ELEANORE KUE v. SAMUEL NORTH (2023)

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

INTRODUCTION

After receiving a tip from a pharmacist that Plaintiff Dr. Eleanore Kue prescribes a high amount of controlled substances, several Michigan State Police Troopers (collectively, Defendants ¹ ) began investigating Kue for potentially overprescribing controlled substances. In December 2019, after numerous undercover visits to Kue's clinic (Plaintiff His Healing Hands Urgent Care Center, Inc.), and an extensive review of Kue's prescribing history, Defendants obtained search warrants for the Clinic and Kue's home, which she shares with her husband, Plaintiff Simon Kue. Prosecutors ultimately declined to bring criminal charges against Kue, and they also dropped a civil forfeiture proceeding for funds associated with Kue and the Clinic that they initiated shortly after Defendants executed the search warrants. Even though Kue was not held criminally liable, the Michigan Board of Medicine found that Kue committed medical negligence and placed her on probation for one year and fined her $2,000. Plaintiffs now bring a variety of Fourth and Fourteenth Amendment claims against Defendants under 42 U.S.C. § 1983 related to the December 2019 search warrants and the court and administrative proceedings that followed. (ECF No. 1). Defendants move for judgment on the pleadings under Fed. R. Civ. P. 12(c). (ECF No. 33). For the following reasons, Defendants’ motion is GRANTED.

I. BACKGROUND

Plaintiffs Dr. Eleanore Kue (“Kue”) and Simon Kue are a married couple who reside in Ingham County in Michigan. (ECF No. 1 ¶¶ 1–4, 15–18 at PageID.1–2, 3–4). Kue is a licensed medical doctor who owned and operated Plaintiff His Healing Hands Urgent Care Center, Inc. (“the Clinic”) in Lansing. (Id. ¶ 18 at PageID.4). In December 2019, Defendant Brett Brice—a Michigan State Police Trooper—obtained warrants to search the Clinic and the Kues's home for evidence related to “the crimes of Delivery of Controlled Substance[s], Prescription Fraud, and/or Health Care Fraud.” (Id. ¶ 21 at PageID.4). Brice's Affidavits explained that he began investigating Kue when he received a tip from a pharmacist at a local Walgreens that Kue prescribes a high amount of controlled substances and that several of her patients had made “suspicious statements” indicating that Kue would “just write [prescriptions] for me” without an in-office visit. (ECF No. 34 at PageID.243).

After receiving this tip, Brice downloaded Kue's prescribing history between May 6, 2018, and May 6, 2019 from Michigan's Automated Prescription System (“MAPS”). (ECF No. 34 at PageID.244). The top three drugs Kue prescribed during this period were Clonazepam, Alprazolam, and Tramadol, and Brice averred that this data raised “several [other] red flags of overprescribing or prescribing outside the scope of legitimate medical practice” based on his extensive experience investigating drug-related crimes. (Id.). These included prescribing the same patient both opioids and sedatives or multiple drugs in the same drug category at the same time; prescribing Clonazepam and Gabapentin to a Clinic employee; and prescribing controlled substances to multiple members of the same household on a consistent basis. (Id.). Brice also stated that an insurance investigator informed him that it had paid Kue $133,000 for prescriptions over the last three years but only $23,000 for office visits—an “unusual[ly]” high ratio. (Id.).

In addition to reviewing this data, Brice visited the Clinic undercover four times in the summer of 2019. (ECF No. 34 at PageID.245). Brice's first visit was on June 4, 2019, and during his three-hour wait for his appointment, a fellow patient told Brice that the Clinic is “the gateway [for prescription drugs] right here” and that “most people come here” because it is easy to obtain prescriptions for controlled substances. (Id.). When he finally met with Kue, Brice told her that he “wanted to get back on” Xanax because it “[j]ust helps me get through the day and makes me feel better.” (Id.). In “the first minute of the exam”—and without conducting any physical exams or inquiring about addiction issues or Brice's psychiatric need for Xanax—Kue agreed to prescribe Brice Klonopin (a different benzodiapzepine) instead. (Id.). Brice walked away from the appointment with a two-week prescription for Klonopin and Buspirone. (Id.).

