                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0507n.06

                                         No. 13-2495


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


                                                                   FILED
    MICHAEL DWAYNE THOMAS,                       )            Jul 17, 2015
                                                 )       DEBORAH S. HUNT, Clerk
            Plaintiff-Appellant,                 )
                                                 )
                                                        ON APPEAL FROM THE
    v.                                           )
                                                        UNITED STATES DISTRICT
                                                 )
                                                        COURT FOR THE EASTERN
    LYNN NODER-LOVE, et al.,                     )
                                                        DISTRICT OF MICHIGAN
                                                 )
                                                        OPINION
            Defendants-Appellees.                )
                                                 )
                                                 )

BEFORE: COLE, Chief Judge; KETHLEDGE, Circuit Judge; and OLIVER, District Judge.*

         OLIVER, District Judge. Plaintiff Michael Thomas (“Plaintiff” or “Thomas”), appeals

from the order of the district court granting Defendants’ Motion to Dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6). For the following reasons, we AFFIRM the district court’s

decision.

                          I. FACTUAL AND PROCEDURAL HISTORY

         On June 24, 2011, an unknown man assaulted another man with a stun gun in the

University of Michigan hospital. A surveillance camera captured the assailant as he was leaving

the scene of the assault. Lynn Noder-Love (“Noder-Love”), a hospital manager, reviewed the

surveillance footage (“Footage”) and misidentified the assailant as Thomas, a former employee.



*
 The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 13-2495
Thomas v. Noder-Love
Detective Ryan Cavanaugh (“Cavanaugh”) and Washtenaw County Sheriff’s Deputies Scott

Heddle (“Heddle”) and William Coggins (“Coggins”) then arrested Thomas on June 27, 2011.

       Two days later, Cavanaugh appeared before a Michigan district court judge for a

probable-cause hearing. At the time of the hearing, Cavanaugh had a copy of a photo of the

assailant from the Footage (“Footage Photo”) and Thomas’s booking photo (“Booking Photo”)

“and knew that [Thomas] was not the individual in the surveillance footage.” (First Am. Compl.

at ¶ 13.) Yet Cavanaugh swore before the judge that a witness had positively identified Thomas

as the man in the Footage. Cavanaugh also failed to inform the judge that, even though the

assault victim knew Thomas, the victim did not identify Thomas as his assailant after the victim

viewed the Footage. Cavanaugh did not show the judge the Footage, Footage Photo, or Booking

Photo during the hearing.

       Based on Cavanaugh’s statements, the judge issued a warrant for Thomas’s arrest and

detention. Thomas was then arraigned on weapons and assault charges. A week later, the

charges were dropped after the prosecutor reviewed the Footage and Booking Photo and

determined that Thomas was not the man in the Footage.

       In June 2013, Thomas brought § 1983 claims against Noder-Love, Detective Cavanaugh,

Deputies Heddle and Coggins, the University of Michigan, and the University of Michigan

Health System (both the University of Michigan and the University of Michigan Health System

are properly referred to as “the Board of Regents of the University of Michigan” or the

“Regents”). He also brought various state-law claims against each Defendant. On August 19,

2013, Cavanaugh and the Regents moved to dismiss the complaint for failure to state a claim,

and on immunity grounds. Thomas did not file a response. On September 26, 2013, Cavanaugh

and the Regents filed a supplemental brief to notify the district court that Thomas had failed to



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Thomas v. Noder-Love
defend against their Motion. On October 2, 2013, the district court dismissed the entire case,

holding that Thomas’s allegations failed to state a claim against any of the Defendants. The

court’s decision was based in part on its conclusion, after comparing the Footage Photo with the

Booking Photo, that the persons in each looked similar. The court did not reach the immunity

issues. On October 16, 2013, Thomas moved for reconsideration; the court denied the Motion

five days later. This appeal followed.

                                  II. STANDARD OF REVIEW

       We review a Rule 12(b)(6) dismissal de novo. See Bright v. Gallia Cnty., Ohio, 753 F.3d

639, 652 (6th Cir. 2014). To state a claim, the complaint must allege sufficient facts that, taken

as true, state a plausible claim for relief. See id. In determining whether a plausible claim for

relief has been stated, a court may consider “exhibits attached to the complaint, public records,

items appearing in the record of the case and exhibits attached to defendant's motion to dismiss”

without converting the motion to dismiss into a motion for summary judgment, Rondigo, L.L.C.

v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011) (internal quotation marks omitted)

(internal brackets omitted). However, a court may only do so if it does not require the court to

“weigh the evidence or evaluate the credibility of witnesses,” Cameron v. Seitz, 38 F.3d 264, 270

(6th Cir. 1994).

