UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Plaintiff Joseph Flanigan alleges that an Oakland County Sheriff’s Deputy, Scott Panin, 

tased, pepper-sprayed, and punched him for no reason. So Flanigan sued, asserting an excessive 

force claim under 42 U.S.C. § 1983 against Panin and Oakland County. 

Before the Court is Defendants’ motion to dismiss each of Flanigan’s claims. (Dkt. 5.) 

After careful consideration of the briefs and thorough review of the pleadings and public record, 

the Court finds that oral argument will not aid in resolving the pending motion. See E.D. Mich. 

LR 7.1(f)(2). The Court agrees with Defendants that Flanigan fails to adequately allege a Monell

claim against Oakland County, so Count II will be dismissed without prejudice. But Count I 

against Panin will survive the motion to dismiss, as the Court disagrees with Defendants that 

Flanigan’s guilty plea to resisting and obstructing Panin during the same incident bars his suit 

entirely. 

JOSEPH FLANIGAN, 

 Plaintiff, 

 

v. 

 

COUNTY OF OAKLAND and S. PANIN, 

 Defendant. 

Case No. 15-12504 

Honorable Laurie J. Michelson 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANTS’ MOTION TO DISMISS [5] 

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I. 

A. 

Plaintiff Joseph Flanigan alleges the following in his complaint. On July 21, 2013, he was 

walking around Clarkston, Michigan, “minding his own business.” (Dkt. 1, Compl. ¶ 9.) As he 

waited for his mother to pick him up, Defendant Scott Panin, an Oakland County Sheriff’s 

deputy, approached. (Id. ¶¶ 9–10.) Panin did not speak to Flanigan or “issue any commands,” so 

Flanigan “proceeded to go away.” (Id. ¶¶ 10–11.) 

Suddenly, without warning, Panin went after Flanigan and tased him “multiple times.” 

(Id. ¶ 12.) After handcuffing Flanigan, Panin also pepper sprayed him. (Id. ¶ 13.) Panin then 

punched Flanigan in the head while Flanigan was on the ground. (Id. ¶ 14.) Panin also kneed 

Flanigan in the back, causing him to vomit. (Id. ¶ 15.) Flanigan was then arrested and taken to 

Oakland County Jail. (Id. ¶ 16.) 

B. 

Flanigan’s complaint declined to mention that on August 29, 2013, because of charges 

stemming from the same incident, he pled guilty to possession of marijuana and a violation of 

Mich. Comp. Laws § 750.81d(1), which makes it a felony to assault, batter, wound, resist, 

obstruct, oppose, or endanger a person “performing his or her duties.” (See Dkt. 7, Pl.’s Resp. 

Ex. B.) In documents filed with the Oakland County Circuit Court, Flanigan described this as the 

factual basis for his plea: “I ran away from the police and had marijhuana [sic] – in my 

possession.” (Id.) (Although Defendants attack the sufficiency of the Complaint, the Court may 

consider other documents, such as Flanigan’s guilty plea, because it is a public record. See New 

England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th 

Cir. 2003), abrogated on other grounds by Merck & Co. v. Reynolds, 559 U.S. 633 (2010).) 

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Flanigan filed his complaint in this Court on July 14, 2015. (Dkt. 1.) Count I asserts a 

§ 1983 claim against Panin for his alleged use of excessive force. (Compl. ¶¶ 18–23.) Count II 

asserts a Monell claim against Oakland County for allegedly permitting “customs, practices, 

and/or polices” that resulted in Panin’s alleged constitutional violation. (Compl. ¶¶ 24–30.) 

Defendants filed their motion to dismiss on August 20, 2015. (Dkt. 5.) The motion is fully 

briefed (see Dkts. 5, 7–8).

II. 

When a defendant moves to dismiss pursuant to Rule 12(b)(6), the plausibility standard 

articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 

U.S. 662 (2009), governs. Under that standard, a court first culls legal conclusions from the 

complaint, leaving only factual allegations to be accepted as true. Iqbal, 556 U.S. at 679. The 

inquiry then becomes whether the remaining assertions of fact “allow[] the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Although 

this plausibility threshold is more than a “sheer possibility that a defendant . . . acted 

unlawfully,” it is not a “‘probability requirement.’” Id. (quoting Twombly, 550 U.S. at 556). 

