Marc Susselman v. Washtenaw Cnty. Sheriff's Office

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 24a0158p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



                                                             ┐
 MARC M. SUSSELMAN,
                                                             │
                                   Plaintiff-Appellant,      │
                                                              >        No. 23-1486
                                                             │
       v.                                                    │
                                                             │
 WASHTENAW COUNTY SHERIFF’S OFFICE; JONATHAN                 │
 KING; WASHTENAW COUNTY, MICHIGAN; SUPERIOR                  │
 TOWNSHIP, MICHIGAN,                                         │
                         Defendants-Appellees.               │
                                                             ┘

  Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
                 No. 2:20-cv-12278—Bernard A. Friedman, District Judge.

                                    Argued: March 21, 2024

                               Decided and Filed: July 29, 2024

                  Before: GIBBONS, BUSH, and MURPHY, Circuit Judges.

                                      _________________

                                            COUNSEL

ARGUED: Marc M. Susselman, Canton, Michigan, in pro per. James A. Buster, MILLER
JOHNSON, Grand Rapids, Michigan, for Washtenaw County Appellees. Nancy Vayda
Dembinski, LANDRY, MAZZEO, DEMBINSKI & STEVENS, PC, Farmington Hills,
Michigan, for Appellee Superior Township. ON BRIEF: Marc M. Susselman, Canton,
Michigan, in pro per. James A. Buster, Keith E. Eastland, MILLER JOHNSON, Grand Rapids,
Michigan, for Washtenaw County Appellees. Nancy Vayda Dembinski, LANDRY, MAZZEO,
DEMBINSKI & STEVENS, PC, Farmington Hills, Michigan, for Appellee Superior Township.
 No. 23-1486          Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.                Page 2


                                       _________________

                                            OPINION
                                       _________________

       JOHN K. BUSH, Circuit Judge. Marc Susselman made a federal case out of a traffic
ticket. In February 2020, he drove around a police cruiser parked across the eastbound lane of
traffic with its lights flashing. A Washtenaw County Sheriff’s deputy issued him a ticket for
failing to yield. That ticket was dropped and, soon after, Susselman received another citation
arising from the same incident for failing to obey a police officer directing traffic. The Michigan
circuit court ultimately dismissed the second traffic ticket. In federal court, Susselman asserted
constitutional and state law claims against Washtenaw County, the Washtenaw County Sheriff’s
Office, the sheriff’s deputy, and Superior Township, Michigan. The district court granted the
defendants’ motions to dismiss all claims against them. We affirm.

                                                 I.

       On February 1, 2020, Susselman drove eastbound on Plymouth Road in Superior
Township, Michigan. As he approached the intersection at Cherry Hill Road, he came upon a
Washtenaw County Sheriff’s patrol car, lights flashing and parked horizontally across the
eastbound lane. Susselman did not observe any barricades or see any officers directing traffic.
Nor did he see the fatal accident further down the road. After checking for oncoming vehicles,
Susselman pulled into the unobstructed westbound lane and drove past the cruiser.

       Immediately, Deputy Sheriff Jonathan King ran towards Susselman’s vehicle waving his
arms. He informed Susselman that he had just entered the scene of a fatal accident and would
receive a ticket. Another officer, Deputy Brian Webb, approached and repeated that Susselman
had entered the scene of an accident. He asked for Susselman’s license and returned to his patrol
car to issue the citation. Susselman then began to yell at Deputy King for failing to block the
entire road. Webb returned and handed Susselman a ticket for $400, citing him under M.C.L.
§ 257.602 for disobeying a police officer directing traffic flow.

       Susselman pleaded not guilty and received a notice to appear at a formal hearing on
March 17, 2020. For unknown reasons, the notice recorded a different charge than the one that
 No. 23-1486            Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.             Page 3


appeared on Susselman’s ticket––instead of citing him for disobeying an officer, it stated that he
failed to yield under M.C.L. § 257.649. Susselman emailed the prosecuting attorney, Jameel
Williams, requesting that he drop the case. He explained the events preceding the ticket and why
he did not think he was guilty of violating M.C.L. § 257.649. He added that he could not be
punished for arguing with King because that conduct was protected by the First Amendment.
Williams agreed to dismiss the ticket for failing to yield.