Brice's next three visits to the Clinic to obtain refills proceeded similarly. During his long wait times for these follow-up visits, Brice spoke with other patients in the waiting room, who told Brice about how they utilized Kue to “get their pills.” (ECF No. 34 at PageID.245). All of his appointments with Kue lasted less than five minutes, and even though Brice told Kue's medical assistant at each visit that he did not have anxiety or depression, Kue always refilled Brice's two-week Klonopin and Buspirone prescriptions—and at one point increased the dosage—without asking any questions beyond whether he had completed counseling. (Brice said he had not.) (Id.). Indeed, at his second follow-up visit on July 23, Brice observed that Kue entered the exam room with pre-written refills for Klonopin and Buspirone. (Id. at PageID.246–48). Brice passed the audio and video recordings from his initial visit and first two follow-up appointments to an outside physician, who took issue with the lack of “documented legitimate indication for this medication” and opined that “[i]n my medical opinion, these are not legitimate prescriptions in the usual course of professional practice.” (Id. at PageID.249–50).

Defendants Benajmin Garrison and Thomas Proffit visited the Clinic undercover as well. While Kue denied Garrison's request for pain medication, she prescribed Proffit Klonopin after he told her “it helps him focus and get locked on” and then refilled his prescription several weeks later. (ECF No. 34 at PageID.247–49). Brice and several other officers physically surveilled Kue twice but did not observe anything unusual in her whereabouts. (Id. at PageID.250–51). On December 4, 2019, after reviewing all of this information, a Michigan state court judge approved search warrants for the Clinic and the Kues's home. (Id. at PageID.259, 281). Defendants executed the warrants the next day and seized a variety of documents, including patient records. (Id.).

The Ingham County Prosecutor's Office ultimately declined to press criminal charges against Kue, (ECF No. 1 ¶¶ 23–24 at PageID.5), and it dropped civil forfeiture proceedings for over $90,000 in various checking and saving accounts associated with Kue and the Clinic, (id. ¶¶ 23, 25 at PageID.5). The Michigan Board of Medicine, however, continued to investigate Kue, and it eventually placed her on probation for one year and fined her $2,000 for medical negligence. (ECF No. 54 at PageID.412–17). Plaintiffs now bring several Fourth and Fourteenth Amendment claims against Defendants under 42 U.S.C. § 1983 related to the search warrants and the ensuing court and administrative proceedings. Specifically, Plaintiffs contend that the search warrants were not supported by probable cause (Count I); that the subsequent attempted criminal proceeding and civil and administrative proceedings amounted to malicious prosecution (Count II) and violated their substantive due process rights (Count III); and that Defendants conspired to commit these civil rights violations (Count IV). Plaintiffs also bring a tagalong Michigan state law claim for tortious interference with a business relationship (Count V). Defendants move for judgment on the pleadings for all claims under Fed. R. Civ. P. 12(c). (ECF No. 33).

II. LEGAL STANDARDS

A. Judgment on the Pleadings.

Fed. R. Civ. P. 12(c) permits a party to move for judgment on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” Courts analyze motions for judgment on the pleadings under the same standards as motions to dismiss under Fed. R. Civ. P. 12(b)(6). Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012). Consequently, to survive a motion for judgment on the pleadings, Plaintiffs must allege facts that—taken as true by the Court—are sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement is satisfied if Plaintiffs’ well-pleaded factual allegations “allow[ ] the court to draw the reasonable inference that [Defendants are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rule 12(c) permits the Court to consider matters of public record and documents “referred to in the pleadings [that are] integral to the claims,” even if they are not attached to the pleadings. Com. Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007). Here, Plaintiffs’ claims center on the December 2019 search warrants for the Clinic and the Kues's home and whether those warrants and the materials uncovered during their execution provided a sufficient legal foundation for the court and administrative proceedings that followed. The Court therefore agrees with the parties that it may look to the December 4 search warrants, (ECF No. 34 at PageID.240–60, 262–82), the Civil Forfeiture Complaint, (ECF No. 54 at PageID.396–408), and the Michigan Board of Medicine's Final Order ² , (id. at PageID.410–25), without converting Defendants’ motion into one for summary judgment.³ See Com. Money Ctr., 508 F.3d at 335–36; Fed. R. Civ. P. 12(d).

