George Marvaso v. Richard Sanchez

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0272p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
19-1857 ┐
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GEORGE MARVASO; MARY MARVASO; GEORGE F.
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MARVASO, SUNDAY GAINS,
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Plaintiffs-Appellees, │ Nos. 19-1857/1870/1882
>
│
v. │
│
RICHARD SANCHEZ, │
Defendant-Appellant. │
│
│
19-1870/1882 │
GEORGE MARVASO; MARY MARVASO; GEORGE F. │
MARVASO, │
Plaintiffs-Appellees, │
│
│
v. │
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JOHN ADAMS and MICHAEL J. REDDY, JR. (19-1882); │
MICHAEL J. REDDY, SR. (19-1870), │
│
Defendant-Appellant.
│
┘
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
Nos. 4:18-cv-12193 (19-1857); 4:18-cv-12442 (19-1870/1882)—Linda V. Parker, District Judge.
Argued: April 30, 2020
Decided and Filed: August 21, 2020
Before: COLE, Chief Judge; CLAY and NALBANDIAN, Circuit Judges.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 2
_________________
COUNSEL
ARGUED: John G. Fedynsky, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant Sanchez. Michael M. McNamara, FAUSONE BOHN, LLP,
Northville, Michigan, for Appellant Reddy, Sr. in 19-1870. Stanley I. Okoli, CUMMINGS,
MCCLOREY, DAVIS & ACHO, Livonia, Michigan, for Appellants Adams and Reddy, Jr. in
19-1882. Wolfgang Mueller, WOLF MUELLER LAW, Novi, Michigan, for Appellees.
ON BRIEF: John G. Fedynsky, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant Sanchez. Michael M. McNamara, Benjamin A. Tigay,
FAUSONE BOHN, LLP, Northville, Michigan, for Appellant Reddy, Sr. Stanley I. Okoli,
CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia, Michigan, for Appellants Adams and
Reddy, Jr. in 19-1882. Wolfgang Mueller, WOLF MUELLER LAW, Novi, Michigan, for
Appellees.
CLAY, J., delivered the opinion of the court in which COLE, C.J., joined.
NALBANDIAN, J. (pp. 16–23), delivered a separate dissenting opinion.
_________________
OPINION
_________________
CLAY, Circuit Judge. This 42 U.S.C. § 1983 action arises from a criminal investigation
of Plaintiffs for a fire that occurred at their restaurant in Westland, Michigan. In Case No.
19-1882, Defendants John Adams and Michael Reddy Jr. appeal the district court’s denial of
their motion to dismiss Plaintiffs’ civil conspiracy claim on qualified immunity grounds. In Case
No. 19-1870, Defendant Michael Reddy Sr. appeals the district court’s denial of his motion to
dismiss Plaintiffs’ civil conspiracy claim for failure to state a claim on which relief can be
granted. And in Case No. 19-1857, Defendant Richard Sanchez appeals the district court’s
denial of his motion to dismiss Plaintiffs’ Fourth Amendment unlawful search and seizure claim
on qualified immunity grounds. For the reasons that follow, we dismiss Reddy Sr.’s appeal for
lack of jurisdiction and affirm the district court’s order with respect to the other Defendants.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 3
BACKGROUND
A. Plaintiffs’ Civil Conspiracy Allegations
In August 2018, Plaintiffs sued Defendants John Adams, Michael Reddy Jr., and Michael
Reddy Sr. under § 1983, claiming that those three individuals engaged in an unlawful civil
conspiracy to falsify evidence and thereby wrongfully cause Plaintiffs to be criminally
investigated for homicide by arson. See Marvaso v. Adams, No. 4:18-cv-12442, 2019 WL
3003641 (E.D. Mich. July 10, 2019). Their first amended complaint alleged the following facts:
Plaintiffs lease and operate a restaurant called Marvaso’s Italian Grille. The restaurant is
adjoined by a charity pool hall and poker facility, Electric Stick, which Plaintiffs also lease and
operate. On the morning of May 8, 2013, a fire broke out in the kitchen of Marvaso’s and spread
to Electric Stick. Within ten minutes of receiving the emergency calls, the City of Wayne-
Westland Fire Department responded. The firefighters eventually succeeded in putting out the
fire, but in the process a probationary firefighter, Brian Woelke, died from smoke and soot
inhalation.
The Michigan State Police Department initially offered to investigate the cause and origin
of the fire, but Defendant John Adams (the Wayne-Westland Fire Marshal) and Defendant
Michael Reddy Jr. (the Wayne-Westland Fire Chief) declined. They chose instead to have the
Fire Department conduct the investigation itself. Within two days, Adams completed his on-
scene investigation. He found no evidence of accelerants. Two other investigators, one
representing Plaintiffs’ landlord and the other representing Plaintiffs’ insurer, also investigated
the cause of the fire. They each found the cause of the fire to be “undetermined.”
From May 8, 2013 until June 30, 2013, the Michigan Occupational Safety and Health
Administration (MIOSHA) investigated Brian Woelke’s death. It concluded that his death
resulted, at least in part, from the Fire Department’s multiple violations of health and safety
regulations. For example, it found that the Department did not establish and implement written
procedures for emergency operations, including a “two-in/two-out” rule, and failed to follow
procedures for issuing a mayday call as soon as the firefighters exited the building with one
firefighter missing. As a result, MIOSHA cited the Fire Department and assessed it a
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 4
$3,500 fine. In a September 2013 letter, the Fire Department admitted its violations and agreed
to pay the fine.
Meanwhile, according to Plaintiffs, Fire Marshal Adams, Fire Chief Reddy Jr., and his
father, retired Fire Chief Michael Reddy Sr., were planning a scheme to try to divert attention
away from the Fire Department for its involvement in Woelke’s death. At some point during the
period between June 27, 2013 and early September 2013, those three individuals met and had a
least one conversation during which they agreed to change the cause of the fire from accidental
or undetermined to “incendiary.” They knew that doing so would likely trigger an arson and
homicide investigation into Plaintiffs’ role in the fire. Prior to this conversation, Reddy Sr. had
taken the Marvasos’ daughter, Sunday Gaines, to lunch and told her, “You know I would do
anything to protect my family.” (No. 4:18-cv-12442, R. 22, Pg. ID 109.) In or about mid-
September 2013, Fire Marshal Adams had lunch with a Westland City Council member. Despite
having previously told the council member that the cause of the fire was electrical, Adams said
he was changing his conclusion to incendiary. When the council member asked why Adams was
changing his report, Adams responded, “Because a firefighter died, Bill.” (Id. at Pg. ID 111.)
