Freeman v. Detroit, City of et al

Filing 46

OPINION AND ORDER GRANTING DEFENDANT CITY OF DETROIT'S 18 MOTION for Partial Summary Judgment. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DWUAN FREEMAN,
Plaintiff,

No. 09-CV-13184

vs.

Hon. Gerald E. Rosen

CITY OF DETROIT AND DETROIT
POLICE OFFICER JAMES NAPIER,
Defendants.
_______________________________/
OPINION AND ORDER GRANTING DEFENDANT
CITY OF DETROIT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
May 16, 2011
PRESENT:

Honorable Gerald E. Rosen
United States District Chief Judge

I. INTRODUCTION
This Section 1983 police excessive force action is presently before the Court on
the City of Detroit’s August 30, 2010 Motion for Partial Summary Judgment, in which
the City seeks dismissal of Plaintiff’s Monell1claim for failure to state a claim upon
which relief may be granted. After twice being granted extensions of time, Plaintiff
finally responded to the City’s motion on December 17, 2010.

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Monell v. Dept. of Social Services, 436 U.S. 658, 690-95 (1978).
1

Having reviewed and considered the parties’ briefs and supporting exhibits, and
the entire record of this matter, the Court finds that the pertinent facts and legal
contentions are sufficiently presented in these materials, and that oral argument would not
assist in the resolution of this matter. Accordingly, pursuant to Eastern District of
Michigan Local Rule 7.1(f)(2), the Court will decide Defendant’s motion “on the briefs.”
This Opinion and Order sets forth the Court’s ruling.

II. PERTINENT FACTS
Plaintiff’s Complaint arises out his arrest on a narcotics charge that occurred on
July 10, 2009. At approximately 9:30 p.m. on that date, Detroit Police Officers James
Napier and Michael McGinnis were on duty, in full uniform and operating a marked
police car. The officers responded to a domestic violence police radio run to 18980
Ohio Street in the City of Detroit which described a felonious assault by a male
perpetrator.
When the officers arrived at the location, they observed Plaintiff Dwuan Freeman
sitting in the driver’s seat of a running motor vehicle in an alley adjacent to the location,
blocking the sidewalk. Freeman was consuming alcohol. As Officer Napier approached
the vehicle, he observed Freeman take a clear bag of pills, which were later identified as
ecstacy, from the vehicle cupholder and place the drugs in his front pants pocket. Officer
Napier walked around the car, opened the driver’s door, and ordered Freeman to exit the
vehicle. Plaintiff and Defendant have different versions of the circumstances that ensued

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thereafter.
Plaintiff alleges that he attempted to be friendly with Officer Napier because they
had gone to high school together, but Napier did not reciprocate.2 Instead, Plaintiff
alleges that Napier used profanity, ordered him out of his vehicle and patted him down.
According to Plaintiff, Officer Napier did not find any weapons or contraband on him.
Meanwhile, Officer McGinnis allegedly searched Plaintiff’s car without asking for his
consent. Plaintiff claims that Napier then ordered him to step to the rear of his vehicle
where he again was patted down. Napier then went to his patrol car, returned, and
allegedly patted Plaintiff down a third time.
Plaintiff further alleges that Napier also reached into the back of his (Plaintiff’s)
pants and inside his underwear. After a brief conversation with Officer McGinnis about
having found something during the search of his person, Napier purportedly punched
Plaintiff in the face, breaking his nose. According to Plaintiff, Officer Napier continued
to abuse him but Plaintiff never made any attempt to defend himself, and eventually, he
was handcuffed and put into the patrol car.
Defendant’s version of what transpired is markedly different. Defendant claims
that after Napier ordered Plaintiff to exit his vehicle, he informed Plaintiff that he was
being arrested for narcotics possession and began to handcuff him. Napier had just

