Victor v. Weber et al
Filing
29
ORDER granting 21 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (PMil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN VICTOR,
Plaintiff,
CASE NUMBER: 10-14383
HONORABLE VICTORIA A. ROBERTS
v.
JEFFREY WEBER, individually,
MICHAEL OLCESE, individually,
LAW FIRM OF WEBER & OLCESE, PLC.,
and ROBERT REZNICK,
Defendants.
_____________________________________/
ORDER GRANTING DEFENDANTS WEBER & OLCESE, P.L.C.,
JEFFREY WEBER, AND MICHAEL OLCESE’S
MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION
Before the Court is Weber & Olcese, P.L.C. (“W&O”), Jeffrey Weber, and Michael
Olcese’s Motion for Summary Judgment. (Doc. # 21).
The Court GRANTS the motion. Robert Reznick is the only remaining
Defendant.
II.
BACKGROUND
This is one of several cases filed by attorney James Shaw against Defendants
Weber, Olcese, W&O, and Reznick The allegations, including constitutional violations,
are materially the same in all cases.
Defendants Weber and Olcese are the principals of the W&O law firm located in
Troy, Michigan. W&O provides debt-collection services to its clients. Under MCR
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3.106, a court may appoint a court officer to seize property upon the issuance of an
order to seize the debtor’s property in satisfaction of a judgment. W&O often utilizes
Reznick and his company, Due Process of Michigan, to seize property. Reznick is a
deputy sheriff and approved court officer for certain district and circuit courts in
Michigan.
Chase Bank USA, N.A., obtained a $28,808.74 default judgment in the Oakland
County Circuit Court against Plaintiff Brian Victor while represented by the W&O firm.
On July 27, 2007, the court issued an order to seize property; W&O assigned Reznick
to serve the order and collect the debt. Reznick served the order on October 30, 2007
at Plaintiff’s home. Victor claims “[w]hen [he] opened the door, Reznick quickly flashed
a badge at him and, accompanied by several of his henchmen, entered forcibly into [his]
home by pushing his way into the home.” (Doc. # 1, Complaint at ¶ 20). The Complaint
also alleges Reznick refused to leave, warned Victor he would be arrested if he did not
comply with his demands for cash in satisfaction of the judgment, and caused Victor to
become “extremely fearful.” (Id. at ¶s 21-25).
Victor contends Defendants were aware of Reznick’s abusive debt-collecting
tactics when they hired him. Despite this, they “insisted that no person other than Mr.
Reznick be used to execute Orders to Seize Property obtained by it against judgment
debtors, threatening its employees with severe repercussions if any Court officer other
than Mr. Reznick was sued to execute its Orders to Seize Property.” (Complaint at ¶
30). Victor says Defendants hired Reznick to execute seizure orders even though some
courts prohibited him from doing so, circumventing the courts’ orders. (Id. at ¶ 31).
This 42 U.S.C. § 1983 action alleges Defendants, acting under color of state law,
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conspired to (and did) engage in “terroristic and abusive [debt-collecting] practices,” in
violation of Plaintiff’s Fourth and Fourteenth Amendment rights under the United States
Constitution. (Complaint at ¶s 3, 39, 40, 41). Plaintiff’s Complaint also alleges various
state law violations; however, the parties stipulated to their dismissal. (Doc. # 19). The
Order Dismissing Plaintiff’s State Law Claims says it dismisses Counts II through VIII of
the Complaint; however, there is a Count IX alleging a state law claim of extortion and
threats. That Count should have been, and is, dismissed as well.
III.
ARGUMENTS
A.
Defendants
Defendants say there is no legal basis to hold them liable for the actions of
Reznick because neither Reznick nor the individuals who carry out seizure orders for
him have an employment relationship with W&O. They say Reznick’s authority to
execute judgments “comes from the court signing the order authorizing the execution
and Michigan statutes and court rule, not W&O.” (Doc. # 21; Brief in Support of
Defendant’s Motion at 4). “The relationship between W&O and Reznick is simply an
arms-length transaction,” they allege. Further, Defendants say there is no support for
Victor’s conspiracy charge.
Defendants say even if the Court finds that W&O conspired with Reznick, Victor
cannot show that Reznick deprived him of a constitutional right. They say Victor’s
Fourth Amendment claim fails because there was a valid court order entitling Reznick to
seize Victor’s property such that the search and/or seizure was not “unreasonable.”
They say Victor’s Fourteenth Amendment claim fails because Reznick did not use
physical force against Victor and thus his behavior does not “shock the conscience,” as
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is required to state a claim for a violation of substantive due process.
