UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

E & M PROPERTIES, INC., et al., 

Plaintiffs,

Case No. 09-CV-10932

vs.

HON. GEORGE CARAM STEEH

CHARTER TOWNSHIP OF BLOOMFIELD, et al.,

Defendants.

_____________________________/

ORDER GRANTING DEFENDANTS’ MOTION FOR

JUDGMENT ON THE PLEADINGS (#14)

This case arises out of an investigation by defendant Officer Donberger into a

potential violation of the Bloomfield Township Malicious Annoyance by Writing ordinance.

During the investigation, Officer Donberger investigated Plaintiff Pallisco. Pallisco and

Pallisco’s employer E & M Properties, Inc. (“E & M Properties“) brought suit on March 12,

2009 against defendants Charter Township of Bloomfield (“Bloomfield Township”),

Bloomfield Township Police Department (“Police Department”) and Police Officer Cory

Donberger (“Officer Donberger”) asserting claims arising from Officer’s Donberger’s

investigation. Now before the Court is Defendants’ motion for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff’s claims fail for the reasons

stated below, and defendant’s motion for judgment on the pleadings is GRANTED.

I. BACKGROUND

Bloomfield Township residents Fred and Rita Nader filed a complaint under the

Bloomfield Township Malicious Annoyance by Writing ordinance (“ordinance”) regarding

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Plaintiffs assert in the factual allegations that Officer Donberger was “acting as an

investigatory tool for Nader and that Officer Donberger and Mr. Nader “were conspiring to

harass the Plaintiffs and violate various constitutional rights.” The plaintiffs assert no claims

against Nader, nor do the plaintiffs assert any evidence of a relationship that could

improperly influence Officer Donberger throughout the investigation. 

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In the police report, the officers stated that two of the calls appeared legitimate and

the third call was made from the account assigned to Plaintiff Pallisco. Viewing the facts

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a letter received by Nader and others which alleged that Fred Nader (“Nader”) was having

an affair.1

 The ordinance states: 

It shall be unlawful for any person within the township to knowingly send or

deliver, or to make, for the purpose of being delivered, sent, or to part with

possession of any letter, postal card or writing containing any obscene

language with or without a name subscribed hereto, or sign with a fictitious

name, or with any letter, mark or other designation with the intent thereby to

cause annoyance to any person, within the township or with a view or intent

to extort or gain any money or property of any description belonging to

another. 

Charter Township of Bloomfield Ordinance. Sec. 22-54 (Ord. No. 490, art. II, § 2.02, 11-27-

1995). Officer Donberger was assigned to investigate the potential violation of the

ordinance. 

Plaintiff Pallisco, Mrs. Nader’s cousin, was identified as a potential suspect. During

the investigation, officers learned that Mr. Nader had held a fundraiser at the Mark Ridley

Comedy Castle (“the Comedy Castle”) for a medical clinic he had started. Before the

fundraiser, someone called Mark Ridley at the Comedy Castle and made negative

statements about Nader. Ridley told the Police Department that a total of three calls were

received around the time of the call. One of the calls was made from a phone owned by

E & M Properties and plaintiff Pallisco’s name was also on the account. Plaintiffs alleges

that the officers did not investigate the other phone calls.2

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in a light most favorable to the plaintiff, this court will assume that the police did not

investigate the other two calls. 

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Other potential suspects were discovered during the investigation. Nader and

another potential suspect, Brian Sheridan (“Sheridan”), were former co-members on the

Detroit Medical Center (‘DMC”) Board. Before Nader left the hospital board, he had a

conflict with Sheridan and Sheridan had allegedly threatened to “take Mr. Nader down.”

Nader told the officers that he believed Sheridan was involved with the letters that were the

subject of the complaint. The plaintiffs allege that there is another potential suspect, “Kim,”

who was described as a friend of Brian Sheridan. 

On March 4, 2008, Officer Donberger went to Pallisco’s home to talk to Pallisco. The

plaintiffs allege that Officer Donberger did not have a warrant and “invited himself into the

Pallisco home.” According to the plaintiffs, Officer Donberger informed Pallisco that he was

at the home because “Fred Nader had accused Pallisco.” Construing the facts in a light

most favorable to the plaintiffs, Officer Donberger handed Pallisco the letter, accused him

of writing it and demanded that Pallisco provide his fingerprints and that he take a

polygraph. Plaintiffs allege that Officer Donberger was “relentless” in his demand that

Pallisco immediately appear at the Police Department and, as he left, he commented that

he bet Pallisco would call his lawyer. Plaintiffs allege that Officer Donberger and the Police

Department “targeted Pallisco for this harassment due to the relationship that they have

with Fred Nader.” 

