                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 18a0229n.06

                                           No. 17-2151

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

CARLETON BUCK,                        )                                       FILED
                                      )                                 May 02, 2018
     Plaintiff-Appellant,             )                             DEBORAH S. HUNT, Clerk
                                      )
             v.                       )                        ON APPEAL FROM THE
                                      )                        UNITED STATES DISTRICT
CITY OF HIGHLAND PARK, MICHIGAN; SGT. )                        COURT FOR THE EASTERN
CURTIS WHITE; HEATHER HOLCOMB,        )                        DISTRICT OF MICHIGAN
                                      )
     Defendants-Appellees.            )
                                      )



BEFORE: GILMAN, COOK, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Plaintiff Carleton Buck was shot and injured as a bystander to an ongoing robbery at a

pawnshop in the City of Highland Park, Michigan. He sued the City and its two police officers

who responded to the silent burglar alarm, alleging a state-law claim of gross negligence against

each officer and violations of 42 U.S.C. § 1983 against the City and one of the officers. The

district court granted judgment in favor of defendants pursuant to Federal Rule of Civil

Procedure 12(c). Plaintiff now appeals. For the reasons that follow, we affirm.

                                                I.

       Sergeant Curtis White and his partner, Officer Heather Holcomb, responded to a silent

burglar alarm at the Gold Nugget pawnshop on October 10, 2009.1 Buck coincidentally had



       1
           Our factual summary is taken exclusively from plaintiff’s Second Amended Complaint.
No. 17-2151, Buck v. City of Highland Park, et al.


business there that day, and parked behind the officers’ squad car just after they arrived on scene.

Holcomb was looking into the front window of the pawnshop when Buck got out of his car. As

Buck approached the pawnshop, he crossed paths with White on the sidewalk and the two

“exchanged greetings.”

       Holcomb entered the Gold Nugget first, followed by White and then Buck. After White

passed through the building’s vestibule and into the pawnshop, he turned to the right and was

immediately confronted by an escaping armed robber. The robber shot at White, hitting the

sergeant in his left arm. Holcomb returned fire, shooting at the robber as he exited the building

through the vestibule. As the robber passed “within a few inches” of Buck, who was also

attempting to flee through the vestibule, Buck alleges that Holcomb shot him twice in the

buttocks.

       In August 2012, Buck sued the City, Sergeant White, and a “Jane Doe” police officer in

Michigan state court. He alleged that his federal and state substantive due-process rights were

violated by the City’s failure to train its officers and by certain actions of the defendant officers

that increased the risk of danger at the scene. The trial court granted summary disposition in

favor of the defendants, and the Michigan Court of Appeals affirmed. Buck v. City of Highland

Park, No. 12–010985–NO, 2015 WL 4374145, at *1 (Mich. Ct. App. July 16, 2015) (per

curiam). The Michigan Supreme Court denied leave to appeal. Buck v. City of Highland Park,

876 N.W.2d 524 (Mich. 2016).

       Undeterred, Buck returned to the state trial court in August 2016 and a filed a motion to

reopen the case and for relief from judgment. The motion was granted, and Buck filed an

amended complaint. Defendants filed a second motion for summary disposition, and the parties

engaged in discovery. Two months later, the trial court granted Buck’s motion to amend his


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No. 17-2151, Buck v. City of Highland Park, et al.


complaint by adding Holcomb. In his Second Amended Complaint, Buck newly alleged that

Holcomb violated his Fourteenth Amendment substantive due-process right to bodily integrity.

And he added claims that White and Holcomb’s respective conduct was grossly negligent under

MCL § 691.1407(2)(c), (8)(a). Buck also renewed his failure-to-train allegations against the

City.

        Defendants removed this action to federal court and filed a motion for judgment on the

pleadings under Federal Rule of Civil Procedure Rule 12(c).             The district court granted

defendants’ motion, and plaintiff timely appeals from that decision.2

                                                II.