B. Qualified Immunity.

Defendants maintain they are protected from Plaintiffs’ claims by qualified immunity. Qualified immunity shields state and local officials from personal liability when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S. 73, 78 (2017) (per curiam) (quotation omitted). In reviewing Defendants’ qualified immunity defense, the Court considers: (1) whether Plaintiffs have asserted a violation of a constitutional right; and (2) whether the constitutional right was so clearly established at the time in question that every reasonable official in Defendants’ positions would have known that they were violating Plaintiffs’ constitutional rights. Rhodes v. Michigan, 10 F.4th 665, 672 (6th Cir. 2021). The Court may decide which of the two prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The Sixth Circuit has a “general preference not to grant qualified immunity based only on the pleadings.” Moderwell v. Cuyahoga Cnty., Ohio, 997 F.3d 653, 662 (6th Cir. 2021) (quotation omitted). Importantly, however, the rationale underpinning this “general preference” is that discovery is often necessary for a court to “fairly tell whether a case is ‘obvious’ or ‘squarely governed’ by precedent ․ for purposes of determining whether a right is clearly established.” Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019) (quotation omitted). This rationale “does not at all cover qualified immunity's first prong—whether the complaint plausibly alleged a constitutional violation.” Myers v. City of Centerville, Ohio, 41 F.4th 746, 759 (6th Cir. 2022) (emphasis in original). Granting qualified immunity on a Fed. R. Civ. P. 12(c) motion is thus appropriate if—taking Plaintiffs’ well-pleaded factual allegations as true—Plaintiffs did not plausibly plead constitutional violations. Id. For the reasons discussed below, that is the situation here.

III. FOURTH AMENDMENT CLAIMS (COUNTS I AND II)

A. Search Warrants.

1. Legal Standards. Plaintiffs ⁴ first claim that Defendants violated their Fourth Amendment rights to be free from unreasonable searches and seizures because the search warrants for the Clinic and the Kues's home were “unsupported by probable cause.” (ECF No. 1 ¶¶ 31–32 at PageID.6). The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by oath or affirmation.” U.S. Const. amend. IV. Probable cause “does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction” beyond a reasonable doubt. Adams v. Williams, 407 U.S. 143, 149 (1972). Instead, the Court “evaluate[s] generally” the circumstances when Defendants obtained the search warrants, id., and the probable cause standard is satisfied so long as there was a “fair probability, given the totality of the circumstances, that contraband or evidence of a crime w[ould] be found” at the Clinic or the Kues's home at that time, Illinois v. Gates, 462 U.S. 213, 238 (1983). “Time and again the Supreme Court has emphasized that probable cause is not a high bar to clear.” United States v. Christian, 925 F.3d 305, 311 (6th Cir. 2019) (en banc) (cleaned up).

Sixth Circuit precedent “offers a complete [qualified immunity] defense” to § 1983 Fourth Amendment search and seizure claims “when officers relied on a magistrate judge's warrant.” Novak v. City of Parma, Ohio, 33 F.4th 296, 305–06 (6th Cir. 2022) (collecting cases). And here, Defendants indisputably obtained warrants from a state court judge before searching the Clinic and the Kues's home. (ECF No. 34 at PageID.240–60, 262–82). As Plaintiffs point out, however, there are two situations in which this defense does not apply. The first is when “the warrant is so lacking in indicia of probable cause, that official belief in the existence of probable cause is unreasonable.” Id. at 306 (quotation omitted). The second is when the officers knowingly or recklessly made material false statements or significant omissions to the magistrate in support of their warrant application. Id. In this second situation, the Court must “set aside the false statements and include the information omitted in order to determine whether the affidavit is still sufficient to establish probable cause.” Tlapanco v. Elges, 969 F.3d 638, 649 (6th Cir. 2020) (cleaned up). Neither exception applies here.

2. Sufficient Indicia of Probable Cause.

Michigan law bars licensed physicians from “dispens[ing], prescrib[ing], or administer[ing] a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner.” Mich. Comp. Laws § 333.7401. Moreover, even if a physician behaved carelessly in prescribing controlled substances, she cannot be held criminally liable under § 333.7401 if she acted in an “honest” or “good faith” effort to comply with the prevailing standard of care. See, e.g., People v. Hopkins, No. 224027, 2002 WL 433166, at *2 (Mich. App. Mar. 19, 2002) (per curiam). Plaintiffs rely on this “good faith” escape hatch and repeatedly argue that Defendants’ “decision to bootstrap what is, at best, a claim for medical negligence into a claim of criminal conduct is well outside of what any reasonable officer would do.” (See, e.g., ECF No. 59 at PageID.514 (emphases in original)). Plaintiffs also contend that Brice's Affidavits do not contain any allegations that Kue engaged in “any clandestine meetings or cash handoffs ․ [or that she was] faking patient records or selling drugs”—circumstances Plaintiffs assert that one would expect to see if Kue were truly “running a ‘pill mill.’ ” (See, e.g., id. at PageID.511).