In the police report, Officer Donberger states, “It is important to note that once

contact was made with Mr. Pallisco at his home, the Nader family stopped receiving the

harassing letters from ‘Jennifer.’” The plaintiffs allege that the statement implying that the

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The plaintiffs argue that there was a great amount of time that passed between the

time the letters were mailed during December 2007, and the time that Officer Donberger

interrogated Pallisco in March 2008. According to the police report, the letters were sent

on January 28, 2008 and Officer Donberger spoke with plaintiff Pallisco on March 4, 2008.

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letters stopped because the officer spoke with Pallisco was false and defamatory and that

the statement was made with the purpose of harming Pallisco’s reputation.3 The plaintiffs

also allege that the Police Report put plaintiff Pallisco in a false position (false light). 

As a result of these actions, plaintiff has alleged eight different claims: Count 1:

Violation of Right to Privacy under the United States Constitution, Count 2: Violation of

Plaintiffs Right to Procedural Due Process, Count 3: Violation of Plaintiffs’ Rights to

Substantive Due Process, Count 4: Violation of Fourth Amendment Rights, Count 5:

Violation of Right to Privacy under State Law, Count 6: Defamation, Count 7:

Unconstitutionality of the Malicious Annoyance by Writing Ordinance, and Count 8:

Harassment. 

II. STANDARD OF REVIEW

A Rule 12(c) motion is reviewed under the same standard as Rule12(b)(6) motions.

Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007). To survive a Rule 12(c) motion to

dismiss, plaintiff’s pleading for relief must provide “more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Ass’n of Cleveland

Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (citations and quotations omitted). The

complaint's "[f]actual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true." Id.

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III. ADEQUACY OF THE PLEADINGS

A. Defendant Bloomfield Police Department is Dismissed

Police departments are not separate entities and cannot be sued in tort actions.

McPherson v. Fitzpatrick, 63 Mich. App. 461, 463 (Mich. Ct. App. 1975). Defendant

Bloomfield Police Department is dismissed because it is not a separate legal entity that can

be sued in tort actions. 

B. The Search & Seizure Claims are Dismissed

Plaintiffs claim a violation of Fourth Amendment rights, alleging that “(d)espite the

fact that Officer Donberger did not have a warrant, he invited himself into the Pallisco home

and began interrogating Pallisco regarding the malicious writing investigation.” The

statement that Officer Donberger “invited himself into the Pallisco home” is too ambiguous

and conclusory to state a claim. Plaintiffs have alleged insufficient facts to support their

claim. None of the defendants’ actions as asserted amount to a search or seizure.

Discovery is not needed for plaintiff Pallisco to obtain the facts related to this claim,

because plaintiff Pallisco was present when Officer Donberger entered the home and would

have knowledge of the necessary facts. Because plaintiffs have only presented conclusory

allegations and failed to raise the right to relief above the speculative level, Plaintiffs’ Fourth

Amendment claims are dismissed. Ass'n of Cleveland Fire Fighters, 502 F.3d at 548. 

C. The Federal Privacy Claims are Dismissed

The plaintiffs have asserted a violation of the Constitutional right to privacy. In the

privacy count, plaintiffs only state conclusory allegations that “the foregoing acts of

Defendants violate Plaintiffs rights to privacy under the United States Constitution.” In that

count, the plaintiffs do not identify any acts that violated the right to privacy. The federal

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privacy claim is dismissed because plaintiffs have only presented conclusory allegations

and have not raised the right to relief above the speculative level. Ass'n of Cleveland Fire

Fighters, 502 F.3d at 548. Fair notice of this claim and the underlying facts supporting it

as required by Federal Rule of Civil Procedure 8 do not appear in the complaint. 

D. The Procedural & Substantive Due Process Claims are Dismissed

Plaintiffs argue that Officer Donberger violated plaintiffs’ due process rights by failing

“to investigate more credible leads.” Officers cannot be held liable for a failure to

investigate which amounts to negligence or gross negligence, but officers may violate a

suspect’s substantive due process rights based upon a reckless or intentional failure to

investigate. Wilson v. Lawrence County, 260 F.3d 946, 955 (8th Cir. 2001). In Baker v.

McCollan, 443 U.S. 137, 144 (1979), the Supreme Court found that the defendant was no

more than negligent where the defendant detained plaintiff for three days and failed to

investigate further despite the plaintiff’s protestations of innocence. Here, the plaintiffs

argue that Officer Donberger focused his investigation on Plaintiff Pallisco and failed to

pursue other suspects. Because the plaintiff in Baker did not state a valid substantive due

process claim where the plaintiff was confined for three days, the plaintiffs in this case

cannot state a substantive due process claim where plaintiff was simply investigated and

never arrested.

