D'Angelo v. Clinton Township et al

Filing 32

REPLY to Response re 30 MOTION for Summary Judgment filed by Clinton, Township of, Nicholas Dykas, Jason Figurski, Keith Watson. (Peacock, Peter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS D’ANGELO,
Plaintiff,
vs.

Case No. 2:10-c-12195
Hon. Lawrence P. Zatkoff

PAUL PARENT, CLINTON TOWNSHIP, a municipal
entity, NICHOLAS DYKAS, JASON FIGURSKI
and KEITH WATSON, in their official and individual
capacities, jointly and severally,

Magistrate Judge Mona Majzoub

Defendants.
_____________________________________________________________________________/
PETER W. PEACOCK (P37201)
AMOS E. WILLIAMS (P39118)
THOMAS E. KUHN (P37924)
Plunkett Cooney
Attorneys for Defendants Clinton Township,
Amos E. Williams, P.C.
Attorney for Plaintiff
Dykas, Figurski and Watson
10 S. Main Street, Ste. 400
615 Griswold, Suite 1115
Mt. Clemens, MI 48043
Detroit, MI 48226
[phone]
[phone]
_____________________________________________________________________________/

REPLY OF DEFENDANTS TOWNSHIP OF CLINTON, NICHOLAS DYKAS, JASON
FIGURSKI, AND KEITH WATSON IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT

PETER W. PEACOCK (P37201)
Plunkett Cooney
Attorneys for Defendants Clinton Township,
Dykas, Figurski and Watson
10 S. Main Street, Ste. 400
Mt. Clemens, MI 48043
[phone]
Email: [e-mail]

TABLE OF CONTENTS
Page

Index to authorities ............................................................................................................................i
Statement of issues ............................................................................................................................ii
Introduction.........................................................................................................................................1
A. Parent’s statement to the Officers that he saw Plaintiff
masturbating was sufficient to establish probable cause to arrest
Plaintiff for indecent exposure because there is no requirement in
M.C.L. 750.335a that anyone actually see Plaintiff expose himself..........................1
B. The alleged “falsifications” in the Officers’ police report do not
negate probable cause so as to support a claim for malicious
prosecution. ............................................................................................................................3
C. The case law Plaintiff cites to support his excessive claim against
Officer Figurski is distinguishable. ...................................................................................3

INDEX TO AUTHORITIES

Page
MICHIGAN CASE:
People v. Vronko,
228 Mich. App. 649; 579 N.W.2d 138 (1998), leave denied, 459 Mich.
945; 590 N.W.2d 66 (1999) .................................................................................................................. 2, 3
FEDERAL CASES:
Adams v. Metiva,
31 F.3d 375 (6th Cir. 1994).........................................................................................................................4
Anderson v. Creighton,
483 U.S. 635 (1987).....................................................................................................................................5
Barnes v. Wright,
449 F.3d 709 (6th Cir. 2006) ......................................................................................................................3
Bing v. City of Whitehall, Ohio,
456 F.3d 555 (6th Cir. 2006) ......................................................................................................................5
Duncan v. Wisconsin Dep’t of Health and Family Services,
166 F.3d 930 (7th Cir. 1999) ......................................................................................................................5
McDowell v. Rogers,
863 F.2d 1302 (6th Cir. 1988)....................................................................................................................4
Phelps v Coy,
286 F.3d 295 (6th Cir. 2002) ......................................................................................................................4
U.S. v. Rogers,
118 F.3d 466, 471 (6th Cir. 1997) .............................................................................................................1
STATUTE:
M.C.L. 750.335a.......................................................................................................................................1, 2, 3
CONSTITUTIONAL PROVISION:
Fourth Amendment ...................................................................................................................................iii, 1

i

STATEMENT OF ISSUES
I.
Whether Plaintiff’s Claims For Violation Of The Fourth Amendment Against
Officers Dykas And Figurski For Alleged False Arrest And False Imprisonment
Should Be Dismissed Because There Was No Violation Of Plaintiff’s Fourth
Amendment Rights Where The Officers Had Probable Cause To Arrest Plaintiff
For Indecent Exposure, And Alternatively, Where The Officers Are Entitled To
Qualified Immunity?
Defendants’ answer: Yes.
II.
Whether Plaintiff’s Claim For Violation Of The Fourth Amendment Against
Officers Dykas And Figurski For Malicious Prosecution Should Be Dismissed
Where (1) There Was Probable Cause To Arrest Plaintiff, And (2) Where None
Of The Defendant Officers Made The Decision To Prosecute Plaintiff For
Indecent Exposure?
Defendants’ answer: Yes.
III.
Whether Plaintiff’s Claim For Violation Of The Fourth Amendment Against
Officer Figurski For Excessive Force Should Be Dismissed (1) Where The Force
Used To Arrest Plaintiff Was Reasonable, And (2) Alternatively, Where The
Officers Are Entitled To Qualified Immunity?
Defendants’ answer: Yes.

ii

Introduction
Plaintiff ’s Response asserts Fourth Amendment wrongful arrest (arrest without
probable cause), malicious prosection, and excessive force claims against Officers Dykas and
Figurski only. (Plaintiff ’s Brief in Opposition to Summary Judgment, p. 2). Plaintiff has
stipulated to drop all federal claims against Clinton Township and Officer Watson. (Id.). Any
claims other than Plaintiff ’s excessive force, unlawful arrest, and malicious prosecution claims
against Officers Dykas and Figurski are thus waived. See U.S. v. Rogers, 118 F.3d 466, 471 (6th
Cir. 1997).
A.