           Soon after, however, Susselman received a new ticket in the mail––again for disobeying
a police officer directing traffic. As it turns out, Williams had emailed Deputy King after
receiving Susselman’s email. Williams agreed that Susselman was not guilty of failing to yield
and suggested King issue a new ticket for disobeying a police officer––the charge that King
initially told Susselman he would receive but that inexplicably did not appear on the notice.
Williams wrote, “[p]rocedurally, I assume we would agree to dismiss the original charge (make
him think he is a badass and won something) and then issue the new ticket under MCL 257.602.”
R.33, PageID 679. King replied, “I think that is a great plan!” Id. at 678.

           Susselman pleaded not guilty to the second ticket. After Williams declined to drop the
charge, Susselman asked the state court to dismiss the ticket. He argued that there was no
probable cause under M.C.L. § 257.602 because no officer was near the patrol car directing
traffic.     The court denied the motion to dismiss and Susselman appealed.          Because the
prosecuting attorney’s office failed to file a response, the Michigan circuit court reversed and
dismissed the ticket.

           Susselman sued Washtenaw County, the Washtenaw County Sheriff’s Office, Superior
Township, and King under 

 and Michigan state law. His federal claims are
essentially twofold:      First Amendment retaliation and Fourteenth Amendment malicious
prosecution. In Counts I and II, he claims that King issued the second ticket in retaliation for
their argument and for his letter to Williams, violating his rights to speech and petition. In
Counts IV and VI, he claims that King and Superior Township (through Williams) maliciously
 No. 23-1486             Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.                           Page 4


prosecuted him, violating his substantive due process rights.1 The remaining federal claims
derive from the First and Fourteenth Amendment violations. He claims that Washtenaw County
and the Sheriff’s Office are liable for King’s actions under Monell v. Department of Social
Services, 

 (1978) (Count VII) and that King and Superior Township civilly
conspired to deprive him of his constitutional rights (Count VIII). Finally, he brings two state-
law claims against King and Superior Township for malicious prosecution and intentional
infliction of emotional distress (Counts IX and X). The defendants moved to dismiss the claims
against them. The district court granted their motions in full and Susselman timely appealed.

        Before we consider Susselman’s arguments on appeal, we address some preliminary
matters.    First, he waived his state-law malicious prosecution and intentional infliction of
emotional distress claims as to Superior Township by expressly disavowing them in his reply
brief. See Bannister v. Knox Cnty. Bd. of Educ., 

 (6th Cir. 2022). Second,
although Susselman includes the Washtenaw County Sheriff’s Office as a defendant on appeal,
the district court held that 

 does not recognize that office as a “person” capable
of being sued. He does not dispute that and has therefore forfeited the issue. Bannister, 49 F.4th
at 1011–12. Lastly, although the district court failed to address whether it retained supplemental
jurisdiction over Susselman’s state-law claims after it dismissed his federal claims, no party
raises the issue on appeal, so it is also forfeited. See Gucwa v. Lawley, 

, 416
(6th Cir. 2018).

                                                        II.

        This court reviews the district court’s decision to grant a motion to dismiss de novo.
Kovalchuk v. City of Decherd, Tennessee, 

 (6th Cir. 2024). The complaint
should be construed in the light most favorable to the plaintiff, its allegations accepted as true,
and all reasonable inferences drawn in the plaintiff’s favor. Jackson v. Sedgwick Claims Mgmt.
Servs., Inc., 

 (6th Cir. 2013) (en banc). “Against that backdrop, we ask
whether the complaint contains sufficient factual matter to state a claim to relief that is plausible

        1Susselman also brought claims against King and Superior Township for violating his procedural due
process rights (Counts III and V) but conceded before the district court that those claims were not viable. He does
not attempt to revive them on appeal.
 No. 23-1486          Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.                Page 5


on its face.” Royal Truck & Trailer Sales & Serv., Inc. v. Kraft, 

 (6th Cir.
2020) (cleaned up). “Although a complaint is to be liberally construed, it is still necessary that
the complaint contain more than bare assertions or legal conclusions.” Total Benefits Plan.
Agency, Inc. v. Anthem Blue Cross & Blue Shield, 

 (6th Cir. 2008). And the
court need not accept unwarranted factual inferences. 

