HUGH W. BRENNEMAN, JR., United States Magistrate Judge.
This is a civil rights action brought by plaintiff pursuant to 42 U.S.C. § 1983. This matter is before the court on defendants' Rule 56(b) motion for summary judgment (docket no. 19).
I. Background
At approximately 1:45 a.m. on October 27, 1996, Grand Rapids police officers arrested Ursula Parks and Neicha Patton for creating a disturbance at an Amoco service station located at the corner of Franklin and Eastern in the City of Grand Rapids. Douglas Carmack Deposition at 6-7, attached to Defs.' Brief as Exh. D; Incident Report No. 96-114003, attached to Defs.' Brief as Exh. A. Shortly thereafter, the officers arrested plaintiff, Robert Baskin, for creating a disturbance during the course of the arrests of Ms. Patton and Ms. Parks. Incident Report No. 96-114013 attached to Defs.' Brief as Exh. B. After a jury acquitted plaintiff of the charge, he filed the present civil rights suit against, alleging that defendants illegally searched and seized his person, falsely arrested him and used excessive force during the arrest.
II. Section 1983 claims
Section 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir. 1996). Thus, "to state a claim under section 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the `Constitution and laws' of the United States, and (2) plaintiff must show that the defendant deprived him of this federal right `under color of law.'" Jones v. Duncan, 840 F.2d 359, 360, 361-362 (6th Cir. 1988).
In the present case, plaintiff seeks relief against defendants for violation of his rights under the Fourth and Fourteenth Amendments. In Count I, plaintiff apparently seeks damages against defendants Smith and White for violations of his rights under the Fourth and Fourteenth Amendments to be free from unreasonable search and seizure of his person. In Count II, plaintiff seeks damages against defendants Smith and White for excessive force and brutality in violation of his rights under the Fourth and Fourteenth Amendments. In Count III, plaintiff seeks damages against defendants Smith and White for false arrest and illegal imprisonment in violation of his rights under the Fourth and Fourteenth Amendments. Finally, in Count IV, plaintiff alleges that defendants City of Grand Rapids and the City Grand Rapids Police Department maintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in the city by inadequately training its officers, and inadequately or improperly investigating citizen complaints against the police department.
The Fourth Amendment provides in pertinent part that "[t]he right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated.
III. Standard
Defendants request judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 56(b), claiming there are no genuine issues of material fact. In Copeland v. Machulis, 57 F.3d 476, 478-79 (6th Cir. 1995), the court described the standard for deciding such a motion as follows:
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2552-53, 2552-53,
91 L.Ed.2d 265 (1986). Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49,
106 S.Ct. 2505, 2510-11,
91 L.Ed.2d 202 (1986);
LaPointe, 8 F.3d at 378. The mere existence of a scintilla of evidence to support plaintiff s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
Anderson, 477 U.S. at 252,
106 S.Ct. 2512.
Id. at 478-79. "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party."
McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
IV. Defendants Smith and White
A. Qualified Immunity
Defendants Smith and White contend that they are entitled to summary judgment based on the doctrine of qualified immunity, which provides that
Government officials, performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether an official is protected by qualified immunity turns on the "objective legal reasonableness" of the action, assessed in light of the legal rules that were "clearly established" at the time it was taken, not on the subjective good faith of the defendant.
Harlow, 457 U.S. at 818-19;
Wysinger v. City of Benton Harbor, 968 F. Supp. 349, 353 (W.D.Mich. 1997). Individual claims of immunity are analyzed on a fact-specific, case-by-case basis to determine whether the plaintiff s federal or constitutional rights were so clearly established when the alleged misconduct was committed that any official in the defendant's position would understand that what one is doing violates those rights.
See Anderson v. Creighton, 483 U.S. 635, 640;
107 S.Ct. 3034, 3039 (1987);
Cope v. Heltsley, 128 F.3d 452, 458-459 (6th Cir. 1997). The official will be immune "if officers of reasonable competence could disagree" on whether the conduct violated the plaintiff's rights.
See Malley v. Briggs, 475 U.S. 335, 341;
106 S.Ct. 1092,1096 (1986);
Chappel v. Montgomery County Fire Protection District No. 1, 131 Fad 564, 580 (6th Cir. 1997).
The issue of qualified immunity is essentially a legal question to be decided by the court. Chappel, 131 F.3d 564 at 573; Rought v. Porter, 965 F. Supp. 989, 992 (W.D.Mich. 1996).