Defendants urge the Court to follow the holdings of five opinions in cases from
this District filed by Shaw against them. In each case, Shaw alleges the same basic
facts and theory of liability as he does here; in each the district court granted summary
judgment to Defendants. See Hoover v. Weber, No. 10-11127, 2011 WL 4599609 (E.D.
Mich. Sept. 30, 2011) (Rosen, J.); Cagle v. Weber, No. 10-13450, 2011 WL 3849421
(E.D. Mich. Aug. 26, 2011) (O’Meara, J.); Moore v. Weber, No. 10-13037, 2011 WL
3607037 (E.D. Mich. Aug. 16, 2011) (Cohn, J.); Rozewski v. Weber, No. 10-13035,
2011 WL 3329777 (E.D. Mich. Aug. 3, 2011) (Hood, J.); Bairactaris v. Weber, No. 1010983, 2010 WL 4623875 (E.D. Mich. Nov. 4, 2010) (O’Meara, J.).
B.
Plaintiff
Victor says Defendants were aware of numerous complaints about Reznick’s
debt-collecting practices. Victor alleges, in furtherance of Defendants’ conspiracy to
abuse debtors, W&O and its principals “maintained a policy to only use Mr. Reznick and
no other court officer,” (Doc. # 24-1; Brief (Br.) in Support of Plaintiff’s (Pl.’s) Response
at 12), and to conceal complaints against him. (Id. at 13). He claims Defendants
directed and controlled Reznick’s conduct while executing seizure orders by telling him
what property to seize, and instructed him to do his job despite hundreds of complaints.
He says the Defendants’ actions violated his Fourth Amendment right to be free from
unreasonable searches and seizures because Reznick entered his home without
consent and refused to leave unless paid in cash.
Victor argues there is sufficient evidence that Defendants violated his Fourteenth
Amendment substantive due process rights for this claim to reach a jury. He says the
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absence of excessive force or physical brutality does not doom the claim because
“[t]here is an entire universe of cases not involving conscience shocking physical abuse
by police, where ‘fundamental rights’ are protected against government action that is
‘irrational, ‘arbitrary’ or ‘arbitrary and capricious.’” (Br. in Support of Pl.’s Response at
32). He says Defendants acted arbitrarily and capriciously in interfering with his
“fundamental right to privacy of his home [and] his property interests in the money
extorted from him under the threat of arrest and imprisonment.” (Id. at 35).
Lastly, Victor urges this Court to reject Bairactaris as factually inaccurate and
legally flawed. He does not address the other four opinions from this District.
IV.
ANALYSIS
A.
Legal Standard
Summary judgment is appropriate when “the movant 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). On a motion for summary judgment, the facts
must be viewed in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “As the moving party,
Defendants bear the burden of showing the absence of a genuine issue of material fact
as to at least one essential element of Plaintiff’s claim.” Moses v. Providence Hosp. and
Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009).
“Plaintiff, as the non-moving party, must then present sufficient evidence from
which a jury could reasonably find for [it].” Id. To do this, Plaintiff must establish more
than some “metaphysical doubt” as to the material facts. Matsushita, 475 U.S. at 586. It
must show that there is a genuine issue for trial. Id. at 587. Plaintiff must establish a
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genuine issue with specific facts and affirmative evidence; it “may not rest upon mere
allegation or denials of [its] pleading.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256, 257 (1986). And, “[c]onclusory allegations, speculation, and unsubstantiated
assertions are not evidence, and are not enough to defeat a well-supported motion for
summary judgment.” Gooden v. City of Memphis Police Dept., 67 Fed. Appx. 893, 895
(6th Cir. June 17, 2003). “The Court must consider all pleadings, depositions, affidavits,
and admissions on file, and draw all justifiable inferences in favor of the party opposing
the motion.” Golliday v. Chase Home Fin., LLC, 761 F.Supp.2d 629, 634 (W.D. Mich.
2011) (citing Matsushita, 475 U.S. at 587 and Smith v. Williams-Ash, 520 F.3d 596, 599
(6th Cir. 2008)).
B.
Defendants are not liable for Reznick’s alleged unlawful conduct
under any theory of liability.
Section 1983 does not confer substantive rights; it provides a way to vindicate
rights conferred by the Constitution or laws of the United States. Aldini v. Johnson, 609
F.3d 858, 864 (6th Cir. 2010). To prevail on his claim, Victor must show that “a person
acting under color of state law deprived [him] of a [federal right].” Smoak v. Hall, 460
F.3d 768, 777 (6th Cir. 2006) (citation and quotation marks omitted).
