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The Court GRANTS the DEA Defendants’ motion for leave to file excess pages [dkt

37], and it accepts their 22-page brief. 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RUSSELL MARCILIS, II et al., 

Plaintiffs

Case No. 09-11624

v. Hon. Lawrence P. Zatkoff

REDFORD TOWNSHIP et al., 

Defendants.

 /

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,

in the City of Port Huron, State of Michigan, on August 16, 2010

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Defendants Brad Boyle and David Livingston’s (“the DEA

Defendants”) motion to dismiss [dkt 36]. The parties have fully briefed the motion.1

 The Court

finds that the facts and legal arguments are adequately presented in the parties’ papers such that the

decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D.

Mich. L.R. 7.1(e)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted.

For the following reasons, the motion is GRANTED. 

II. BACKGROUND

This case arises out of two allegedly unconstitutional searches of Plaintiffs’ residences on

May 2, 2007. The DEA Defendants were part of a task force that was operating in conjunction with
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the Redford Police Department. The second amended complaint [dkt 27] (“the complaint”) alleges

that Defendants on that day entered the home of Plaintiffs Russell Marcilis (“Russell I”) and Marie

Marcilis, located at 5966 Manistique in Detroit, Michigan, pursuant to a search warrant but without

first knocking and announcing their presence. Rather, Plaintiffs state that the officers upon arrival

kicked in the door and entered with their weapons drawn. The complaint further alleges that Russell

I was thrown to the floor, even though he displayed clearly visible bandages covering recentlysuffered second-degree burns. The officers also purportedly aimed their guns at the Marcilises and

their daughter Jasmine throughout the 30-minute search. When the officers did not find the

contraband that they anticipated would be present, they allegedly seized insulin medication and

related supplies from the residence. 

The second search of the day involved the residence of Plaintiffs Russell Marcilis II

(“Russell II”) and Felicia Marcilis, located at 17268 Suffield in Clinton Township, Michigan. The

complaint again alleges that the executing officers failed to abide by the knock-and-announce

requirement. Plaintiffs also contend that the officers “tore up” the house and seized several items

outside the scope of the search warrant. Russell II and Felicia Marcilis were arrested following the

search, although no charges were filed at that time. Following the arrests, Russell II telephoned the

Redford Township Police Department seeking the return of his wife’s wedding ring, which

apparently had not been returned following her arrest. Plaintiffs maintain that a criminal complaint

was filed against Russell II in retaliation for this phone call, and an arrest warrant later issued. The

complaint was ultimately dismissed without prejudice. 

Plaintiffs filed this action under 42 U.S.C. § 1983, alleging that the above series of events
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The Court construes the claims against the DEA Defendants, who are employed by the

federal government, as arising under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). 

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violated various of their constitutional rights.2

 The DEA Defendants have moved to dismiss the

claims against them, arguing that (1) the complaint does not sufficiently state a constitutional

violation in which they were personally involved; and (2) they are otherwise entitled to qualified

immunity. 

III. LEGAL STANDARD

A motion brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which

relief may be granted tests the legal sufficiency of Plaintiff’s claims. The Court must accept as true

all factual allegations in the pleadings, and any ambiguities must be resolved in Plaintiff’s favor.

See Jackson v. Richards Med. Co., 961 F.2d 575, 577–78 (6th Cir. 1992). While this standard is

decidedly liberal, it requires more than the bare assertion of legal conclusions. See Advocacy Org.

for Patients & Providers v. Auto Club Ins. Ass’n, 176 F.3d 315, 319 (6th Cir. 1999). Thus, a

plaintiff must make “a showing, rather than a blanket assertion of entitlement to relief” and

“[f]actual allegations must be enough to raise a right to relief above the speculative level” so that

the claim is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

See also Ashcroft v. Iqbal, __ U.S. ___, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly

expounded the pleading standard for ‘all civil actions . . . .’”). 

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), this Court may only

consider “the facts alleged in the pleadings, documents attached as exhibits or incorporated by

reference in the pleadings, and matters of which the [Court] may take judicial notice.” 2 James Wm.

Moore et al., Moore’s Federal Practice ¶ 12.34[2] (3d ed. 2000). If, in deciding the motion, the
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Court considers matters outside the pleadings, the motion will be treated as one for summary

judgment pursuant to Fed. R. Civ. P. 56. See Fed. R. Civ. P. 12(d).

