OPINION
DENNIS CAVANAUGH, District Judge
This matter comes before the Court upon motion by Robert Lazarowitz ("Defendant" or "Lazarowitz") to dismiss the Complaint for lack of subject matter jurisdiction in accordance with Fed.R.Civ.P. 12(b)(1) and/or to compel joinder of TD Bank, N.A. as an indispensable party in accordance with Fed.R.Civ.P. 19(a)(2); upon motion by Flatrock 3, LLC ("Defendant" or "Flatrock") to dismiss or stay this matter on grounds of abstention in accordance with Fed.R.Civ.P. 12(b)(1); and upon motion by David Kasparian and Michael Kasparian, joining in the foregoing motions, to dismiss or stay the present matter in accordance with Fed.R.Civ.P. 12(b)(1). Pursuant to Fed.R.Civ.P. 78, no oral argument was heard. After considering the submissions of all parties, it is the decision of this Court for the reasons herein expressed that Defendants' motion to dismiss for lack of subject matter jurisdiction is granted, Plaintiffs' request for jurisdictional discovery is denied and this case is dismissed without prejudice.
I. BACKGROUND
These facts have been adopted from the parties' respective court submissions.
On November 30, 2009, Plaintiff Fifth Third Bank filed a Complaint in this Court against Defendants seeking to recover the balance due on a construction loan issued in the amount of $39,000,000.00 and memorialized in a November 2, 2007 Note and Construction Loan Agreement between Plaintiff Fifth Third Bank and Defendant Flatrock. The Amended Complaint alleges that Flatrock defaulted on the loan and as a result, Fifth Third Bank is entitled to recover the balance due on the loan from Flatrock and individual Defendants and alleged guarantors David Kasparian, Michael Kasparian and Robert Lazarowitz.
The Amended Complaint asserts diversity of citizenship between all Plaintiffs and Defendants. Plaintiff Fifth Third Bank is identified as a citizen of Ohio and Plaintiff TD Bank, NA is identified as a citizen of Delaware. Defendants, David Kasparian, Michael Kasparian and Robert Lazarowitz are all identified as citizens of New Jersey. Defendant Flatrock is a limited liability company composed of two constituent limited liability companies, including ERA South Residential 3, LLC ("ERA") and Metropolitan Workforce Housing Fund, LLC ("Metropolitan"). In turn, ERA consists of three members, including David Kasparian, Michael Kasparian and Lazarowitz Family Associates Englewood, L.P. ("LFAE"), a limited partnership. Robert Lazarowitz is identified as the general partner of LFAE. The citizenship of the limited partner(s) of that entity is not indicated. Additionally, the Amended Complaint asserts that upon information and belief, the members of Metropolitan are citizens of New York. The individual members of Metropolitan are not identified.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
Fed.R.Civ.P. 12(b)(1) permits a court to dismiss a complaint for lack of subject matter jurisdiction. "A `facial' challenge by a defendant contests the adequacy of the pleading as it pertains to subject matter jurisdiction." Salazar v. Maquet Cardiovascular, No. 10-1166, 2010 U.S. Dist. LEXIS 57380, at *4-5 (D.N.J. June 10, 2010) (citing Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 n. 4 (3d Cir. 2002). "The party asserting jurisdiction bears the burden of demonstrating that jurisdiction is proper." Id. (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)). "When considering a `facial' attack under Rule 12(b)(1), `the court must consider the allegations of the complaint as true.'" Turicentro, 303 F.3d at 300.
B. Federal Rule of Civil Procedure 19(a)(2)
In accordance with Fed.R.Civ.P. 15(a)(1)(B), Plaintiff represents to this Court that the Complaint has been voluntarily amended to include TD Bank, NA. Therefore, the motion to dismiss on this ground is moot. The Court will proceed by addressing the case on subject matter jurisdiction grounds.
"If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff." Fed.R.Civ.P. 19.
III. DISCUSSION
A. Diversity Jurisdiction — 28 U.S.C. § 1332
Defendant Lazarowitz asserts that Plaintiffs' Amended Complaint is deficient for failure to affirmatively and unequivocally allege facts required to establish complete diversity among the parties. Specifically, Lazarowitz asserts that an allegation of Metropolitan's citizenship upon information and belief is insufficient to satisfy the burden of diversity.
By contrast, Plaintiffs assert that where "the challenge to the Court's jurisdiction is limited to the sufficiency of the averments (as opposed to factual challenges to the jurisdictional facts averred), they must be accepted as true and constructed liberally." In the alternative, to the extent the accuracy of the averments is in dispute, Plaintiffs contend that the Court should order limited discovery with respect to that issue and permit factual submissions by Plaintiffs.