2

Though Plaintiff cites to the transcript of Plaintiff’s Deposition throughout his
account of the events of July 10, 2009, no transcript nor any excerpts therefrom has ever
been filed.
3

placed a handcuff on Plaintiff’s left wrist when Plaintiff attempted to jerk his left arm
away from the officer and run away. Officer Napier, however, held onto Plaintiff’s left
wrist to keep him from running. When Plaintiff finally stopped trying to run away, he
threw a a closed-fist punch which just missed Officer Napier. Allegedly in response to
Plaintiff’s aggression, Officer Napier struck Plaintiff in his neck/jaw area. The two men
fell to the ground and Plaintiff continued to attempt to strike Officer Napier and escape.
Finally, Officer Napier was able to subdue Plaintiff and handcuff his right wrist, and
Plaintiff was taken to jail. Freeman allegedly suffered cuts and bruises and other injuries,
as a result of the scuffle with Officer Napier.3
Plaintiff was arraigned on July 12, 2009 on felony drugs and open intoxicant
charges and released on bond. On July 24, 2009, all criminal charges against Plaintiff
were dropped. This lawsuit was thereafter filed on August 17, 2009.
In his Amended Complaint, Plaintiff alleges two counts: In Count I Plaintiff
alleges a Section 1983 excessive force claim against the individual Defendant Officers.4

3

In his Complaint, Plaintiff alleges that Napier punched him with such force that
he broke his nose and “busted” his lip. See Complaint, ¶¶ 33, 38. He further alleges that
he was handcuffed so tightly (by Officer John Doe) that he suffered bruising and
neurological damage to his hands. Id. ¶ 46.
4

Though Count I is captioned as being a claim against the “Defendant Officers,”
Plaintiff identified only Defendant Napier by name; Napier’s partner was identified only
as a “John Doe.” From the assertions in the City’s summary judgment brief, apparently,
Napier’s partner on the date in question was Officer McGinnis. Plaintiff has never
moved to amend his complaint to name Officer McGinnis as a party-defendant, nor has
McGinnis been served with process in this matter.
4

Count II contains Plaintiff’s Section 1983 Monell “policy and practice” claim against the
City of Detroit.
Discovery closed in this matter on July 30, 2010 and the City of Detroit timely
filed its motion for partial summary judgment on August 30, 2010, in accordance with
the deadlines set forth in the Court’s Scheduling Order. In this motion, the City seeks
entry of summary judgment in its favor and dismissal of Plaintiff’s “policy and practice”
claim (Count II of Plaintiff’s Amended Complaint).
III. DISCUSSION
A.

APPLICABLE STANDARDS
Summary judgment is proper if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the plain language of Rule
56[] mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
2552 (1986). In addition, where a moving party seeks an award of summary judgment in
its favor on a claim or issue as to which it bears the burden of proof at trial, this party’s
“showing must be sufficient for the court to hold that no reasonable trier of fact could find
other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.
1986) (internal quotation marks, citation, and emphasis omitted).

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In deciding a motion brought under Rule 56, the Court must view the evidence in a
light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813
(6th Cir. 2006). Yet, the nonmoving party may not rely on mere allegations or denials,
but must “cit[e] to particular parts of materials in the record” as establishing that one or
more material facts are “genuinely disputed.” Fed. R. Civ. P. 56(c)(1). Moreover, any
supporting or opposing affidavits or declarations “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “the mere
existence of a scintilla of evidence that supports the nonmoving party’s claims is
insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal
quotation marks, and citation omitted). The Court will apply these standards in deciding
the City of Detroit’s motion in this case.
B.