       In deciding a Rule 12(b)(6) motion to dismiss, the court construes the facts in the light

most favorable to the plaintiff. D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). The

complaint must “contain sufficient factual matter . . . to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). To

survive a 12(b)(6) motion, the plaintiff must sufficiently plead facts that, when taken as true,

“contain either direct or inferential allegations respecting all material elements necessary for



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Thomas v. Noder-Love
recovery under a viable legal theory.” D’Ambrosio, 747 F.3d at 383 (quoting Philadelphia

Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013)) (internal quotation marks

omitted). The court cannot accept a plaintiff’s legal conclusions, conclusory allegations, nor “a

formulaic recitation of the elements of a cause of action,” as sufficient to survive a motion to

dismiss. Id.

                                        III. ANALYSIS

       Plaintiff raises a number of issues on appeal in support of his argument that the trial court

improperly granted Defendants’ Motion to Dismiss. He asserts that the Motion should not have

been granted because his time to respond to Defendant’s Motion had not expired at the time the

district court dismissed the case. (Id. at 16.) He also maintains that the court improperly

converted Defendant’s Motion to Dismiss into a Motion for Summary Judgment when the court

compared the Footage Photo to the Booking Photo; in so doing, the court impermissibly weighed

the evidence. (Appellant’s Br. at 6.). In addition, he asserts that such Motion should not have

been considered without his having the opportunity to conduct discovery before responding. (Id.

at 12.) Lastly, he argues that the district court should not have granted the Motion as to all

Defendants since only the Regents and Cavanaugh moved to dismiss. (Id. at 14.)

       All Defendants argue that the Motion to Dismiss was properly granted for failure to state

a claim. Additionally, Defendants the Regents and Cavanaugh argue that Plaintiff’s claims

against them are barred under the Eleventh Amendment doctrine of sovereign immunity and the

Michigan Governmental Tort Liability Act.

                        A. Proper Timing of Granting 12(b)(6) Motion

        Plaintiff argues that the district court erroneously granted Defendants’ Motion before

Plaintiff’s time to respond had expired. Specifically, Plaintiff argues that Defendants filed an



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Thomas v. Noder-Love
amended pleading on September 26, 2013, giving Plaintiff until October 10, 2013, to file a

response pursuant to Federal Rule of Civil Procedure 15(a)(1)(3). This court disagrees.

       Under Federal Rule of Civil Procedure 15(a)(1)(3), “[u]nless the court orders otherwise,

any required response to an amended pleading must be made within the time remaining to

respond or within 14 days after service of the amended pleading, whichever is later.” However,

Defendants’ Reply was not an amended pleading for purposes of Rule 15(a)(1)(3). Rule 7(a)

defines a pleading as: “(1) a complaint; (2) an answer to a complaint; (3) an answer to a

counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third party

complaint; (6) an answer to a third party complaint”; or (7) a court-ordered reply to an answer.

Fed. R. Civ. P. 7(a). Defendants’ Reply does not fit any of these categories. Defendants’ Reply

was merely a request for the court to rule on their Motion to Dismiss. Thus, Plaintiff did not

have an additional fourteen days after the Reply was filed to file a response.

       Defendants filed the Motion to Dismiss on August 19, 2013. Under Eastern District of

Michigan Local Rule 7.1(e)(1), a party must file a response to a dispositive motion within

twenty-one days of service. E.D.Mich. LR 7.1(e)(1)(B). Therefore, Plaintiff’s response was due

on September 12, 2013. See id.; Fed. R. Civ. P. 6(d). On September 26, 2013, Defendants filed

the Reply, informing the district court that Plaintiff had already missed the deadline and moving

the court to grant the Motion to Dismiss. The district court granted the Motion to Dismiss on

October 26, 2013, over a month and a half past the deadline. Plaintiff never filed a response, a

motion for extension of time, or a motion to amend his Complaint. Thus, there is no basis for

this court’s reversal of the district court’s granting of the Motion to Dismiss on the ground that

the court rendered a decision before the expiration of Plaintiff’s time to respond.




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Thomas v. Noder-Love
          B. Transformation of Motion to Dismiss into Summary Judgment Motion

       This court reviews whether the district court erroneously considered the Footage Photo

and Booking Photo in deciding Defendants’ Motion to Dismiss, thereby converting the Motion

into a motion for summary judgment.