IV. ANALYSIS

A. Qualified Immunity 

Government officials such as police officers are shielded from liability under the doctrine

of qualified immunity “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982); see also Pierson v. Ray, 386 U.S. 547 (1967). In order to determine whether

a defendant is entitled to qualified immunity, the Court performs a two-step analysis. The Court

must question whether the alleged facts “[t]aken in the light most favorable to the party asserting

the injury . . . show [that] the officer’s conduct violated a constitutional right[.]” Saucier v. Katz,

533 U.S. 194, 201 (2001). The Court must also decide “whether the right was clearly established.”

Id. To determine that a right is clearly established, “the contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.” Anderson

v. Creighton, 483 U.S. 635, 640 (1987). It is within the Court’s discretion to determine which factor

of the analysis to address first. See Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 821 (2009).

The burden is on the plaintiff to show that the defendant is not entitled to qualified immunity. See

Miller v. Admin. Office of Courts, 448 F.3d 887, 894 (6th Cir. 2006). 

B. Constitutional Violation

The DEA Defendants quarrel with Plaintiffs’ collective reference to “Defendants”

throughout the complaint. The DEA Defendants argue that such reference does not allege the

specific involvement of each individual officer. The DEA Defendants insist that the pleading rules
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mandate that each defendant be made aware of the specific conduct that he or she took part in (i.e.,

exactly who did what). 

 Plaintiffs maintain that their allegations are entirely appropriate to defeat a Rule 12(b)(6)

motion because the complaint suffices to put the DEA Defendants on notice of the claims being

asserted against them. They contend that the purpose of discovery is to allow for such general

allegations to be substantiated.

Courts are hesitant to accept this form of generalized pleading, especially where § 1983

and/or Bivens claims are involved. See Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)

(“Given the complaint’s use of either the collective term ‘Defendants,’ or a list of the defendants

named individually but with no distinction as to what acts are attributable to whom, it is impossible

for any of these individuals to ascertain what particular unconstitutional act they are alleged to have

committed.”); Atuahene v. City of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. 2001) (“By lumping all

the defendants together in each claim and providing no factual basis to distinguish their conduct, [the

plaintiff’s] complaint failed to satisfy this minimum standard . . . .”); Long v. Tenn. Valley Auth., No.

3:09-CV-114, 2010 WL 1223917, at *6 (E.D. Tenn. Mar. 24, 2010) (“Rather, plaintiffs have lumped

all TVA employee defendants together and asserted that each one had essentially the same role . .

. .”); Edwards v. City of New York, No. 07-CV-5286, 2009 WL 1910740, at *3 (E.D.N.Y. June 29,

2009) (denying motion to amend where “Plaintiff’s amended complaint does not specify which

officers took part in which of these actions”); Howard v. City of Bethlehem, Bureau of Police Dep’t,

No. 90-0223, 1990 WL 56515, at *1 (E.D. Pa. May 1, 1990) (“Plaintiff must allege that each

individual officer did something or failed to do something that violated his rights. Furthermore,

plaintiff must identify by name which police officer did what conduct.”). See also Young v. City of
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Visalia, 687 F. Supp. 2d 1141, 1153 (E.D. Cal. 2009) (dismissing § 1983 claim where the plaintiff

had an opportunity to ascertain the identity of the offending officers but generally pleaded

allegations of their actions). 

Conversely, some authority suggests that this level of specificity is not required to survive

a Rule 12(b)(6) motion. See, e.g., Fundiller v. City of Cooper City, 777 F.2d 1436, 1441 (11th Cir.

1985) (“Despite the complaint’s failure to identify which officers in particular were responsible for

these actions, we do not believe that any of the individual officers are entitled to dismissal at this

stage.”); Filipek v. Krass, 576 F. Supp. 2d 918, 923 (N.D. Ill. 2008) (denying motion to dismiss

where “the Complaint [did] not specify what each Defendant did during the course of [the] arrest[,]”

but the plaintiff provided “the names of all officers alleged to have taken part in the arrest, the date

of the arrest, and the location where the arrest took place”); Messina v. Mazzeo, 854 F. Supp. 116,

126 (E.D.N.Y. 1994) (“The Federal Rules, as illustrated by Rule 8(a), do not require that plaintiff

set out a defendant’s precise role in the injurious conduct.”). However, Fundiller and Messina were

decided well before Twombly and Iqbal clarified the pleading standard required to survive a Rule

12(b)(6) motion. Filipek was issued post-Twombly and pre-Iqbal; therefore, it was not privy to

Iqbal’s proclamation that Twombly’s application was not limited to the antitrust context. See id. at

923 (“This civil rights case is obviously distinguishable from a complex patent or antitrust case.”);

see also Iqbal, 129 S. Ct. at 1953 (“Our decision in Twombly expounded the pleading standard for

‘all civil actions . . . .’”). 