In November 2013, “despite having received no new evidence,” Adams “suddenly
reversed course, concluding that the fire had an incendiary cause.” (Id. at Pg. ID 112.) Adams
then, in furtherance of the conspiracy, knowingly submitted the false fire report to the Michigan
State Police. Doing so triggered an unjustified homicide investigation into Plaintiffs, which
resulted in the search and seizure of their property, loss of employment, and “inability to rebuild
their family business” because of the loss of insurance proceeds. (Id. at Pg. ID 115–16.)
Plaintiffs were never arrested for any involvement in the fire and no charges against them were
ever brought. According to Plaintiffs, Adams’ intentionally false report was the only evidence of
any possible wrongdoing by Plaintiffs. They allege that their damages, including the searches of
their homes and seizure of their property, occurred as a direct result of this false report.
B. Plaintiffs’ Search and Seizure Allegations
In a separate lawsuit, Plaintiffs sued Defendant Lieutenant Richard Sanchez, alleging that
he falsified information in his application for a warrant to search Plaintiffs’ homes and illegally
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 5
searched their homes without probable cause to do so, in violation of the Fourth Amendment.
See Marvaso v. Sanchez, No. 4:18-cv-12193, 2019 WL 3003681 (E.D. Mich. July 10, 2019).
The first half of Plaintiffs’ complaint against Sanchez essentially mirrors their complaint
against Reddy Sr., Reddy Jr. and Adams. They alleged the circumstances surrounding the fire
and Brian Woelke’s death described above. They said that within two days of the fire, Adams
concluded that the fire was not caused by accelerants. They also alleged that two other
investigators found the cause of the fire to be “undetermined.” Although they did not include
their allegations regarding the conspiratorial conversation between Adams, Reddy Jr., and Reddy
Sr., they did allege that sometime in November 2013, despite receiving no new evidence, Adams
changed his conclusion regarding the cause of the fire to “incendiary.”
In four paragraphs, Plaintiffs then asserted their allegations against Lieutenant Sanchez:
41. On or about December 12, 2013, Defendant, Sanchez, swore out an affidavit
in support of a search warrant to seize numerous items from the homes of George
and Mary Marvaso, Geo Marvaso, and Sunday Gains.
42. The affidavit to support the search warrant lacked the necessary specificity to
warrant a person of reasonable caution to conclude that evidence of criminal
conduct would be in the stated place to be searched.
43. The facts to support the search warrant were knowingly false or were made
with reckless disregard for the truth and did not provide probable cause for the
search warrant and the invasion of Plaintiffs’ homes.
44. But for Sanchez[’s] intentionally and/or recklessly-made false statements,
there would have been no probable cause to secure a search warrant, because
there would have been no evidence of a crime.
(No. 4:18-cv-12193, R. 1, Pg. ID 10 (emphasis removed).) Plaintiffs did not specify which
statements in Sanchez’s affidavit were supposedly false.
C. Procedural History
Defendants Adams and Reddy Jr. moved to dismiss Plaintiffs’ claim against them
pursuant to Federal Rule of Civil Procedure 12(c). They argued that Plaintiffs’ allegations were
insufficient to support a § 1983 civil conspiracy claim and in any event, they were entitled to
qualified immunity from suit. Defendant Reddy Sr. also moved to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), claiming that he did not act under color of state law for
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purposes of § 1983 liability because he had retired as the Wayne-Westland fire chief in 1998 and
was not a public official at the time of the alleged conspiracy.
The district court denied Defendants’ motions to dismiss. It found that Plaintiffs
plausibly alleged each element of their civil conspiracy claim, and held that Reddy Sr., a private
citizen, could be held liable under § 1983 because he willfully participated in a conspiracy with
state actors. See, e.g., Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th Cir. 2000) (“If a private
party has conspired with state officials to violate constitutional rights, then that party qualifies as
a state actor and may be held liable pursuant to § 1983.”). Defendants now seek to appeal that
decision.
Defendant Lieutenant Sanchez also sought to dismiss Plaintiffs’ illegal search and seizure
claim against him. He moved for dismissal pursuant to Rule 12(b)(6) or in the alternative for
summary judgment pursuant to Rule 56. Sanchez argued a single ground for dismissal: that he is
entitled to qualified immunity because he relied “in objective good faith” on a judicially
approved warrant in conducting the searches. See Sanchez, 2019 WL 3003681, at *4
(“Lieutenant Sanchez makes one argument in support of his motion to dismiss. Specifically, he
claims that because a judicial officer issued the search warrants, he is entitled to qualified
immunity.”). The district court found this argument seriously misguided, given that the essence
of Plaintiffs’ complaint is that Sanchez lied when securing that warrant—i.e., that he acted in bad
faith. It accordingly denied Sanchez’s motion, finding that he was not entitled to qualified
immunity on the ground he asserted. Lieutenant Sanchez now appeals that decision.
DISCUSSION
A. Michael Reddy Sr. (Case No. 19-1870)
We begin by analyzing Michael Reddy Sr.’s appeal, as his is the easiest to resolve.
