UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

JOSHUA HOWARD ELZINGA, 

 Plaintiff, Case No. 15-cv-10808 

v Honorable Thomas L. Ludington 

CARRIE SUE ALDRICH, et al., 

 Defendants. 

__________________________________________/ 

ORDER GRANTING IN PART MOTION TO DISMISS AND CANCELLING HEARING 

 On March 5, 2015, Plaintiff Joshua Howard Elzinga filed a 42 U.S.C. § 1983 complaint 

alleging that members of the Bay City Police Department (Donald Aldrich, Brian Ritchey, and 

Keath Bartynski) and Carrie Sue Aldrich had violated his constitutional rights during an 

altercation at a bar. 

 On May 15, 2015, Defendant Carrie Sue Aldrich filed a motion to dismiss, claiming that 

Elzinga had not sufficiently pleaded a § 1983 conspiracy claim against her. However, because 

Elzinga’s complaint sets forth sufficient facts to show an agreement between Carrie Sue Aldrich 

and her Co-Defendants to deprive Elzinga of his constitutional rights, her motion to dismiss will 

be denied in part. 

I.

 On May 1, 2013, Elzinga noticed a police car parked on the street facing the wrong way 

outside a local bar, Steamer’s. Compl. ¶ 12-13. Elzinga took a photo of the police car with his 

phone and uploaded it to Facebook with the caption “Bay City’s finest illegally parked so they 

can flirt with a Bay City bartender. Keep it up Brian Ritchie [sic] you’re doing our city proud.” 

Id. at 14. 

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 Defendant Carrie Sue Aldrich was a Facebook friend of Elzinga’s at the time of the post, 

and she observed Elzinga’s post while at Steamer’s with her husband, Donald Aldrich, a Bay 

City Public Safety Officer. Compl. ¶ 20. After seeing Elzinga’s Facebook post, Carrie Sue 

Aldrich showed the post to her husband and then summoned Bay City Public Safety Officer 

Brian Ritchey to Steamer’s Pub. Id. ¶ 26. 

 When he arrived at the bar, Brian Ritchey confronted Elzinga, asking why he had posted 

the picture on Facebook. Compl. ¶ 28. Elzinga “explained that he took the picture because 

Officer Ritchey parked on the wrong side of the street . . . .” Id. ¶ 29. Ritchey was “upset” and 

called Elzinga “unprofessional”. Id. 29-30. 

 Donald Aldrich, however, became “incensed” upon learning of the Facebook post. 

Compl. ¶ 31. He confronted Elzinga at the bar, yelling “I am the Bay City fucking police” and 

threatened “I’m gonna fuck you, you’re fucked.” Id. ¶ 34. Elzinga recorded Donald Aldrich’s 

threats on his phone. Id. ¶ 37. Donald Aldrich then threatened to charge the bartender with 

criminal violations if she continued to serve Elzinga. Id. ¶ 38. 

 In the meantime, Ritchey had left the bar and met with Defendant Bartynski, also a Bay 

City Public Safety Officer. Compl. ¶42. While “venting” with Bartynski, Ritchey received a 

text message from Carrie Sue Aldrich advising Ritchey to return to the bar because “Don is 

going to fight [Elzinga]”. Id. 43-44. Ritchey told Bartynski about the text, and they both drove 

separately to the bar. 

 When he arrived at the bar, Bartynski observed the verbal argument between Donald 

Aldrich and Elzinga and “grabbed [Elzinga] and physically removed him from the restaurant.” 

Compl. ¶ 46-47. Bartynski “forcefully and gratuitously bent [Elzinga] over a scout car [and] 

proceeded to pat [him] down.” Id. ¶ 51. Elzinga was still recording the events with his phone, 

which was in his pocket. Id. ¶ 52. After the pat-down, Bartysnki arrested Elzinga and placed 

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him in the back of the scout car. Id. ¶ 54-56. Carrie Sue Aldrich, Donald Aldrich, and Ritchey 

were also outside the bar and observing the arrest. Id. ¶ 57. 