"Jurisdictional statutes are to be strictly construed and the burden of proof is upon the plaintiff to affirmatively establish diversity of citizenship." Vail v. Doe, 39 F. Supp. 2d 477, 477 (D.N.J. 1999) (concluding that a complaint asserting, "statements defaming plaintiff have been sent from the State of New York. Upon information and belief, defendant John Doe is a citizen and resident of New York" was insufficient to establish diversity jurisdiction). "The standard by which the citizenship of a limited liability partnership is determined is explained by the Supreme Court of the United States in Carden v. Arkoma, 494 U.S. 185 [] (1990)." Comer v. ICCS Co., LLC, No. 08-2737, 2009 U.S. Dist. LEXIS 57586, at *6 (D.N.J. July 7, 2009). "[D]iversity jurisdiction in a suit by or against the entity depends on the citizenship of `all the members,' `the several persons composing such association,' `each of its members.'" Id. at *6 (quotingCarden, 494 U.S. at 195-96). "The citizenship of a limited liability company is determined like that of a limited partnership, by imputing to it the citizenship of its members."Id. at *6-7 (R R Capital v. Merritt, No. 07-2869, 2007 U.S. Dist. LEXIS 78754, at *12 (E.D. Pa. Oct. 23, 2007). "This method of determining citizenship is appropriate because `limited liability companies are (1) unincorporated associations, and (2) deemed to be citizens of each state in which their members are citizens, not the states in which they were formed or have their principal places of business.'" Id. (quoting Golf Brothers, LLC v. Saker, No. 09-2133, 2009 U.S. Dist. LEXIS 48745 at *2 (D.N.J. June 10, 2009)).
"[A] limited partnership is an unincorporated association whose citizenship is deemed to be that of the `persons composing such association.'" Trent Realty Associates v. First Federal Sav. Loan Asso., 657 F.2d 29, 31-32 (3d Cir. 1981) (internal citation omitted). "[T]his court held that the citizenship of a limited partner will defeat diversity if it is the same as one of the parties on the opposing side." Id. (internal citation omitted)."[I]n the context of partnerships, the complete diversity requirement demands that all partners be diverse from all parties on the opposing side." Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 183 (3d Cir. 2008).
Domicile is what matters for the purposes of determining citizenship; residence is different:
A difference between the concepts of residence and domicile has long been recognized. A person is generally a resident of any state with which he has a well-settled connection. . . . `Intent to remain indefinitely' in the State need not be shown in order to be considered a resident of a state.
Emerald Investors Trust v. Gaunt Parsippany Partners,
492 F.3d 192, 208 n. 24 (3d Cir. 2007). "Citizenship is synonymous with domicile, and the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning."
Id. (citing
McCann v. Newman Irrevocable Trust,
458 F.3d 281, 286 (3d Cir. 2006)).
"It is well established that `the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot `be established argumentatively or by mere inference." S. Freedman Co. v. Raab, No. 05-1138, 2006 U.S. App. LEXIS 11611, at *10 (3d cir. May 10, 2006). "The citizenship of each membership layer must be traced and analyzed to determine a limited liability company's citizenship." Annunziata v. Palazzolo, No. 10-3227, 2010 U.S. Dist. LEXIS 64007, at *1 (D.N.J. June 28, 2010) (citing Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010)); see Hessert Constr. N.J., L.L.C. v. Garrison Architects, P.C., No. 06-5696, 2007 U.S. Dist. LEXIS 50997, at *9 (D.N.J. July 13, 2007) (citing Hart v. Terminex Int'l, 336 F.3d 541, 543 (7th Cir., 2003) (The citizenship of an unincorporated business entity corresponds to the citizenship of each and every one of its members, "traced through" the layers of Terminex's ownership and eventually found a partner-corporation who was a citizen of Illinois)).
Plaintiffs' Amended Complaint asserts the following:
Defendant Flatrock 3, LLC ("Flatrock") is a limited liability company with an address c/o MDK Development, LLC, 594 Valley Health Plaza, Paramus, NJ 07652. As a limited liability company, Flatrock's citizenship is defined by the citizenship of its members. The members of Flatrock are ERA South Residential 3, LLC and Metropolitan Workforce Housing Fund, LLC. In turn, the members of ERA South Residential 3, LLC are Michael Kasparian, a citizen of New Jersey, David Kasparian, a citizen of New Jersey and Lazarowitz Family Associates Englewood, L.P., a limited partnership. Robert Lazarowitz, a citizen of New Jersey, is the general partner of Lazarowitz Family Associates Englewood, L.P. Upon information and belief, the members of Metropolitan Workforce Housing Fund, LLC are citizens of New York. Accordingly, Flatrock is a citizen of New Jersey and New York.
Amended Complaint, ¶ 3. Plaintiffs identify Fifth Third Bank as a citizen of Ohio and TD Bank, NA as a citizen of Delaware. The Court agrees with Defendant that the assertion, upon information and belief, "the members of Metropolitan Workforce Housing Fund, LLC are citizens of New York" is insufficient to affirmatively establish diversity jurisdiction. In accordance with the foregoing, "[t]he citizenship of each membership layer must be traced and analyzed to determine a limited liability company's citizenship." Plaintiffs have failed to identify or trace the citizenship of each individual member of Metropolitan for purposes of establishing diversity jurisdiction. Moreover, the citizenship of Lazarowitz Family Associates Englewood, L.P., previously recognized as a Delaware limited partnership in the original Complaint, is subject to imputation. Accordingly, with respect to the limited partnership, the citizenship of the individual members of that entity, including limited partners, are required to be established. The existence of diversity jurisdiction is presently unclear.
B. Jurisdictional Discovery
In lieu of dismissal, Plaintiffs request jurisdictional discovery with respect to any factual issues raised concerning diversity of citizenship. Defendants oppose jurisdictional discovery on the grounds of fairness and the fact that Plaintiffs knowingly filed the action without sufficient facts to demonstrate that this Court has authority to hear the present action.