        As a threshold matter, we note that defendants prematurely filed their Rule 12(c) motion

before their answer to the Second Amended Complaint. See Fed. R. Civ. P. 12(c). A motion

pursuant to Federal Rule of Civil Procedure 12(b) is the typical vehicle for testing a complaint’s

sufficiency before the pleadings have “closed.” See id. at 12(b)–(c); see also Ohio v. United

States, 849 F.3d 313, 318 (6th Cir. 2017). This technical defect is not fatal, however, because we

review a district court’s grant of either kind of motion de novo, and under the same general

standards. D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014); cf. 5C Wright & Miller,

Federal Practice and Procedure § 1368 (3d ed.).

        Our precedent instructs that, for a complaint to survive such motions, it must contain

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

under a viable legal theory.” Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645,

649 (6th Cir. 2013) (citation and internal quotation marks omitted). We construe the record in

        2
        The district court also dismissed as moot Buck’s motion to compel and extend discovery
and his motion to file supplemental authority. Buck presents no challenge to these rulings on
appeal. To the extent Buck complains about discovery in reply, we decline to address an issue
untimely raised. Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010).
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No. 17-2151, Buck v. City of Highland Park, et al.


the light most favorable to the nonmoving party and accept all well-pleaded factual allegations as

true. Id. But we “need not accept as true legal conclusions or unwarranted factual inferences,

and conclusory allegations or legal conclusions masquerading as factual allegations will not

suffice.” Terry v. Tyson Farms, Inc., 604 F.3d 272, 276 (6th Cir. 2010) (citation and quotation

marks omitted). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’

requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

of action will not do.” Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239,

246–47 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather,

“a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation

marks omitted).

       With these standards in mind, we turn to the parties’ arguments and note that this court

may affirm the district court’s judgment “on any grounds supported by the record even if

different from the reasons of the district court.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle

Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002).

                                                 III.

       Buck alleges that Holcomb violated his constitutional right to bodily integrity when she

shot at the armed robber while Buck was “within inches of the fleeing suspect” and thus “plainly

and clearly visible” in the officer’s “line of fire.” The parties dispute whether Buck is alleging a

Fourth or Fourteenth Amendment claim, but we adjudicate “constitutional tort claims asserted by

persons collaterally injured by police conduct who were not intended targets of an attempted

official ‘seizure’ . . . according to substantive due process norms.” Claybrook v. Birchwell,

199 F.3d 350, 359 (6th Cir. 2000).


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No. 17-2151, Buck v. City of Highland Park, et al.


                                                 A.

       Holcomb successfully argued before the district court that Buck’s constitutional claim

against her was time-barred, and renews that defense on appeal.3 Because Congress did not

specifically adopt a statute of limitations governing § 1983 actions, “federal courts must borrow

the statute of limitations governing personal injury actions in the state in which the section 1983

action was brought.” Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003). We have

held that the appropriate statute of limitations to be borrowed for § 1983 actions arising in

Michigan is the state’s three-year limitations period for personal-injury claims.              MCL

§ 600.5805(10); Chippewa Trading Co. v. Cox, 365 F.3d 538, 543 (6th Cir. 2004). Here, Buck

brought his § 1983 claim against Holcomb nearly seven years after the shooting.

       Buck urges that this claim can proceed regardless because he added Holcomb as a

necessary party, precluding her from asserting any statute of limitations defense.4 Buck looks to

Michigan Supreme Court precedent in support of this contention, and in particular to its recent

decision in Graham v. Foster, 893 N.W.2d 319 (2017) (mem). In Graham, the Court considered