In response to defendants’ motion, the plaintiffs also argue that the enforcement of

the statute was unconstitutional because the letter was sent from outside the township and

hence the statute was inapplicable. This argument appears to be a procedural due process

claim, though plaintiff does not specifically label the argument. Plaintiffs argue that the

statute regulates conduct within the township and that the conduct in this case occurred

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outside of the township, since the letter was mailed from Royal Oak, Michigan. The statute

states, “It shall be unlawful for any person within the township to knowingly send or deliver,

or to make, for the purpose of being delivered, sent, or to part with possession of any letter,

postal card or writing . . . ” Charter Township of Bloomfield Ordinance. Sec. 22-54 (Ord.

No. 490, art. II, § 2.02, 11-27-1995)(emphasis added). Even if the letter was mailed

outside of the township, it is possible that the letter was made inside the township and the

police have a right to investigate that possibility. This argument also fails to state a

procedural due process claim. 

Finally, Plaintiffs also allege that people have a right “to control the nature and extent

of information released about that individual” and that plaintiffs’ substantive due process

right to do so was violated. Officer Donberger simply filed a police report stating that

plaintiff Pallisco was investigated for potential involvement in a crime. There is no question

that officers are legally allowed to file police reports, which means Plaintiffs cannot

establish that Officer Donberger violated a Constitutional right of which a reasonable

person would have known and Officer Donberger would be entitled to qualified immunity

(see standard and analysis below). The substantive due process count cannot be

sustained based upon this argument, either. 

Both the plaintiffs’ procedural and substantive due process claims are dismissed,

because the plaintiffs have failed to assert a claim upon which relief can be granted.

E. The Harassment Claim is Dismissed

Plaintiffs allege a harassment claim, but do not identify the basis of the claim until

their response to defendants’ motion where they assert that the claim is based upon the

Fourteenth Amendment. Plaintiffs have not provided any authority (and the court is not

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aware of any) recognizing a Fourteenth Amendment harassment claim that would apply to

this case. Some Fourteenth Amendment harassment claims are asserted as negligent or

intentional infliction of emotional distress claims, Aureus Holdings, Ltd. v. City of Detroit,

2006 U.S. Dist. LEXIS 35336, 2-3 (E.D. Mich. 2006), but Plaintiffs have denied they are

asserting negligent or intentional infliction of emotional distress claims. Sometimes

Fourteenth Amendment harassment claims are asserted as sexual harassment claims,

Ebelt v. County of Ogemaw, 231 F. Supp. 2d 563, 569 (E.D. Mich. 2002), but plaintiffs do

not allege a sexual harassment claim. Some Fourteenth Amendment harassment claims

are asserted as a violation of plaintiff’s substantive due process rights. Abeyta v. Chama

Valley Indep. Sch. Dist. No. 19, 77 F.3d 1253, 1257 (10th Cir. 1996). In Abeyta, the Tenth

Circuit found that a student who asserted that a teacher violated her substantive due

process rights by repeatedly calling her a prostitute was not enough to rise to the level of

assert a substantive due process claim. Id. The court stated, “The concept of substantive

due process is not fixed or final, Rochin, 342 U.S. at 170, but generally is accorded to

matters relating to marriage, family, procreation, and the right to bodily integrity . . . A

substantive due process violation must be something more than an ordinary tort to be

actionable under 1983.” Abeyta, 77 F.3d at 1257. Given that a plaintiff does not state a

valid substantive due process claim based upon allegations of a teacher repeatedly calling

a twelve-year-old student a prostitute, the allegations that a police officer violated Plaintiff

Pallisco’s rights by questioning him as a suspect on one occasion, and telling him to report

to the police station to take a polygraph test, fail to assert a substantive due process claim,

as well. The plaintiffs have failed to assert a harassment claim and the harassment claim

is dismissed. 

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F. The First Amendment Claims Against Defendant Bloomfield Township are Dismissed

 The First Amendment claim against Bloomfield Township is dismissed because the

plaintiffs have failed to state a claim against Bloomfield Township. The plaintiffs allege a

First Amendment claim against Bloomfield Township based upon 42 U.S.C. § 1983. The

Supreme Court has stated, “we have required a plaintiff seeking to impose liability on a

municipality under § 1983 to identify a municipal ‘policy’ or ‘custom’ that caused the

plaintiff's injury.” Bd. of the County Comm' rs v. Brown, 520 U.S. 397, 403 (U.S.