Ordinarily, this Court does not have jurisdiction to review a district court’s non-final order
denying a defendant’s motion to dismiss. Courtright v. City of Battle Creek, 839 F.3d 513, 517
(6th Cir. 2016) (citing 28 U.S.C. § 1291). There is a limited exception to this rule for orders
denying qualified immunity to a public official. Id. at 517–18; accord, e.g., Ashcroft v. Iqbal,
556 U.S. 662, 671–72 (2009). However, Reddy Sr. was not a public official either at the time of
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Plaintiffs’ alleged constitutional injury or at present. Instead, as he explains in his motion to
dismiss, he retired as the Wayne-Westland Fire Chief in 1998. Accordingly, although he is still
subject to § 1983 liability, he is not entitled to qualified immunity from suit. See, e.g., Vector
Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698 (6th Cir. 1996)
(“[A] party who is not a public official may be liable under 42 U.S.C. § 1983 and yet not be
entitled to qualified immunity because, if not a public official, the reason for affording qualified
immunity does not exist.” (citing Wyatt v. Cole, 504 U.S. 158 (1992))). Because the exception
for qualified immunity appeals does not apply and no other basis for appellate jurisdiction
exists,1 we dismiss Reddy Sr.’s appeal for lack of jurisdiction.
B. John Adams and Michael Reddy Jr. (Case No. 19-1882)
We next turn to Adams’ and Reddy Jr.’s appeal. Unlike Reddy Sr., Adams and Reddy Jr.
were public officials at the time of the alleged conspiracy and they moved for dismissal, in part,
on the grounds of qualified immunity. Therefore, we have jurisdiction over their appeal to
determine whether Plaintiffs’ complaint states a viable claim for relief. See, e.g., Iqbal, 556 U.S.
at 671–75.
1. Standard of Review
This Court reviews de novo a district court’s denial of a defendant’s motion to dismiss on
qualified immunity grounds. Courtright, 839 F.3d at 518. A motion to dismiss is properly
granted if the plaintiff has “fail[ed] to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). To survive a motion to dismiss, the plaintiff must allege facts that, if accepted
as true, are sufficient to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–57 (2007); see also Fed. R. Civ. P. 8(a)(2). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Thus,
1
We have sometimes exercised pendent jurisdiction over claims that are “inextricably intertwined” with the
qualified immunity issue. Vakilian v. Shaw, 335 F.3d 509, 521 (6th Cir. 2003); accord Meals v. City of Memphis,
493 F.3d 720, 727 (6th Cir. 2007). Two claims are “inextricably intertwined” if deciding one necessarily decides
the other. Vakilian, 335 F.3d at 521; accord Martin v. City of Broadview Heights, 712 F.3d 951, 963 (6th Cir.
2013). Because our resolution of the claims against the other defendants does not necessarily decide those against
Reddy Sr., there is no reason for us to exercise pendent jurisdiction over Reddy Sr.’s appeal.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 8
when evaluating a complaint’s sufficiency, we accept its factual allegations as true, draw all
reasonable inferences in the plaintiff’s favor, and only then determine whether those facts and
inferences plausibly give rise to an entitlement to relief. Doe v. Baum, 903 F.3d 575, 581 (6th
Cir. 2018).
In order to overcome a defendant’s qualified immunity defense at the motion to dismiss
stage, a plaintiff must plausibly allege facts showing “(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). This is a low bar, given that granting qualified immunity at the
motion to dismiss stage is usually disfavored. See, e.g., Courtright, 839 F.3d at 518 (“Although
an officer’s entitlement to qualified immunity is a threshold question to be resolved at the earliest
possible point, that point is usually summary judgment and not dismissal under Rule 12.”
(quoting Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015))); see also Wesley, 779 F.3d
at 433 (“[I]t is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on
the basis of qualified immunity.” (collecting cases)). Instead, even though we retain jurisdiction
over this type of appeal, this Court generally denies qualified immunity at the motion to dismiss
stage in order for the case to proceed to discovery, so long as the plaintiff states a plausible claim
for relief. See Courtright, 839 F.3d at 524; Wesley, 779 F.3d at 437.
2. Civil Conspiracy
The district court correctly held that Plaintiffs sufficiently pleaded each element of their
civil conspiracy claim. A civil conspiracy under § 1983 is “an agreement between two or more
persons to injure another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir.
2007). In order to survive dismissal, Plaintiffs needed to allege facts that, when accepted as true,
would allow a juror to find that “‘(1) a single plan existed, (2) the conspirators shared a
conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an overt act
was committed’ in furtherance of the conspiracy that caused the injury.” Robertson v. Lucas,
753 F.3d 606, 622 (6th Cir. 2014) (quoting Revis, 489 F.3d at 290). “Although circumstantial
evidence may prove a conspiracy, ‘[i]t is well-settled that conspiracy claims must be pled with
some degree of specificity and that vague and conclusory allegations unsupported by material
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facts will not be sufficient to state such a claim under § 1983.’” Heyne v. Metro. Nashville Pub.
Sch., 655 F.3d 556, 563 (6th Cir. 2011) (quoting Spadafore v. Gardner, 330 F.3d 849, 854 (6th
Cir. 2003)).
As the district court found, Plaintiffs’ complaint sufficiently alleges that a single plan
existed: “to draw attention from the Wayne-Westland Fire Department’s deficiencies that
resulted in Woelke’s death by suggesting that Plaintiffs intentionally set the fire and triggering a
criminal investigation of Plaintiffs.” Marvaso, 2019 WL 3003641, at *5. It further alleges that
Defendants shared a conspiratorial objective to deflect attention away from the Fire Department
by falsifying Adams’ cause and origin report, which would likely cause an unjustified criminal
investigation into Plaintiffs. See id. “Finally, Plaintiffs allege an overt act committed in
furtherance of the conspiracy: Fire Marshal Adams submitting a false fire origin and cause
report that concluded the fire had an incendiary cause” to the Michigan State Police. Id.
Defendants respond that Plaintiffs cannot show that a single plan existed because
Defendants were not directly involved in the Michigan State Police’s decision to investigate
Plaintiffs. They say that once the case was transferred to the Michigan State Police, Defendants
“lost sight of it, played no role in it and made no contributions to it. [Defendants] could not have
anticipated the ultimate outcome of the investigation, just as they could not have envisioned that
[Plaintiffs] would be served with search warrants in the course of the investigation.” (No.
19-1882, Appellants’ Br. at 24.) The district court construed this argument as disputing
causation.
