UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENNIS GUY ERDMAN,

Plaintiff, CIVIL ACTION NO. 08-CV-14715-DT

vs.

 DISTRICT JUDGE NANCY G. EDMUNDS

CITY OF DETROIT, MAGISTRATE JUDGE MONA K. MAJZOUB

et al.,

Defendants.

________________________/

REPORT AND RECOMMENDATION

I. RECOMMENDATION: The Motion for Summary Judgment filed by Defendant Wayne

County (docket no. 15) should be GRANTED.

II. REPORT:

This matter comes before the Court on the Motion for Summary Judgment1 filed by

Defendant Wayne County. (Docket no. 15). Plaintiff, a frequent litigator (see docket no. 3), has

responded to the motion. (Docket no. 24). All pretrial matters have been referred to the undersigned

for action. (Docket no. 5). The Court dispenses with oral argument on this motion. E.D. Mich. LR

7.1(e). Defendant’s motion is now ready for ruling.

1

 Although Defendant labels its motion as one for summary judgment, it is moving to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6). (Docket no. 15 at 7).

-1-

2:08-cv-14715-NGE-MKM Doc # 27 Filed 05/28/09 Pg 1 of 6 Pg ID 194
A. Facts and Claims

Plaintiff filed his “citizen’s diversity complaint” against the City of Detroit, Wayne County,

and the State of Michigan.2

 (Docket no. 1). He claims that he now lives in Texas but in 1989 he

accidentally struck and killed a pedestrian with his vehicle in the City of Detroit. (Id. at 2). Plaintiff

alleges that he pled nolo contendere to the charges of vehicle manslaughter and leaving the scene

of an accident. (Id.). The court sentenced him to 15 years and 2 years consecutive on the

convictions. (Id.). In 1991 Plaintiff alleges that the 2-year sentence for leaving the scene was

vacated. (Id.). Plaintiff remained incarcerated on the manslaughter conviction. Plaintiff further

alleges that in 2000 he uncovered exculpatory evidence, that the decedent was intoxicated when he

stepped in front of Plaintiff’s truck, which proves Plaintiff’s legal innocence. (Id.).

Plaintiff alleges that “Defendant has manipulated the record by suppressing evidence in this

case, falsely accusing Plaintiff of murdering the decedent.” (Id. at 3). Plaintiff seeks damages for

the violation of his state and federal constitutional rights and for the torts of false imprisonment,

malicious prosecution, and illegal confinement. (Id.).

Defendant Wayne County moves to dismiss on the bases that prosecutors have absolute

immunity, Plaintiff’s claim is barred by Heck v. Humphrey, Plaintiff’s state constitutional claims are

barred, and because Plaintiff’s tort claims are barred by the Michigan Governmental Tort Liability

Act. (Docket no. 15 at 7). 

2

 The State of Michigan has already been dismissed as a Defendant. (Docket no. 3).

-2-

2:08-cv-14715-NGE-MKM Doc # 27 Filed 05/28/09 Pg 2 of 6 Pg ID 195
B. Standard

Defendant moves to dismiss Plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure

to state a claim upon which relief may be granted. Dismissal under this rule is appropriate when it

is clear that no relief could be granted under any set of facts that could be proved consistent with

Plaintiff’s allegations. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). In

considering this motion, the Court must accept as true the well-pleaded factual allegations in

Plaintiff’s complaint. (Id.). The Court does not have to accept as true legal conclusions or

unwarranted factual inferences, however. (Id.).

C. Analysis

1. Absolute Immunity/Policy or Custom

Plaintiff complains only of action by an assistant Wayne County prosecutor in response to

Defendant’s motion. (Docket no. 24 at 2-3). He argues that “Defendant Wayne County must not

be dismissed from this action because Assistant Wayne County Prosecutor Daniel Less [sic]

suppression of evidence in this case.” (Id. at 3). Plaintiff fails to identify any policy or custom of

Wayne County by which he was injured.