                                               III.

A. Claims against Deputy King

       1. Substantive Due Process Claim

       Susselman asserts a 

 claim against King under the Fourteenth
Amendment, contending that King violated his right to substantive due process when he
maliciously prosecuted him by issuing the second ticket. The viability of such a claim is unclear,
but assuming Susselman can bring the claim, he still fails to plausibly allege a constitutional
violation or behavior by King to support it.

       Section 1 of the Civil Rights Act of 1871, now codified at 

, created a
cause of action allowing individuals to vindicate violations of their constitutional rights. To
succeed on a § 1983 claim, a plaintiff must first identify a constitutional right, then show that a
person acting under the color of state law deprived him of that right. Troutman v. Louisville
Metro Dep’t of Corr., 

 (6th Cir. 2020). An initial hurdle for Susselman’s
substantive due process claim is whether the Fourteenth Amendment provides a right to be free
from malicious prosecution.

       At one time, this circuit recognized such a claim when a malicious prosecution “shocks
the conscience.” See, e.g., Henry v. Metro. Sewer Dist., 

, 341 (6th Cir. 1990); Cale
v. Johnson, 

, 949–50 (6th Cir. 1988). But in Albright v. Oliver, the Supreme Court
held that a constitutional malicious prosecution claim cannot lie under the Fourteenth
Amendment in the context of an unreasonable seizure. 

, 274–75 (1994) (plurality
opinion). A plurality rejected the plaintiff’s § 1983 claim, holding that, because his claim was
based on a seizure, it must be brought under the Fourth Amendment, not the Fourteenth. Id. at
 No. 23-1486          Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.                  Page 6


271. In Thompson v. Clark, the Court confirmed that a malicious prosecution claim may be
brought under the Fourth Amendment. 

 (2022). The claim “requires the plaintiff
to show a favorable termination of the underlying criminal case against him,” and the wrongful
initiation of charges without probable cause resulting in a seizure. 

 at 43–44; see Chiaverini v.
City of Napoleon, 

, 1750–51 (2024).

       Despite the clarification the Court has provided for malicious prosecution claims under
the Fourth Amendment, the question remains: may a plaintiff bring a malicious prosecution
claim under the Fourteenth Amendment? In Thompson, the Court mused that “[i]t has been
argued that the Due Process Clause could be an appropriate analytical home for a malicious
prosecution claim under § 1983. If so, the plaintiff presumably would not have to prove that he
was seized as a result of the malicious prosecution.” 

 n.2 (citation omitted).
Though far from a full-throated confirmation of a substantive due process right to be free from
malicious prosecution, this dictum leaves open the possibility that such a right exists.

       Assuming that Susselman has a substantive due process right to be free from malicious
prosecution, he still fails to plausibly allege a claim. To do so, a plaintiff must identify either “a
violation of an explicit constitutional guarantee (e.g., a fourth amendment illegal seizure
violation)” or a “behavior by a state actor that shocks the conscience.” Braley v. City of Pontiac,

 (6th Cir. 1990). Susselman does not base his malicious prosecution claim on
a violation of any constitutional guarantee, so his claim requires that he plausibly allege that
King’s conduct shocks the conscience. He has not done so. Although the standard is vague, we
have found police conduct to shock the conscience in cases involving excessive force. 

 at 226
(citing Wilson v. Beebe, 

 (6th Cir. 1985)). Susselman contends that King’s conduct
shocks the conscience because he lacked probable cause to issue the second ticket and therefore
acted “arbitrarily and capriciously.” Apt. Br. 32. But this court has already held that issuing a
ticket without probable cause does not shock the conscience. Vasquez v. City of Hamtramck, 

 (6th Cir. 1985) (per curiam). Because he cannot point to conduct by King that
shocks the conscience, Susselman’s substantive due process claim fails.
 No. 23-1486          Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.                 Page 7


        2. First Amendment Retaliation

        Susselman next asserts a § 1983 claim against King under the First Amendment. He
contends that King’s issuance of the second ticket was retaliation for his exercise of his First
Amendment rights: first, for yelling at King during their encounter, an exercise of his right to
free speech, and second, for asking Williams to dismiss the first ticket, an exercise of his right to
petition.

