LITTLETON v. CITY OF DETROIT, (E.D.Mich. 2002)

VICTORIA A. ROBERTS, United States District Judge

I. INTRODUCTION

This civil rights matter is before the Court on Defendants' Motion for Summary Judgment. Plaintiff alleges violations of his Fourth, Fifth, and Fourteenth Amendment rights by City of Detroit Police Officers following an incident that took place in front of a nightclub in the early morning hours. Essentially, Plaintiff's allegations amount to claims of unlawful seizure and excessive force. In addition to individual claims against the police officers, Plaintiff has asserted claims against the City of Detroit, alleging that the conduct of the officers was a result of a policy or practice of the City's police department.

Because Plaintiff has failed to plead facts sufficient to support his claims against the City of Detroit, the City is dismissed from this action. However, Plaintiff's allegations against Officers Donahue and Mitchell are sufficient to survive Defendants' Motion for Summary Judgment.

II. BACKGROUND

On November 26, 2000, Detroit Police Officers Thomas Donahue and James Mitchell were on plainclothes patrol in the area of Michigan Avenue and 19th Street. At approximately 4:15 a.m., the police officers noticed Plaintiff in front of Club 1X, a nightclub, located at 5775 Michigan Avenue.

According to the police officers, Plaintiff was urinating against the building. The officers therefore stopped their car, which was unmarked, and identified themselves as police officers. When Officer Donahue exited the car, Plaintiff ran. As Plaintiff fled, with Officer Donahue in pursuit, he tripped and fell, taking Officer Donahue down with him. Plaintiff was detained by Officer Donahue who issued a citation for urinating in public. Plaintiff was then released from police custody.

Plaintiff alleges that he had only gone outside because he had been feeling a little dizzy after helping the owners of the club clean up after closing. As he leaned against the wall to gather his composure, an unmarked police car pulled up, and the two males inside yelled, "what are you doing?" Because the car was unmarked, and the men inside were not wearing uniforms, Plaintiff thought they were about to rob him. Plaintiff, therefore, did not respond to their question. The men jumped out of the car, and Plaintiff tried to run back inside Club 1X. Officer Donahue tackled Plaintiff to the ground. He then picked Plaintiff up, and threw him against a wall, accusing him of public urination. Officer Mitchell witnessed the events, but did not get involved or attempt to restrain his partner. Officer Donahue then harassed Plaintiff, implying that the club was a gay bar. Plaintiff was placed in the back of the police car. When he asked the officers what was going on, he was threatened by Officer Donahue and told to "shut-up" or he would "shut him up." Officer Donahue then issued Plaintiff a citation for public urination.

Plaintiff then filed this action, alleging violations of his rights under both the United States and Michigan Constitutions, as well as common law tort claims for assault, battery, negligence, and gross negligence. Plaintiff alleges that as a result of the excessive force used by Officer Donahue, he suffered severe head trauma, bruising on his forehead, arms, legs, and hands, extreme shock and emotional distress, and severe pain and suffering.

III. PROCEDURAL BACKGROUND

On September 18, 2001, Defendants filed a Motion for Partial Summary Judgment, arguing that the City of Detroit should be dismissed on all counts. In addition, Defendants argued that the claims against all Defendants under the Michigan Constitution should be dismissed pursuant to the Michigan Supreme Court's decision in Jones v. Powell, 462 Mich. 329 (2000). The Court granted Defendants' motion, in part, on September 26, 2001. In the Order, the Court dismissed the claims brought under the Michigan Constitution, the assault and battery claims, and the gross negligence claims against the City of Detroit, but not the police officers. In addition, the Court dismissed the § 1983 claim without prejudice.

On November 2, 2001, the Court entered an order of clarification indicating that the Motion for Summary Judgment on the § 1983 claim (Count I) had been denied. In addition, the Court indicated that the claims under the Michigan Constitution had been dismissed as to all defendants. Finally, the Court indicated that the assault, battery, and gross negligence claims had also been dismissed as to all defendants; i.e., the motion for summary judgment on Counts II, III, and IV, had been granted.

However, the Court finds that the assault, battery, and gross negligence claims (Counts III and IV) against the Officers Donahue and Mitchell should not have been dismissed. In their September 18, 2001 Motion for Summary Judgment, Defendants did not argue that these claims should be dismissed against the police officers. Further, because the Jones v. Powell decision only precludes claims for money damages under the Michigan Constitution, it does not support dismissal of Plaintiff's tort claims against the individual police officers.