"In the Third Circuit, jurisdictional discovery is ordinarily available to assist a plaintiff in establishing the contacts necessary for the exercise of personal jurisdiction." Everything Yogurt Brands, LLC v. M.A.R. Foods, No. 09-4847, 2009 U.S. Dist. LEXIS 94601, at *3 (D.N.J. Oct. 9, 2009). "The Third Circuit has not directly addressed, however, the question of whether jurisdictional discovery is available to assist in resolving uncertainties about diversity jurisdiction." Id. In declining to grant jurisdictional discovery, that Court cited Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 203 (3d Cir. 2007) in which the Third Circuit Court of Appeals "considered the question of how to determine the citizenship of a trust for purposes of diversity jurisdiction." Id. In evaluating four potentially applicable tests, the Court rejected one option "because it would require jurisdictional discovery" indicating:
The problem with this rule is that it places a great and unnecessary burden on both the litigants and the courts themselves. The Wright Miller rule would require that in each case where a trust is a party and the plaintiff relies on the court's diversity of citizenship jurisdiction, the court would have to monitor jurisdictional discovery to the same extent that it monitors any discovery in the case, and make findings with respect to the roles of the trustee and beneficiary in the affairs of the trust, all in a case that might be dismissed, or, if removed from a state court, remanded to it.
Id. (quoting
Emerald,
492 F.3d at 203). "Furthermore, in support of its decision, the Court quoted
Kuntz v. Lamar Corp.,
385 F.3d 1177, 1183 (9th Cir. 2004): `[J]urisdictional rules should be as simple as possible, so that the time of litigants and judges is not wasted deciding where a case should be brought and so that fully litigated cases are not set at naught.'"
Id. (citing
Emerald, 493 F.3d at 203). In conclusion, that Court determined that the "kind of jurisdictional discovery [sought is the kind] that the Third Circuit has held to be unnecessarily burdensome, especially when a case may be remanded to state court. Defendant's request for jurisdictional discovery will be denied."
Id.;
compare Rowen Petroleum Props., LLC v. Hollywood Tanning Sys., No. 08-4764, 2009 U.S. Dist. LEXIS 33685 (D.N.J. Apr. 20, 2009) (directing the parties to conduct jurisdictional discovery to establish subject matter jurisdiction with respect to named defendants, limited liability companies, in that matter).
In the interest of judicial economy and the conservation of resources, the Court declines to invoke jurisdictional discovery. Moreover, it is unclear to this Court that Plaintiffs have pursued alternate avenues for acquiring the necessary information.
Notably, the Court can conceive of distinction in jurisdictional discovery as it pertains to personal jurisdiction and subject matter jurisdiction. Although a party may waive personal jurisdiction, see Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969), "it is well-settled that a party can never waive lack of subject matter jurisdiction." Brown v. Phila Housing Auth., 350 F.3d 338, 347 (3d Cir. 2003). To that end,
[s]ubject-matter jurisdiction, then, is an Art. III as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign. Certain legal consequences directly follow from this. For example, no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, principles of estoppel do not apply, and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings.
Id. (citing Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). In requesting the Court to permit jurisdictional discovery, essentially Plaintiffs invite the Court to exercise limited subject matter jurisdiction, an authority that may not otherwise be present, for the purposes of establishing the existence of diversity jurisdiction. In fact, to the contrary, Fed.R.Civ.P. 12(h)(3) imposes a continuing obligation on the court to dismiss the action "whenever it appears . . . that the court lacks jurisdiction of the subject matter." Brown, 350 F.3d at 347.
In the absence of affirmative subject matter jurisdiction, this Court is precluded from exercising jurisdiction over the present matter. Therefore, the Court will not proceed by addressing the remaining issues presented with respect to the instant motions.
IV. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss for lack of subject matter jurisdiction is granted, Plaintiffs' request for jurisdictional discovery is denied and this case is dismissed without prejudice. An appropriate Order accompanies this Opinion.
early established constitutional right of which a reasonable person would have known. Third, [it] determine[s] whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal quotations and citations omitted). "The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
Saucier v. Katz, 533 U.S. 194, 202 (2001).
Although the Supreme Court, in Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 818 (2009), held that the courts now have discretion to address the second step first when appropriate, this Court will first examine whether Plaintiff has presented evidence of a constitutional violation. See Grawey, 567 F.3d at 309.
B. Alleged Constitutional Violations
In any § 1983 action, the exact contours of the underlying right said to have been violated must first be identified. The Supreme Court has repeatedly held that where a particular constitutional Amendment "provides an explicit textual source of constitutional protection" against a particular government behavior, "that Amendment, not the more generalized notion of [fourteenth amendment] `substantive due process,' must be the guide for analyzing these claims." Graham v. Connor, 490 U.S. 386, 395 (1989).
Insofar as Plaintiff's claim relates to Defendants' use of excessive force, it is properly analyzed under the Fourth Amendment, not under the Fourteenth Amendment. See, e.g., Graham, 490 U.S. at 395 (holding that " all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach") (emphasis in original); Ewolski v. City of Brunswick, 287 F.3d 492, 507 (6th Cir. 2002) (holding that because the plaintiff "was seized for the purposes of the Fourth Amendment, we therefore analyze the police's actions toward him solely under the objective reasonableness test of the Fourth Amendment").