       3
         The statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c), and a
plaintiff generally need not plead the lack of affirmative defenses to state a valid claim, see Fed.
R. Civ. P. 8(a) (requiring “a short and plain statement of the claim” (emphasis added)); Jones v.
Bock, 549 U.S. 199, 216 (2007). But when the allegations in the complaint affirmatively show
that the claim is time-barred, as is the case here, dismissing the claim under the Rule 12(b)(6)
standard is appropriate. See Jones, 549 U.S. at 215 (“If the allegations . . . show that relief is
barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to
state a claim[.]”).
       4
         The Michigan Court Rules define a necessary party as a “person[ ] having such [an]
interest[ ] in the subject matter of [the] action that [her] presence in the action is essential to
permit the court to render complete relief.” MCR 2.205(A). Some panels of the Michigan Court
of Appeals have discussed a necessary-party exception that allows the joinder of a necessary
party after the statute of limitations has expired. See, e.g., O’Keefe v. Clark Equip. Co., 307
N.W.2d 343, 344 (Mich. Ct. App. 1981) (per curiam) (discussing but declining to apply the
exception because to do so “would prevent the operation of the statute of limitations even though
the plaintiff was not diligent in bringing his suit”).
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No. 17-2151, Buck v. City of Highland Park, et al.


whether the presumed father of a minor child could be added to a paternity suit as a necessary

party after the applicable statute of limitations for asserting such a claim had passed. Id. at 320.

       Graham does not help Buck.          Although the Court “le[ft] undisturbed the Court of

Appeals’ determination that [the presumed father] constitute[d] a necessary party,” it made clear

that the presumed father could still raise a statute of limitations defense once he was added to the

dispute. Id. at 321–22. Notably, the Court acknowledged and also left undisturbed its prior

holding in Miller v. Chapman Contracting, 730 N.W.2d 462, 464 (Mich. 2007) (per curiam), that

the relation-back doctrine for amended pleadings did not apply to the addition of new parties.5

Graham, 893 N.W.2d. at 321. And it expressly vacated “the portion of the Court of Appeals’

decision concerning the relation-back doctrine” and a “supposed necessary-party exception” to

the statute of limitations “of the sort presumed by the Court of Appeals.” See id. at 321–22, 322

n.4.

       Here, Holcomb has raised a statute-of-limitations defense, and Buck makes no argument

that she did so improperly under any federal caselaw or procedural rule.6 As to the merits of the

district court’s conclusion that the defense bars Buck’s claim, Buck merely states without

exposition that he “relies on the necessary party exception to the statute of limitations.” Yet

even assuming this exception exists, Buck cites no case in which a court has successfully applied

it under Michigan law to prevent the operation of an otherwise-applicable statute-of-limitations
       5
         The Miller Court was referring to MCR 2.118(D), which provides that “[a]n amendment
that adds a claim or a defense relates back to the date of the original pleading if the claim or
defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set
forth, or attempted to be set forth, in the original pleading.” See Miller, 730 N.W.2d at 464.
       6
         Instead, Buck argues that defendants White and the City “could have opposed the
amendment of the complaint to add Holcomb” in state court by arguing that the statute of
limitations had expired. Because they did not, contends Buck, Holcomb’s statute of limitations
defense “was waived.” But Michigan’s “statute of limitations defense is personal to the party
raising it,” so only Holcomb can assert it on her own behalf, and only she can forfeit or waive it.
See Graham, 893 N.W.2d at 321–22.
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No. 17-2151, Buck v. City of Highland Park, et al.


defense. See id. at 320 n.1 (explaining that a necessary-party exception had been discussed in

previous Court of Appeals decisions, but never applied); see also id. at 322 (vacating the portion

of the lone Court of Appeals opinion that presumed and applied the exception). And Buck

develops no argument explaining why we should break ranks in this case. Without more, we

have no reason to disturb the district court’s ruling on this issue.

                                                  B.