        A First Amendment retaliation claim has three elements.             Thaddeus-X v. Blatter,

 (6th Cir. 1999) (en banc). A plaintiff must plausibly show (1) that he was
“engaged in protected conduct,” (2) that the defendant took adverse action against him “that
would deter a person of ordinary firmness from continuing to engage in that conduct,” and
(3) that the protected conduct caused the adverse action, at least in part. 

        We consider the last prong first. To show causation, a plaintiff must plausibly allege that
the defendant would not have taken the adverse action “absent the retaliatory motive.” Nieves v.
Bartlett, 

, 398–99 (2019). In other words, that retaliation was the but-for cause of
the action. 

. If the defendant decides to take the adverse action before the plaintiff
engaged in the protected conduct, but-for causation does not exist. 

 (explaining that
there must be “a ‘causal connection’ between the government defendant’s ‘retaliatory animus’
and the plaintiff's ‘subsequent injury’” (emphasis added) (citation omitted)); cf. Clark Cnty. Sch.
Dist. v. Breeden, 

, 272–73 (2001) (Title VII retaliation); Natofsky v. City of New
York, 

 (2d Cir. 2019) (same); see Mickey v. Zeidler Tool & Die Co., 

 (6th Cir. 2008) (Batchelder, J., concurring) (“One cannot [retaliate] for something that
has not yet happened.”).

        Susselman has not plausibly alleged that King’s issuance of the second ticket was caused
by First Amendment protected conduct.             His complaint states that, immediately after
approaching Susselman’s vehicle, King informed him that he would receive a ticket “for
avoiding an emergency vehicle with its lights on and entering a crime scene.” R.33, PageID 598.
Only later did Susselman yell at King and, much later, send the letter to Williams. 

. Thus, by Susselman’s own account, his conduct cannot have been the but-for cause of the
 No. 23-1486          Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.               Page 8


second ticket because King had already decided to issue him a citation for failing to comply with
an officer’s direction of traffic when it occurred. See Nieves, 

; cf. Breeden, 

. Susselman offers nothing more than speculation to support that the second ticket
was issued in retaliation. Because Susselman cannot establish causation, we need not address the
other First Amendment retaliation factors.

       3. Civil Conspiracy

       Susselman’s third and final § 1983 claim against King is civil conspiracy. He contends
that King, with Superior Township, conspired to deprive him of his First and Fourteenth
Amendment rights. A civil conspiracy is “an agreement between two or more persons to injure
another by unlawful action.” Revis v. Meldrum, 

 (6th Cir. 2007). As noted,
however, Susselman has not plausibly alleged that receiving the second ticket deprived him of
his constitutional rights. Thus, any “plan” between King and Williams to issue that ticket cannot
establish an agreement to engage in unconstitutional conduct.

       4. State-Law Claims

       Susselman brings two state-law tort claims against King for malicious prosecution and
intentional infliction of emotional distress. They fail as well.

       To state a claim for malicious prosecution under Michigan law, a plaintiff must plausibly
show that (1) the defendant “initiated a criminal prosecution against him,” (2) “the criminal
proceedings terminated in his favor,” (3) the defendant “lacked probable cause for his actions,”
and (4) “the action was undertaken with malice or a purpose . . . other than bringing the offender
to justice.” Alman v. Reed, 

 (6th Cir. 2013) (quoting Matthews v. Blue Cross
& Blue Shield of Mich., 

, 609–10 (Mich. 1998)). The fourth prong sets a high
bar, and the plaintiff must demonstrate that the defendant took actions that are “willful, wanton,
or reckless, or against the accuser’s sense of duty.” Sottile v. DeNike, 

(Mich. Ct. App. 1969). He can do so by providing proof of “bad blood, ill will or retribution.”