Similarly, the governmental immunity statute, M.C.L. 691.1407 et seq, does not bar these claims against the individual police officers. First, an individual government employee's intentional torts are not shielded by the immunity statute. See Sudul v. City of Hamtramck, 221 Mich. App. 455, 481-88, 562 N.W.2d 478, 488-91 (1997). Second, under Section 1407(2) of the immunity statute, a government employee is not immune from liability where the employees' conduct amounts to gross negligence and is the proximate cause of the claimant's injuries. M.C.L. 691.1407(2). Thus, the assault, battery, and gross negligence claims against the police officers should not have been dismissed. The immunity statute does, however, bar Plaintiff's simple negligence claim against the police officers, and Plaintiff's tort claims against the City of Detroit.

On May 10, 2002, Defendants filed a second Motion for Summary Judgment, arguing that Plaintiff failed to allege that his constitutional rights were violated pursuant to a custom or policy of the City of Detroit, and that the police officers are entitled to qualified immunity. Thus, Defendants argue that this action should be dismissed in its entirety. Plaintiff has not filed a timely response to this motion.

On August 9, 2002, Plaintiff filed an emergency motion requesting leave to file a response. The Court will enter an order denying the motion because Plaintiff has failed to provide good cause for his failure to conform with the local rules.

IV. ANALYSIS

A. Standard

Under Fed.R.Civ.P. 56(c), summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995). The court must view the evidence in the light most favorable to the nonmoving party and it must also draw all reasonable inferences in the nonmoving party's favor. Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

The moving party bears the initial burden of showing that there is no genuine issue of material fact. Snyder v. AG Trucking Co., 57 F.3d 484, 488 (6th Cir. 1995). Once the moving party has met its burden, the burden shifts to the nonmoving party to produce evidence of a genuine issue of material fact. Rule 56(e); Cox, 53 F.3d at 150. The nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of its complaint. Copeland, 57 F.3d at 479. The mere existence of a scintilla of evidence to support the nonmoving party's position will be insufficient; there must be evidence on which a jury could reasonably find for the nonmoving party. Snyder, 57 F.3d at 488; Tolton, 48 F.3d at 941.

Here, Plaintiff has not filed anything in response to Defendants' motion for summary judgment.

[A] district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded. The court is required, at a minimum, to examine the movant's motion for summary judgment to ensure that he has discharged [his initial] burden . . . The federal rules require that the party filing a motion for summary judgment "always bears the burden of demonstrating the absence of a genuine issue at to a material fact . . . More importantly, for all purposes, the movant must always bear this initial burden regardless if an adverse party fails to respond. Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir. 1998), quoting Carver v. Bunch, 946 F.2d 451, 454Z55 (6th Cir. 1991).

Where the non-moving party has not filed anything in opposition to a motion for summary judgment, the Court is not required to search the record sua sponte for genuine issues of material fact, but instead may rely entirely on the evidence offered by the moving party showing there is no triable issue. See Guarino v. Brookfield Township Trustees, 980 F.2d 399 405-7 (6th Cir. 1992).

B. § 1983 Claim against the City of Detroit

Defendants are entitled to summary judgment on Plaintiff's claim against the City of Detroit because Plaintiff has not identified any policy of the Police Department that caused his alleged injuries. Further, summary judgment is appropriate on this claim because there is no evidence that the City acted with deliberate indifference to Plaintiff's rights. In Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978), the court held that a municipality may not be held liable under a respondeat superior theory. "[I]t is when the execution of a government's policy or custom, whether made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. Further, this Circuit requires a plaintiff to "identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of the policy." Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993).

Plaintiff's complaint does not identify any policy of the Detroit Police Department that caused his alleged injury. Rather, Plaintiff argues that the Police Department's failure to investigate claims of police brutality, failure to discipline officers who commit such acts, failure to track these officers, and failure to train its officers to avoid the use of excessive force amounted to deliberate indifference to Plaintiff's constitutional rights. It is now well-established that "the inadequacy of police training may serve as the basis for section 1983 liability only where the failure to train amounts to deliberate indiference to the rights of persons with whom the police came into contact." Brown v. Shaner, 172 F.3d 927, 930 (6th Cir. 1999) quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).

