UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ROMERO THOMAS,

Plaintiff, Civil Action No. 14-13107

Honorable Nancy G. Edmunds

v. Magistrate Judge Elizabeth A. Stafford

 

KIMBERLY F. MILES, et al., 

Defendants. 

_________________________/

REPORT AND RECOMMENDATION 

TO SUA SPONTE DISMISS THE ACTION

I. INTRODUCTION

On August 12, 2014, Plaintiff Romero Thomas filed a pro se 

complaint pursuant to 42 U.S.C. § 1983 against Wayne County prosecutor 

Kimberly F. Miles, Detroit police officer Paul Pesmark, Dollar General

Corporation, and Dollar General employees Tanisha A. Watkins and 

Brittani Brown (“Defendants”), alleging they conspired to maliciously 

prosecute him in violation of his Fourteenth Amendment right to due 

process and in violation of Michigan law. [1]. The Honorable Nancy G. 

Edmunds referred this action to the undersigned to resolve all pretrial 

matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). For the following 

reasons, the Court RECOMMENDS that Thomas’s federal due process

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claims be sua sponte DISMISSED pursuant to 28 U.S.C. §1915(e)(2)(B) for 

failing to state a claim on which relief may be granted, and that the Court 

decline to exercise supplemental jurisdiction over Thomas’s state law 

claims and DISMISS them WITHOUT PREJUDICE.

1

II. DISCUSSION

1. Background

This action is based on a state court criminal prosecution of Thomas

which arose from a robbery that occurred on September 27, 2013. [1; 13, 

Pg ID 51-55]. Thomas was charged with two counts of armed robbery, a 

felony firearms charge, and an assault with a dangerous weapon 

(“AWDW”) charge. [13, Pg ID 51]. Following a jury trial in March 2014, 

Thomas was convicted on the two armed robbery counts and the felony 

firearm count, but he was acquitted of AWDW. [Id., Pg ID 53].

On August 12, 2014, Thomas filed this action, alleging that 

Defendants violated his federal due process rights by conspiring to 

maliciously prosecute him on the AWDW charge and by withholding an 

alleged exculpatory video from the trial judge regarding the AWDW charge. 

1 On November 14, 2014, Thomas mailed a letter to the Court requesting 

that his complaint be dismissed without prejudice. [13, Pg. ID 47]. 

However, Thomas later filed a motion to extend the time to respond to 

Defendants’ answer. [22]. Since Thomas’s intentions are unclear, this 

Court’s recommendation to dismiss is based upon the substance of the 

complaint rather than on Thomas’s November 14 letter.

2

 

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[1, Pg ID 6-9]. As further support for the malicious prosecution claim, 

Thomas alleges that Brown falsely reported to the Detroit Police that he 

pointed a rifle at a victim during the September 27 robbery, and that the 

other Defendants furthered the conspiracy by presenting the alleged false 

testimony at trial in an effort to convict him of AWDW. [Id.]. Thomas also 

alleges claims arising under state law, including common law malicious 

prosecution.

2. Standard of Review

Thomas is proceeding in forma pauperis, [3], which means the Court 

has an affirmative duty to dismiss at any time in which it appears that the 

action fails to state a claim on which relief may be granted. 28 U.S.C. § 

1915(e)(2)(B)(ii).

Although the federal rules only require that a complaint contain a 

“short and plain statement of the claim showing that the pleader is entitled 

to relief,” see Rule 8(a)(2), the statement of the claim must be plausible. 

Indeed, “a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). The Iqbal Court explained, “[a] claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to 

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draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. 

The plausibility standard “does not impose a probability requirement 

at the pleading stage; it simply calls for enough fact to raise a reasonable 

expectation that discovery will reveal evidence of illegal [conduct].” 

Twombly, 550 U.S. at 556. Put another way, the complaint’s allegations 

“must do more than create speculation or suspicion of a legally cognizable 

cause of action; they must show entitlement to relief.” League of United 

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)

(emphasis in original) (citing Twombly, 550 U.S. at 555-56). 

In deciding whether a plaintiff has set forth a “plausible” claim, the 

Court must construe the complaint in the light most favorable to the plaintiff 

and accept as true all well-pleaded factual allegations. Id.; see also 

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, legal conclusions 

need not be accepted as true. “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” 

Iqbal, 556 U.S. at 678. 

Pleadings filed by pro se litigants are entitled to a more liberal reading 

than would be afforded to formal pleadings drafted by lawyers. Thomas v. 

Eby, 481 F.3d 434, 437 (6th Cir. 2007). Nonetheless, “[t]he leniency 

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granted to pro se [litigants] ... is not boundless.” Martin v. Overton, 391 

F.3d 710, 714 (6th Cir. 2004). Indeed, such complaints still must plead a 

plausible claim for relief. Davis v. Prison Health Services, 679 F.3d 433, 

437-38 (6th Cir. 2012).

3. Analysis

Thomas brings his malicious prosecution claim under the Fourteenth 

Amendment. However, the Supreme Court has held that “the Fourteenth 

Amendment's Due Process Clause ‘may not give rise to a federal 

constitutional malicious prosecution claim.’” Dye v. City of Roseville, No. 