But a commonsense evaluation of Brice's investigation and the corresponding search warrant Affidavits justifies the magistrate's finding of probable cause. The investigation raised numerous “red flags” for Brice based on his extensive training and experience handling drug-related investigations. These red flags included prescription data showing a high volume of prescriptions for Clonazepam, Alprazolam, and Tramadol; an “unusual[ly] high” ratio of insurance payments for prescriptions compared to office visits; suspicious statements by other patients at the Clinic; Brice's and two other Defendants’ own obtainment of prescriptions and refills for Klonopin after only brief appointments with Kue; and the outside physician's opinion that Kue's examinations and lack of documentation fell far below the standard of care.

One could potentially view Kue's prescribing history and behavior as consistent with “mere” medical malpractice. Kue's actions are also perhaps partially explained by the Clinic's underserved clientele—a demographic group that Plaintiffs maintain has a greater need for drugs like Clonazepam and Alprazolam due to higher rates of anxiety and depression. “But probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts,” District of Columbia v. Wesby, 583 U.S. 48, 61 (2018), and Kue's practice of repeatedly doling out controlled substances to patently drug-seeking patients without first inquiring into their medical or psychiatric need for these drugs is also consistent with that of a physician who has some sort of illegal motive—such as a monetary incentive—to prescribe these controlled substances to her patients. Viewed in this light, Kue's actions would clearly not be an “honest” or “good faith” effort to treat her patients in accordance with the standard of care. Accordingly, the Court concludes that the search warrants were supported by probable cause. At the very least, the warrants were not “so lacking in the indicia of probable cause” that no reasonably competent officer would have relied on the warrants, see Novak, 33 F.4th at 306 (quotation omitted), so the first exception does not apply.

3. False or Omitted Statements.

The second exception—which applies when the officer's affidavit contains material false or deliberately misleading statements or omissions—fares no better for Plaintiffs. Neither Plaintiffs’ Complaint nor their brief identify any affirmatively false statements in Brice's Affidavits. And Plaintiffs’ assertion that Brice deliberately or recklessly omitted material information from his Affidavits essentially collapses to an argument that Brice refused to list out potentially innocent explanations for Kue's prescribing history and behavior. As discussed above, however, failure to rule out innocent explanations is not required to satisfy the probable cause standard, and the totality of the circumstances here gave Brice plenty of reasons to doubt Kue's innocence. See Wesby, 583 U.S. at 62. Defendants are therefore entitled to the shield of immunity conferred by the magistrate's issuance of the warrants for Plaintiffs’ Fourth Amendment unreasonable search or seizure claim.

B. Malicious Prosecution.

Plaintiffs ⁵ also assert that Defendants violated the Fourth Amendment by maliciously pursuing criminal, civil forfeiture, and administrative medical licensing proceedings against them. To succeed on a Fourth Amendment malicious prosecution claim, a plaintiff must prove that: “(1) the defendant made, influenced, or participated in the decision to [criminally] prosecute; (2) the government lacked probable cause; (3) the proceeding caused the plaintiff to suffer a deprivation of liberty; and (4) the prosecution ended in the plaintiff's favor.” Lester v. Roberts, 986 F.3d 599, 606 (6th Cir. 2021) (quotation omitted). But authorities never criminally prosecuted Kue. The Court knows of no case law expanding the malicious prosecution doctrine to prosecutors’ mere contemplation of criminal charges, and it declines to do so now. In the Court's view, allowing a malicious prosecution claim to move forward in this situation would irreconcilably conflict with the Fourth Amendment constitutional underpinning for these claims. Malicious prosecution claims are grounded in the Fourth Amendment because they are a type of “unreasonable seizure.” See, e.g., Sykes v. Anderson, 625 F.3d 294, 310 (6th Cir. 2010). When, as here, no prosecution ever occurred, the Court struggles to see how a prosecutor could possibly have “seized” a plaintiff—much unreasonably so.