The district court must view the facts in the light most favorable to the nonmoving party. Dickerson v. McClellan, 101 F.3d 1151, 1154 n. 2 (6th Cir. 1996). If genuine issues of material fact exist as to an issue on which the question of immunity turns, summary judgment is improper. See Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988). See also Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996); Buckner v. Kilgore, 36 F.3d 536, 540 (6th Cir. 1994). "Summary judgment is not appropriate if there is a genuine factual dispute relating to whether the defendants committed acts that allegedly violated clearly established rights." Dickerson v. McClellan, 101 F.3d 1151, 1158 (1999).
The procedure for evaluating claims of qualified immunity is tripartite: First, we determine whether a constitutional violation occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.
Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc) (citation omitted),
cert. denied, 121 S.Ct. 179 (2000). However, even where a "reasonableness" inquiry is largely fact-driven, summary judgment based upon qualified immunity is still appropriate when a plaintiff's version of disputed material facts demonstrates that a hypothetical reasonable officer would not have known that his actions, under the circumstances, were objectively unreasonable.
Scott v. Clay County, Tennessee, 205 F.3d 867, 877-78 (6th Cir. 2000).
1. Excessive force claim
"The use of excessive force by law enforcement officials in effectuating an arrest may give rise to a claim under 42 U.S.C. § 1983." Bass v. Robinson, 167 F.3d 1041, 1045 (6th Cir. 1999). Whether an officer has used excessive force in effecting an arrest depends on whether the officer's conduct is "objectively reasonable" in light of the facts and circumstances surrounding the arrest, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." See Graham v. Connor, 490 U.S. 386, 396-397 (1989). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Id. at 397. While the extent of the injury inflicted is relevant to a claim for the infliction of cruel and unusual punishment in violation of the Eighth Amendment, the extent of the injury is not a crucial factor in determining a claim for excessive force under the Fourth Amendment. Bass, 167 F.3d at 1046 n. 1.
Plaintiff alleges that the arresting officer "threw him across the hood of his automobile" and placed the handcuffs on "very tight" causing plaintiff "great pain." Complaint at ¶ 6. Plaintiff submitted no affidavits to support his allegations. Initially, the only testimony before this court with respect to this motion was a transcript of the testimony given at plaintiff's trial and the deposition transcript of two non-parties, former Grand Rapids police officer Douglas Carmack and Ursula Parks, one of the ladies arrested on the evening of the incident. The court notes, however, that defendants submitted a copy of plaintiff's April 30, 2001 deposition testimony as Exhibit A to their brief opposing plaintiff's amended motion to amend pleadings (docket no. 35). Because the court must view the "entire record" in a light most favorable to the party opposing summary judgment, see Smith v. Chrysler Corp., 155 F.3d 799, 804 (6th Cir. 1998), the court will consider plaintiff's deposition testimony as well in resolving defendants' motion.
The following witnesses testified at plaintiff's criminal trial: defendants Smith and White, Grand Rapids police officer Holly Botts, and plaintiff (Tr. at 2).
At plaintiff's criminal trial, defendant Smith testified that after he had given plaintiff four warnings to "keep quiet," he grabbed plaintiff, handcuffed him, advised him that he was under arrest for creating a disturbance, and placed him in the police cruiser. Jury Trial Transcript ("Tr.") at 47-8, attached to Defs.' Brief as Exh. E. Plaintiff testified at his trial that the arresting officer "shoved" him as he stood outside the locked door of his car, told him he was under arrest, and escorted him to the police cruiser (Tr. at 101). Then, at his deposition, plaintiff testified that defendant Smith "pinched my wrists till they bled from the cuffs." Baskin Deposition at 106. There is no evidence to suggest that defendant White participated in handcuffing plaintiff or placing him in the police cruiser. Indeed, defendant White testified that he did not physically arrest plaintiff and gave no testimony on that matter (Tr. at 71-2). None of the three remaining witnesses, Officer Carmack, Officer Botts and Ms. Parks testified regarding the force used during plaintiff's arrest.
Plaintiff has failed to present any evidence that defendant White was engaged in the alleged use of excessive force against him. Accordingly, defendant White is entitled to summary judgment with respect to this claim.