 Carrie Sue Aldrich “began shouting ‘Get the phone!’ or ‘Smash the phone!’ repeatedly.” 

Compl. ¶ 59. Bartynksi then took Elzinga’s phone and “turned the phone over to Carrie Sue 

Aldrich, or Officer Aldrich, or both.” Id. ¶ 61. Elzinga’s phone has never been returned. Id. ¶ 

64. 

 On March 5, 2015, Elzinga filed suit against Defendants, alleging that they violated his 

constitutional rights by (1) “causing him to be detained and patted down without articulable 

suspicion that he had committed a crime”; (2) “causing him to be arrested without probable 

cause to believe that he had committed a crime”; (3) “by subjecting him to physical injury during 

his detention or arrest”; (4) “causing the seizure and loss of his cell phone and the contents 

contained with it”; and (5) “causing him to be detained, arrested, and having his cell phone 

confiscated in whole or in part because he lawfully took a photograph of a police car parked the 

wrong way on a side street in Bay City.” Compl. ¶ 72.1

II.

This Court may dismiss a pleading for “failure to state a claim upon which relief can be 

granted.” Fed. R. Civ. P. 12(b)(6). A pleading fails to state a claim if it does not contain 

allegations that support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 

U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading 

in the non-movant’s favor and accepts the allegations of facts therein as true. See Lambert v. 

Hartman, 517 F.3d 433, 439 (6th Cir. 2008). The pleader need not have provided “detailed 

factual allegations” to survive dismissal, but the “obligation to provide the ‘grounds’ of his 

 

1

 On Friday, August 15, 2014, Defendant Bartynski was convicted of the misdemeanor crime of assault by a jury in 

the 74th District Court for Bay County. Compl. ¶ 70 (citing People v. Keath Brian Bartynski, Case No. 14-30206-

SM). 

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‘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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007). In essence, the pleading “must contain sufficient factual matter, accepted as true, to 

‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 

550 U.S. at 570). 

 While there is generally no heightened pleading requirement for claims made under 41 

U.S.C. § 1983, Am. Postal Workers Union, 361 F.3d at 902, a § 1983 conspiracy must be pled 

with some specificity. See Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987) (“It is wellsettled that conspiracy claims must be pled with some degree of specificity and that vague and 

conclusory allegations unsupported by material facts will not be sufficient to state such a claim 

under § 1983 . . . .”). 

III.

 In her motion to dismiss, Carrie Aldrich claims that there was no agreement to deprive 

Elzinga of his constitutional rights, and even if there was, she was not a part of the agreement. 

She instead claims that she was “spontaneous participant” in an “unplanned altercation.” Reply 

3. 

 Generally, a plaintiff may not bring a § 1983 claim against a private civilian, such as 

Carrie Sue Aldrich. Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003). One exception to this 

general rule is when a private civilian joins in a conspiracy with state actors to violate a 

plaintiff’s civil rights. Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985). Here, Elzinga alleges that 

Carrie Sue Aldrich conspired with her Co-Defendants (all of whom are state actors) to deprive 

Elzinga of his Fourth Amendment rights to be free from unreasonable searches and seizures. 

Specifically, Elzinga alleges that Carrie Sue Aldrich joined a conspiracy to take and destroy his 

phone. 

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 A civil conspiracy claim under § 1983 lies where there is “an agreement between two or 

more persons to injure another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th 

Cir. 2007). To prevail on a civil conspiracy claim, a plaintiff must demonstrate “that (1) a single 

plan existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of 

their constitutional rights, and (3) an overt act was committed” in furtherance of the conspiracy 

that caused the injury.2

 Id. 