Parent’s statement to the Officers that he saw Plaintiff masturbating was
sufficient to establish probable cause to arrest Plaintiff for indecent
exposure because there is no requirement in M.C.L. 750.335a that anyone
actually see Plaintiff expose himself.

Plaintiff argues that Officers Figurski and Dykas lacked probable cause to arrest him
for indecent exposure because no one actually saw Plaintiff expose his genitals. Specifically,
Plaintiff argues “The one witness who claimed to see anything, never saw Mr. D’Angelo
expose himself. All Parent said was that D’Angelo had been masturbating and watching
pornography…” (Plaintiff ’s Brief, p. 11). Even accepting this as true for purposes of this
Motion only, Parent’s complaint to the Officers that Plaintiff was masturbating was sufficient
to establish probable cause for the arrest.
M.C.L. 750.335a provides, in pertinent part as follows:
(1) A person shall not knowingly make any open or indecent exposure of his or her
person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as follows:
***
(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person
is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor
punishable by imprisonment for not more than 2 years or a fine of not more than
$2,000.00., or both. MCL 750.335a.

Contrary to Plaintiff ’s suggestion, nowhere does M.C.L. 750.335a require that a defendant’s
genital exposure actually be witnessed by another person to constitute “open or indecent
exposure,” within the meaning of the statute, as long as the exposure occurred in a public place
under circumstances in which another person might reasonably have been expected to observe
it. People v. Vronko, 228 Mich. App. 649; 579 N.W.2d 138 (1998), leave denied, 459 Mich. 945;
590 N.W.2d 66 (1999). In fact, in Vronko, the Court of Appeals upheld the defendant’s
conviction for indecent exposure, M.C.L. 750.335a, even though the witness never saw the
defendant’s penis because the defendant was in a car across the street from the witness’s home.
The defendant was arrested and charged with indecent exposure based on the single witness’s
testimony that she noticed a “suspicious” automobile parked in front of her home and that the
defendant appeared to be masturbating, although she could not see his genitals or tell whether
he was wearing shorts or pants. In upholding the conviction, the Vronko Court concluded “we
hold that there is no requirement that the defendant’s exposure actually be witnessed by
another person in order to constitute ‘open or indecent exposure’” under MCL 750.335a.
Accordingly, whether Parent, Bodner, or anyone else ever saw Plaintiff actually expose
himself is completely irrelevant and does not create a fact issue requiring trial. Parent
consistently stated - at the criminal trial, and as reflected in the Clinton Township Police
Report – that he observed Plaintiff masturbating in the adult computer lab. (Clinton Township
Police General Incident Report; 9/11/08 Tr, p 39). Parent told this to Officer Dykas. (Dykas
Dep, p 14). Parent’s eyewitness account of public masturbation was sufficient to provide the
Officers with probable cause to arrest Plaintiff for indecent exposure, M.C.L. 750.335a, and the
existence of probable cause is not negated by Plaintiff ’s assertion that no one actually saw him
expose his genitals. Vronko, supra. Further, at a minimum the Officers are entitled to qualified
immunity. Summary judgment is therefore proper.

2

B.

The alleged “falsifications” in the Officers’ police report do not negate
probable cause so as to support a claim for malicious prosecution.

Plaintiff ’s malicious prosecution claim appears to be premised on the Officers’ alleged
fabrication of Bodner and Parent’s statements. (Plaintiff ’s Brief, pp. 11-13). According to
Plaintiff, had Officer Dykas’s report and statement accurately reflected that Bodner did not see
Plaintiff do anything wrong and that Parent did not actually observe Plaintiff expose himself,
a jury could find that there was no probable cause for Plaintiff ’s arrest or prosecution. (Id.).
This argument is easily disposed of. First, as discussed above, there was no requirement that a
witness actually observe the exposure, so long as the exposure occurred in a public place under
circumstances in which another person might reasonably have been expected to observe it.
Vronko, supra. Second, even accepting as true Plaintiff ’s assertion that Bodner did not see
Plaintiff masturbating, Plaintiff has cited no authority that probable cause does not exist
where the unlawful behavior is only observed by one witness. Here, Parent’s statement that he
observed Plaintiff masturbating in the adult area of the library established probable cause to
justify the arrest for indecent exposure under M.C.L. 750.335a. Because Plaintiff cannot show
the absence of probable cause for his arrest and prosecution, his malicious prosecution claim
fails. Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006). Further, qualified immunity protects the
Officers from the malicious prosecution claim. (Id.)
C.