 A lack of probable cause does not alone suffice. Alman, 

. When a malicious
prosecution claim is brought against a police officer, he may avoid liability by showing that he
 No. 23-1486            Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.                Page 9


made a “full and fair disclosure of the material facts” to the prosecutor. Matthews, 

.

          Susselman has not plausibly alleged a malicious prosecution claim against King.
Specifically, he does not point to any evidence that establishes malice. By Susselman’s own
account, King immediately informed him that he would be issuing him a ticket for driving
around an emergency vehicle. Only later did Susselman yell at King. That sequence forecloses
the possibility that King had any improper motive in issuing Susselman a ticket for failing to
obey a police officer directing traffic. Susselman points to the fact that King signed the second
ticket, which included an incorrect date and time, and to Williams’s “bad-ass” comment. But a
minor timestamp error on a computer-generated ticket does plausibly push King into the realm of
malicious intent. Nor does a comment made by another party.

          To the extent Michigan recognizes a claim for intentional infliction of emotional distress,
the tort requires evidence of (1) “extreme and outrageous conduct,” (2) “intent or recklessness,”
(3) causation, and (4) “severe emotional distress.” Lucas v. Awaad, 

, 150 (Mich.
Ct. App. 2013) (quoting Dalley v. Dykema Gossett PLLC, 

 (Mich. Ct. App.
2010)). The defendant’s conduct must be “so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community.” 

 (quoting Doe v. Mills, 

 (Mich.
Ct. App. 1995)).

          King’s conduct plainly falls short of that high bar. A police officer does not commit
extreme and outrageous conduct by issuing a traffic ticket. Cebulski v. City of Belleville, 

 (Mich. Ct. App. 1986). Nor does he do so by enforcing the law, even if it
causes a plaintiff to experience emotional distress. Stobbe v. Parrinello, 

, at
*2 (Mich. Ct. App. Nov. 24, 1998). Here, King issued Susselman a traffic ticket and, when the
prosecuting attorney informed him that the ticket listed the wrong charge, King issued a
corrected ticket.    Susselman insists that, unlike the officers in Cebulski and Stobbe, King
intended to cause him emotional distress by issuing a ticket. But regardless of King’s intent,
Susselman has not plausibly alleged that his conduct was extreme.
 No. 23-1486           Susselman v. Washtenaw Cnty. Sheriff’s Office, et al.            Page 10


B. Monell Claims Against Washtenaw County and Superior Township

       Finally, Susselman asserts various municipal liability claims against Washtenaw County
and Superior Township. Because he fails to identify any constitutional violation or municipal
policy or custom resulting in a constitutional violation, these claims also fail.

       A plaintiff can hold a municipality liable under § 1983 for constitutional injuries
perpetrated by its agents.     Monell, 

.        To do so, he must allege that the
municipality’s official policy or custom “was ‘the moving force behind the constitutional
violation.’” Nugent v. Spectrum Juv. J. Servs., 

 (6th Cir. 2023) (quoting City of
Canton v. Harris, 

 (1989)). A plaintiff can prove that a municipality has a
custom or policy that led to his constitutional injury in multiple ways, including by showing that
the injury was caused by the decision of an official with final authority to establish municipal
policy respecting such activity. See Pembaur v. City of Cincinnati, 

, 481–84 (1986)
(plurality opinion).

       Susselman has not plausibly alleged any claim against Washtenaw County or Superior
Township.       Foremost, Susselman has not plausibly alleged any underlying constitutional
violation. Robertson v. Lucas, 

 (6th Cir. 2014). Next, he has not alleged that
either Washtenaw County or Superior Township has a pattern of committing constitutional
violations like those he alleges. Finally, he has not alleged that King or Williams has final,
unreviewable decision-making authority for Washtenaw County or Superior Township,
respectively.    Susselman insists that King had final authority over ticketing decisions for
Washtenaw County, and Williams had final authority for prosecutorial decisions for Superior
Township. But discretion to issue a ticket or pursue a prosecution is not the same as the
authority to make final municipal policy. Susselman’s claims against Washtenaw County and
Superior Township therefore were properly dismissed.

                                                 IV.

       For the foregoing reasons, we AFFIRM the district court’s order.