“Like a tort plaintiff, a § 1983 plaintiff must establish both causation in fact and
proximate causation.” Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011); accord, e.g.,
Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 608 (6th Cir. 2007); see also Imbler
v. Pachtman, 424 U.S. 409, 418 (1976) (explaining that § 1983 “is to be read in harmony with
general principles of tort immunities and defenses rather than in derogation of them”). Plaintiffs
easily meet that burden here, at least for purposes of overcoming Defendants’ motion to dismiss.
Plaintiffs allege that submitting Adams’ false report (i.e., the conspiracy’s overt act) was the but-
for cause of the criminal investigation into Plaintiffs and the corresponding search of their
homes. According to the complaint, without the false report, Plaintiffs’ homes would not have
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been searched nor their property seized as part of the investigation. This is sufficient to allege
causation in fact.
With regard to proximate causation, the key issue is foreseeability. Powers, 501 F.3d at
609; United States v. Martinez, 588 F.3d 301, 319 (6th Cir. 2009). And as the district court
found, “[a]t this stage of the proceedings, based on the facts in Plaintiffs’ First Amended
Complaint, a reasonable jury could find it foreseeable that search warrants would be sought
relying on Fire Marshal Adams’ alleged false report in connection with the criminal
investigation.” Marvaso, 2019 WL 3003641, at *6. To be sure, at the summary judgment stage,
Defendants may be able to put on evidence that defeats Plaintiffs’ allegations of proximate
cause. For example, if Defendants offer uncontroverted evidence of a superseding cause that
cuts off the otherwise foreseeable chain of causation, then the district court might find that they
are entitled to judgment as a matter of law. However, at this stage of the proceedings, Plaintiffs
have sufficiently alleged that Defendants’ conspiracy was the cause in fact and proximate cause
of their constitutional injury, and any further causal weakness should be considered at the
summary judgment stage rather than on a motion to dismiss. See Trollinger v. Tyson Foods,
Inc., 370 F.3d 602, 615 (6th Cir. 2004) (“[S]ince ‘we presume that general allegations embrace
those specific facts . . . necessary to support the claim,’ other causal weaknesses will more often
be fodder for a summary-judgment motion under Rule 56 than a motion to dismiss under Rule
12(b)(6).” (quoting NOW v. Scheidler, 510 U.S. 249, 256 (1994))).
Defendants’ other arguments for dismissal are likewise meritless. They argue that
Plaintiffs’ civil conspiracy claim is barred by the intracorporate conspiracy doctrine, relying on
this Court’s recent decision in Jackson v. City of Cleveland, 925 F.3d 793, 817–20 (6th Cir.
2019). In Jackson, we held that the intracorporate conspiracy doctrine, which provides that
members of the same legal entity acting within the scope of their employment cannot form a
conspiracy as two separate “people,” applies to claims brought under § 1983. Id. at 819. But we
also recognized a broad exception to the doctrine’s applicability “where the defendants were
alleged to have been acting outside the scope of their employment.” Id. (citing Johnson v. Hills
& Dales Gen. Hosp., 40 F.3d 837, 841 (6th Cir. 1994)). Defendants do not dispute that
falsifying a fire and origin report would be outside of Adams’ and Reddy Jr.’s scope of
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employment. And even if they were to dispute that allegation, such an argument should be
considered on a motion for summary judgment, as in Jackson, rather than on a motion to dismiss.
Moreover, Reddy Sr. was not employed by the Wayne-Westland Fire Department at the time of
the alleged conspiracy, and so the doctrine would not bar Plaintiffs’ claim that Adams and Reddy
Jr. conspired with him.
Defendants further argue that Plaintiffs’ complaint “lacks the requisite specificity” and
fault Plaintiffs for not alleging that Defendants “had any kind of animosity” towards Plaintiffs.
(No. 19-1882, Appellants’ Br. at 26–27.) But animosity is not an element of a civil conspiracy
claim. See Revis, 489 F.3d at 290. And even if it were, we would find that Plaintiffs have
sufficiently alleged that Defendants submitted falsified evidence to the state police for the very
purpose of triggering an unjustified criminal investigation into Plaintiffs. In addition, Plaintiffs’
complaint includes specific and plausible facts regarding Defendants’ conspiratorial conversation
and agreement, in addition to the overt acts taken in furtherance of that conspiracy. The issue
that Defendants appear to take with Plaintiffs’ allegations is whether or not Plaintiffs will be able
to prove those allegations at later stages of the proceedings, not whether those allegations state a
plausible claim for relief. Cf. Twombly, 550 U.S. at 555–57; Iqbal, 556 U.S. at 678–80.
For these reasons and those given in the district court’s order, Plaintiffs have adequately
alleged that Defendants Adams and Reddy Jr. engaged in an unlawful conspiracy to fabricate
evidence and thereby caused Plaintiffs’ constitutional injury. Moreover, as the district court
found, it was certainly clearly established at the time of Plaintiffs’ constitutional injury that the
“knowing fabrication of evidence violates constitutional rights.” Marvaso, 2019 WL 3003641,
at *6 (citing Mills v. Barnard, 869 F.3d 473, 486 (6th Cir. 2017); Gregory v. City of Louisville,
444 F.3d 725, 744 n.8 (6th Cir. 2006)). And in any event, as noted above, “it is generally
inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity.” Wesley, 779 F.3d at 433; see, e.g., Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016)
(“[I]f the qualified immunity questions presented are fact-intensive, the record may not be
adequately developed to evaluate the defense at the pleading stage under Rule 12(b)(6).”);
Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 235 (6th
Cir. 2005) (Sutton, J., concurring) (“Absent any factual development beyond the allegations in a
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complaint, a court cannot fairly tell whether a case is ‘obvious’ or ‘squarely govern[ed]’ by
precedent, which prevents us from determining whether the facts of this case parallel a prior
decision or not.” (alteration in original and citations omitted)).
C. Lieutenant Sanchez (Case No. 19-1857)
We turn then to Plaintiffs’ separate action against Lieutenant Sanchez. As noted above,
Plaintiffs allege that Lieutenant Sanchez made materially false statements and omissions in his
application for a warrant to search Plaintiffs’ homes. It is clearly established in this circuit that a
search of a plaintiff’s residence must be conducted pursuant to a warrant, “unless both ‘probable
cause plus exigent circumstances’ exist.” United States v. McClain, 444 F.3d 556, 561 (6th Cir.