1997)(citing Monell v. New York City Dept. Of Social Servs., 436 U.S. 658 (1978). 

The plaintiffs have failed to assert a First Amendment claim against Bloomfield

Township because they have failed to identify a Bloomfield Township policy or custom that

resulted in a First Amendment violation. The only Bloomfield Township policy that plaintiffs

allege is that the “defendants had a policy of deliberate indifference by allowing the Police

Department and its employees to act under color of state law to harass the Plaintiffs and

defame individuals in their police reports.” Because the only Bloomfield Township policy

that the plaintiffs allege is related to the defamation and harassment claims, the First

Amendment claim against Bloomfield Township is dismissed. 

IV. Officer Donberger is Entitled to Qualified Immunity

Defendants argue the federal claims asserted against Officer Donberger should be

dismissed because Officer Donberger is entitled to qualified immunity. The Supreme Court

established the qualified immunity standard in Saucier v. Katz, 533 U.S. 194 (2001), which

the Supreme Court reevaluated in Pearson v. Callahan, 129 S. Ct. 808, 816 (2009). The

court in Saucier established a two step approach to qualified immunity: (1) First, a court

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must consider whether the plaintiff has presented sufficient facts to allege a violation of a

Constitutional right; and (2) If the plaintiff has alleged a violation of a Constitutional right,

the court determines whether the right was “clearly established” when the defendant acted.

In Pearson, the court reexamined the issue and held: 

we conclude that, while the sequence set forth [in Saucier] is often

appropriate, it should no longer be regarded as mandatory. The judges of the

district courts and the court of appeals should be permitted to exercise their

sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the

particular case at hand. 

Pearson v. Callahan, 129 S.Ct. 808, 818 (2009). Some Sixth Circuit panels also “have

employed a third step requiring the court to determine whether the plaintiff has offered

sufficient evidence to indicate that what the official allegedly did was objectively

unreasonable in light of the clearly established constitutional right.” Grawey v. Drury, 567

F.3d 302, 309 (6th Cir. 2009). 

Utilizing the process identified in Pearson, the court may address the qualified

immunity issues in any order. The court first addresses whether there is a violation of a

clearly established right of which a reasonable person would have known. An arrest based

on probable cause and made in good-faith reliance on a presumptively valid ordinance is

valid regardless of a subsequent judicial determination of its unconstitutionality.” Risbridger

v. Connelly, 275 F.3d 565, 573 (6th Cir. 2002)(citing Michigan v. DeFillippo, 443 U.S. 31,

61(1979)). The Supreme Court has found that an ordinance is presumptively valid when

there is “no controlling precedent that this ordinance was or was not constitutional.” Id.

Officer Donberger investigated Pallisco to determine if Pallisco had violated an ordinance

that was presumptively valid. When plaintiff was investigated, the ordinance had not been

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declared unconstitutional. In fact, a search of Michigan cases found no cases addressing

the ordinance at all. In addition, there exists an almost identical Michigan statute, MCL

750.390, and only one case is known that mentions the ordinance and that case does not

address the validity of MCL 750.390. See People v. Cynar, 2006 Mich App. LEXIS 53

(Mich. Ct. App. 2006). Since no cases address the validity of the ordinance or a similar

Michigan statute, the statute is presumptively valid. DeFillippo, 443 U.S. at 61. Plaintiff

also appears to complain that Officer Donberger entered Plaintiff's home without consent

and otherwise violated his Fourth Amendment Rights. Plaintiff does not assert that he

refused or objected to the officer's entry into the home. Also, plaintiffs’ allegations

concerning Officer Donberger’s actions in the home do not relate to any search or seizure,

but only relate to the interview that took place in the home. Even if Officer Donberger's

actions could be said to violate Plaintiff's constitutional rights, it would not have been clear

to a reasonable person that the ordinance was unconstitutional or that his actions in

investigating the complaint violated Plaintiff's Constitutional rights. Accordingly, Officer

Donberger is entitled to qualified immunity. The plaintiffs’ claims against Officer Donberger

are therefore subject to dismissal for qualified immunity. 

V. Dismissal of State Law Claims

Because all of the federal claims have been dismissed, the court declines to

exercise supplemental jurisdiction over the state law claims. 

VI. Conclusion

Defendants motion for judgment on the pleadings is hereby GRANTED and the

 case is dismissed without prejudice.

SO ORDERED.

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Dated: November 4, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

November 4, 2009, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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