The case law Plaintiff cites to support his excessive claim against Officer
Figurski is distinguishable.

Plaintiff maintains that Officer Figurski’s conduct in re-positioning Plaintiff ’s legs which were hanging sideways and extended out of the open police car - to a forward-facing
position so the car door could be closed, constituted excessive force because Plaintiff ’s knee hit
the doorjamb in the process. (Plaintiff ’s Brief, pp. 14-16). In so doing, Plaintiff relies on
several Sixth Circuit cases in an effort to liken the defendant’s conduct in those cases to Officer

3

Figurski’s conduct. But each of these cases is distinguishable. In Phelps v Coy, 286 F.3d 295,
297-298 (6th Cir. 2002), the Sixth Circuit affirmed the denial of the officer’s motion for
summary judgment where the facts, taken in the light most favorable to the plaintiff, established
that the officer hit the already-handcuffed plaintiff in the face twice, and then proceeded “to
slam [the plaintiff ’s] head into the floor at least three times.” Similarly, in Adams v. Metiva, 31
F.3d 375 (6th Cir. 1994), the Sixth Circuit reversed the grant of summary judgment on the
plaintiff ’s excessive force claim where the facts, taken in the light most favorable to plaintiff,
created a fact question whether the officer’s continual spraying of mace after mace in the
plaintiff ’s face after he returned to the car constituted excessive force. In contrast to the
beating in Phelps and the continual mace use in Adams, here Plaintiff complains of a single
“hard shove” to get his legs correctly positioned in the car. (D’Angelo Dep, pp 66-68).
Although Plaintiff maintains that the force caused him to say “ouch,” this minimal force in no
way compares to the level of force the Court determined could be excessive in Adams and
Phelps.
Further, Plaintiff admitted that Officer Figurski picked up his legs for a purpose – to
correctly position Plaintiff in the car. (D’Angelo Dep, p 68). Accordingly, Plaintiff ’s reliance on
McDowell v. Rogers, 863 F.2d 1302 (6th Cir. 1988), is misplaced. The driving force in McDowell which prompted the Court to conclude that the officer’s blows to the plaintiff with a nightstick
may be excessive - was the “nonexistent” need for application of force and the malicious
application of force. But unlike McDowell, where there was no need or purpose for the
application of force, here Plaintiff himself admitted that Officer Figurski picked up his legs in
order to correctly position Plaintiff in the car: “to get me in the car, yeah, totally into the car.”
(D’Angelo Dep, p 68). Accordingly, although a shove might constitute excessive force in some
circumstances, it fails to rise to that level here.

4

In addition, a reasonable officer would have concluded that the force Officer Figurski
used was reasonable in light of the information he possessed at the time, thus entitling him to
qualified immunity. Bing v. City of Whitehall, Ohio, 456 F.3d 555, 569-571 (6th Cir. 2006),
supports Officer Figurski’s position that even where an officer’s use of force is excessive, or
presents a jury-submissible question, the officer is nonetheless entitled to qualified immunity
where his conduct was objectively reasonable in light of clearly established law. Plaintiff
articulates the right at issue in its most general and abstract formulation. He argues that the
right at issue is an incapacitated suspect’s right to be free from the use of gratuitous force.
(Plaintiff ’s Brief, p. 16). But Anderson v. Creighton, 483 U.S. 635 (1987), requires Plaintiff to
frame his claim in a particularized way and then find authoritative rulings which would have
put Officer Figurski on notice that his particular conduct was unlawful. Plaintiff ’s failure to
cite any relevant precedent at the correct level of generality betrays an inability to show that
the Officer violated a clearly established rule of constitutional law. See, e.g., Duncan v. Wisconsin
Dep’t of Health and Family Services, 166 F.3d 930, 934 (7th Cir. 1999). Accordingly, summary
judgment is proper.
PLUNKETT COONEY
BY: s/ Peter W. Peacock__________________
PETER W. PEACOCK (P37201)
Attorney for Clinton Township Defendants
10 S. Main, Suite 400
Mt. Clemens, MI 48043
[phone]
E-mail: [e-mail]

5

CERTIFICATE OF SERVICE
Peter W. Peacock, attorney with the law firm of PLUNKETT COONEY, being first
duly sworn, deposes and says that on the 13th day of April, 2011, he caused a copy
of this document to be served upon all parties of record, and that such service was
made electronically upon each counsel of record so registered with the United
States District Court and via U.S. Mail to any counsel not registered to receive
electronic copies from the court, by enclosing same in a sealed envelope with first
class postage fully prepaid, addressed to the above, and depositing said envelope and
its contents in a receptacle for the US Mail.
By:

Open.01397.01593.10838189-1

s/Peter W. Peacock
Plunkett Cooney
Attorney for Clinton Township Defendants
10 S. Main, Ste. 400
Mt. Clemens, MI 48043
[phone]
E-mail: [e-mail]
P37201