MONELL LIABILITY

It is well-settled that a municipality cannot be held liable under 42 U.S.C. § 1983
based on a theory of respondeat superior. “[U]nder § 1983, local governments are
responsible only for “their own illegal acts. . . . The are not vicariously liable under §
1983 for their employees’ actions.” Connick v. Thompson, ___ U.S. ___, 131 S.Ct.
1350, 1359 (2011) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658,
691 (1978)) (emphasis in original). A plaintiff who seeks to impose liability on a local
government under § 1983 must prove that “action pursuant to official municipal policy”
caused his injury. Monell, 436 U.S. at 691. Official municipal policy includes the
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decisions of a government’s lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force of law. Connick,
supra; Monell, supra; see also Pembaur v. Cincinnati, 475 U.S. 469, 480-81 (1986). The
alleged policy must be the “moving force of the constitutional violation.” Monell, supra
at 694. As enunciated by the Sixth Circuit, this requires that the plaintiff “identify the
policy, connect the policy to the city itself and show that the particular injury was
incurred because of the execution of that policy.” Garner v. Memphis Police Dept., 8 F.
3d 358, 364 (6th Cir. 1993).
In this case, Plaintiff has not pointed to any decisions of City lawmakers or any
acts of its policymaking officials. Rather, Plaintiff’s § 1983 claim against the City of
Detroit is a “policy and practice” claim predicated upon a “failure to train” theory of
liability.
In limited circumstances, a local government’s failure to train certain employees
about their legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983. Connick, supra, 131 S.Ct. at 1359. “A
municipality’s culpability of a deprivation of rights is at its most tenuous where the claim
turns on a failure to train.” Id.; see also Oklahoma City v. Tuttle, 471 U.S. 808, 822-23
(1985) (“[A] ‘policy’ of ‘inadequate training’” is “far more nebulous and a good deal
further removed from the constitutional violation, than was the policy in Monell.”)5
5

At issue in Monell was the unwritten policy of the New York City Department
of Social Services requiring pregnant employees to take unpaid leaves of absence before
7

In any event, it is not enough for the plaintiff simply to show that the City pursued
an official policy or custom; he must also show that such official policy or custom was
adopted by the official makers of policy with “deliberate indifference.” City of Canton v.
Harris, 489 U.S. 378, 387-88 (1989). Thus, to satisfy the requisites of Section 1983, a
municipality’s failure to train its employees in a relevant respect must amount to
“deliberate indifference to the rights of persons with whom the [untrained employees]
come into contact.” Connick, supra (quoting Canton, 489 U.S. at 388.)
“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Board of
County Commissioners of Bryan, County, Oklahoma v. Brown, 520 U.S. 397, 410 (1997).
When city policymakers are on actual or constructive notice that a particular omission in
their training program causes city employees to violate citizens’ constitutional rights, the
city may be deemed deliberately indifferent in the policymakers’ choosing to retain that
program. Id. at 407.
However, a single act of misconduct by an officer is insufficient to impose
municipal liability under a failure to train theory. Oklahoma v. Tuttle, 471 U.S. 808, 82324 (1985). Where the policy itself is not unconstitutional, “considerably more proof than
the single incident would be necessary. . . to establish both the requisite fault on the part
of the municipality, and the causal connection between the policy and the constitutional

those leaves are required for medical reasons.
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deprivation.” Id. See also, Sudel v. City of Hamtramck, 221 Mich. App. 445, 562
N.W.2d 478 (1997):
As a matter of pure logic, a single incident does not a custom, policy or
practice make. . . . Where a policy maker’s decision does not itself directly
order or authorize a constitutional violation, more than a single incident
should be necessary to establish causation.
Id. at 469-70.
A pattern of similar constitutional violations by untrained employees is “ordinarily
necessary” to demonstrate deliberate indifference for purposes of failure to train. Bryan
County, supra, 520 U.S. at 408. Showing only that one individual officer was
inadequately trained is insufficient to establish that the lack of proper training is the
“moving force” behind the plaintiff’s injury. Id. “That a particular officer may be
unsatisfactorily trained will not alone suffice to fasten liability on the city, for the
officer’s shortcomings may have resulted from factors other than a faulty training
program.” City of Canton v. Harris, 487 U.S. at 390-91.
Plaintiff here has not met the above standards. Plaintiff has not alleged, let alone
proven, a pattern of similar constitutional violations. The only evidence proffered by
Plaintiff is that Defendant Napier has been sued under Section 1983 in three other cases,
and Officer McGinnis, Napier’s partner on the date of the incident complained of in this
case, was sued once before. See Plaintiff’s Response Brief, pp. 17-19.6 However, in
6