2005) (quoting Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (per curiam)). And, as relevant here,
it was clearly established at the time of Sanchez’s alleged conduct that “[p]olice officers cannot,
in good faith, rely on a judicial determination of probable cause when that determination was
premised on an officer’s own material misrepresentations to the court.” Wesley, 779 F.3d at 433
(alteration in original) (quoting Gregory, 444 F.3d at 758).
Nevertheless, Sanchez moved to dismiss Plaintiffs’ complaint against him in the district
court by arguing that he was entitled to qualified immunity because he searched Plaintiffs’
homes pursuant to a judicially secured warrant. He attached his search warrant affidavit as an
exhibit to his motion.2 Sanchez’s search warrant affidavit first stated that “[a]lmost immediately
after the fire was extinguished, Westland Police received tips that the fire was suspicious and
most likely an arson fire.” (No. 4:18-cv-12193, R. 7-1, Pg. ID 45.) It stated that a bar patron
named Andrew Baldoni said that Plaintiffs had placed construction materials in the ceiling of the
building and started the fire themselves. However, in an interview with police, Baldoni denied
having actual knowledge of the origin of the fire and was simply repeating the local gossip.
2
The district court considered Sanchez’s affidavit when ruling on his motion to dismiss because it was
referred to in Plaintiffs’ complaint and is central to Plaintiffs’ claims against Sanchez. See Marvaso, 2019 WL
3003681, at *2 (“When a court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and any
exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to [the]
defendant’s motion to dismiss, so long as they are referred to in the [c]omplaint and are central to the claims
contained therein.” (alterations in original) (quoting Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008))).
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 13
The affidavit further provided that another person, Sean Quigley, reported to police that
he had seen two vehicles in the restaurant’s parking lot a few hours before the fire (i.e., very
early in the morning), and Fire Marshal Adams reported that he saw George Marvaso Jr. driving
a vehicle that matched one of the descriptions. The affidavit next stated that a relative of the
Marvasos, Robert Mulka, told sheriff’s deputies that George Marvaso, Sr. “was distraught over
the fire because it was supposed to be an insurance job and no one was supposed to get hurt.”
(Id. at Pg. ID 46.) The affidavit then went on to describe Fire Marshal Adams’ false report,
discussed above. It stated, “In his cause an[d] origin report, Adams described finding two points
of origin in the building. . . . He concluded and opined that the fire was incendiary in nature and
resulted from an ‘open flame’ applied by human hands to combustibles to start this fire.” (Id.)
Finally, the affidavit summarized the Marvasos’ financial situation. It stated that George
Marvaso Sr. “had been in bankruptcy since 2007 and was currently making monthly payments to
satisfy his long term debt.” (Id.) It provided that Marvaso was going through financial
difficulties at the time of the fire, owed overdue property and business taxes, and had increased
the insurance coverage on his businesses from $400,000 to $600,000 three to four months before
the fire.
In their response to Sanchez’s motion to dismiss, Plaintiffs moved to amend their
complaint to add further allegations regarding the specific false statements. They argued that to
the extent the district court construes Sanchez’s motion as a motion for summary judgment and
considers the search warrant affidavit in its ruling, it should deny the motion as premature
because no discovery had occurred. They claimed that discovery would give them more time to
explore the following false statements and omissions: (1) Sanchez’s omission that two
investigators found that the origin of the fire was “undetermined”; (2) Sanchez’s false statement
that Mulka told the sheriff’s deputy that he believed Plaintiffs started the fire and it was supposed
to be an insurance job;3 and (3) Sanchez’s false portrayal of Plaintiffs as in financial distress and
his omission of information relating to their financial health and recent documented renovations
to the property.
3
Plaintiffs attached an affidavit from Robert Mulka to their response to Sanchez’s motion to dismiss.
Mulka’s affidavit denies ever making the statements that Sanchez attributed to him.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 14
The district court did not rule on Plaintiffs’ motion to amend because it found that
Sanchez had forfeited any argument that Plaintiffs’ allegations were insufficient by failing to
raise it in his motion to dismiss. See Marvaso, 2019 WL 3003681, at *5 n.2. Instead, it denied
Sanchez’s motion to dismiss by rejecting the single ground raised by Sanchez: that he relied on
a judicially secured warrant in good faith, and therefore was immune from suit. The district
court was correct in doing so.
Generally, “[p]olice officers are entitled to rely on a judicially secured warrant for
immunity from a § 1983 action for illegal search and seizure unless the warrant is so lacking in
indicia of probable cause, that official belief in the existence of probable cause is unreasonable.”
Yancey v. Carroll Cty., 876 F.2d 1238, 1243 (6th Cir. 1989). Moreover, “[w]here the alleged
Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a
neutral magistrate has issued a warrant is the clearest indication that the officers acted in an
objectively reasonable manner or, as we have sometimes put it, in ‘objective good faith.’”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (footnote omitted) (quoting United States
v. Leon, 468 U.S. 897, 922–23 (1984)).
However, there is an important exception to this general rule that provides that “an
officer cannot rely on a judicial determination of probable cause if that officer knowingly makes
false statements and omissions to the judge such that but for these falsities the judge would not
have issued the warrant.” Yancey, 876 F.2d at 1243. That is precisely the situation that Plaintiffs
allege here. And yet, in his motion to dismiss, Sanchez simply asserted that he relied on the
warrant in good faith and did not make any materially false statements or omissions. But that
argument has nothing to do with the sufficiency of Plaintiffs’ complaint or adequacy of their
allegations regarding Sanchez’s bad faith. Instead, to the extent that Sanchez seeks to argue that
Plaintiffs cannot demonstrate a genuine factual dispute on this issue, he can make that argument
in a motion for summary judgment once discovery has occurred.4 See Fed. R. Civ. P. 56; see
4
The dissent claims that Sanchez argued that, even absent his alleged bad faith falsities and omissions, the
warrant was supported by probable cause. The district court did not construe Sanchez’s motion as making this
argument, and we agree with the district court that he did not. The dissent points to one sentence from Sanchez’s
reply to Plaintiffs’ response to his motion to dismiss in order to say that he has preserved this argument. But the
dissent takes that one statement out of context. Placing it in its proper context reveals that it was nothing more than
one comment in the course of arguing that the Messerschmidt exception for reliance on a warrant secured in
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 15
also, e.g., Vance v. United States, 90 F.3d 1145, 1148 (6th Cir. 1996) (“The general rule is that
summary judgment is improper if the non-movant is not afforded a sufficient opportunity for
discovery.”). In short, Sanchez’s motion to dismiss did not challenge the sufficiency of
Plaintiffs’ allegations, and if construed as a motion for summary judgment, it was premature.