Moreover, even if Plaintiff's claim did arise under the Fourteenth Amendment, the facts of this case do not rise to the level of a due process violation. The Supreme Court has held that, for purposes of a due process claim, "the cognizable level of executive abuse of power [is] that which shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). "In situations wherein the implicated state . . . agent(s) are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action . . . their actions will be deemed conscience-shocking if they were taken with `deliberate indifference' towards the plaintiff's federally protected rights." Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000). As discussed below, Plaintiff's Fourth Amendment rights were not violated. Accordingly, Defendants' actions could not have been taken with "deliberate indifference" towards those rights; therefore, Defendants' actions were not "conscience-shocking," and Plaintiff's Fourteenth Amendment claim fails.
Considering the facts in the light most favorable to Plaintiffs, this Court must determine whether a rational jury could find that Defendants' conduct violated Plaintiff's constitutional rights and, if so, whether Defendants' actions were objectively unreasonable.
1. Defendant City of Pontiac
A municipality may be held liable under § 1983 if the municipality itself caused a constitutional deprivation. Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978). A municipality, however, is not liable under § 1983 for an injury inflicted solely by employees or agents, as the doctrine of respondeat superior is inapplicable. Id. at 691-95. "It is only when the execution of the government's policy or custom . . . inflicts the injury that the municipality may be held liable under § 1983." Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994) (internal quotations and citations omitted). And, where the basis for asserting municipal liability is a policy or custom of tolerating violations of federal rights, a plaintiff must establish: (1) the existence of a clear and persistent pattern of illegal activity; (2) notice or constructive notice on the part of the municipality; (3) tacit approval of the unconstitutional conduct, such that its deliberate indifference in its failure to act can be said to amount to an official policy of inaction; and (4) that the custom was the "moving force" or direct causal link in the constitutional deprivation. Doe v. Claiborne County, Tenn., 103 F.3d 495, 508 (6th Cir. 1996).
Here, Plaintiffs have failed to create a genuine issue of material fact with respect to municipal liability. Plaintiff has failed to provide any evidence of an unlawful municipal policy, practice or custom, much less one that could be the "moving force" behind the alleged unconstitutional conduct of Officers Stone and Johnson. The sole basis of Plaintiff's claim against the City of Pontiac are the allegations contained in his Amended Complaint.
Plaintiff, in his response to Defendants' motion, argues that "Defendants took steps to conceal . . . information in order to shield their officers from liability. It is that active concealment of abusive police actions that creates the liability of the city of Pontiac." (Pl.'s Resp. at 1.) The record, however, contains no evidence of any concealment. The internal affairs office of the PPD, in fact, investigated Plaintiff's claims of abuse and conducted six separate interviews into the events surrounding Plaintiff's arrest on April 7, 2007. ( See Defs.' Mot., Ex. D ("This meeting that you're having and this investigation we're having is in reference to an internal investigation with the Pontiac Police Department [regarding the complaint Plaintiff filed with the PPD on April 9, 2007]."); see also Defs.' Mot., Exs. E, L.)
Moreover, Plaintiff's claim that the PPD may have attempted to conceal the fact that Sergeant Harris observed "what appeared to be a piece of tooth on the windshield" of Officer Stone's patrol car is simply not supported by the record. Defendants have not contested that, during his arrest, Plaintiff contacted the patrol car nor have Defendants' contested that the windshield was damaged as a result of that contact. Additionally, Defendants have not contested that a piece of Plaintiff's tooth was observed on the patrol car's windshield. Defendants have merely theorized that Plaintiff's tooth may have been injured prior to his encounter with the police — that the "violent" crash during the high speed police chase, instead, may have caused the injury to Plaintiff's tooth. And, although this Court is granting Defendants' motion on other grounds, it recognizes that Defendants' theory here is not only plausible, but is also supported by the record. The transcript of Plaintiff's interview with the PPD Internal Affairs Office provides:
Terry: . . . You were in the vehicle that hit somebody but that you don't know . . . what shape they're in.
Brady: I was a passenger. That do not concern me . . . I wasn't driving. . . . Well I was more concerned about myself. . . .
Terry: What were you worried about?
Brady: Well I was just making sure wasn't no; I didn't have no teeth missing or . . . That I was like . . . I was making sure that I had all my teeth in . . .
(Defs.' Mot., Ex. D at 10, 12.)
29. That Defendant City of Pontiac has allowed Defendants Stone to continue employment notwithstanding his continued violations of citizens' constitutional rights including, but not limited to another incident during which he fired three pepper balls at a citizen in 2007.
30. Defendant Stone's actions which have been tolerated by Defendant City of Pontiac show that the municipality has either failed to properly train him or has acquiesced to his illegal actions by continuing his employment.
31. The city's indifference to Officer Stone's violations of citizens rights evinces a deliberate indifference to the rights of citizens who come into contact with the police.
32. Defendant City of Pontiac, acting under color of state law, authorized, tolerated, ratified, permitted, or acquiesced in the creation of practices and customs establishing a de facto policy of deliberate indifference to the constitutional rights of individuals such as Plaintiff.