Plaintiff excessive force claims against defendant Smith include two separate acts: first, that Smith pushed him; and second, that Smith placed the handcuffs on too tightly. With respect to plaintiff's first claim, the court notes that not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. Graham, 490 U.S. at 396. Contrary to the allegations in plaintiff's complaint, there is no evidence even from himself to support his serious allegation that defendants "threw him" across the hood of the car. Viewing the evidence in the light most favorable to plaintiff, the force used consisted of defendant Smith grabbing plaintiff, poking him in the chest and giving him a single "shove" during the process of the arrest. Because no reasonable juror could find that defendant Smith acted unreasonably, he is entitled to qualified immunity with respect to the claim that he shoved plaintiff across the hood of the car.
However, plaintiff's deposition testimony supports his second claim that defendant Smith placed the handcuffs on him so tightly that his wrists bled. There is no testimony that plaintiff was struggling or acting so violently as to require this type of restraint and defendant Smith gave no testimony on this issue. Viewing plaintiff's testimony in the light most favorable to him, defendant Smith's action would be objectively unreasonable in light of plaintiff's clearly established rights under the Fourth and Fourteenth Amendments. Under these circumstances, defendant Smith is not entitled to qualified immunity with respect to the claim that he used excessive force to handcuff plaintiff.
Even if defendant Smith had submitted an affidavit contesting plaintiff's testimony, the factual issue would preclude summary judgement of the ground of qualified immunity. See subsection 2.b., infra.
2. Unlawful arrest and unreasonable seizure
Plaintiff alleges that he was subject to an "unreasonable search and seizure of his person," an "unreasonable seizure of his person," and "false arrest and imprisonment" in violation of the Fourth Amendment. Complaint at ¶¶ 10a, 11a, 17. Although plaintiff alleges two separate counts relating to his arrest, his claims arise from his alleged wrongful arrest. In order to prevail Even if defendant Smith had submitted an affidavit contesting plaintiff's testimony, the factual issue would preclude summary judgment on the ground of qualified immunity. See subsection 2.b., infra.
The parties do not dispute that plaintiff was arrested and, as a result, was "seized" by defendants. See Michigan v. Chesternut, 486 U.S. 567, 573 (1987) (an individual is considered of his person incident to the arrest would be authorized and reasonable. See generally, Adams v. Metiva, 31 F.3d 375, 383-384 (6th Cir. 1994); Michigan v. DeFillippo, 443 U.S. 31, 35 (1978).
The parties do not dispute that plaintiff was arrested and, as a result, was "seized" by defendants. See Michigan v. Chesternut, 486 U.S. 567, 573 (1987) (an individual is considered in a § 1983 wrongful arrest claim, a plaintiff must prove that the defendant lacked probable cause to believe that he had committed the charged crime. Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999). Probable cause sufficient to justify an arrest "means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); Painter, 185 F.3d at 569. "If the circumstances, viewed objectively, support a finding of probable cause, the arresting officer's actual motives are irrelevant." Painter, 185 F.3d at 569-570 quoting Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988).
At issue here is whether defendants had probable cause to arrest plaintiff on the ground that he had committed, was committing or was about to commit the disorderly conduct offense of "breach of the peace," Section 9.137(2) of the Grand Rapids City Ordinance, which states that No person shall: . . . (2) Create or engage in any disturbance, fight or quarrel that causes or tends to cause a breach of the peace.
Plaintiff disputes the legality of his arrest on the ground that his activity was not a "breach of the peace" but rather the exercise of free speech protected by the First Amendment.
Plaintiff does not, however, claim that the ordinance is unconstitutional.
In light of plaintiff's contention, it is necessary to determine whether plaintiff's activity constituted protected speech; if his speech was protected than he would not be causing a breach of the peace and defendant, in turn, would have no probable cause to arrest him. In making this determination, the court seeks guidance from the Sixth Circuit's opinion in Sandul v. Larion, 119 F.3d 1250 (1997), which involved a similar § 1983 action against police officers for excessive use of force and false arrest arising from violation of disorderly conduct ordinances. The plaintiff in that case, Sandul, was in a truck that drove by a group of abortion protesters. Sandul, 119 F.3d at 1252. While riding by at a high rate of speed, Sandul leaned out a window, shouted "f — k you" and extended his middle finger at the protesters. Id. The defendant, Officer Larion, followed the truck to Sandul's home and arrested him on charges of disorderly conduct for his acts directed at the protesters and a felonious assault charge related to a struggle that occurred during the arrest. Id.