Sanchez is not entitled to qualified immunity at this time.
CONCLUSION
For the reasons set forth above, we DISMISS Reddy Sr.’s appeal for lack of jurisdiction
and AFFIRM the district court’s orders as to Adams, Reddy Jr., and Lieutenant Sanchez.
objective good faith should apply. And in any event, we do not agree with the dissent that a single statement made
in a reply to a plaintiff’s response to the defendant’s motion to dismiss would preserve the argument for our review.
“The case precedent in this circuit instructs courts to withhold judgment on issues not fully developed by the briefs
or in the record. Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.” United States v. Sandridge, 385 F.3d 1032, 1035–36
(6th Cir. 2004) (quoting Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 823 (6th Cir. 2002)).
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 16
_________________
DISSENT
_________________
NALBANDIAN, Circuit Judge, dissenting. Even taking Plaintiffs’ factual allegations as
true, Sanchez, Adams, and Reddy, Jr. are entitled to qualified immunity. Plaintiffs also fail to
adequately plead their § 1983 conspiracy claim. Thus, I dissent.
I.
I begin with Sanchez because dismissal of the claim against him necessarily resolves the
claims against the others. The majority reviews Sanchez’s motion to dismiss on only one
ground: whether Sanchez appropriately relied on the warrant in good faith. Ante, at 14–15. But
Sanchez raises another argument in support of dismissal. He says that even if we don’t consider
his alleged falsities and add his alleged omissions, probable cause still supports the warrant, so
there is no Fourth Amendment violation. (19-1857 Appellant’s Br. at 19–25.) The majority
doesn’t address this because it believes Sanchez forfeited the argument by not raising it below.
I disagree and believe that Sanchez did raise this argument below. In connection with his motion
to dismiss, Sanchez argued that the “undisputed facts, separate and apart from the ones Plaintiffs
now dispute, provide an independent and adequate basis for a reasonable officer to make the
same warrant requests that Lt. Sanchez made.” (No. 4:18-cv-12193, R. 17, Def.’s Reply Br. at
PageID # 223.)1 So there was no forfeiture. What’s more, Sanchez is correct. Even after
removing the assertions Plaintiffs claim Sanchez falsified, and adding the facts he allegedly
omitted, the affidavit still supports a finding of probable cause.
Plaintiffs’ complaint against Sanchez doesn’t specify which facts he allegedly falsified or
omitted. But as the majority notes, Plaintiffs moved to amend their complaint to do so. And
their briefing before this Court is consistent. Plaintiffs claim Sanchez omitted the insurance
investigator and landlord’s investigation reports, both of which classify the cause of the fire as
1
True, Sanchez didn’t specifically make this argument until his reply in support of his motion to dismiss.
But as the district court and the majority recognize, the complaint didn’t specify which of the statements in
Sanchez’s affidavits were allegedly false and what he allegedly omitted; Plaintiffs’ response to the motion to dismiss
did. So the reply was Sanchez’s first chance to respond to these more specific allegations.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 17
“undetermined.” Next, they offer Mulka’s affidavit as a rebuttal to the statements attributed to
him in Sanchez’s affidavits. Third, they acknowledge that Mr. Marvaso filed for bankruptcy in
2007 but claim that Sanchez’s statement that Mr. Marvaso had been “in bankruptcy since 2007”
was false. Finally, Plaintiffs say that Sanchez omitted information that Mr. Marvaso had
recently built improvements at his restaurant and that charity poker tournaments were providing
more revenue for the business.2 Correcting for these alleged falsities and omissions yields the
following sum of evidence.
First, the uncontested assertions in Sanchez’s affidavits.3 The Westland Police received
tips that the fire was suspicious and most likely an arson fire, including Baldoni’s statement
based on what he heard from others “that people would be shocked if they knew the truth about
the fire and [] Geo, the son of the bar’s owner and other persons had placed leftover construction
materials in the ceiling of the building and started the fire earlier in the morning.” (No. 4:18-cv-
12193, R. 7-1 at PageID # 53.) Additionally, there’s Quigley’s report to police that he observed
two vehicles in the parking lot a couple of hours before the fire but after closing, as well as
Adams’s observation of Geo driving a car that matched the description of one of the vehicles.
Plus, he concluded that the fire was started by an open flame applied by human hands to
combustibles by someone with a key to the building. Also, Mr. Marvaso increased the insurance
coverage on his businesses from $400,000 to $600,000 three to four months before the fire.
Finally, the Marvasos kept their business records in their home, and Geo was the General
Manager of the businesses and Gaines was responsible for payroll.
Next, Sanchez’s alleged omissions—the insurance investigator and landlord’s
investigation reports, the recent building improvements, and the financial boost provided by
2
Plaintiffs’ allegations about Sanchez’s improper omissions are effectively that Sanchez did not present all
the information he possessed when he made his warrant application, so the resulting warrant is constitutionally
infirm. But that’s hardly the standard. Allegations of mistake or even negligence aren’t enough. Rather, a § 1983
plaintiff suing a warrant applicant must plausibly allege “a deliberate falsehood or [] reckless disregard for the
truth.” Butler v. City of Detroit, 936 F.3d 410, 418 (6th Cir. 2019) (quoting Vakilian v. Shaw, 335 F.3d 509, 517
(6th Cir. 2003)). And this doesn’t require warrant applicants to submit every fact they know about the case to the
magistrate.
