when the plaintiff was charged with a violation of Mich. Comp. Laws 750.81(d). 9-11. The magistrate judge should not have applied the doctrine of prosecutorial immunity in relation to the malicious prosecution claims for two separate violations of Mich. Comp. Laws 750.170 and one violation of Mich. Comp. Laws 750.92 because there was no probable cause for the prosecutions. 12. The magistrate judge improperly analyzed the doctrine of prosecutorial immunity in relation to the alleged defamatory statement the defendant made about the plaintiff. 13. The magistrate judge improperly analyzed the doctrine of prosecutorial immunity in relation to the plaintiff s assault claim. 14. The magistrate judge incorrectly analyzed the plaintiff s due process claims as a result of the failure of the defendant to turn over Brady material in a timely fashion. The defendant filed a response to the objections. -4-
II. Objections to a report and recommendation are reviewed de novo. 28 U.S.C. 636(b)(1). The Sixth Circuit has stated that [o]verly general objections do not satisfy the objection requirement. Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious. Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). [O]bjections disput[ing] the correctness of the magistrate s recommendation but fail[ing] to specify the findings... believed [to be] in error are too general. Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). The defendant s motion cited Federal Rule of Civil Procedure 12(b)(6), although it was styled as a motion for summary judgment. Some non-pleading materials were attached to the motion, but the magistrate judge did not consider them and neither does this Court. Therefore, the motion is properly treated as a motion to dismiss under rule 12(b). The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). When deciding a motion under that Rule, the court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint contains enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). [A] judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint s factual allegations. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). However, while liberal, this standard of review does require more than the bare assertion of legal conclusions. Ibid. Federal Rule of Civil Procedure 8(a) requires that the complaint give the defendant fair notice of the -5-
nature of the claim and the factual grounds upon which it rests. Twombly, 127 S. Ct. at 1964. Therefore, [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. at 1964-65 (citations omitted) (alteration in original). In practice, a... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory. In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir. 1993) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (1984)); see also Ana Leon T. v. Fed. Reserve Bank, 823 F.2d 928, 930 (6th Cir. 1987) (per curiam) (mere conclusions are not afforded liberal Rule 12(b)(6) review). The complaint makes plain that the plaintiff s grievances against defendant Camargo all relate to the prosecution for the misdemeanors in the 34th District Court. The actions about which the plaintiff complains consist of Camargo s decision to charge, events that occurred at a court conference in connection with the cases, and the failure to turn over certain evidence. The magistrate judge concluded that Camargo was protected by prosecutorial immunity for all these activities. The Sixth Circuit has summarized the doctrine of absolute immunity as applied to state prosecuting officials as follows: [T]he Supreme Court has advanced the interest served by absolute immunity the furtherance of our adversarial legal system by employing a functional test: The official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Buckley v. Fitzsimmons, 509 U.S. 259, 269, (1995). Those functions more intimately associated with the judicial phase of the criminal process are more likely to merit careful consideration for absolute immunity. Id. In contrast, those functions more investigative in nature searching for clues and corroboration are more removed from the judicial process and merit only qualified immunity. Id. at 273. The Supreme Court s decision in Buckley v. Fitzsimmons refused to extend absolute immunity to prosecutors accused of -6-
fabricating expert evidence when the prosecutors were acting in an investigatory fashion rather than as advocates. Id. at 275. Following the Supreme Court s direction, this Circuit therefore looks to the nature of the function performed in evaluating whether to extend absolute immunity. See id. at 269. Gregory v. City of Louisville, 444 F.3d 725, 738 (6th Cir. 2006) Applying this standard, it is not difficult to conclude that most of Camargo s activity described in the complaint was intimately associated with the judicial phase of the criminal process in the state court cases. The decision to charge and proceed with the prosecution was part of the adjudicative process that is shielded from civil liability under well-established precedent. The allegations in the complaint allow no other interpretation. Consequently, the Court