Even if Plaintiffs could successfully anchor a malicious prosecution claim on hypothetical criminal proceedings, “[i]t is absolutely clear ․ that an officer will not be deemed to have commenced a criminal proceeding against a person when the claim is predicated on the mere fact that the officer turned over to the prosecution the officer's truthful materials.” Sykes, 625 F.3d at 314 (emphasis in original) (collecting cases). Here, although Plaintiffs contend that Defendants presented “unfounded and falsely manufactured facts” to prosecutors, (ECF No. 1 ¶¶ 42, 44 at PageID.8–9), these “factual allegations” are unsupported legal conclusions that the Court must discard in deciding Defendants’ Rule 12(c) motion, see supra Part III.A.3. Moreover, even the most generous reading of the “criminal prosecution” requirement would plainly exclude the civil forfeiture and administrative medical licensing proceedings Plaintiffs attempt to lump into their malicious prosecution claim. Focusing exclusively on Plaintiffs’ well-pleaded allegations, the Court concludes that Defendants are protected by qualified immunity from Plaintiffs’ Fourth Amendment malicious prosecution claim.

IV. FOURTEENTH AMENDMENT CLAIM (COUNT III)

A. Legal Standards

Plaintiffs also bring a Fourteenth Amendment substantive due process claim against Defendants on the basis that Defendants arbitrarily deprived them of their liberty interest in their reputations and good names. The Fourteenth Amendment prohibits States from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “Substantive due process ‘prevents the government from engaging in conduct that shocks the conscience ․ or interferes with rights implicit in the concept of ordered liberty.’ ” Prater v. City of Burnside, Ky., 289 F.3d 417, 431 (6th Cir. 2002) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). Negligent tortious conduct is categorically insufficient to satisfy this high shocks-the-conscience standard. Range v. Douglas, 763 F.3d 573, 590 (6th Cir. 2014). To be conscience-shocking, the conduct at issue must “violate[ ] the decencies of civilized conduct ․ [and involve] actions so brutal and offensive that [they do] not comport with traditional ideas of fair play and decency.” Id. at 589–90 (quotations omitted). Plaintiffs have not made that showing here.

B. Kue's Professional Reputation.

A person's professional reputation and good name are protected liberty interests under the due process clause of the Fourteenth Amendment. Parrino v. Price, 869 F.3d 392, 398 (6th Cir. 2017). However, to the extent Kue asserts that prosecutors’ contemplation of criminal charges and the Michigan Board of Medicine's administrative medical license disciplinary proceedings deprived her of her protected liberty interest in her professional reputation, she has failed to “demonstrate stigmatizing government action which so negatively affects her reputation that it effectively forecloses the opportunity to practice a chosen profession.” Edelstein v. Gmoser, No. 21-3292, 2022 WL 4372200, at *3 (6th Cir. Aug. 29, 2022) (cleaned up).

Again, prosecutors declined to bring charges against Kue. Moreover, Michigan's Board of Medicine ultimately only found her liable for medical negligence and imposed one year of probation, instead of suspending or revoking her medical license. Kue thus was (and still is) free to continue practicing medicine, subject to the terms of her probation. Even though this may make Kue less attractive to other employers or make it more difficult for her to operate her own clinic, it “leaves open a definite range of opportunity” for Kue in medicine and therefore “does not constitute a liberty deprivation.” Joelson v. United States, 86 F.3d 1413, 1420–21 (6th Cir. 1996) (quotation omitted).

Even if Kue did face a loss of status or any other reputational damage because of these proceedings, there was no lack of procedural or substantive due process. As discussed above, the search warrants that played a part in the Board of Medicine initiating administrative licensing proceedings against Kue were supported by probable cause. Moreover, Plaintiffs’ assertions that Defendants made false statements to the Board of Medicine are wholly unsubstantiated, and Plaintiffs have not alleged that the medical licensing proceedings were otherwise improper or irregular in any way.

C. Civil Forfeiture Proceedings.

The Court also rejects Plaintiffs’ substantive due process claims premised on the civil forfeiture proceedings for over $90,000 in various checking and savings accounts in Kue's name—including several accounts she held jointly with her husband and two children. But authorities later dropped the forfeiture proceedings, meaning that the money in those accounts was never actually forfeited. Without an actual forfeiture, the Court finds it hard to imagine how Plaintiffs were deprived of a protectable fundamental property interest, as required to succeed on a substantive due process claim.