       This court finds that the district court’s evaluation of the likeness between the man in the

Footage Photo and the man in the Booking Photo was erroneous. Documents outside of the

pleadings that may typically be incorporated without converting the motion to dismiss into a

motion for summary judgment are “public records, matters of which a court may take judicial

notice, and letter decisions of governmental agencies.” Jackson v. City of Columbus, 194 F.3d

737, 745 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S.

506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); see also Jacobs v. City of Chicago, 215 F.3d 758,

766 (7th Cir. 2000) (holding that the district court was obligated to either not consider

photographs of an apartment complex submitted on a motion to dismiss or convert the motion

into a motion for summary judgment).

       While the Footage and Booking Photo were both referred to in the Complaint and central

to the claims contained therein, deciding whether the man in the Footage Photo and the man in

the Booking Photo looked similar in appearance was not a matter appropriate for resolution by a

motion to dismiss. Such a comparison raises issues of fact that are only properly resolvable at

trial. Here, the judge assumed that the Footage Photo and Booking Photo attached to the motion

to dismiss were the photos referenced in the Complaint, determined for himself that the two men

pictured looked alike, and then rejected the Complaint’s allegations as implausible. The court

may not dismiss a complaint for failure to state a claim “based on a judge’s disbelief of a

complaint’s factual allegations.” City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d



                                                6
No. 13-2495
Thomas v. Noder-Love
651, 665 (6th Cir. 2005). Though the district court judge found that the two men resembled each

other, the Complaint alleges that at least two other people did not think that the man in the

Footage looked like Thomas: Detective Cavanaugh, and the prosecutor. (See First Am. Compl.

at ¶¶ 13, 24.) A reasonable jury could find that the two men did not look similar. Thus, this

court finds that the issue of whether the two men in the Footage and Photo appear similar raises a

genuine dispute of a material fact. Thus, it was inappropriate for the court to resolve this issue on

a motion to dismiss or a motion for summary judgment.

       Even though the district court erred in part, we may affirm the dismissal of Thomas’s

Complaint for any reason supported by the record. Hensley Mfg. v. ProPride, 579 F.3d 603, 609

(6th Cir. 2009). Thus, we will review the record to determine whether dismissal was otherwise

warranted.

                            C. Consideration of the Motion to Dismiss

       In his Complaint, Plaintiff asserts six causes of action: (1) gross negligence against

Cavanaugh, Heddle, Coggins, and Noder-Love; (2) intentional infliction of emotional distress

against Cavanaugh, Heddle, Coggins, and Noder-Love; (3) violation of 42 U.S.C. § 1983 against

all Defendants; (4) false arrest and false imprisonment against Cavanaugh, Heddle, and Coggins;

(5) two counts of constitutional deprivation—one against Cavanaugh, Heddle, and Coggins, and

one against the Regents; and (6) malicious prosecution against Cavanaugh and Noder-Love. The

court will address each Defendant in turn.

          1. Defendants Regents of University of Michigan and Detective Cavanaugh

       Defendants the Regents and Detective Cavanaugh argued, both at the district court level

and here at the appellate level, that they are immune from all claims based on sovereign

immunity under the Eleventh Amendment, as well as the Michigan Governmental Tort Liability



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No. 13-2495
Thomas v. Noder-Love
Act (“MGTL”). Plaintiff has not briefed or responded to this particular issue. Because the court

finds Defendants’ Eleventh Amendment argument to be well-taken, there is no need to address

the state tort claims as explained hereafter.

        It is well-settled that the Eleventh Amendment forbids a citizen from bringing suit for

monetary damages in federal court against a state, state agent, or state instrumentality without

that state’s consent. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120-21 (1984). It is also well-settled that such

sovereign immunity applies to claims under § 1983, meaning that states and state officials sued

in their official capacity are not considered “persons” under § 1983 and, therefore, cannot be

sued for money damages without the state’s consent. Will v. Michigan Dep’t of State Police, 491

U.S. 58, 66, 71 (1989); Moore v. City of Harriman, 272 F.3d 769, 771 (6th Cir. 2001). Eleventh

Amendment immunity also bars any pendent state-law claims brought against state officials in

their official capacity. Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007)

(citing Pennhurst, 465 U.S. at 117-21). Plaintiff’s Complaint seeks only monetary damages for

each cause of action asserted. Plaintiff does not dispute this on appeal. Therefore, sovereign

immunity applies to every state entity and state official named in their official capacity in this

case.