3
Because Sanchez attached his affidavits to his motion to dismiss, and because “they are referred to in the
Complaint and are central to the claims contained therein[,]” we can consider the contents of the affidavits in ruling
on Sanchez’s motion to dismiss. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 18
charity poker tournaments. And while we can’t consider Mr. Marvaso as having “been in
bankruptcy since 2007,” Plaintiffs concede that he declared bankruptcy in 2007. Further, they
don’t contest that he was making monthly payments to satisfy his long-term debt and owed back
property and business taxes to the City of Westland.4
True, Baldoni admitted that he didn’t base his statement on first-hand knowledge. But
the rules of evidence don’t apply to warrant proceedings. So Baldoni’s statement that the fire
was an arson started by Geo provides at least some support for probable cause. See United States
v. Allen, 211 F.3d 970, 975–76 (6th Cir. 2000). And probable cause is further bolstered by
Quigley and Adams placing the same suspect identified by Baldoni at the scene just before the
fire started. As Plaintiffs note, the National Fire Protection Association defines an “incendiary
fire” as a fire that is “intentionally ignited under circumstances in which the person igniting the
fire knows the fire should not be ignited.” (19-1857 Appellee’s Br. at 25 n. 4.) So Adams’s
report supports the probable cause finding. That same association defines fires with an
“undetermined” cause as “fires . . . that have been investigated . . . and have insufficient
information to classify further.” Nat’l Fire Prot. Ass’n, NFPA 921: Guide for Fire and Explosion
Investigations § 20.1.4 (2017). Thus, the insurance investigator and landlord’s reports simply
show that there was insufficient evidence for them to reach a conclusion, hardly disproving that
the fire was arson. Regardless of Mr. Marvaso’s motives for increasing his insurance policy, the
fact that he did shows that there was an increased financial incentive for arson. And even with
the increased financial performance of Electric Stick because of charity poker, his debts provide
the potential for a financial motive. Finally, the Marvasos, Geo, and Gaines’ keeping of business
records at home links these properties to their potential involvement in the crime.
All in all, these facts leave “a fair probability” in the view of “reasonable and prudent
men, not legal technicians[,]” “that contraband or evidence of [arson would] be found” in the
homes Sanchez sought to search. See Illinois v. Gates, 462 U.S. 213, 231, 238 (1983). Probable
cause is not “a neat set of legal rules.” Id. at 231. But in a similar case, our sister circuit found
probable cause when an officer relied on the fire marshal’s conclusion that a fire was the result
4
As the majority recognizes, we must assume the truth of Plaintiffs’ assertion that Mulka’s statements are
false. So we don’t consider that evidence in evaluating probable cause.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 19
of arson, an eyewitness account placed the arrestee’s truck at the scene on the day of the fire,
evidence existed that the arrestee possessed the requisite skill to commit arson, the arrestee had
motive to commit arson, and the arrestee deceptively responded, during a polygraph
examination, to questions about his involvement in the fire. See generally Reed v. City of Chino,
224 F. App’x 625 (9th Cir. 2007). So too here. That there was no later arrest does nothing to
undermine probable cause at the time of the warrant application. Dietrich v. Burrows, 167 F.3d
1007, 1012 (6th Cir. 1999) (“Probable cause determinations involve an examination of all facts
and circumstances within an officer’s knowledge at the time[.]” (emphasis added)). And because
there was probable cause for the search warrant even without Sanchez’s alleged falsities and
omissions, it cannot be said that “but for these falsities the judge would not have issued the
warrant.” Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003). There is thus no constitutional
violation. And with no constitutional violation, Sanchez is entitled to qualified immunity.
Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011).
II.
Turning next to Adams and Reddy, Jr., they too are entitled to qualified immunity. When
a complaint fails to plausibly allege facts that, taken as true, “show the violation of a right so
clearly established that a reasonable official would necessarily have recognized the violation[,]”
dismissal based on qualified immunity is appropriate. Kollaritsch v. Mich. State Univ. Bd. of
Trs., 944 F.3d 613, 626 (6th Cir. 2019). As Plaintiffs concede, they bear the burden of
overcoming qualified immunity by showing that the alleged statutory or constitutional violation
was clearly established at the time of the violation. (19-1882 Appellee’s Br. at 18 (citing
Pearson v. Callahan, 555 U.S. 223, 232 (2009)).) But they fail to cite any cases showing that a
conspiracy that leads to an unconstitutional search by a third party was a clearly established
statutory or constitutional violation when Adams, Reddy, Jr., and Reddy, Sr. allegedly conspired.
Instead, they simply state the qualified immunity standard, provide no application to the facts
here, and move on. (19-1882 Appellee’s Br. at 17–19.)
As this court said in Kollaritsch, “[t]he Supreme Court has been emphatic and explicit in
what it means by ‘clearly established[.]’” 944 F.3d at 626.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 20
[T]he legal principle [must] clearly prohibit the offic[ial]’s conduct in the
particular circumstances before him. The rule’s contours must be so well defined
that it is clear to a reasonable offic[ial] that his conduct was unlawful in the
situation he confronted. This requires a high degree of specificity. . . . [C]ourts
must not define clearly established law at a high level of generality, since doing
so avoids the crucial question [of] whether the official acted reasonably in the
particular circumstances that he or she faced. A rule is too general if the
unlawfulness of the offic[ial]’s conduct does not follow immediately from the
conclusion that the rule was firmly established.
District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). Providing zero case support hardly
satisfies this high burden. So Adams and Reddy, Jr. are entitled to qualified immunity.
The majority says this presents fact-intensive questions and requires factual development
beyond what’s in the complaint, and that we should thus wait until summary judgment to decide
these claims. Ante, at 11–12. But this isn’t a factual question. We accept the facts in Plaintiffs’
complaint as true and look only to whether those facts amounted to a clearly established
constitutional violation when they occurred. Ante, at 7–8; see Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555–57 (2007). And that’s a question of law, which is why we can review it on an
interlocutory appeal. Johnson v. Jones, 515 U.S. 304, 317 (1995); Bazzi v. City of Dearborn,
658 F.3d 598, 606 (6th Cir. 2011). No discovery or further factual development can cure
Plaintiffs’ failure to plead “the violation of a right so clearly established that a reasonable official
would necessarily have recognized” it. Kollaritsch, 944 F.3d at 626. So Adams and Reddy, Jr.
are entitled to qualified immunity at the motion to dismiss stage of this case.