(Am. Compl. ¶¶ 29-32.) Despite these vague and conclusory allegations contained in the Amended Complaint, Plaintiff has not provided any factual support for the claimed constitutional violation against the City of Pontiac. Plaintiff's bare allegations here are not sufficient. See Taylor v. Canton, Ohio Police Dept., 544 F.Supp. 783, 788 (N.D. Ohio 1982) (holding that a plaintiff must set forth facts showing the existence of an offending custom or policy and mere conclusory allegations are insufficient).
Under Rule 56, the party opposing a motion for summary judgment "may not rely merely on allegations . . . in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. If the disputed evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). Plaintiff has not met this standard, and the Court finds that Plaintiff has failed to present sufficient evidence such that a reasonable juror could find that the City of Pontiac had a policy, custom or practice of tolerating constitutional violations. Accordingly, the City of Pontiac is entitled to summary judgment in its favor.
2. Defendant John Johnson
In response to Defendants' motion, Plaintiff asserts two basis of liability against Officer Johnson: (1) failure to prevent Officer Stone from committing constitutional violations against Plaintiff; and (2) committing a constitutional violation himself by using excessive force in escorting Plaintiff to the patrol car. The Court addresses each allegation in turn.
a. Failure to Prevent Constitutional Violation
The Amended Complaint does not allege any affirmative act on Officer Johnson's part against Plaintiff. Plaintiff only alleges that Officer Johnson's failure to act permitted excessive force to be used against him.
27. That Defendant John Johnson breached his absolute duty and violated Plaintiff's constitutional rights as protected by the 4th and 14th amendment by failing to stop Defendant Stone from using excessive and unwarranted force after Plaintiff was fully and completely under Defendants officers' control.
28. Defendant Johnson aided his partner by explicitly or impliedly allowing him to slam Plaintiff's head unto the windshield of a car and beat Plaintiff. . . .
(Am. Compl. ¶¶ 27-28.) Plaintiff claims that Officer Johnson stood by during Officer Stone's contact with him, without attempting to intervene.
Generally a police officer is only liable for § 1983 claims where he actually participated in some unconstitutional conduct. An officer who does not actively participate in the use of excessive force may nevertheless be held liable if the plaintiff can prove that the non-participant "owed the victim a duty of protection against the use of excessive force." Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). This can be shown where "the [non-participating] officer observed or had reason to know that excessive force would be or was being used, and the officer had both the opportunity and the means to prevent the harm from occurring." Id.
It is not disputed that — after escorting Plaintiff to the patrol car — Officer Johnson left to attend to other matters, did not have any further contact with Plaintiff, and was not around when the alleged constitutional violations occurred. There is also no evidence that Officer Johnson observed or had reason to know that any of the alleged unconstitutional acts were about to occur or that he was in position to prevent them from occurring. To the contrary, the record reveals that such conduct was not anticipated or expected: Plaintiff's testimony and the video footage demonstrate that the arrest happened quickly. Further, there is no evidence that Officer Johnson had either the opportunity or the means to prevent the alleged harm form occurring, and Plaintiff's bare allegations are insufficient to establish such. Accordingly, a reasonable jury could not find that Officer Johnson knew or should have known what Officer Stone would do or that Officer Johnson had the opportunity to prevent these acts from occurring. Officer Johnson is, therefore, not liable for the alleged force used by Officer Stone. Absent other evidence of unconstitutional conduct on his part, Officer Johnson is entitled to summary judgment in its favor.
b. Force Used by Johnson Objectively Reasonable
In his response to Defendants' motion Plaintiff includes an allegation of affirmative unconstitutional conduct against Officer Johnson. The response claims that both Officer Johnson and Officer Stone used excessive force while escorting him to the patrol car. (Pl.'s Resp. at 7 (claiming that Officer Johnson "took control of Plaintiff who was compliantly on the ground at the time of the officers' arrival at the scene. Defendants Stone and Johnson lifted Plaintiff with abrupt force and in such manner as to place unnecessary pressure on his shoulders and pain upon his body. The officers elected not to handcuff Plaintiff prior to taking him to their car. Then they dragged him to the car").)
The right to be free from the use of excessive or unreasonable force is a clearly established constitutional right. See Graham v. Connor, 490 U.S. 386, 392-99 (1989). "The `reasonableness' inquiry in an excessive force case is an objective one; consequently, [the Court] must consider `whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Ingram v. City of Columbus, 185 F.3d 579, 596 (6th Cir. 1999) (quoting Graham, 490 U.S. at 397). Determining whether there has been a constitutional violation is fact-specific, is analyzed under a totality of the circumstances test, and requires consideration of "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, whether the suspect is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. "The Court should judge the lawfulness of the conduct from the `perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight.'" Morrison v. Bd. of Tr. of Green Twp., 583 F.3d 394, 401 (6th Cir. 2009) (quoting Graham, 490 U.S. at 396). "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 (internal quotations and citation omitted). As observed by the Sixth Circuit:
Under
Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.
What constitutes "reasonable" action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.
Smith v. Freland, 954 F.2d 343, 346 (1992).