        This court has previously determined that the Board of Regents of the University of

Michigan is a state entity protected by Eleventh Amendment sovereign immunity. See Estate of

Ritter by Ritter v. Univ. of Michigan, 851 F.2d 846, 851 (6th Cir. 1988). Thus, the Eleventh

Amendment renders both Defendants University of Michigan and University of Michigan Health

System immune to all of Plaintiff’s claims.      As an officer of the University of Michigan,




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Thomas v. Noder-Love
Defendant Cavanaugh is also a state agent protected by sovereign immunity if sued in his official

capacity.

       Under the “course of proceedings” test, this court looks to the Complaint and how

Plaintiff describes the defendant to determine whether the cause of action is being brought

against Defendant in his official or individual capacity.         See Moore, 272 F.3d at 772.

Specifically, the court looks to (1) whether the defendant is referred to by his official title,

(2) whether Plaintiff implies that Defendant acted outside of his official capacity, and

(3) whether Plaintiff alleges that Defendant was acting on behalf of himself or his employer. Id.

at 772-73. The Complaint indicates that Plaintiff only sued Defendant Cavanaugh in his official

capacity. First, in the Complaint, Plaintiff consistently refers to Cavanaugh by his official title,

“detective.” Second, Plaintiff’s Complaint alleges that Cavanaugh “at all relevant times . . . was

a police officer who worked for the University of Michigan Police Departments, and was at all

times material to this cause of action performing his duties as a police officer . . . .” (First. Am.

Compl. at ¶ 6.)

       Further, Plaintiff did not make any additional filings before dismissal to clarify the nature

of his claims. Defendant Cavanaugh also did not defend against Thomas’s claims by asserting

qualified immunity. Thus, considering all the relevant factors, Cavanaugh did not have sufficient

notice of an individual-capacity suit. See, e.g., Shepherd v. Wellman, 313 F.3d 963, 968-69 (6th

Cir. 2002). Therefore, sovereign immunity also attaches to Defendant Cavanaugh in this case.

       Thus, all claims against Defendants University of Michigan, University of Michigan

Health System, and Cavanaugh are dismissed for lack of subject-matter jurisdiction, without

having to address the sufficiency of Plaintiff’s pleadings.




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Thomas v. Noder-Love
                               2.   Defendants Heddle and Coggins

       As sheriff’s deputies for the Washtenaw Sheriff Department, Defendants Heddle and

Coggins are agents of a municipality, not the state. Eleventh Amendment sovereign immunity

does not apply to municipalities or their officials. Bd. of Trustees of Univ. of Alabama v.

Garrett, 531 U.S. 356, 369 (2001). Therefore, Defendants Heddle and Coggins are not protected

by Eleventh Amendment sovereign immunity but may be protected under the MGTL.

       In his Complaint, Plaintiff asserts five causes of action against Defendants Heddle and

Coggins: (1) violation of 42 U.S.C. § 1983; (2) gross negligence; (3) intentional infliction of

emotional distress; (4) false arrest and false imprisonment; and (5) constitutional deprivation.

Though Plaintiff alleges in his Complaint that both his arrest on June 27, 2011, and the warrant

that issued two days later lacked probable cause, the only allegations in the Complaint in regard

to Heddle and Coggins relate to his allegedly being falsely arrested on June 27, 2011. Under the

MGTL, all governmental officials, including municipalities and municipal agents, “without

regard to the discretionary or ministerial nature of the conduct in question . . . [are] immune from

tort liability for an injury to a person or damage to property caused . . . while in the course of

employment or service” as long as: (1) the officer or employee “reasonably believes he or she is

acting within the scope of his or her authority”; (2) “the governmental agency is engaged in the

exercise or discharge of a governmental function”; and (3) the officer’s or employee’s conduct

was not grossly negligent. M.C.L.A. 691.1407(2). Because Plaintiff alleges gross negligence

against Defendants Heddle and Coggins, the court must review the sufficiency of those pleadings

to determine if qualified immunity applies here.

       This court finds, as did the district court, that Plaintiff’s Complaint is lacking in factual

support for any of the legal allegations made in respect to his § 1983 or state-law claims. In the



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No. 13-2495
Thomas v. Noder-Love
Complaint, Plaintiff provides some specific factual allegations, but mostly just vague and

conclusory legal assertions. Specifically, paragraphs 1-25 provide factual assertions, but the

remainder of the Complaint merely asserts the boilerplate elements for each cause of action and

refers to all the previous assertions stated in the Complaint—both factual and conclusory legal

assertions. For example, Plaintiff’s claim for intentional infliction of emotional distress merely

asserts that “Heddle and Coggins [sic] false arrest resulted in emotional distress to the Plaintiff,”

and lists a number of physical symptoms that manifested in Plaintiff, but never makes any factual

allegations regarding Defendants’ intent. (Id. at ¶¶ 36-39.) Thus, the question is whether any of

the factual allegations from paragraphs 1-25 of the Complaint are sufficient to “state a claim to

relief that is plausible on its face” for any of the causes of action against Defendants Heddle and

Coggins. The answer is no.