The cases relied upon by Plaintiff in which Napier was named as a defendant are
Andrews v. City of Detroit, et al., EDMI No. 09-11462; Seals v. City of Detroit, et
al.,EDMI No. 09-14725; and Hayes v. Napier, EDMI No. 10-10476. Defendant
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none of those cases were there ever any factual findings nor any determination of liability
on the officer’s or the City’s part. Two of the cases in which Napier was named as a
party-defendant, as well as the one case in which Officer McGinnis was a party, settled
extra-judicially without any findings having been made nor any dispositive motions ever
filed. The fourth case remains pending before another judge of this court. (No findings
of fact have been made nor have any dispositive motions been filed in that case, either.)7
But in any event, as the Supreme Court held in City of Canton, and reiterated in
Bryan County and again, most recently in Connick, the fact that a particular officer may
be unsatisfactorily trained is insufficient to demonstrate the requisite “pattern of
constitutional violations” needed in a failure-to-train claim to “establish that the ‘policy
of inaction’ was the functional equivalent of a decision by the city itself to violate the
Constitution.” See Connick v. Thompson, 131 S.Ct. at 1366 (quoting City of Canton, 487
U.S. at 395). As the Court reasoned in Canton:
In resolving the issue of a city’s liability, the focus must be on
adequacy of the training program in relation to the tasks the particular
officers must perform. . . . It may be, for example, that an otherwise sound
program has occasionally been negligently administered. Neither will it
suffice to prove that an injury or accident could have been avoided if an
officer had had better or more training, sufficient to equip him to avoid the

McGinnis was one of the named-defendants in Russell v. City of Detroit, et al., EDMI 0814132.
7

The cases cited in footnote 2 at page 17 of Plaintiff’s brief do not support
Plaintiff’s theory, either. The cited cases involved the liability of individual defendants
and individual supervisors and whether they were entitled to qualified immunity; none of
the cases involved a municipality’s Monell liability.
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particular injury-causing conduct. Such a claim could be made about
almost any encounter resulting in injury, yet not condemn the adequacy of
the program to enable officers to respond properly to the usual and
recurring situations with which they must deal. And plainly, adequately
trained officers occasionally make mistakes; the fact that they do says little
about the training program or the legal basis for holding the city liable.
Id., 487 U.S. 390-91.
Furthermore, to recover from a municipality under § 1983, a plaintiff must also
establish a “rigorous” standard of causation. Bryan County, 520 U.S. at 405; Connick,
131 S.Ct. at 1368 (Scalia, J., concurring). The plaintiff must “demonstrate a direct causal
link between the municipal action and the deprivation of federal rights.” Id. Plaintiff
here has pointed to no other incident tending to make it more likely than not that his
injury flows from the municipality’s action, rather than “some other intervening cause.”
Id. Lacking this requisite causal link, even if Plaintiff had demonstrated the existence of
an unconstitutional policy, his Section 1983 claim against the City fails.
CONCLUSION
For all of the foregoing reasons, the Court finds that Plaintiff has failed to state a
Section 1983 claim against the City of Detroit upon which relief may be granted.
Therefore,
IT IS HEREBY ORDERED that Defendant City of Detroit’s Motion for Partial
Summary Judgment [Dkt. # 18] is GRANTED. Accordingly,
IT IS FURTHER ORDERED that Plaintiff’s Section 1983 claim against the City
of Detroit, as alleged in Count II of Plaintiff’s Amended Complaint, as well as the
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respondeat superior claims against the City of Detroit as alleged in Count I, are hereby
DISMISSED, with prejudice.
Therefore, this case will proceed to trial only on Plaintiff’s Section 1983 claims
against individual Defendant James Napier.
SO ORDERED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 16, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on May 16, 2011, by electronic and/or ordinary mail.
s/Ruth A. Gunther
Case Manager

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