This court has entertained claims outside of the § 1983 and Bivens context based on similar

collective pleadings. See e.g., Cason-Merenda v. Detroit Med. Ctr., No. 06-15601, 2008 WL

880286, at *1 (E.D. Mich. Mar. 31, 2008) (“[T]he Court agrees with Plaintiffs that their allegations,
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while not specific to each defendant, are sufficiently specific as to a common course of conduct to

alert each defendant . . . to the factual basis underlying Plaintiffs’ antitrust claims.”); In re

Consumers Power Co. Sec. Litig., 105 F.R.D. 583, 593 (E.D. Mich. 1985) (“However, when a

plaintiff sues individual group members on the collective product of the group, specific allegations

about the role of each defendant are unnecessary.”). However, allowing Plaintiffs’ complaint to

proceed against the DEA Defendants based on these cases would ignore the unique posture of a

Bivens action. See Kesterson v. Moritsugu, 149 F.3d 1183, at *4 (6th Cir. 1998) (table opinion)

(noting in affirmation of dismissal of Bivens action that “[t]he rules we have cited above are wellsettled, and require that Kesterson allege that a specific defendant performed a specific act that

suffices to state a claim.”); Long, 2010 WL 1223917, at *6 (“In order to state a Bivens action against

a federal official, a plaintiff must allege that a specific defendant performed a specific act that

suffices to state a claim.”). 

In sum, the Court finds most compelling those post-Twombly/Iqbal cases dismissing § 1983

and/or Bivens claims where the personal involvement of individual defendants was not pleaded. See

Robbins v. Oklahoma, 519 F.3d at 1250; Long, 2010 WL 1223917, at *6; Young, 687 F. Supp. 2d

at 1155; Edwards, 2009 WL 1910740, at *3. The Court therefore finds that Plaintiffs’ complaint

fails to allege the personal involvement of the DEA Defendants so as to inform those defendants of

the constitutional violations being specifically asserted against them. Moreover, the officers’ mere

presence at the scene does not automatically subject them to liability. See Jones v. Williams, 297

F.3d 930, 939 (9th Cir. 2002) (“Our analysis has shown that holding an officer liable who was

merely present at the search is not permissible.”); Young, 687 F. Supp. 2d at 1153. The DEA

Defendants are noted in the complaint only to identify them as such, and they are otherwise lumped
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in with the remaining defendants on all charges. The Court finds this generic form of pleading

insufficient under Twombly and Iqbal. 

Although the Court could, in its discretion, allow Plaintiffs to amend their complaint rather

than dismiss the claims, the Court finds that this is not an appropriate case in which to do so.

Plaintiffs have filed three complaints, and three scheduling conferences were required before the

Court was able to issue a scheduling order. Plaintiffs had more than an adequate opportunity to

plead their claims. Permitting Plaintiffs to amend their complaint at this juncture would greatly

impair the Court’s ability to timely adjudicate the remaining claims in this case. 

C. Clearly Established Law

To overcome an assertion of qualified immunity, Plaintiffs must also demonstrate that the

constitutional right at issue was clearly established at the time of the alleged deprivation. See, e.g.,

Saucier, 533 U.S. at 201. Because Plaintiffs have not sufficiently stated the violation of a

constitutional right as to the DEA Defendants, the Court need not analyze this factor. 

D. Scheduling Order

The parties did not engage in discovery involving the DEA Defendants during the pendency

of this motion because the DEA Defendants had filed a motion to stay discovery—although that

motion was filed two months after the motion to dismiss. Plaintiffs filed a motion [dkt 50] on the

date of the discovery cut-off for an extension of all of the dates contained in the Court’s December

9, 2009, scheduling order. All of the parties have concurred in the motion except for the DEA

Defendants, who took no position on the issue. 

“A schedule may be modified only for good cause and with the judge’s consent.” Fed. R.

Civ. P. 16(b). The Courts finds that good cause does not exist for the requested extensions. The
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pending motions involving the DEA Defendants should not have impaired the remaining parties’

ability to engage in discovery. The DEA Defendants have now been dismissed from this case.

Therefore, the Court denies Plaintiffs’ motion to adjourn the scheduling order. 

V. CONCLUSION

Accordingly, and for the above reasons, IT IS HEREBY ORDERED that the DEA

Defendants’ motion to dismiss [dkt 36] is GRANTED; 

IT IS FURTHER ORDERED that the DEA Defendants’ motion for leave to file excess pages

[dkt 37] is GRANTED; 

IT IS FURTHER ORDERED that the DEA Defendants’ motion to stay discovery [dkt 41]

and motion for a protective order [dkt 48] are DENIED as MOOT

IT IS FURTHER ORDERED that Plaintiffs’ motion to adjourn scheduling order [dkt 49] is

DENIED. 

IT IS SO ORDERED. 

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: August 16, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on August 16, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290