The initial police report did not note the ordinance relied upon for the arrest. See Sandul, 119 F.3d at 152 n. 1. However, defendant's brief cited three Livonia City Ordinances: Ordinance 9.40.010 (which defined the use of indecent language in the presence of others as acts of a disorderly person); Ordinance 9.40.040 (which prohibited person from making noise, disturbance, trouble or improper diversion that disturbed the "peace and good order" of the city); and Ordinance 9.22.030 (which prohibited person from engaging in any indecent, improper, immoral or obscene conduct, behavior or actions). Id.
Sandul was acquitted of the disorderly conduct charge and a mistrial declared on the felonious assault charge. Id. at 1253.
Sandul subsequently filed a § 1983 action alleging unlawful arrest, unlawful entry and use of excessive force in state court, which was removed to federal district court. Id. After an appeal on other issues, the district court granted summary judgment to Officer Larion, finding in part that the officer had probable cause to arrest Sandul for violating the disorderly conduct ordinance.
Id. On appeal, Sandul argued (1) that Officer Larion violated his constitutional rights by falsely arresting Sandul while he was exercising his right to free speech, and (2) that officer Larion was not entitled to qualified immunity because he should have known that the arrest violated Sandul's First Amendment rights. Id. at 1254.
The Sixth Circuit performed a qualified immunity analysis, limiting its task to determining whether the Sandul's rights were clearly apparent at the time of his arrest. Id. As an initial matter, the court found it necessary to address Sandul's claim that his actions were protected speech. Id. The court found that when Sandul was arrested, it was "clearly established" that his speech would be protected under the First Amendment, unless he had spoken "fighting words." Otherwise, a reasonable officer should have known that Sandul's speech and gesture amounted to protected speech. Id. at 1255. In determining whether Sandul's speech was protected, the court referred to Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), which defined "fighting words" as
those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Id. at 1255, quoting
Chaplinsky, 315 U.S. at 572.
Other definitions of "fighting words" include: actions likely to provoke the average person to retaliate and cause a breach of the peace, Knight Riders v. City of Cincinnati, 72 F.3d 43, 46 (6th Cir. 1995); words that an onlooker would consider a "direct personal insult or an invitation to exchange fisticuffs." Texas v. Johnson, 491 U.S. 397, 409 (1989); and words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace," Gooding v. Wilson, 405 U.S. 518, 525 (1972).
The Sixth Circuit held that Officer Larion was not entitled to qualified immunity "because his actions violated Sandul's clearly established First Amendment rights of which a reasonable officer should have known." Id. at 1256-57. The court rejected Officer Larion's contention that he had probable cause for arresting Sandul, finding that (1) Sandul's actions did not constitute fighting words and thus amounted to protected speech and (2) that such protected speech could not serve as the basis for a violation of the city ordinances prohibiting disorderly conduct. Id. at 1256. The court considered the following circumstances to support its conclusion that Sandul's actions did not constitute fighting words:
Sandul's words and actions do not rise to the level of fighting words. The actions were not likely to inflict injury or to incite an immediate breach of the peace. Sandul's vehicle was traveling at a high rate of speed on the opposite side of the street, a considerable distance away from the protesters to whom the language was directed. Sandul was in a moving vehicle; the entire incident was over in a matter of seconds. There is no evidence in the record that any abortion protester was offended, nor did anyone acknowledge Sandul's behavior with the exception of Officer Larion. There was no face-to-face contact between Sandul and the protestors. Thus, it is inconceivable that Sandul's fleeting actions and words would provoke the type of lawless action alluded to in [
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).] Sandul's action was not fighting words and therefore was speech protected by the First Amendment.
Id. at 1255.
Here, the court is faced with the same preliminary issue as in Sandul, i.e., whether defendants should have known they were violating plaintiff's First Amendment rights when they arrested him. Similarly, the court must review the evidence presented to determine whether plaintiff's actions constituted protected speech. In determining this issue, the court is mindful that the "fighting words" exception to the First Amendment "might require a narrower application in cases involving words addressed to a police officer," because it is reasonable to expect a trained officer to exercise more restraint than the average citizen. City of Houston, Texas v. Hill, 482 U.S. 451, 462 (1986).
a. Testimony
Defendant Smith gave the following testimony with respect to the incident. He and defendant White responded to a call from officer Holly Botts that there was a fight at an Amoco Station (Tr. at 33). When he arrived at the scene he saw two women struggling (Tr. 34). After separating the women, officer Botts advised him that both women could be arrested for creating a disturbance (Tr. at 34). He saw at least ten people in the parking lot at the time (Tr. at 35). He handcuffed Ms. Patton, who appeared to be an intoxicated, large woman weighing approximately 250 pounds, and attempted to place her in the police cruiser (Tr. at 37-40, 43). When Ms. Patton resisted going into the cruiser, he used two "knee strikes" to the back of her leg to get her attention, but this technique did not work (Tr. at 40-3). He denied striking her with his flashlight, spraying her with mace, or throwing her against the cruiser (Tr. at 41, 49). The entire incident lasted about two to three minutes (Tr. at 44).