 A plaintiff is not, however, required to prove an express agreement among all the 

conspirators, and “[e]ach conspirator need not have known all of the details of the illegal plan or 

all of the participants involved.”3

 Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985). The Sixth 

Circuit has explained that a “tacit or mutual understanding between the parties is enough to 

prove a conspiratorial agreement.” United States v. Barger, 931 F.2d 359, 369 n.6 (6th Cir. 

1991) (citing United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir. 1985). 

 Here, the complaint alleges that Carrie Sue Aldrich encouraged her Co-Defendants by 

“shouting ‘Get the phone!’ or ‘Smash the phone!’ repeatedly.” Compl. 59. Then, according to 

the complaint, Defendant Bartynski “took Plaintiff’s phone from him,” and “turned the phone 

over to Carrie Sue Aldrich, or Officer Aldrich, or both.” Compl. ¶ 60-61. Carrie Sue Aldrich’s 

directions to take Elzinga’s phone, followed by Bartynski’s compliance with those directions and 

her subsequent receipt of the phone, is sufficient to plead an agreement. There is no requirement 

that Defendants had to discuss the agreement ahead of time; it is sufficient that they agreed (both 

verbally and by action) to take Elzinga’s phone from him. Accordingly, Carrie Sue Aldrich’s 

 

2

 Carrie Sue relies on an unpublished Fifth Circuit case requiring a plaintiff to also allege that there was a 

preconceived plan. See Reply 3 (citing Gonzales v. H. E. Butt Grocery Co., 226 F. App’x 342, 345 (5th Cir. 2007). 

Although precedent from sister circuits has persuasive appeal, this Court is not bound by that holding. Indeed, the 

Sixth Circuit has never required that a conspiratorial agreement be planned in advance or preconceived, and no 

district court in this circuit has ever followed that holding in Gonzales. 3

 In the criminal context, the Sixth Circuit has further explained that a “tacit or mutual understanding between the 

parties is enough to prove a conspiratorial agreement.” United States v. Barger, 931 F.2d 359, 369 n.6 (6th Cir. 

1991) (citing United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir. 1985). 

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motion to dismiss will be denied to the extent it seeks dismissal of the claims related to the 

removal of Elzinga’s phone (Compl. ¶ 72(d-e)).4

 However, Elzinga has not furnished any facts in his complaint that would indicate that 

there was an agreement between Carrie Sue Aldrich and her Co-Defendants to have Elzinga 

illegally searched and arrested. Although Carrie Sue Aldrich initially informed her CoDefendants of the Facebook posting and requested that Ritchey and Bartynski return to the bar, 

there is no allegation that these actions were taken pursuant to an agreement to have Elzinga 

searched and arrested. Accordingly, to the extent that Carrie Sue Aldrich seeks dismissal of 

Elzinga’s claims related to his seizure and arrest (Compl. ¶ 72(a-c)), these claims will be 

dismissed. 

IV.

 Accordingly, it is ORDERED that Defendant Carrie Sue Aldrich’s Motion to Dismiss 

(ECF No. 16) is GRANTED IN PART AND DENIED IN PART. Plaintiff Elzinga’s § 1983 

claims against Carrie Sue Aldrich for illegal search and arrest (Compl. ¶ 72 (a-c)) are 

DISMISSED. 

 It is further ORDERED that the motion hearing set for July 28, 2015 is CANCELLED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: June 29, 2015 

 

4

 As part of his response, Elzinga requests permission to amend his complaint in the event that this Court finds that 

he has not adequately pleaded a § 1983 conspiracy claim. This request will be disregarded because the parties are 

not permitted to include motions in their responses. See Motion Practice Guidelines for Judge Thomas L. Ludington, 

Separate Motion and Brief, available at http://www.mied.uscourts.gov/Judges/guidelines/topic.cfm?topic_id=360 

(“Motions may not be included within or appended to a response or a reply.”). 

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PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on June 29, 2015. 

 s/Karri Sandusky 

 Karri Sandusky, Acting Case Manager 

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