In Canton, the Court provided two types of situations that would justify the conclusion that the failure to train police officers amounted to deliberate indifference. The first situation is where the failure to provide adequate training occurred in light of foreseeable consequences that could result from the lack of instruction, for example, the lack of instruction in the use of deadly firearms. Brown, 172 F.3d at 931. The second situation "is where the city fails to act in response to repeated complaints of constitutional violations by its officers." Id.

Plaintiff's allegation that the Police Department failed to adequately train its police officers on the use of force, therefore, could justify the conclusion that the City acted with deliberate indifference. However, there is no evidence in the record that the Police Department's alleged failure to do so amounted to a municipal policy. Plaintiff has not produced any evidence that the Police Department does not train its officers on the use of force. See Matthews v. Jones, 35 F.3d 1046, 1049-50 (6th Cir. 1994) (summary judgment appropriate on excessive force claim where plaintiff failed to demonstrate that county had failed to properly train police dogs, or police officers on use of dogs to effectuate arrest).

Similarly, there is no evidence in the record to support Plaintiff's allegations that the Police Department failed to investigate claims of police brutality, failed to discipline its officers, or failed to track officers with prior complaints of brutality, either in this case or in the past. Thus, summary judgment is also appropriate on these failure to train claims. See Brown, 172 F.3d at 931.

Based on a review of the record, no genuine issues of material fact exist that preclude the Court from finding that the City of Detroit is entitled to judgment as a matter of law.

C. Qualified Immunity

Defendants argue that the claims against Officers Donahue and Mitchell should be dismissed under the doctrine of qualified immunity. "[G]ovemment 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) (intemal citations omitted). "The central purpose of affording public officials qualified immunity from suit is to protect them "from undue interference with their duties and from potentially disabling threats of liability.'" Elder v. Holloway, 510 U.S. 510, 514 (1994) quoting Harlow, 457 U.S. at 806.

The threshold question for the Court in the qualified immunity analysis is whether, based on facts alleged and considering in "the light most favorable to the party asserting the injury," the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200 (2001). If the Court finds a constitutional violation, the next step is to determine whether the right was clearly established:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." . . . 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 . . . If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.

Saucier, 533 U.S. at 202 (internal citations omitted)

"Although it need not be the case that "the very action in question has previously been held unlawful . . . in the light of pre-existing law the unlawfulness must be apparent.' "Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (internal citation omitted). In the final step of the qualified immunity analysis, the Court must determine whether plaintiff has alleged sufficient facts supported 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) citing Dickerson, 101 F.3d at 1157-58.

To survive a summary judgment motion based on qualified immunity, Plaintiff must identify a clearly established right alleged to have been violated, and establish that a reasonable police officer in Defendants' position would have known that their conduct violated that right. Gardenhire v Schubert, 205 F.3d 303, 311 (6th Cir 2000). The ultimate burden rests with Plaintiff to show that the Defendants are not entitled to qualified immunity. Id. However, "[t]he [Defendants bear] the initial burden of coming forward with facts to suggest that they acted within the scope of their discretionary authority during the incident in question. Id. Thereafter, the burden shifts to the Plaintiff to establish that the [Defendants'] conduct violated a right so clearly established that any official in their position would have clearly understood that they were under an affirmative duty to refrain from such conduct." Id.

Defendants argue that the police officers are entitled to immunity because they were performing a discretionary function, and because their arrest of Plaintiff did not violate clearly established constitutional rights. Plaintiff's Fourth Amendment right to be free from unreasonable seizures, and from the use of excessive force, however, are clearly established. See Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) (citing California v Hodari D., 499 U.S. 621 (1991) and Graham, 490 US at 392-393); Johnson, 137 F. Supp.2d at 893 ("there is a longstanding and clearly-established right to be free of excessive "pulling, kicking and pushing' without justification") (citing Katz v. United States, 194 F.3d 962, 970 (9th Cir. 1999)).

Where excessive force is alleged, the Court must analyze the claim of excessive force and an asserted defense of qualified immunity under their distinct tests. Saucier, 533 U.S. at 204. A finding of excessive force does not automatically preclude a finding of qualified immunity. Id at 207-208. The court must determine whether, on the particular facts of the case, it would be clear to a reasonable officer, under clearly established standards, that his conduct was unlawful. Id.