The Court agrees with the reasoning and holdings of Hoover, Cagle, Moore,
Rozewski, and Bairactaris that W&O, Weber, and Olcese cannot be held liable for
Reznick’s conduct in executing a seizure order even if that conduct is unconstitutional
and worthy of vindication under § 1983. Most recently, in Hoover, Judge Rosen held
Defendants W&O, Weber, and Olcese were not liable for Reznick’s conduct in
executing a seizure order under any theory of liability: supervisory liability, 2011 WL
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4599609, at *3-*4; Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) liability, id. at
*4-*6; or coconspirator liability, id. at *6-*7. The same is true here.
1.
Vicarious Liability
a.
Supervisory Liability
Even assuming Reznick acted “under color of state law” as required by § 1983,
the Hoover court noted, there could be no liability predicated upon the individual
Defendants’ supervisory authority over Reznick, because there was no evidence that
W&O or its principals interacted with Reznick in any way as he carried out the order to
seize the plaintiff’s property. Id. at *4; see also Rozewski, 2011 WL 3329777, at * 5
(“[T]he individual defendants, Weber and Olcese, [ ] cannot be held liable under a
supervisory liability theory in a § 1983 action because no such action is available for
failure to prevent misconduct, absent a showing of direct responsibility by the supervisor
for the improper action.” (citing Rizzo v. Goode, 423 U.S. 362, 373-77 (1976); Dunn v.
State of Tennessee, 697 F.2d 121, 128 (6th Cir. 1982)).
This Court agrees. First, Defendants contend (and Victor concedes) that they do
not supervise Reznick; he is not employed by them; they do not have a contractual
relationship with him. Supervisory liability, as the name suggests, anticipates an
employment relationship, with the supervisor having control over the conduct of the
subordinate. While Victor claims employees of the W&O firm directed Reznick’s debtcollection activities, the facts show only that an employee of the W&O firm, Karla Smith,
sometimes told Reznick what property to seize and twice accompanied Reznick to
debtors’ homes. (See Br. in Support of Pl.’s Response at 16). This is different than
instructing Renick to violate debtors’ constitutional rights. Moreover, there is no claim
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that Webber, Olcese, Smith, or any other employee of W&O were present, or involved
in Reznick’s debt-collection activities, at Victor’s home.
Furthermore, even if Victor could show Reznick had an employment or
independent contract relationship with Defendants, Ҥ 1983 liability of supervisory
personnel must be based on more than the right to control employees.” Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “There must be a showing that the
supervisor encouraged the specific incident of misconduct or in some other way directly
participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official
at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional
conduct of the offending subordinate.” Id. (emphasis added). Victor has not shown that
Webber and Olcese encouraged, participated in, implicitly authorized, approved, or
knowingly acquiesced in Reznick’s conduct when Reznick entered Victor’s home
without consent, refused to leave, and used the threat of imprisonment to secure
payment. As explained below, at most, Victor can show that Webber and Olcese were
aware that other debtors had lodged generalized complaints of boorish behavior and
language against Reznick. These complaints cannot form the basis for the individual
Defendants’ liability for Reznick’s actions with respect to Victor.
b.
Policy-Based Liability
Second, the Hoover court rejected a Monell policy-based theory of liability with
respect to W&O. In order to establish this type of liability under § 1983, Victor must
show that the Defendant firm: (1) was acting under color of state law, and (2) had in
place an official policy that was the direct cause of, or moving force behind, the
constitutional violation. See Monell, 436 U.S. at 694 (when execution of a government’s
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policy or custom inflicts injury, the government as an entity is responsible under §
1983); Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996) (acknowledging
that government liability for an official policy or custom under Monell extends to private
corporations); Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992)
(defendant must be acting under color of state law to be held liable for a constitutional
deprivation under § 1983).
i.
State Action
In Hoover, because the plaintiff did not identify “any authority for the proposition
that the W&O firm acted under color of state law or satisfied any of the tests for state
action by retaining court officer Reznick to execute an order to seize property that the
firm had obtained on behalf of a private client,” W&O could not be held vicariously liable
for Reznick’s conduct under § 1983. 2011 WL 4599609, at *6; see also Moore, 2011
WL 360737, at *4 (“Plaintiff presents no legal authority for finding that the law firm
defendants are state actors under § 1983.”). The Hoover court noted, “a private law
firm such as W & O is not transformed into a ‘state actor’ for purposes of Monell-based
liability merely by virtue of its use of a court officer to collect a judgment obtained by the
firm on behalf of a private client.” 2011 WL 4599609, at *5; see also Moore, 2011 WL
3607037, at *3-*4 (agreeing with the holding of Rozewski that W&O did not have a
sufficiently close relationship – through state regulation or contract – with the State of
Michigan for action taken by it to be attributed to the state); Rozewski, 2011 WL
3329777, at *4 (same).