The "knee strikes" are part of a non-combative police technique known as "PPCT" (Tr. at 40).
Plaintiff came up from behind him while he was trying to place Patton in the police cruiser, screaming that Smith "shouldn't treat people this way, down in the inner city," demanding Smith's name and badge number, and stating that he was going to complain to the Internal Affairs office (Tr. at 45-6). Defendant Smith told plaintiff to stand by his car and he would talk to him in a few minutes (Tr. at 46). Plaintiff continued to yell, drawing attention to himself and the officers (Tr. at 46). Plaintiff's voice was louder than the other people in the lot (Tr. at 46). Although Smith told plaintiff that he would address plaintiff's questions after he took care of the lady, plaintiff continued to yell at the officers (Tr. at 46-47). After talking to plaintiff four times, Smith told plaintiff that he would be arrested for creating a disturbance (Tr. at 47). Plaintiff walked back to his car, which was parked at a gas pump (Tr. at 47).
When Smith finally secured Patton in the cruiser, plaintiff started coming towards the officers yelling, "I want your names, I want your badge numbers, this isn't right" (Tr. at 47). Smith walked towards plaintiff, told him that he gave him four warnings to keep quiet, and that now it was time for plaintiff to go to jail (Tr. at 47-48). Plaintiff went towards his car, but the door was locked (Tr. at 48). Smith grabbed plaintiff, handcuffed him, advised him that he was under arrest for creating a disturbance, and placed him in the police cruiser (Tr. at 48). Smith admitted that he did not give plantiff his name and badge number, but did not have an opportunity because he was dealing with the woman (Tr. at 48, 59).
Defendant White gave the following testimony. He was the cover officer, meaning that he worked as the safety officer to make sure that no else became involved in the incident (Tr. at 64). Although the incident occurred at night, a crowd was starting to gather in the parking lot (Tr. at 64). Plaintiff was at the scene, trying to identify the officers and car numbers at an "inappropriate time," meaning that the officers were still trying to secure and maintain control of the two ladies that were fighting (Tr. at 64). Plaintiff was advised three or four times to stay back (Tr. at 64-6). Although White was the cover officer, and thought there was a reason to arrest plaintiff, he would not have arrested plaintiff at that time (Tr. at 75-6).
Officer Botts testified that a crowd was forming when they were arresting Patton (Tr. at 114).Officer Botts also testified that plaintiff was shouting that he wanted badge numbers, that "it was harassment," and that "he kept encroaching upon what we were trying to do" (Tr. at 114-5). Officer Botts further testified that the two women, Patton and Parks, were screaming and that plaintiff was very loud (Tr. at 115). Officer Carmack testified that he did not observe Patton's arrest because he was dealing with Ms. Parks. Carmack Dep. at 28. However, he did notice that people were gathering at the incident. Carmack Dep. at 27-8.
Ms. Parks described her cousin, Ms. Patton, as over six feet tall and weighing over two hundred pounds (Ursula Parks Deposition at 17, attached to Defs.' Brief at Exh. F). Ms. Parks testified that while the officer was asking her to get into the car, Ms. Patton "started bitching, trying not to get into the car" (Parks. Dep. at 22). Ms. Parks did not see anyone hit or kick Ms. Patton (Parks Dep. at 22). Ms. Parks testified that after the police arrived, ten or fifteen extra people came to the lot (Parks Dep. at 28). Ms. Parks further testified that during the incident, people "came out of nowhere" and described the atmosphere as that of "an open house party" (Parks Dep. at 19, 28).