       The only facts alleged in paragraphs 1-25 that are specific to Coggins or Heddle are that

they were police deputies for the Washtenaw Sheriff Department working in their official

capacities, (First Am. Compl. at ¶¶ 8-9), and that they arrested Plaintiff on June 27, 2011, (id. at

¶ 12f). The only factual allegations in the Complaint regarding the events leading to Thomas’s

arrest is that Noder-Love reviewed the Footage and identified Thomas, her former employee, as

the man in the Footage. An eyewitness identification—standing alone—is sufficient to establish

probable cause unless the officer has some reason to believe at the time of the arrest that the

eyewitness is lying or mistaken. Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). Although

Thomas alleges that Noder-Love falsely identified Thomas as the assailant, he does not allege

Cavanaugh, Heddle or Coggins knew Noder-Love was wrong when they arrested Thomas.

None of these facts are sufficient to support any of the claims asserted against Coggins or

Heddle. Thus, all causes of action against Defendants Heddle and Coggins should be dismissed.



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Thomas v. Noder-Love
                                      3.   Defendant Noder-Love

        The court also finds that Plaintiff insufficiently pled his claims against Noder-Love. In

his Complaint, Plaintiff asserts four causes of action against Noder-Love: (1) gross negligence;

(2) intentional infliction of emotional distress; (3) violation of 42 U.S.C. § 1983; and

(4) malicious prosecution. As detailed above with Defendants Heddle and Coggins, the causes of

action against Noder-Love merely utilize boilerplate language asserting the elements of the

various causes of action and refer to all of the previous conclusory factual and legal assertions in

the Complaint. For example, Plaintiff’s claim for intentional infliction of emotional distress

merely asserts that Noder-Love’s “false statements leading to the arrest of the Plaintiffs [sic]

probably resulted in emotional distress to Plaintiff.”      Plaintiff’s cause of action for gross

negligence merely asserts that “Noder-Love’s actions were grossly negligent” and refers to all

Defendants as if they had identical duties of care, despite Noder-Love being a civilian, not an

officer of the law. (First Am. Compl. at ¶¶ 31-32.)

        The only facts alleged in paragraphs 1-25 that are specific to Noder-Love are that she was

an employee of the University of Michigan and the University of Michigan Health System, (id.

at ¶¶ 3, 5), and that she identified Plaintiff as the person in the Footage, (id. at ¶ 12e). Taken

together, these facts are insufficient to state a plausible claim against Noder-Love for any of the

causes of action Plaintiff asserts.

        Thus, this court affirms the district court’s dismissal of all claims against Noder-Love.

                             D. Dismissal as to Non-Moving Parties

        Plaintiff argues that the district court erred in granting the Motion to Dismiss as to all

Defendants where only Defendants the Regents and Cavanaugh filed the Motion and no other

Defendants joined it. Defendants maintain on appeal that this argument was waived because



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Thomas v. Noder-Love
Plaintiff did not raise it before the trial court in his Motion for Reconsideration. This court

agrees that under the precedent of this circuit, this argument was waived. See Hayward v.

Cleveland Clinic Foundation, 759 F.3d 601, 614 (6th Cir. 2014). Even absent waiver, Plaintiff’s

argument is not well-taken. For example, he claims that “[t]he facts alleged by Plaintiff to

support the claims against Noder-Love, Heddle and Coggins are different than the facts which

are alleged to support the claims against Cavanaugh.” (Appellant’s Br. at 15.) This is clearly

incorrect. As previously discussed, in resolving the false arrest claims against all three, the

district court had to review substantially the same factual allegations. Thus, the district court

properly dismissed all of the claims that depend on a lack of probable cause for his original

arrest, including all claims against Heddle and Coggins. Similarly, the court properly considered

and dismissed all claims against Noder-Love, as the factual underpinnings of the claims against

her were closely intertwined with those of the other Defendants. Thus, the district court properly

dismissed the claims against all Defendants.

                                      IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the order of the district court granting

Defendants’ Motion to Dismiss and AFFIRM dismissal of all claims against all Defendants.




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