agrees with the magistrate judge s recommendation to dismiss the claims for malicious prosecution (counts 28, 33, 34) and deprivation of the right to due process of law because evidence was withheld (counts 36, 37, 38, 39). These counts challenge the state prosecutor s decisions to charge and turn over (or withhold) evidence during the adjudicative phase of the case. These actions decidedly do not involve investigation. Camargo enjoys absolute immunity for these actions. Hartman v. Moore, 547 U.S. 250, 262 (2006) (stating that a prosecutor is absolutely immune from liability for the decision to prosecute ) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)); Lanier v. Bryant, 332 F.3d 999, 1005 (6th Cir. 2003) (holding that the decision whether to disclose evidence is a prosecutorial function to which absolute immunity applies). Similarly, the text of the defamation claim in count 35 of the complaint makes clear the alleged defamatory statements were made in connection with the decision to turn over evidence to a defendant in one of the state prosecutions involving one of the named plaintiffs in this case. The substance of the statement deals with the conduct of one of the parties and bears on the propriety of -7-
releasing certain evidence in the underlying case. The magistrate judge concluded that count 35 ought to be dismissed because the alleged defamatory statement in fact was substantially true. That determination, however, requires a resolution of the facts that is inappropriate when considering a motion under Rule 12. But the statement was made by Camargo in connection with the prosecution of the plaintiffs as part of the charging function. Therefore, prosecutorial immunity bars the action in this count. Finally, in count 29 Catherine alleges that Camargo assaulted her during a pretrial conference in connection with Donkers pending criminal cases by coming across the table and shouting at Donkers. Compl. 440-41. To succeed in a civil assault claim, the plaintiff must demonstrate an intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact. VanVorous v. Burmeister, 262 Mich. App. 467, 482-83, 687 N.W. 2d 132, 142 (2004) (citing Espinoza v. Thomas, 189 Mich App. 110, 119, 472 N.W.2d 16, 21 (1991)). The plaintiff claimed in her pleadings that Camargo forcefully and aggressively came across the meeting table and repeatedly shouted at Catherine in such a manner as to cause Catherine apprehension and fear of immediate battery. Compl. 442. The plaintiff also alleges that Camargo told the bailiff to put Catherine in the box in such a manner as to cause Catherine apprehension and fear of being wrongfully arrested, incarcerated and/or battered against Catherine s will. Compl. 443. Applying the functional test, it is difficult to see how this conduct, if it actually occurred, can be considered a prosecutorial function or that absolute immunity is justified for the function in -8-
question. Buckley, 509 U.S. at 269. Even though the outburst occurred during a court conference, it would be incongruous to conclude that such conduct ought to be protected when it is inimical to the role of proper advocacy in the courts. Absolute immunity does not shield a prosecutor from assaultive behavior toward a litigant because conduct of that nature cannot fairly be considered as part of the prosecutorial function or properly characterized as a feature of the role of an advocate. The Court finds merit, therefore, in the plaintiff s objections 7 and 13 insofar as they challenge the application of the absolute immunity doctrine to the claims in count 29 of the complaint. Moreover, the Court believes that the plaintiff has pleaded the requisite elements of an assault claim under state law. Count 29 is not subject to dismissal under Rule 12(b)(6). III. The Court has considered the defendant s motion to dismiss de novo following the magistrate judge s report and the plaintiff s objections. The objections lack merit, except with respect to the challenge to the recommended dismissal of count 29 of the complaint. The Court finds that the magistrate judge otherwise properly applied the governing law. The Court will grant in part and deny in part defendant Camargo s motion to dismiss. Accordingly, it is ORDERED that the magistrate judge s report and recommendation [dkt #22] is ADOPTED IN PART AND REJECTED IN PART. It is further ORDERED that the plaintiff s objections [dkt #26] to the dismissal of count 29 of the complaint are SUSTAINED, and the balance are OVERRULED. It is further ORDERED that the motion to dismiss by defendant Carmago [dkt #16] is GRANTED IN PART AND DENIED IN PART. -9-
It is further ORDERED that counts 28, 33, 34, 35, 36, and 38 of the complaint are DISMISSED with prejudice with respect to the defendant Rebecca Camargo. It is further ORDERED that the matter is referred to Magistrate Judge Mona K. Majzoub under the previous reference order [dkt # 11] to ready the matter for trial, and to conduct a trial if the parties consent under 28 U.S.C. 626(b)(1)(c). Dated: January 25, 2008 s/david M. Lawson DAVID M. LAWSON United States District Judge -10-