Nonetheless, the four-month delay between the March 5, 2020 initiation of the civil forfeiture proceedings and their dismissal on July 22, 2020 is hardly conscience-shocking conduct. Cf. Ostipow v. Federspiel, 824 F. App'x at 345 (noting that substantive due process “may not be used as a stand-in to address a failed takings claim” and affirming dismissal of a substantive due process claim based on county sheriff's extensive delay in paying on judgment reversing a civil asset forfeiture). Nor is there any indication that Defendants encouraged the civil forfeiture proceeding for reasons that “violate[d] the decencies of civilized conduct.” See Prater, 289 F.3d at 431. In the Forfeiture Complaint, Defendant Garrison explained that Kue used these accounts for business purposes and that he believed further investigation would show they contained proceeds from Kue's alleged illegal prescribing of controlled substances to her patients. (ECF No. 54 ¶¶ 14, 20–24 at PageID.401, 405–07). And as the Court has repeatedly emphasized in this Order, Plaintiffs have not provided any support for their bareboned assertions that Defendant Garrison and the other Defendants fabricated their statements or otherwise abused their power to oppress Plaintiffs. Because Plaintiffs have failed to plausibly plead a substantive due process violation, Defendants are entitled to qualified immunity on this claim.

V. CONSPIRACY CLAIM (COUNT IV)

Plaintiffs’ final federal claim is that Defendants conspired to violate Plaintiffs’ Fourth and Fourteenth Amendment rights.⁶ To prevail on a civil conspiracy claim, Plaintiffs must show that “(1) a single plan existed, (2) [Defendants] shared in the general conspiratorial objective to deprive [Plaintiffs] of [their] constitutional (or federal statutory) rights, and (3) an overt act was committed in furtherance of the conspiracy that caused injury to [Plaintiffs].” Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (quotation omitted). But there is nothing beyond Plaintiffs’ conclusory allegations to support their contention that Defendants shared in a common conspiratorial objective to deprive Plaintiffs of their constitutional rights. More fundamentally, to defeat Defendants’ claim for qualified immunity on a § 1983 conspiracy claim, Plaintiffs must show an underlying constitutional violation. See, e.g., Umani v. Michigan Dep't of Corr., 432 F. App'x 453, 462 (6th Cir. 2011) (per curiam), and cases cited. As set forth in detail above, Plaintiffs have failed to do so here, so Defendants are protected by qualified immunity from Plaintiffs’ conspiracy claim.

VI. CONVERSION TO SUMMARY JUDGMENT MOTION

Initially, instead of responding to Defendants’ motion for judgment on the pleadings, Plaintiffs sought leave to file an Amended Complaint under Fed. R. Civ. P. 15(a)(2). The Court denied Plaintiffs’ request, ordering Plaintiffs to substantively respond to Defendants’ motion. (ECF No. 58 at PageID.496). The Court instructed Plaintiffs, however, that if their position “is that they can't defend the existing pleading and can only survive if they are permitted to amend, then they should say that.” (Id.).

Plaintiffs did not make this specific argument in their brief opposing Defendants’ motion, but they relatedly suggested that—as an “alternative” to ruling on the Fed. R. Civ. P. 12(c) motion—the Court should convert it to a Fed. R. Civ. P. 56 summary judgment motion and consider the “additional factual details” in their Proposed Amended Complaint. (ECF No. 59 at PageID.527–28). Plaintiffs contend that if the Court chose this “alternative” route, it would have to treat their Proposed Amended Complaint equivalently to an affidavit because Kue “verified” it under penalty of perjury. See, e.g., El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008). (Id.; ECF No. 54 at PageID.486–87). According to Plaintiffs, this means the Court would have to deny summary judgment to Defendants because the new material in Plaintiffs’ Proposed Amended Complaint creates genuine disputes of material fact about each of the constitutional violations alleged. (ECF No. 59 at PageID.527–28).

The Court closely examined Plaintiffs’ Proposed Amended Complaint. The new material consists only of inconsequential nit-picks; more possible innocent explanations for Kue's behavior; and additional conclusory assertions that Defendants made falsified or misleading statements or omissions. None of these allegations sufficiently demonstrate that Defendants violated Plaintiffs’ Fourth or Fourteenth Amendment rights, so the Court denies Plaintiffs’ “alternative argument.” See, e.g., Cooper v. Parrish, 203 F.3d 937, 951 (6th Cir. 2000) (“Although a district court should give plaintiffs an opportunity to amend a complaint once a qualified immunity defense is raised, plaintiffs cannot overcome a motion to dismiss on qualified immunity grounds unless they allege facts necessary to show that a defendant has violated their constitutional rights.”).