Both the Hoover and Moore courts adopted Judge Hood’s reasoning in
Rozewski:
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The Weber and Olcese Defendants were acting as counsel on behalf of a
certain client when a Default Judgment and the Order to Seize Property
were obtained with the state court. There are no allegations by Rozewski
that the action by the Weber and Olcese Defendants in obtaining such a
judgment and order constitute a “state action.” Rozewski claims that the
action of obtaining Reznick’s services to enforce the Order to Seize
Property constitutes a state action. However, Rozewski has not submitted
any legal authority that a law firm’s action to obtain services to enforce an
Order to Seize Property constitutes a “state action.” Michigan law allows a
party to take steps to satisfy a judgment. No state or municipality decision
is involved in obtaining such services, other than the applicable statute.
There is no evidence apart from the statutory fees for the services
charged by Reznick, the Weber and Olcese Defendants have any other
employment or contractual relationship with Reznick. The Weber and
Olcese Defendants cannot be held liable under a vicarious liability or
respondeat superior theory for any actions by Reznick since no state
action existed when the Weber and Olcese Defendants obtained the
services of Reznick to satisfy the judgment. A § 1983 action cannot lie
against a municipality or, in this case, the law firm or its principals, under
the theory of respondeat superior since the Weber and Olcese Defendants
were not executing a policy or custom adopted by a state or municipality.
Monell, 436 U.S. at 695. The Weber and Olcese Defendants’ actions of
obtaining Reznick’s services cannot be connected to any state or
municipal policy or custom.
2011 WL 3329777, at *4 (emphasis in original).
ii.
Official Policy or Custom
The Hoover court said even if the plaintiff could show state action on the part of
the W&O firm, “the record fails to establish any nexus between an alleged violation of
Plaintiff’s constitutional rights and a policy adopted by the W&O firm, such that this
policy could be said to be the ‘moving force’ behind any such violation.” 2011 WL
4599609, at *5. Judge O’Meara drew the same conclusion in Cagle and Bairactaris. In
both cases, he held the plaintiff failed to present evidence of a policy promulgated by
W&O that prompted Reznick’s alleged constitutional violations. Cagle, 2011 WL
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3849421, at *2; Bairactaris, 2010 WL 4623875, at *2.
The Court agrees. Because Victor fails to present evidence of state action and a
W&O policy that drove Reznick to allegedly violate his constitutional rights, Victor has
no basis for a § 1983 action against W&O for vicarious liability.
2.
Coconspirator Liability
The Court agrees with the Hoover, Cagle, Moore, and Bairactaris courts that
Victor does not establish a genuine issue for trial regarding an agreement between
Defendants and Reznick to violate his constitutional rights.
The Sixth Circuit set forth the standard for proving a civil conspiracy in Hooks v.
Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985):
A civil conspiracy is an agreement between two or more persons to injure
another by unlawful action. Express agreement among all the
conspirators is not necessary to find the existence of a civil conspiracy.
Each conspirator need not have known all of the details of the illegal plan
or all of the participants involved. All that must be shown is that there was
a single plan, that the alleged coconspirator shared in the general
conspiratorial objective, and that an overt act was committed in
furtherance of the conspiracy that caused injury to the complainant.
There is no evidence of a single plan or conspiratorial objective among
Defendants to violate Victor’s constitutional rights while executing the seizure order. In
Bairactaris, Judge O’Meara said: “In this case Plaintiff has failed to show any collusion
or communication between W & O and Reznick to violate Plaintiff’s rights. Instead,
Plaintiff’s brief is rife with hyperbole, claiming that the law firm is aware that Reznick
uses ‘terroristic methods’ during the executions.” 2010 WL 4623875, at *2; see also
Hoover, 2011 WL 4599609, at *7; Cagle, 2011 WL 3849421, at *2; Moore, 2011 WL
36077037, at *4.