Plaintiff is therefore attempting to hold the county liable for the alleged acts of someone who

may be an employee of the county. However, vicarious liability is not a valid basis for establishing

municipality liability under 42 U.S.C. § 1983. Monell v. Department of Social Servs., 436 U.S. 658,

692 (1978). To state a claim against Defendant, Plaintiff must allege that his injury was caused by

an unconstitutional policy or custom of the county. Pembaur v. City of Cincinnati, 475 U.S. 469,

480-81 (1986). Plaintiff has failed to allege that he was injured by a policy or custom of Wayne

County. The county is therefore entitled to dismissal.

-3-

2:08-cv-14715-NGE-MKM Doc # 27 Filed 05/28/09 Pg 3 of 6 Pg ID 196
Moreover, if Plaintiff had named the prosecutor as a defendant, prosecutors have absolute

immunity for acts taken in the performance of their prosecutorial duties. Imbler v. Pachtman, 424

U.S. 409, 430-31 (1976). Plaintiff claims that the prosecutor suppressed evidence while prosecuting

him and perjured himself before the court. (Docket no. 24 at 3). These are acts performed in the

course of the prosecutor’s duties in prosecuting Plaintiff’s case. Therefore, the prosecutor would

be entitled to absolute immunity.

2. Heck v. Humphrey Bar

Plaintiff claims that he uncovered exculpatory evidence allegedly suppressed by Defendant

which proves his legal innocence of his manslaughter conviction. (Docket no. 1 at 2). Plaintiff’s

claims if proven would therefore necessarily render his conviction and sentence invalid. Plaintiff

also seeks damages as relief. (Id. at 3). Defendant claims that under these circumstances, because

Plaintiff has not shown that his conviction has been reversed, this action is barred by Heck v.

Humphrey. In Heck, the Supreme Court held that in order to recover damages for an allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that

the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas

corpus. Heck, 512 U.S. at 486.

Plaintiff claims that his manslaughter conviction was set aside on December 28, 2006

through a motion for reconsideration that he filed in the City of Detroit Recorders Court. (Docket

no. 24). Plaintiff submits excerpts of a docket sheet from that court, but the entries reflected on

those excerpts fail to show that in December 2006 or at any other time Plaintiff’s manslaughter

-4-

2:08-cv-14715-NGE-MKM Doc # 27 Filed 05/28/09 Pg 4 of 6 Pg ID 197
conviction was set aside. (Id.). The excerpts show only that a motion for reconsideration was

granted and not that Plaintiff’s conviction was overturned. This action is therefore barred by Heck,

and Defendant’s Motion to Dismiss should alternatively be granted on this basis.

3. State Law Claims

Because all of Plaintiff’s federal claims must be dismissed, this Court should decline to

address any state law claims that Plaintiff asserts against Defendant Wayne County. 28 U.S.C. §

1367(c)(3) (district courts may decline to exercise supplemental jurisdiction over a claim if all

original jurisdiction claims have been dismissed).

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C.

§ 636(b)(1) and E.D. Mich. LR 72.1(d)(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. Sec’y of Health &

Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

Filing of objections which raise some issues but fail to raise others with specificity, will not preserve

all the objections a party might have to this Report and Recommendation. Willis v. Sec’y of Health

& Human Servs., 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). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections

is to be served upon this Magistrate Judge.

-5-

2:08-cv-14715-NGE-MKM Doc # 27 Filed 05/28/09 Pg 5 of 6 Pg ID 198
Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection must

recite precisely the provision of this Report and Recommendation to which it pertains. Not later

than ten days after service of an objection, the opposing party must file a concise response

proportionate to the objections in length and complexity. The response must specifically address

each issue raised in the objections, in the same order and labeled as “Response to Objection #1,”

“Response to Objection #2,” etc.

Dated: May 28, 2009 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE 

I hereby certify that a copy of this Report and Recommendation was served upon Dennis

Erdman and Counsel of Record on this date.

Dated: May 28, 2009 s/ Lisa C. Bartlett 

Courtroom Deputy

-6-

2:08-cv-14715-NGE-MKM Doc # 27 Filed 05/28/09 Pg 6 of 6 Pg ID 199