14-11252, 2014 WL 7184460, at *8 n. 1 (E.D. Mich. Dec. 16, 2014)

(quoting Albright v. Oliver, 510 U.S. 266, 275 (1994)). Rather, the Fourth 

Amendment, which governs “deprivations of liberty that go hand in hand 

with criminal prosecutions ... must be the guide for analyzing [malicious 

prosecution] claims.” Id. (quoting Albright, 510 U.S. at 273-74); see also 

Spurlock v. Satterfield, 167 F.3d 995, 1005-07 (6th Cir. 1999) (finding that 

malicious prosecution of an individual without probable cause violates 

Fourth Amendment rights). Accordingly, Thomas’s malicious prosecution 

claim under the Fourteenth Amendment fails as a matter of law. Albright,

510 U.S. at 275; Dye, 2014 WL 7184460 at *8. 

However, because Thomas is proceeding pro se, the Court will 

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construe the complaint liberally to include a malicious prosecution claim 

under the Fourth Amendment. See Thomas, 481 F.3d at 437. To succeed 

on a § 1983 malicious prosecution claim under the Fourth Amendment, the 

Sixth Circuit requires a plaintiff to establish that: (1) a criminal prosecution 

was initiated against him, and the defendants made, influenced, or 

participated in the decision to prosecute; (2) there was no probable cause

for the criminal prosecution; (3) he suffered a deprivation of liberty as a 

result of the prosecution apart from the initial seizure; and (4) the criminal

proceeding was resolved in his favor. Sykes v. Anderson, 625 F.3d 294, 

308-09 (6th Cir. 2010). 

With respect to the fourth element, the Third Circuit has held that a 

criminal proceeding is not resolved in a defendant’s favor when he is 

convicted of charges that arise out of the same course of conduct as the 

acquitted charge for which he is claiming malicious prosecution. “When the 

circumstances—both the offenses as stated in the statute and the 

underlying facts of the case—indicate that the judgment as a whole does 

not reflect the plaintiff’s innocence, then the plaintiff fails to establish the 

favorable termination element.” Kossler v. Crisanti, 564 F.3d 181, 188 (3d 

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Cir. 2009) (en banc).2

 See also Fedie v. Livingston Cnty., No. 09-10417, 

2009 WL 2351765, at *3 (E.D. Mich. July 29, 2009) (same).

Here, inasmuch as a jury found beyond a reasonable doubt that 

Thomas used a firearm while committing an armed robbery during the 

same incident that led to his AWDW charge, he has no plausible claim that 

the prosecution lacked probable cause for his arrest or that he suffered any

deprivation of liberty as a result of the alleged malicious prosecution on the 

AWDW charge.

3

 Additionally, Thomas cannot show that the criminal 

proceeding was resolved in his favor since the judgment does not reflect 

his innocence. For these reasons, Thomas fails to state a § 1983 malicious 

prosecution claim on which relief may be granted.

The complaint also fails to state a Brady-based § 1983 due process 

claim under the Fourteenth Amendment. Under Brady v. Maryland, 373 

U.S. 83, 87 (1963), “the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process where the 

2 But see Janetka v. Dabe, 892 F.2d 187, 190 (2d Cir. 1989) (defendant 

could proceed with malicious prosecution claim when acquitted charge and 

convicted count involved distinct offenses with different elements, and 

different alleged victims). 3

Notably, Thomas does not allege that he suffered a loss of liberty as a 

result of the alleged malicious prosecution. The only injury he alleges is 

that he lost his job after being placed on medical leave as a result of being 

shot “during an assassination attempt on [his] life August 20, 2013.” [1, Pg 

ID 10]. Thomas fails to explain how an unrelated shooting, which occurred 

a month before the underlying robbery, is relevant.

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evidence is material either to guilt or to punishment.” Even assuming that 

Defendants were required to turn over exculpatory evidence and failed to 

do so, Thomas cannot succeed on a Brady claim, because he was found 

not guilty of AWDW. 

“One of the components of any Brady claim is that ‘prejudice must 

have ensued’ from the government’s nondisclosure of exculpatory 

evidence.” Offineer v. Kelly, 454 Fed. Appx. 407, 419 (6th Cir. 2011)

(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Thomas’s 

acquittal on the AWDW charge means any Brady violation was not 

prejudicial, and therefore not actionable. Id. Thus, the complaint fails to 

state a Fourteenth Amendment due process claim on which relief may be 

granted. 

The complaint contains no constitutional claim or claim arising under 

federal law on which relief can be granted. Thomas’s remaining claims are 

based on violations of state law. Where all federal claims are dismissed 

and claims under state law remain, the Court must determine whether to 

exercise supplemental jurisdiction of the state law claims under 28 U.S.C. § 

1367. See Campanella v. Commerce Exch. Bank, 137 F.3d 885, 892-93 

(6th Cir. 1998). Under §1367(c)(3), the Court may decline to exercise 

supplemental jurisdiction over the remaining state law claims. Musson 

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Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 

1996) (“When all federal claims are dismissed before trial, the balance of 

considerations usually will point to dismissing the state law claims.”). Here, 

there is no reason to retain supplemental jurisdiction over Thomas’s state 

law claims.

III. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Thomas’s 

federal due process claims be sua sponte DISMISSED pursuant to 28 

U.S.C. §1915(e)(2)(B) for failing to state a claim on which relief may be 

granted, and that the Court decline to exercise supplemental jurisdiction 

over Thomas’s state law claims and DISMISS them WITHOUT 

PREJUDICE.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: April 2, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

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Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on April 2, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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