Plaintiff gave the following testimony. He was fueling his car at the station late on a Sunday night to prepare for a business trip to Rockford, Illinois (Tr. at 89-90). While he was parked in the lot, he saw four police cars in the station (Tr. at 90). After he paid for his gas, he lingered inside the building looking for food (Tr. at 90). He observed defendant Smith handcuff Ms. Patton, put her in a choke hold, kick her, strike her with his flashlight three times, and slam her head against the door of the police cruiser while trying to place her in the cruiser (Tr. at 96-7). He "questioned" Smith, saying "Hey . . . Your conduct is unbecoming an officer," and then told him
I've taken as much as I can stand and you're arresting the wrong woman. She's not the woman who was causing the disturbance and you're beating her as though she's an animal. That is not how you treat human beings.
(Tr. at 97). When Smith pointed a mace container at Patton's face, plaintiff told Smith, "I know you're not gonna mace her now after you've kicked her three times, you're not gonna mace her" (Tr. at 100). Smith told plaintiff to mind his own business because he was not going to mace her (Tr. at 100). A female officer intervened and loaded Patton into the cruiser (Tr. at 100).
Then, Smith went to plaintiff's vehicle and told him "in vulgar, profane words" either to get in the car or he was under arrest (Tr. at 100). Plaintiff asked Smith if "he would please give me his badge number and his vehicle number," because he was going to report the conduct when he returned from his trip (Tr. at 100). Plaintiff attempted to get into his car, but Smith shoved him and he accidentally locked the car door (Tr. at 101). When plaintiff tried to reopen the door, Smith told him to "[g]et in the bleeping car or you're under arrest" (Tr. at 101). Plaintiff said "[w]ell I can't get in the car `cause the doors are locked," to which Smith responded "[t]hen you're under arrest" and escorted him to the police cruiser (Tr. at 101).
Plaintiff testified that he knew the police changed cars everyday, and that he would need a vehicle number to report the incident to the Internal Affairs department (Tr. at 100-101).
b. Defendant Smith
By all accounts, none of plaintiff's statements to defendant Smith were so egregious as to inflict injury "by their very utterance." Nevertheless, depending on the testimony one believes, plaintiff's actions could be construed as "fighting words" that could have tended to incite a breach of the peace. Unlike the brief incident in the Sandul case, which involved two words and a gesture from a passenger in a passing vehicle, the testimony indicates that plaintiff was part of a crowd watching an arrest and that he had several verbal exchanges with defendant Smith. These exchanges occurred late at night, as a gathering crowd watched as a male police officer use some amount of force to arrest a woman. By his own admission, plaintiff made statements criticizing defendant Smith's handling of the situation. However, these critical statements are not a sufficient ground to upon which to grant defendants' motion for summary judgment. The government cannot assume "that every expression of a provocative idea will incite a riot." See Texas v. Johnson, 491 U.S. 397, 409 (1989). Rather, the court must consider the circumstances surrounding such expression of these fact-intensive situations, and ask whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such an action." Id., quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
Genuine issues of material fact exist with respect to whether plaintiff's speech was directed to inciting imminent lawless action or likely to produce such action. There is conflicting testimony with respect to whether plaintiff yelled at defendant Smith, the behavior of each, the content of plaintiff's statements, the amount of force used to arrest Ms. Patton, and the size of the crowd watching the incident. However, it is not for this court to determine the ultimate facts or credibility of the witnesses on a motion for summary judgment. "Where, as here, the legal question of qualified immunity turns upon which version of the facts one accepts, the jury, not the judge, must determine liability." Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1988). Until the disputed facts are determined the court cannot evaluate the objective legal reasonableness of defendant Smith's actions. At this point, it can only be said that construing defendant's behavior in the light most favorable to plaintiff, see Dickerson v. McClellan, supra, defendant's actions do not satisfy the objective legal reasonableness test. Accordingly, defendant Smith's motion for summary judgment with respect to Counts I and III must be denied.
c. Defendant White
The court finds no evidence that defendant White was involved in the wrongful arrest of plaintiff. The testimony indicates that defendant Smith made the decision to arrest plaintiff and physically performed that task without any direction or instruction from White. Plaintiff does not identify White as the arresting officer. Accordingly, defendant White's motion for summary judgment with respect to Counts I and III will be granted.
V. Defendant Grand Rapids Police Department
The court agrees with defendants that the Grand Rapids Police Department is not a proper party to this suit. In Haverstick Enterprises, Inc. v. Financial Federal Credit, Inc., 32 F.3d 989 (1994), the Sixth Circuit noted that under Michigan state law, a city police department is not a recognized legal entity that can be sued:
Under the law of Michigan, a municipal police department is a creature of the municipality. M.C.L.A. § 92.1 (West 1991). A suit against a city police department in Michigan is one against the city itself, because the city is the real party in interest.