       Even if Buck’s § 1983 claim against Holcomb is not time-barred, he has not alleged

sufficient facts to give rise to a plausible claim that the officer’s conduct violated his

constitutional right to bodily integrity. An officer’s conduct denies an innocent third party

fundamental substantive due process only when it “shocks the conscience.” Claybrook, 199 F.3d

at 359. And where, as here, an officer had no “opportunity to ponder or debate [her] reaction to

the dangerous actions of [an] armed man,” we ask whether she used force “maliciously and

sadistically for the very purpose of causing harm.” Id. at 359–60; see also Bukowski v. City of

Akron, 326 F.3d 702, 710 (6th Cir. 2003).

       Buck pleads no facts in his Second Amended Complaint from which we can reasonably

infer such an egregious intent to harm. At most, Buck alleges (in a conclusory statement) that

Holcomb’s conduct was “deliberately indifferent,” but that less-stringent test of conscience-

shocking behavior controls when an officer is “afforded a reasonable opportunity to deliberate

various alternatives prior to electing a course of action.” Claybrook, 199 F.3d at 359. Buck does

not allege that Holcomb enjoyed any such luxury here. Instead, he describes a fluid and

dangerous situation requiring split-second decision-making: Holcomb was attempting to prevent

the armed perpetrator, who had just shot her partner, from escaping out into the community




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No. 17-2151, Buck v. City of Highland Park, et al.


through the vestibule Buck had just walked into.          Accordingly, the malicious-and-sadistic

standard applies. See id. at 359–60.

       Buck faults Holcomb for shooting at the armed and fleeing suspect as that suspect came

“within inches” of him. But even if Holcomb’s actions “violated departmental policy or were

otherwise negligent,” Buck does not contend that she “acted with conscience-shocking malice or

sadism towards” him. Id. at 360; cf. Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)

(“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional

due process.”). Nor do Buck’s allegations suggest that Holcomb shot him “for the very purpose

of causing [him] harm.” Whitley v. Albers, 475 U.S. 312, 321 (1986). Buck’s allegations against

Holcomb, taken in the light most favorable to him, are thus insufficient to give rise to any

plausible inference that her conduct was violative of an innocent bystander’s substantive due-

process rights under the malicious-and-sadistic test. Accordingly, the district court properly

dismissed Count III.

                                                IV.

       On a related point, Buck would hold the City to account for failure to train on a theory of

single-incident liability as contemplated in City of Canton v. Harris, 489 U.S. 378 (1989), and

Connick v. Thompson, 563 U.S. 51 (2011). There are indeed “limited circumstances in which an

allegation of a ‘failure to train’ can be the basis for [municipal] liability under § 1983.” Harris,

489 U.S. at 387. And the United States Supreme Court has not “foreclose[d] the possibility,

however rare . . . [,] that a city could be liable under § 1983 without proof of a pre-existing

pattern of [constitutional] violations.” Connick, 563 U.S. at 64.

       But a prerequisite to establishing liability under § 1983 for failure to train is that a

constitutional violation has occurred. Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th


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No. 17-2151, Buck v. City of Highland Park, et al.


Cir. 2001). As discussed above, Buck pleads no plausible constitutional violation. Therefore his

related § 1983 claim against the City necessarily fails. See City of Los Angeles v. Heller,

475 U.S. 796, 799 (1986) (per curiam); see also Blackmore v. Kalamazoo Cty., 390 F.3d 890,

900 (6th Cir. 2004). At bottom, “[n]o constitutional violation means no municipal liability.”

Thomas v. City of Columbus, 854 F.3d 361, 367 (6th Cir. 2017). The district court therefore

properly dismissed Count II.

                                                V.

        Buck’s state-law claims of gross negligence fare no better.7 Michigan’s governmental

tort liability act, MCL §§ 691.1401 et seq., provides governmental employees with immunity

from tort liability for injuries they cause during the course of their employment so long as the

employee’s “conduct does not amount to gross negligence that is the proximate cause of the

injury or damage.” MCL § 691.1407(2)(c); see also id. at § 691.1407(8)(a) (defining “gross

negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether

an injury results”).

                                                A.