Taking the evidence in the light most favorable to Plaintiff but viewing it from the perspective of a reasonable officer on the scene, Plaintiff's evidence does not establish an excessive force claim against Officer Johnson. The record, and the video footage, simply does not reveal that the force deployed by Officer Johnson was excessive or otherwise unconstitutional. The evidence merely reflects that Officers Stone and Johnson escorted Plaintiff to the patrol car and Plaintiff resisted their exercise of control over him. Not only did Plaintiff resist, obstruct, and assault a police officer — an offense to which he plead guilty to — but a number of witness stated that as he was being escorted to the patrol car he pulled back, struggled, and protested his innocence. The record, here, is simply devoid of any evidence that the physical force deployed by Officer Johnson, or Officer Stone, in escorting Plaintiff to the patrol car was anything other than objectively reasonable. Accordingly, Officer Johnson is entitled to summary judgment in its favor.
Plaintiff is precluded by law from denying active resistence. See Walker v. Schaeffer, 854 F.2d 138, 142 (6th Cir. 1988) (holding that a plea of no contest in a state-court criminal proceeding precludes that defendant, under the doctrine of collateral estoppel, from re-litigating the factual basis for the underlying criminal conviction in a subsequent civil action brought in federal court under 42 U.S.C. § 1983). Thus, Plaintiff cannot now assert that he did not resist the officers' efforts to arrest him.
3. Defendant David Stone
Plaintiff alleges that Officer Stone violated his constitutional rights by: (1) slamming his head into the patrol car windshield; (2) punching him repeatedly; and (3) assaulting him inside the patrol car. As discussed below, this Court finds that Plaintiff's excessive force claims against Officer Stone also fail.
a. Fed.R.Civ.P. 36(b)
On August 25, 2009, Defendants served Plaintiff with requests for admissions. (Defs.' Reply, Ex. N.) Although the requests for admission were addressed to "Demetrius Brady, In Pro Per, 360 Central St., Pontiac, Ml", the attached proof of service demonstrates that, pursuant to Fed.R.Civ.P. 5(b)(2)(c), Defendants served Plaintiff with the requests for admission via regular first class mail at two separate address that, during the pendency of this action, Plaintiff claimed to reside: 360 Central St., Pontiac, Michigan and 91 Palmer, Pontiac, Michigan. (Defs.' Reply, Ex. N at 8; Defs.' Supp. Brief Ex. 1 at 8.) "Because there was a discrepancy regarding Plaintiff's last known address, Defendants used an abundance of caution and served the Requests for Admission of Plaintiff by mailing the document to both of the addresses which Plaintiff informed Defendants had been at one time or another his `current address.'" (Defs.' Supp. Brief at 4.) Plaintiff, however, contends that he never received the requests for admission.
At a hearing on December 01, 2009, . . . Plaintiff . . . testified that his address is 91 Palmer. . . . [It] is a real cause of concern as to whether any document was ever mailed to Plaintiff. The 360 Central address is Plaintiff's parent's house and if any document was sent to that location, Plaintiff would have received knowledge of it. The fact that he did not receive anything is sufficient for the court to rule that there is no duty to respond to something that one did not receive. And since there was no document received at either address, Plaintiff has no duty to respond to what he did not receive.
(Pl.'s Supp. Brief at 3-5.) The fact that Plaintiff claims that he did not receive the requests for admission is irrelevant: under Fed.R.Civ.P. 5(b)(2)(c) the mailing of the requests for admission to Plaintiff's last known address constituted service upon him and nonreceipt does not affect its validity.
Plaintiff's counsel arguably misrepresented to this Court — both orally (at the July 7, 2010 hearing on Defendants' motion for summary judgment) and in writing (in his supplemental brief, Docket Text #69) — that, on December 1, 2009, Plaintiff testified under oath that he never received the requests to admit. ( See, e.g., Pl.s' Supp. Brief at 2 ("[A]fter Plaintiff's testimony that he did not receive any Request to Admit . . ."); see also id. at 4 ("At the same hearing, Plaintiff testified and stated that he did not receive anything . . ."); id. at 5 ("Plaintiff testified under oath that he did not receive anything.").) The transcript of Plaintiff's testimony, however, does not include any such affirmative statement by Plaintiff. The relevant portion of the transcript provides:
Court: Anything further that you think I should know to help me?
Plaintiff: Yes, your Honor. I think that you should know that my mailing address is 91 Palmer, Pontiac, Michigan, 48341, not 360 Central, Pontiac, Michigan.
Court: Was that the — the address that the certificate of service was sent to, the requests for admissions? Are you telling me that you did not live at the address to which —
Plaintiff: I don't live at the address of 360 Central. I live at 91 Palmer Street.
Court: Did you, at some point, live at 360 — 360 Central?
Plaintiff: That's my — that's my parents' house. I reside with my grandmother.
Court: Thank you very much.
(Tr. of Dec. 1, 2009 Hr'g on Pl.'s Motion to Dismiss Without Prejudice at 31.) While this transcript shows that Plaintiff made statements regarding his current address, it does not show that Plaintiff made any affirmative statement that he, in fact, never received the requests for admission.