See Mooney v. City of Holland, 490 F. Supp. 188, 190 (W.D.Mich. 1980);
see also Michonski v. City of Detroit, 162 Mich. App. 485,
413 N.W.2d 438, 441 (1987). Haverstick Enterprises,
32 F.3d at 991 n. 1. Accordingly, defendant Grand Rapids Police Department's motion for summary judgment with respect to Count IV will be granted.
VI. City of Grand Rapids
Finally, defendant City of Grand Rapids moves for summary judgment on the ground that plaintiff has failed to establish evidence supporting his allegations that defendant City maintained the following policies or customs exhibiting deliberate indifference to the constitutional rights of persons within the city: to inadequately train its officers, and to inadequately and/or improperly investigate citizen complaints of police misconduct. See Complaint at ¶¶ 18-23. "[A] plaintiff who sues a city and its police department for constitutional violations under 42 U.S.C. § 1983 must establish that a governmental policy or custom caused the alleged injury." Sova, 142 F.3d at 904, citing Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 690-691 (1978). When municipal employees, such as police officers, inflict damage, the city can be held liable for failing to train its employees adequately. Sova, 142 F.3d at 904. However, a plaintiff can establish municipal liability "[o]nly where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants." Canton v. Harris, 489 U.S. 378, 389 (1989). "In other words, a municipality can be liable under § 1983 only where its policies are `the moving force' behind the constitutional violation." Sova, 142 F.3d 898 at 904, citing Monell, 436 U.S. at 694.
Here, defendant City presents no affidavits or other evidence to support its motion; rather, it simply points out that plaintiff presents no evidence of the existence of any such policy beyond his "conclusory allegations" that defendant City "negligently trained, hired, disciplined, instructed, supervised and controlled Defendants Smith and White." Defendants' Brief at 18. Although defendant does not present any affidavits or other documentary evidence to support the motion for summary judgment, its motion is nevertheless proper.
The moving party need not support its motion with evidence disproving the nonmoving party's claim, but need only "`show' — that is, point out to the district court that there is an absence of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325,
106 S.Ct. 2548, 2554,
91 L.Ed.2d 265 (1986). The pivotal question is whether the party bearing the burden of proof has presented a jury question as to each element of its case. Id.,
477 U.S. at 322,
106 S.Ct. at 2552.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
In his response to defendant City's motion, plaintiff fails to present any evidence demonstrating the existence of the alleged policies or customs other than the single incident involving him. However, allegations that a particular officer was improperly trained or that a particular injury could have been avoided with better training are insufficient to prove municipal liability. Canton, 489 U.S. at 390-91; Sova, 142 F.3d 898 at 904.
Proof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional policy, which policy can be attributed to a municipal policymaker. Otherwise, the existence of the unconstitutional policy, and its origin, must be separately proved.
City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-824 (1984). This single incident, in and of itself, is insufficient to establish municipal liability. Accordingly, defendant City's motion for summary judgment with respect to Count IV will be granted.
VII. Conclusion
Defendants' Rule 56(b) motion for summary judgment (docket no. 19) will be GRANTED with respect to defendants Grand Rapids Police Department, City of Grand Rapids and Mike White. Defendant Les Smith's motion for summary judgment will be GRANTED with respect to plaintiff's claim in Count II that he was thrown across the hood of the car. However, defendant Smith's motion for summary judgment will be DENIED with respect to plaintiff's claim in Count II that he used excessive force in handcuffing plaintiff, and as to all of plaintiff's claims raised in Counts I and III. An order consistent with this opinion will be entered.
ORDER
In accordance with the Opinion filed this date:
IT IS ORDERED that defendants' Rule 56(b) motion for summary judgment (docket no. 19) is GRANTED in part and DENIED in part.
IT IS ORDERED that defendant's motion for summary judgment is GRANTED with respect to defendants Grand Rapids Police Department, City of Grand Rapids, and Mike White. Defendant Les Smith's motion for summary judgment is GRANTED with respect to plaintiff's claim in Count II that he was thrown across the hood of the car. Defendant Smith's motion for summary judgment is DENIED with respect to plaintiff's claim in Count II that he used excessive force in handcuffing plaintiff, and as to all of plaintiff's claims raised in Counts I and III.
IT IS SO ORDERED.