Whether a plaintiff has presented enough factual matter to “‘nudg[e]’” his claim “‘across the line 

from conceivable to plausible’” is “a context-specific task” requiring this Court to “draw on its 

judicial experience and common sense.” Iqbal, 556 U.S. at 679, 683 (quoting Twombly, 550 U.S. 

at 570). 

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III. 

A. 

Defendants first argue that Heck v. Humphrey, 512 U.S. 477 (1990), bars Flanigan’s 

claim because he pled guilty to charges stemming from the same incident for which he now 

seeks damages. (Dkt. 5, Defs.’ Mot. at 4.) The Court disagrees. 

In Heck, the Supreme Court held that a plaintiff cannot assert a § 1983 claim that would 

“necessarily imply the invalidity” of an underlying criminal conviction. Heck, 512 U.S. at 487. 

The Court has since noted that in Heck, it “stress[ed] the importance of the term ‘necessarily.’” 

Nelson v. Campbell, 541 U.S. 637, 647 (2004). “The mere fact that the conviction and the § 1983 

claim arise from the same set of facts is irrelevant if the two are consistent with one another.” 

Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010). However, a § 1983 claim could conflict 

with a plaintiff’s criminal conviction where (1) “the criminal provision makes the lack of 

excessive force an element of the crime” or (2) “excessive force is an affirmative defense to the 

crime.” Id. 

Defendants say that the first scenario applies here. (Defs.’ Mot. at 7.) In particular, 

Flanigan pled guilty to Mich. Comp. Laws § 750.81d(1), which provides that “an individual who 

assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual 

knows or has reason to know is performing his or her duties is guilty of a felony.” Notably, that 

provision does not expressly include as an element a lack of excessive force. Defendants argue, 

however, that People v. Moreno, 814 N.W.2d 624 (Mich. 2012), clarified that the lawfulness of 

the officer’s conduct (and thus the absence of excessive force) is an element of that provision. In 

Moreno, the Michigan Supreme Court held that Mich. Comp. Laws § 750.81d(1) did not 

“abrogate the common-law right to resist unlawful arrests.” Id. at 634. As the Michigan Court of 

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Appeals later observed, the Moreno court “did not explicitly state, in so many words, that the 

lawfulness of the officers’ actions is an ‘element’ of resisting or obstructing a police officer,” but 

“it is clear that under Moreno, as at common law, the prosecution must establish that the officers 

acted lawfully as an actual element of the crime of resisting or obstructing a police officer under 

MCL 750.81d.” People v. Quinn, 853 N.W.2d 383, 388 (Mich. Ct. App. 2014). 

The Court finds it unnecessary to resolve whether Moreno and Quinn have made a lack 

of excessive force an element of Mich. Comp. Laws § 750.81d(1). Even assuming that to be true, 

Flanigan’s excessive force claim would not necessarily imply the invalidity of his guilty plea. As 

a Sixth Circuit panel recently noted, for Heck to apply, “both the § 1983 claim and the conviction 

must arise out of the same events.” Parvin v. Campbell, — F. App’x —, 2016 WL 97692, at *4 

(6th Cir. Jan. 8, 2016) (citation omitted); see also Cummings v. City of Akron, 418 F.3d at 682–

83 (6th Cir. 2005) (applying Heck to bar an excessive force claim because “[t]he struggle 

between Cummings and the officers gave rise to both Cummings’ assault conviction and the 

excessive force claim, and the two are inextricably intertwined.”). In other words, “a claim that 

excessive force occurred after the arrestee has ceased his or her resistance would not necessarily 

imply the invalidity of a conviction for the earlier resistance.” Bush v. Strain, 513 F.3d 492, 498 

(5th Cir. 2008) (citing cases). Any conclusion otherwise would mean that “once a person resists 

law enforcement, he has invited the police to inflict any reaction or retribution they choose, 

while forfeiting the right to sue for damages.” See VanGilder v. Baker, 435 F.3d 689, 692 (7th 

Cir. 2006). 

Here, Flanigan’s complaint and the factual basis of his guilty plea suggest that his 

excessive force claim is not “inextricably intertwined” with his plea. When Flanigan pled guilty 

to marijuana possession and resisting Panin, he specified this as the factual basis for his plea: “I 

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ran away from the police and had marijhuana [sic] – in my possession.” (Pl.’s Resp. Ex. B.) 