Claims of excessive force by police officers must be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Graham v Connor, 490 U.S. 386, 395 (1989). In Graham, the Court stated that "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id at 396. Therefore, when analyzing such a claim the Court must consider: 1) the severity of the crime; 2) whether the suspect poses an immediate threat to the safety of police officers or others; and 3) whether the suspect is actively resisting arrest or attempting to flee. Id. The trial court must determine "whether the officers' alleged actions are "objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id at 397. Reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id at 396.

Based on the test established by the Court in Graham, the officers are not entitled to summary judgment on Plaintiff's excessive force claim. Plaintiff was arrested for public urination, a misdemeanor. There is no indication in the record that he posed a threat to either the officers or to others. Finally, there is no indication in the record that Plaintiff was actively resisting the officers. In his complaint, Plaintiff alleges that Officer Donahue threw him to the ground, picked him up, then threw him against a wall. Defendants have not offered any evidence, in the form of affidavits or otherwise, disputing this claim. Defendants have offered unsigned affidavits of both police officers alleging that Plaintiff attempted to flee. However, even assuming this is true, the Court is not convinced, based on the standard of a reasonable police officer, that this amount of force was necessary to effectuate Plaintiff's arrest for a minor offense. Further, Plaintiff alleges that Officer Mitchell observed this use of excessive force and did not attempt to restrain Officer Donahue. Police officers can be held liable for failure to protect a person from the use of excessive force. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). Thus, Officers Donahue and Mitchell are not entitled to summary judgment on Plaintiff's excessive force claim based on the doctrine of qualified immunity.

Generally speaking, a police officer who fails to act to prevent the use of excessive force may be held liable when (1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)." Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).

The officers are, however, entitled to qualified immunity on Plaintiff's equal protection claim because Plaintiff has failed to plead that they discriminated against him because of his membership in a protected class. See Oyler v. Boles, 368 U.S. 448, 456 (1962) (Plaintiff's equal protection claim dismissed due to failure to allege invidious discrimination based upon his membership in a protected class).

In order for Plaintiff's claim to survive Defendants' motion, Plaintiff had to allege that he was denied equal protection of the law based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Id. As explained by the Court of Appeals for the Seventh Circuit in Huebschen v. Department of Health and Social Services, 716 F.2d 1167, 1171 (7th Cir. 1983), "[a] person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual." Inasmuch as Plaintiff merely alleged that he was treated unfairly as an individual by Defendants' actions, his equal protection claim was properly dismissed. Id.

Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999).

Plaintiff does not allege that he is a member of a protected class, or that he was discriminated against due to his membership in such class. Thus, his equal protection claim must be dismissed.

D. Plaintiff's Assault, Battery, Negligence, and Gross Negligence Claims

Defendants have not sought summary judgment on Plaintiff's assault, battery, negligence and gross negligence claims against Officers Mitchell and Donahue. As discussed in Section III, the police officers are immune from Plaintiff's negligence claim pursuant to M.C.L. 691.1407 et seq, but are not immune for their intentional torts or for conduct that amounts to gross negligence. Thus, Plaintiff's assault, battery, and gross negligence claims against the police officers survive.

V. CONCLUSION

For the reasons state above, Defendants' motion for summary judgment [Doc. 24] is GRANTED, in part. Plaintiff's § 1983 claim against the City of Detroit (Count II) is DISMISSED in its entirety. In addition, Plaintiff's § 1983 claim based on deprivation of equal protection is DISMISSED (Count I, dismissed in part).

However, Mitchell and Donahue's motion for summary judgment under the doctrine of qualified immunity on Plaintiff's excessive force claim is DENTED.

Finally, the Order of Clarification [Doc. 20] is hereby modified to reflect that Plaintiff's assault, battery, and gross negligence claims against the individual officers are not barred by the governmental immunity statute, M.C.L. 691.1407 et seq. Thus, neither Count IV, nor Count V as it relates to gross negligence, has been dismissed from this action.

The following claims remain: (1) Plaintiff's § 1983 claims against Officers Mitchell and Donahue for excessive force (Count I); (2) Plaintiff's claims against Officers Mitchell and Donahue for assault and battery (Count IV); (3) Plaintiff's claims against Officers Mitchell and Donahue for gross negligence (Count V); and (4) Plaintiff's claims for damages against Officers Mitchell and Donahue (Count VI.)

IT IS SO ORDERED.