See Carter v. McGowan, 524 F.Supp. 1119, 1121 (D.C. Nev. 1981) ("The plaintiff's claim that he never received notice of the taking of his deposition is not disputed. However, mailing of the notice to him at his last known address constituted service upon him. Fed.R.Civ.P. 5(b). Nonreceipt of the notice does not affect its validity.") (citing 2 Moore's Fed. Prac. § 5.07, 4 Wright Miller, Fed. Prac. and Proc. § 1148); Greenspun v. Schlindwein, 574 F.Supp. 1038, 1039 (E.D. Pa. 1983) ("[B]ecause service by mail is complete upon mailing, Fed.R.Civ.P. 5(b), plaintiff's denial that he received the government's responsive pleading is irrelevant."); Korte v. Chico Unified School Dist., No. 85-739, 1988 WL 168521, *2 (E.D. Cal. Oct 14, 1988) ("The plaintiff's claim that he never received notice of the taking of his deposition is not disputed. However, mailing of the notice to him at his last known address constituted service upon him. Fed.R.Civ.P. 5(b). Nonreceipt of the notice does not affect its validity.").
Federal Rule of Civil Procedure 36(a)(1) permits a party to "serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matter within the scope of Rule 26(b)(1) relating to . . . facts, the application of law to fact, or opinions." Subsection (a)(3) provides that a party has 30 days in which to respond to a Request for Admission and if a party does not serve an answer or objection within the time specified, the matter requested is "deemed admitted."
A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
Fed.R.Civ.P. 36(a)(3).
Federal Rule of Civil Procedure 36(b) further provides that "a matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." Fed.R.Civ.P. 36(b). "Rule 36(a) allows a party to request an admission even where the request seeks admission of `ultimate facts' or `is dispositive of the entire case.'" Turk v. Citimortgage, No. 05-70386, 2005 WL 2090888, at *3 (E.D. Mich. 2005) (citing Campbell v. Spectrum Automation Co., 601 F.2d 246, 253 (6th Cir. 1979)). "Thus matters deemed admitted can serve as a basis for the granting of a motion for summary judgment." Id. (citing Fed.R.Civ.P. 56(c); First Nat'l Bank Co. of Clinton, Ill. v. Ins. Co. of N. Am., 606 F.2d 760, 766 (7th Cir. 1979); Dukes v. South Carolina Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985)).
Here, Defendants served Plaintiff with requests for admissions on August 25, 2009. The requests for admission asked Plaintiff to admit, inter alia, each of the following:
7. Please admit that Officer Stone did not force your face into the windshield of the police vehicle during your arrest on . . . April 7, 2007. . . .
9. Please admit that Officer Stone did not punch or strike you in the face during your arrest . . .
11. Please admit that Officer Stone did not force your head into the divider located between seats in the Pontiac Police vehicle . . .
19. Please admit that as a result of the automobile accident . . . you sustained physical injuries including injury to your teeth, gums, and jaw.
(Defs.' Reply, Ex. N.) Plaintiff has never responded. In a pleading dated November 13, 2009, (Defs.' Resp. to Pl.'s Mot. to Dismiss at 8 [Docket Text # 36]), Defendants reminded Plaintiff again of the outstanding requests for admissions. Despite notice, Plaintiff has not responded to Defendants' requests for admissions nor has Plaintiff moved this Court for an order extending the time to respond. As Plaintiff has failed to answer or object to Defendants' requests for admission, the Court will deem the matters within the requests admitted pursuant to Rule 36. Plaintiff is, thus, estopped from arguing that Officer Stone engaged in acts of excessive force resulting in an injury or that his injury occurred by any other means other than the automobile accident. See, e.g., Jones v. City of Flint, 07-10524, 2009 WL 174136, *2 (E.D. Mich. Jan 26, 2009). Officers Stone is, therefore, entitled to summary judgment.
In his supplemental brief, Plaintiff moved to withdraw the admissions under Fed.R.Civ.P. 36(b). Under Rule 36(b) "the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits." The Court declines to exercise its discretion to permit withdrawal of the admissions. Moreover, the Court finds that Plaintiff's motion fails to satisfy the rule's requirements. See, e.g., Heller Financial, Inc. v. Pandhi, 1989 WL 136091, *4 (6th Cir. 1989).
Notwithstanding the procedural bar to Plaintiff's claims, this Court also finds that Plaintiff's excessive force claims against Officer Stone fail on substantive grounds. The Court first addresses the claim of excessive force related to Plaintiff's contact with the windshield followed by his claim of excessive force related to the subsequent punches and the alleged assault while in the patrol car.
b. Windshield Incident: Force Used by Stone Objectively Reasonable
In response to Defendants' motion, Plaintiff alleges that Officer Stone, after having him under "complete and total control"
took Plaintiff's head and with extreme and brute force slammed Plaintiff's face into the windshield of Defendants' patrol car. . . . Plaintiff's face was slammed into the windshield with such force that the windshield of the patrol car shattered. After his face was slammed into the windshield, Plaintiff's teeth came out and one of his teeth became embedded in the patrol's car windshield.
(Pl.'s Resp. at 7-8.) Plaintiff's claims:
24. That the force used by Defendant Stone against Plaintiff was extreme, grossly excessive, unreasonable, unwarranted and done for the sole purpose of inflicting pain and suffering upon Plaintiff.
25. That by slamming Plaintiff's head unto the windshield of a patrol car, Defendant Stone who was acting under color of his authority as police officer clearly engaged in unwarranted violence against a young, frail man over whom he had complete control and who did not pose any threat to him. . . .
(Am. Compl. ¶¶ 24-25.)