Victor presents evidence only that Defendants were aware of complaints from
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other individuals that Reznick used force and threats to obtain money from them. But
knowledge alone is inadequate to prove conspiracy; there must be some evidence that
Defendants intended themselves to violate the law. Bairactaris, 2010 WL 4623875, at
*2 (“‘Knowledge alone of tortious conduct is insufficient to prove a conspiracy
agreement. Knowledge of the planned tort must be combined with intent to aid in its
commission. An entity that engages in legitimate business with a party that is acting
tortiously cannot be deemed a co-conspirator absent clear evidence of an agreement to
join in the tortious conduct.”); Cagle, 2011 WL 3849421, at *2 (“Knowledge of illegal
conduct, association with conspirators, or passive acquiescence in unlawful activity is
insufficient, as a matter of law, to establish the agreement necessary to sustain a
conspiracy claim.”); Moore, 2011 WL 3607037, at *4 (“At best, plaintiff says that W & O,
Weber, and Olcese were aware of complaints about Reznick’s company related to its
collection activities....[K]nowledge alone is not sufficient to show a conspiracy under §
1983.”).
Moreover, Defendants’ notice of complaints of this nature from other persons,
does not establish they had notice that Reznick planned to enter Victor’s home without
consent, refuse to leave, and threaten Victor with arrest and imprisonment. As the
Hoover court aptly observed:
[T]he materials produced by Plaintiff in this case are riddled with
evidentiary defects: many of Plaintiff’s exhibits reference irrelevant, farremoved time periods or lack any specific mention of the parties to this
litigation, and other materials include assertions that would not be
admissible in evidence at trial or otherwise run afoul of the rules governing
the Court’s consideration of exhibits in deciding a summary judgment
motion. Nonetheless, the most that could possibly be gleaned from this
record is that various judgment debtors had complained in the past of
Defendant Reznick’s conduct in executing orders to seize property, and
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that the W&O firm was aware of these complaints but nonetheless
continued to use Reznick’s services. As observed in both Bairactaris, 201
WL 4623875, at *2, and Moore, 2011 WL 3607037, at *4, such knowledge
alone is not sufficient to establish that the W&O firm entered into a single,
shared plan with Defendant Reznick to violate Plaintiff’s constitutional
rights.
2011 WL 4599609, at *7.
The complaints Victor says were made by others are irrelevant to the existence
of a conspiracy against him. Moreover, they were largely confined to Reznick’s use of
coarse language, generalized threats, and intimidation to collect money. A conspiracy
to use crude language, threats, and intimidation is not the same as a conspiracy to
violate Victor’s federal constitutional rights. Hoover is again instructive:
As catalogued in Plaintiff’s response brief, the complaints about Defendant
Reznick’s conduct concerned his alleged use of threats, intimidation, and
foul or offensive language. The principal constitutional violation alleged by
Plaintiff, in contrast, is Defendant Reznick’s unlawful entry into his home
without his consent, in violation of the Fourth Amendment. Thus, even
assuming that Defendant Reznick’s past practice in executing orders to
seize property involved conduct proscribed under some body of law, and
even assuming that this conduct was attributable to a policy of the W&O
firm, any such policy could not be deemed the “moving force” behind the
specific form of illegality claimed here – namely, Defendant Reznick’s
alleged violation of Plaintiff’s Fourth Amendment right to be free from
unreasonable searches and seizures. Plaintiff’s evidence establishes, at
best, that W&O looked the other way or condoned Defendant Reznick’s
inappropriate (and perhaps unlawful) tactics, but this record cannot forge
the further (and necessary) link between a W&O policy and the particular
sort of illegality that could support a claim under § 1983 – namely, conduct
in violation of a federal constitutional right.
2011 WL 4599690, at *6.
Thus, what Victor identifies as evidence that Defendants “ratified, endorsed,
participated [in,] and furthered the conspiracy” (referred to as “sub A through H”) (see
Br. in Support of Pl.’s Response at 12-16, 19), is largely irrelevant. Even if Defendants
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did all of the things Victor alleges, he does not provide evidence that they conspired to
violate his federal constitutional rights. “[T]he ‘knowledge’ cited by [Victor] is far too
vague and general to establish the W&O firm’s awareness that Reznick routinely (or
even occasionally) violated the federal constitutional rights of debtors as he executed
orders to seize their property.” Hoover, 2011 WL 4599690 at *7 n. 15. At best, there is
simply evidence that Defendants were aware that Reznick was sometimes boorish and
rude to judgment debtors. See id. Victor’s conspiracy claim fails.
V.
CONCLUSION
The Court need not address the parties’ substantive arguments regarding the
merits of Victor’s Fourth and Fourteenth Amendment claims. Even assuming Reznick’s
alleged conduct violated these rights, Defendants are not liable for the violation under
any theory of liability.
The Court GRANTS the motion for summary judgment.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: November 2, 2011
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
November 2, 2011.
S/Linda Vertriest
Deputy Clerk
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