But that’s not the only reason the district court erred in denying Adams and Reddy, Jr.’s
motion to dismiss. Plaintiffs also fail to adequately plead a § 1983 conspiracy claim against
them. A civil conspiracy requires a single plan, where each alleged coconspirator shares in the
general conspiratorial objective, and an overt act committed in furtherance of the conspiracy that
causes injury to the plaintiff. Hooks v. Hooks, 771 F.2d 935, 944 (6th Cir. 1985). Under
42 U.S.C. § 1983, the plaintiff’s injury must be a violation of federal law. Appellees concede
that their only injury is the allegedly unconstitutional search warrants executed by Sanchez.
(19-1882 Appellee’s Br. at 25 (“The ‘injury’ suffered by Plaintiffs was the illegal search by
Defendant Sanchez, which was proximately caused by the conspiracy and Adams’ overt
falsification of the fire report to indicate that the fire was intentionally set.”).) And as discussed
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 21
above, there was no unconstitutional search conducted by Sanchez because the search warrants
he procured were supported by probable cause. Thus, Appellees fail to state a claim upon which
relief can be granted because they fail to plead an adequate injury.
What’s more, Plaintiffs also fail to adequately plead proximate cause. As Plaintiffs
recognize, the Supreme Court has read § 1983 “in harmony with general principles of tort
immunities and defenses rather than in derogation of them.” Imbler v. Pachtman, 424 U.S. 409,
418 (1976). This means that traditional legal principles such as but-for and proximate causation
apply to § 1983 claims when a plaintiff alleges that the defendant caused them to be harmed
(rather than direct harm inflicted by the defendant). Powers v. Hamilton Cty. Pub. Def. Comm’n,
501 F.3d 592, 608 (6th Cir. 2007). And that’s what Plaintiffs here allege. They don’t claim that
Defendants’ conspiracy itself violated any federal right. Instead, they claim that Adams’s filing
of his report caused the Michigan State Police to engage in an unconstitutional search of their
homes.
“[C]ourts have framed the § 1983 proximate-cause question as a matter of foreseeability,
asking whether it was reasonably foreseeable that the complained of harm would befall the
§ 1983 plaintiff as a result of the defendant’s conduct.” Powers, 501 F.3d at 609. Plaintiffs’
complaint against Adams, Reddy, Jr., and Reddy, Sr. does not detail why Sanchez’s search of
Plaintiffs’ homes was allegedly unconstitutional. But their complaint against Sanchez explains
that it is because he allegedly submitted a knowingly false affidavit in support of his search
warrant for their homes. (No. 4:18-cv-12193, R. 1, Compl. at PageID # 12–13.) Whatever the
merits of Plaintiffs’ conspiracy claims against Adams, Reddy, Jr., and Reddy, Sr., it was not
foreseeable that their conspiracy would trigger a Michigan State Police Lieutenant to deliberately
falsify claims unrelated to their conspiracy in an affidavit in support of a search warrant. See,
e.g., County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1549 (2017) (remanding the issue of
whether it was foreseeable that a police shooting would result from a warrantless search of a
home but questioning the lower court’s holding that it was); Powers, 501 F.3d at 610 (“[E]ven if
it is foreseeable that a defendant’s conduct will lead to the complained of harm, a defendant may
be able to avoid § 1983 liability by pointing to the intervening action of a [third party] as the
proximate cause of the plaintiff’s injury.”). The majority concedes that when a defendant puts
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 22
forth “uncontroverted evidence of a superseding cause that cuts off the otherwise foreseeable
chain of causation,” the pleadings are insufficient. Ante, at 10. And that’s what Defendants have
done here. Sanchez’s actions were a superseding cause of Plaintiffs’ injury, so proximate cause
is lacking.
Because Plaintiffs fail to adequately plead their § 1983 conspiracy claim against Adams
and Reddy, Jr., and because Plaintiffs fail to satisfy their burden of showing that Adams and
Reddy, Jr.’s alleged conspiracy amounted to a clearly established statutory or constitutional
violation when they allegedly conspired, the district court erred in denying their motion to
dismiss.
III.
Last, Reddy, Sr. I agree that he is not entitled to qualified immunity because he is not a
public official, even though he qualifies as a state actor for § 1983 liability. See Cooper v.
Parrish, 203 F.3d 937, 952 n. 2 (6th Cir. 2000); Vector Rsch., Inc. v. Howard & Howard Att’ys
P.C., 76 F.3d 692, 698 (6th Cir. 1996) (“[A] party who is not a public official may be liable
under 42 U.S.C. § 1983 and yet not be entitled to qualified immunity because, if not a public
official, the reason for affording qualified immunity does not exist.”). That said, the district
court still erred in denying his motion to dismiss because Plaintiffs fail to adequately plead a
§ 1983 conspiracy claim against him for the same reasons they fail to adequately plead the same
claim against Adams and Reddy, Jr.
The majority concludes that we don’t have jurisdiction over his appeal because qualified
immunity isn’t involved. Ante, at 6–7. But “whether a particular complaint sufficiently alleges a
clearly established violation of law . . . is both ‘inextricably intertwined with, and ‘directly
implicated by,’ the qualified-immunity defense,” so we have pendent jurisdiction over challenges
to the sufficiency of the pleadings. Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009). The majority
acknowledges this and says: “Two claims are ‘inextricably intertwined’ if deciding one
necessarily decides the other.” Ante, at 7 n.1 (citing Vakilian, 335 F.3d at 521.). Because
resolution of Adams and Reddy, Jr.’s appeal also resolves Reddy, Sr.’s, we have jurisdiction
over both.
Nos. 19-1857/1870/1882 Marvaso, et al. v. Sanchez, et al. Page 23
IV.
The standard to survive a motion to dismiss is admittedly a low bar. But that doesn’t
mean courts must bend over backwards to save a plaintiff’s meritless claims. Yet that’s what the
majority does here. I respectfully dissent.