Taking the evidence in the light most favorable to Plaintiff but viewing it from the perspective of a reasonable officer on the scene — the Court finds that, with regards to the incident where Plaintiff contacted the windshield of the patrol car, Plaintiff's has not established an excessive force claim against Officer Stone. As discussed above, determining whether there has been a constitutional violation is fact-specific, is analyzed under a totality of the circumstances test, and requires consideration of "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, whether the suspect is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.
The record, here, is simply devoid of any evidence that the physical force deployed by Officer Stone was anything other than objectively reasonable. Plaintiff was involved in an unarmed robbery of an unsuspecting victim, he fled the scene of the crime, entered into a high speed police chase that ended in a violent collision with another unsuspecting victim. Plaintiff then continued to flee on foot and refused lawful orders to surrender. When finally detained by a group of citizens, and then by police, Plaintiff resisted the efforts to detain and arrest him. Officer Stone's efforts to control Plaintiff while effectuating a lawful arrest, under the circumstances presented here, were objectively reasonable.
Although the Court did not consider the opinions of the witnesses to the events of April 7, 2007 in determining whether a constitutional violation had occurred, it is interesting to note that the predominant response from those witnesses was that the officers acted reasonable under the circumstances. In their interview with the PDP, Kaller and Smith were asked the following question "From what both of you seen out there on this incident do you fell that the Pontiac police . . . officers that were there did anything that was excessive, did nay type of excessive force to [Plaintiff] or did they go above the means of arresting him? Do you feel that they acted appropriately for what they had to deal with?" that "the officers . . . they were struggling with [Plaintiff]." Williams responded: "Yeah I think they did." (Williams Statement, Defs.' Mot., Ex. L at 12). Kaller similarly responded: "I think they acted appropriately too." (Kaller Statement, Defs.' Mot., Ex. L at 12). Like Kaller and Smith, Sullivan, in his interview, was asked "So in your opinion . . . the officers the way they handled themselves due to the fact that . . . [Plaintiff] was actively resisting during the incident, you believe that the officers handled the situation appropriately?", and responded "Yeah I believe if he wouldn't have freaking kept jerking around and acting like a fool they may not have done what they did." (Sullivan Statement, Defs.' Mot., Ex. L at 14.)
c. Allegations of Other Abuse: Blatantly Contradicted by the Record
In response to Defendants' motion, Plaintiff also alleges that Officer Stone, following the windshield incident,
repeatedly punched Plaintiff on or about his head and face before placing Plaintiff in the patrol car and they continued hitting him after placing him in the rear of the patrol car.
(Pl.'s Resp. at 8.) Plaintiff thus claims:
24. That the force used by Defendant Stone against Plaintiff was extreme, grossly excessive, unreasonable, unwarranted and done for the sole purpose of inflicting pain and suffering upon Plaintiff.
(Am. Compl. ¶ 24.) Despite these vague and conclusory allegations, Plaintiff has not provided sufficient factual support for the claimed constitutional violation against Officer Stone regarding the alleged punches or assault while in the patrol car.
Under Rule 56, the party opposing a motion for summary judgment "may not rely merely on allegations . . . in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. If the disputed evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). Moreover, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." See also Scott v. Harris, 550 U.S. 372, 380 (2007).
That is the case here with regard to the issue of whether Officer Stone punched Plaintiff in the face and whether Officer Stone assaulted Plaintiff while in the patrol car.
[Plaintiff] claims that immediately after his face struck the windshield, the officer lifted him up and punched him repeatedly. [Plaintiff] contends that the officer walked him to the opposite side of the vehicle and punched him again. [Plaintiff] contents that the officer placed him the rear of the vehicle, grabbed the back of his head and forced his head forward into the center divider. [Plaintiff] cannot recall how many times he was punched or where the punches landed. However, he admits that the alleged beating took place in front of a group of concerned citizens. [Plaintiff] did not advise any of the treating, assisting or attending physicians that he was punched by a police officer. The civilian witnesses interviewed by police advised investigators that [Plaintiff] struggled with the officers throughout. However, not one of the witnesses saw any police officer strike Plaintiff with an open or closed hand.
[Plaintiff]'s testimony regarding this occurrence is directly contradicted by the videotape evidence and [Plaintiff]'s admissions to police investigators and medical providers. [Plaintiff]'s testimony is inherently unbelievable, contrary to the record and insufficient as a matter of law to support a cause of action for excessive force under the Fourth Amendment.
(Defs.' Mot. at 29 (internal citations omitted).) The Court agrees: Plaintiff's "version of events is so utterly discredited by the record that no reasonable jury could have believed him." Scott, 550 U.S. at 380. Accordingly, Officer Stone is entitled to summary judgment in his favor.
IV. Conclusion
For the foregoing reasons, Defendants' amended motion for summary judgment is hereby GRANTED.
For the reasons stated above and finding the arguments in Defendants' brief well-founded, Defendants' motion to dismiss consolidated case 10-12088 [Docket Text #57] is also GRANTED.
Because Plaintiff has failed to demonstrate excusable neglect that would permit the Court, in its discretion, to further extend the discovery deadline under Fed.R.Civ.P. 6(b)(1)(B), Plaintiff's motion to extend the scheduling order [Docket Text #60] is DENIED.
Plaintiff's motion in limine [Docket Text #59] is DENIED as moot.
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on July 21, 2010, by electronic and/or ordinary mail.