VI. TORTIOUS INTERFERENCE CLAIM (COUNT V)

In addition to their federal claims, Plaintiffs bring a Michigan common law claim for tortious interference with a business relationship. The only jurisdictional basis for this claim is the supplemental jurisdiction statute, and because the Court has dismissed all of the federal claims, it declines to exercise supplemental jurisdiction over the tortious interference claim. See 28 U.S.C. § 1367(c)(3). The Court therefore dismisses Plaintiffs’ state law tortious interference claim without prejudice.

ACCORDINGLY, IT IS ORDERED THAT Defendants’ motion for judgment on the pleadings, (ECF No. 33), is GRANTED.

IT IS FURTHER ORDERED THAT Plaintiffs’ motion to convert Defendants’ motion to a Fed. R. Civ. P. 56(a) motion for summary judgment, (ECF No. 59 at PageID.527–28), is DENIED. The Court considered the allegations in Plaintiffs’ Proposed Amended Complaint, (ECF No. 54 at PageID.441–87), as part of the Fed. R. Civ. P. 12(c) analysis and found that they would not change the Court's conclusion that Defendants are entitled to dismissal.

IT IS SO ORDERED.

FOOTNOTES

1.   Defendants are Michigan State Police Troopers Samuel North, Brett Brice, Benjamin Garrison, Scott Josephs, and Thomas Proffitt.

2.   The Final Order is also publicly available online. Mich. Dep't of Licensing & Regul. Affs., Licensed Professional Information: Medical Doctor 4301073064, https://aca-prod.accela.com/MILARA/GeneralProperty/LicenseeDetail.aspx?LicenseeNumber=4301073064&LicenseeType=Medical+Doctor.

3.   The parties submitted additional documents that they argue should be considered at the pleadings stage, such as bank warrants based on checks Defendants found in the Clinic while executing the search warrants. (See, e.g., ECF No. 34 at PageID.283–97, 299–312). But these documents are neither referred to in the pleadings nor integral to Plaintiffs’ claims, so the Court does not consider them here.

4.   Both the Kues and the Clinic appear to assert these Fourth Amendment claims. (See, e.g., ECF No. 1 ¶¶ 31–32 at PageID.6 (“Defendants ․ violated Plaintiffs’ clearly established and federally protected rights.” (emphasis added))). The operative Complaint does not carefully parse the particulars of each Plaintiff's potential Fourth Amendment claim against each particular Defendant. This obscures the reality that each Plaintiff's claim is different and that not each Plaintiff has standing to bring all asserted claims. For example, Plaintiff Simon Kue probably does not have a reasonable expectation of privacy in the Clinic, and the Clinic probably has no basis to complain about Defendants’ search of the Kues's home. But because no Fourth Amendment violation occurred at all, the Court will assume that all three Plaintiffs have Fourth Amendment standing and that each claim can be brought against all Defendants.

5.   Plaintiffs’ counsel again fails to parse the particulars of each Plaintiff's potential claim against each Defendant. Indeed, Plaintiffs’ counsel has phrased the Complaint in a way that suggests all of the Plaintiffs can bring all of the claims asserted in the Complaint against all of the Defendants. This is clearly not true. But because Plaintiffs have not sufficiently pleaded any constitutional violations, the Court will focus on the merits of Plaintiffs’ claims.

6.   Plaintiffs’ Complaint does not specify whether their conspiracy claim is grounded in federal or state law, but because Plaintiffs’ brief treats this claim as a “§ 1983 conspiracy claim,” the Court will do so as well. (See, e.g., ECF No. 59 at PageID.522–23). But this has no impact on the result, because under Michigan law, a conspiracy claim cannot exist independent of an actionable tort (here, a constitutional violation), and Plaintiffs have not sufficiently pleaded that any constitutional violations occurred here. See, e.g., Advoc. Org. for Patients & Providers v. Auto Club Ins. Ass'n, 670 N.W.2d 569, 580 (Mich. App. 2003), aff'd, 693 N.W.2d 358 (2005).

ROBERT J. JONKER UNITED STATES DISTRICT JUDGE