        Regarding White, Buck alleges that he was the proximate cause of Buck’s injury because

he did not caution Buck to stay outside before following his partner into the pawnshop. The

parties debate causation on appeal, and the district court focused on this issue below, but we need

        7
         Buck also argues that the district court abused its discretion in exercising supplemental
jurisdiction over his state-law claims after it dismissed his federal claims. See 28 U.S.C.
§ 1367(c)(3) (stating that a district court may decline to exercise supplemental jurisdiction if it
has “dismissed all claims over which it ha[d] original jurisdiction”). Because Buck did not raise
this issue in the district court, it is not properly before us, and we decline to review it. See
United States v. Ninety–Three Firearms, 330 F.3d 414, 424 (6th Cir. 2003) (noting that an
argument raised for the first time on appeal will not be considered unless a plain miscarriage of
justice will result); see also Smith v. Cty. of Lenawee, 600 F.3d 686, 690 n.3 (6th Cir. 2010)
(declining to review argument raised only on appeal that a district court inappropriately
exercised supplemental jurisdiction over state-law claims).
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No. 17-2151, Buck v. City of Highland Park, et al.


look only to Michigan’s public-duty doctrine, which “insulates officers from tort liability for the

negligent failure to provide police protection unless an individual plaintiff satisfies the special-

relationship exception.” White v. Beasley, 552 N.W.2d 1, 3 (Mich. 1996).

        We cannot plausibly infer from the factual allegations in the Second Amended Complaint

that any such relationship existed between Buck and White.               The special-relationship test

requires: (1) that the police officer assume, through promises or actions, an affirmative duty to

act on behalf of the party who was injured; (2) knowledge on the part of the officer that his

inaction could lead to harm; (3) some direct contact between that party and the officer; and

(4) that party’s justifiable reliance on the officer for protection. Id. at 5.

        Here, the only contact alleged between White and Buck is that the two “exchanged

greetings” on the sidewalk outside the Gold Nugget before White entered the building. Although

White was aware that a silent burglar alarm had been triggered inside the pawnshop, there is no

allegation of him knowing that Buck, who entered the Gold Nugget after White, was on his way

to do business there. Moreover, merely exchanging greetings, although an example of direct

contact, lacks specificity and “cannot reasonably be construed as a promise to protect” Buck

from any third-party criminals. Smith v. Jones, 632 N.W.2d 509, 515 (Mich. Ct. App. 2001).

Nor can such nebulous greetings “reasonably be construed as invoking [Buck’s] reliance on

[White] for protection.” Id. at 516.

        “Duty is an essential element of a claim of negligence or gross negligence.” Id. at 514.

Buck alleges that White failed to protect him, but we cannot plausibly infer from the Second

Amended Complaint that White had assumed an affirmative duty to do so. Accordingly, the

district court properly dismissed Count I.




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No. 17-2151, Buck v. City of Highland Park, et al.


                                                 B.

       Regarding Holcomb, the district court dismissed Buck’s gross-negligence claim against

her as time-barred. Pursuant to MCL § 600.5805(10), “the period of limitations is 3 years after

the time of the death or injury . . . to recover damages for the death of a person, or for injury to a

person or property.”8 As discussed above, Buck gives no valid reason why Holcomb cannot

assert a statute-of-limitations defense. Nor does Buck explain why the necessary-party exception

should apply to prevent the operation of Holcomb’s defense to his gross-negligence claim

asserted seven years after the shooting. Buck thus gives us no cause to disturb the district court’s

dismissal of Count III.

                                                 VI.

       For these reasons, we affirm the district court’s judgment.




       8
         The district court applied Michigan’s two-year statute of limitations “for an action
against a sheriff charging misconduct or neglect of office by the sheriff or the sheriff’s deputies.”
MCL § 600.5805(7). Although Holcomb is a police officer for the City and not a sheriff’s
deputy, any district court error was harmless because, on the face of the Second Amended
Complaint, Buck’s claim would be time-barred under either the two- or three-year statute of
limitations.
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