Similarly, in his complaint, Flanigan alleges that once Panin approached, before Panin used any 

force, Flanigan “proceeded to go away from” Panin. (Compl. ¶¶ 10–11.) The Complaint goes on 

to allege that Panin “proceeded to go after Plaintiff and tased Plaintiff multiple times without 

warning and without any lawful justification whatsoever.” (See Compl. ¶ 12.) If Flanigan’s 

allegations ended there, assuming that his plea of guilty to Mich. Comp. Laws § 750.81d(1) 

compels the conclusion that Panin’s conduct was lawful at the time that Flanigan resisted, Heck 

would bar the excessive force claim. 

But the allegations do not end there. Instead, Flanigan alleges that once he was subdued, 

Panin continued to use force. Flanigan claims that Panin pepper sprayed him after he was 

handcuffed and that Panin punched and kneed him while he was on the ground. (See Compl. ¶¶ 

13–14.) Thus, drawing all reasonable inferences in Flanigan’s favor, the conduct underlying his 

guilty plea—running away from Panin—came before much of the basis of his excessive force 

claim. In other words, even if Panin’s conduct was lawful at the time of Flanigan’s resistance, it 

did not necessarily remain lawful after he was subdued. 

Defendants argue that the notion that Heck requires looking to the factual basis of a guilty 

plea, not just the fact of the plea itself, is “novel” and “bereft of any legal support or authority.” 

(Dkt. 8, Defs.’ Repl. at 1–2.) But the Sixth Circuit has applied Heck in exactly that way. For 

example, in Lucier v. City of Ecorse, 601 F. App’x 372, 374–75 (6th Cir. 2015), the Plaintiff 

claimed that officers used excessive force when they tased him and slapped him in his basement 

before bringing him to their patrol car, where they tased him again. Though the plaintiff pled 

guilty to resisting arrest based on that incident, the Court held that Heck did not apply because 

“[t]he factual basis of [the] guilty plea was never specified.” Id. at 377. Thus, because it was 

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possible that the guilty plea “may well have been wholly based on” conduct after the officers’ 

force in the basement, “a judgment in Plaintiff’s favor on his § 1983 excessive force claims 

would not necessarily invalidate his previous guilty plea.” Id. at 377. 

The same follows here. Flanigan’s complaint and guilty plea are consistent with the 

conclusion that his guilty plea was based wholly on conduct—resisting Panin by running away—

that occurred before Panin allegedly subdued him and used excessive force. As Flanigan’s 

excessive force claim, if successful, would not necessarily invalidate his guilty plea, Heck does 

not apply here. 

B. 

Defendants next argue that Flanigan’s municipal liability claim against Oakland County 

is too vague and conclusory to withstand a motion to dismiss. (Defs.’ Mot. at 10.) The Court 

agrees. 

“To prevail in a § 1983 suit against a municipality, a plaintiff must show that the alleged 

federal right violation occurred because of a municipal policy or custom.” Thomas v. City of 

Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 

658, 694 (1978)). Flanigan’s complaint alleges that Oakland County permitted the following 

policies or customs that resulted in the alleged constitutional violations: (1) “[f]ailing to 

adequately train and/or supervise its police officers so as to prevent violations of citizens’ 

constitutional rights”; (2) “[f]ailing to adequately train and/or supervise police officers regarding 

the proper use of force”; (3) “[f]ailing to adequately supervise, review, and/or discipline police 

officers whom Defendant County of Oakland knew or should have known were violating or were 

prone to violate citizens’ constitutional rights, thereby permitting and/or encouraging its police 

officers to engage in illegal conduct”; and (4) “[f]ailing to adequately train and/or supervise its 

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police officers in the proper policies and procedures for effectuating an arrest without the use of 

excessive force.” (Compl. ¶ 27.) 

Flanigan characterizes these as “detailed factual allegations.” (Pl.’s Resp. at 14.) But they 

are not. The second and fourth allegations noted above say essentially the same thing: Oakland 

County failed to adequately train or supervise its deputies to prevent the type of violation that 

Flanigan alleges happened here, excessive force during an arrest. The first allegation simply 

states that more broadly: Oakland County failed to train or supervise its officers to prevent 

violations of constitutional rights. These are nothing more than “formulaic recitation[s]” of one 

of the elements of Flanigan’s claim, insufficient to withstand a motion to dismiss. See Iqbal, 556 

U.S. at 678, 681. More specifically, one way a plaintiff can demonstrate an illegal policy is by 

showing the “existence of a policy of inadequate training or supervision.” See Burgess v. 

Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 

429 (6th Cir. 2005)). And here, Flanigan has alleged nothing more than that. 

Flannigan’s third allegation—that Oakland County failed to supervise, review, or 

discipline officers the county “knew or should have known were violating or were prone to 

violate citizens’ rights” fares no better. This too simply recites in conclusory fashion what is 

generally required to show a municipality’s deliberate indifference: “proof that the municipality 

was aware of prior unconstitutional actions by its employees and failed to take corrective 

measures,” Miller v. Calhoun Cty., 408 F.3d 803, 815 (6th Cir. 2005) (citation omitted). Flanigan 

does not say when or how Oakland County learned of the prior unconstitutional acts. Nor does 

he identify the acts or say how Oakland County handled them. Thus, Flanigan has again simply 

recited an element of his claim—deliberate indifference is an element of inadequate training and 

inadequate supervision claims of municipal liability. See Amerson v. Waterford Twp., 562 F. 

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App’x 484, 492 (6th Cir. 2014) (“Similar to the failure-to-train inquiry . . . to sustain a failuresupervise claim, the plaintiff must show that the city acted with deliberate indifference to the risk 

of [the constitutional violation] and that its deliberate indifference was the ‘moving force’ behind 

the assault”) (internal quotation marks omitted). 

Flanigan cites only one case to urge that his allegations are sufficient to withstand 

Defendants’ motion to dismiss, an unpublished opinion in McPeak v. City of Flint, et al, No. 10–

14110 (E.D. Mich. filed Oct. 13, 2010). (See Pl.’s Resp. at 15; Pl.’s Resp. Ex. D.) But that 

opinion is not binding on this Court. And McPeak was one of many cases in which the law firm 

representing Flanigan has made substantially similar boilerplate allegations against a 

municipality. Granted, the court in McPeak found these allegations sufficient to withstand a 

motion to dismiss. Id. Yet as another judge in this district later observed, the opinion in McPeak 

is unpersuasive because it relied on Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008), 

which did not address the sufficiency of the relevant municipal liability claim under the Twombly 

and Iqbal standard. See Curney v. City of Highland Park, No. 11-12083, 2012 WL 1079473, at 

*4 (E.D. Mich. Mar. 30, 2012). Thus, the court in Curney dismissed a § 1983 municipal liability 

claim based on allegations nearly identical to Flanigan’s, noting that a plaintiff “cannot allege a 

municipal liability claim hoping that discovery will reveal facts to support the claim.” Id. at 5; 

but see Amerson v. Twp. of Waterford, No. 12-10375, 2012 WL 5948044, at *3 (E.D. Mich. Nov. 

28, 2012) (denying motion for judgment on the pleadings for substantially similar allegations); 

Young v. City of Highland Park, No. 11-12780, 2011 WL 5215154, at *3 (E.D. Mich. Nov. 2, 

2011) (denying motion to dismiss for substantially similar allegations). The Court finds the 

approach in Curney is more persuasive than McPeak because it is more consistent with the 

standards under Twombly and Iqbal. See Holliday v. Wells Fargo Bank, NA, 569 F. App’x 366, 

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372 (6th Cir. 2014) (“It is well settled that a party cannot ‘use the discovery process to obtain 

[the facts it needs to support its claim] after filing suit’”) (alterations in original) (quoting New 

Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011)). 

In sum, because the Court does not have to accept as true Flanigan’s “legal conclusion[s] 

couched as a factual allegation[s],” Iqbal, 556 U.S. at 678, the Court does not find it plausible 

that any municipal custom, policy, or practice was the moving force behind Deputy Panin’s 

alleged use of excessive force. As no factual allegations support Flanigan’s legal conclusions 

surrounding his claim against Oakland County, he has failed to state a claim upon which relief 

can be granted. 

IV. 

For the reasons stated, Defendants’ motion to dismiss (Dkt. 5) is DENIED as to Count I 

and GRANTED as to Count II. Count II, and Defendant Oakland County, are DISMISSED 

WITHOUT PREJUDICE. 

SO ORDERED. 

s/Laurie J. Michelson 

LAURIE J. MICHELSON 

UNITED STATES DISTRICT JUDGE 

 Dated: January 26, 2016 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the attorneys 

and/or parties of record by electronic means or U.S. Mail on January 26, 2016. 

 s/Jane Johnson 

Case Manager to 

 Honorable Laurie J. Michelson 

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