Regets v. Plymouth, City of et al

Filing 57

OPINION AND ORDER granting 41 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Neileigh Regets, individually and as
Personal Representative of the Estate
of Thomas J. Steiner, Deceased,
Plaintiff,
v.

Case No. 11-11746

City of Plymouth, et al.,

Honorable Sean F. Cox

Defendants.
_________________________________/
OPINION & ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff brought this § 1983 action on behalf of herself and the estate of her deceased
husband, asserting claims against the City of Plymouth and three of its police officers. Plaintiff
also asserts state-law claims for intentional infliction of emotional distress. The matter is
currently before the Court on Defendants’ Motion for Summary Judgment, brought after the
close of discovery. The parties have fully briefed the issues and the Court heard oral argument
on April 4, 2013. For the reasons set forth below, the Court shall GRANT the motion.
BACKGROUND
Plaintiff Neileigh Regets, individually and as Personal Representative of the Estate of
Thomas J. Steiner, deceased (“Plaintiff” or “Neileigh”), filed this action on April 21, 2011,
asserting claims against the City of Plymouth and three of its police officers: 1) Chief Wayne

1

Carroll; 2) Detective Lieutenant Al Cox; and 3) Sergeant Jamie Grabowski.1
Claims In This Action
Plaintiff’s Complaint asserts the following claims: “False Arrest and False Imprisonment
Ms. Regets” (Count I); “Violation of the Fourth Amendment: Unreasonable Search and Seizure
42 U.S.C. § 1988 [sic]
Rights 42 U.S.C. § 1983

Ms. Regets” (Count II); “Civil Conspiracy to Violate Plaintiff’s Civil
Ms. Regets” (Count III); “Municipal Liability Under 42 U.S.C. § 1983

Ms. Regets” (Count IV); “Intentional Infliction of Emotional Distress

Ms. Regets” (Count

V); “Deliberate Indifference to a Known Medical Condition 42 U.S.C. § 1983 Fourteenth
And/Or Eighth

Estate” (Count VI); “Unreasonable Search and Seizure, Fatal Force 42 U.S.C. §

1983

Under Fourth Amendment

Estate” (Count VII); “Municipal Liability Under 42 U.S.C. §

1983

Estate” (Count VIII); “Americans with Disabilities Act Claim

Estate” (Count IX); “False Imprisonment
Emotional Distress

42 U.S.C. 12132

Estate” (Count X); and “Intentional Infliction of

Estate” (Count XI).

Plaintiff’s relationship with her original attorney who filed this action broke down and he
ultimately withdrew. Plaintiff then retained new counsel.
The Fourth Scheduling Order in this case provided that discovery closed on October 16,
2012.
Following the close of discovery, Defendants filed the instant Motion for Summary
Judgment. (Docket Entry No. 41).

1

The Court notes that the Defendants’ titles have changed following the events at issue in
this case. Chief Carroll is now retired, Al Cox is the current Chief of Police, and Sergeant Jamie
Grabowski is now a Lieutenant. For simplicity sake, the Court will refer to each of these
Defendants by the term “officer” at any times wherein the Defendant’s title is not relevant.
2

This Court’s practice guidelines are included in the Scheduling Order and provide,
consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled CounterStatement of Disputed Facts. The counter-statement shall list in separately
numbered paragraphs following the order or the movant’s statement, whether each
of the facts asserted by the moving party is admitted or denied and shall also be
supported by appropriate citations to the record. The Counter-Statement shall also
include, in a separate section, a list of each issue of material fact as to which it is
contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(Docket Entry No. 30 at 2-3). Defendants complied with the Court’s practice guidelines for
motions for summary judgment such that their motion includes a “Statement of Material Facts
Not In Dispute” (Docket Entry No. 41 at Pg ID 516-18, “Defs.’ “Stmt.”). Plaintiff’s response
brief includes a “Counter-Statement of Disputed Facts” (Docket Entry No. 52 at Pg ID 681-84,
“Pl.’ s Stmt.”).
The following material facts are gleaned from the evidence submitted by the parties,
taken in the light most favorable to Plaintiff, the nonmoving party.
Factual Background
Neileigh met decedent Thomas Steiner (“Thomas”) in 2002. (Pl.’s Dep. at 30). Neileigh
and Thomas married in 2006. (Defs.’ Stmt. at ¶ 2; Pl.’s Stmt. at ¶ 2). Thomas was 62 years old,
and in poor health, at the time of the marriage and Neileigh was 26 years old. (Pl.’s Dep. at 11).

3

Neileigh has two children from prior relationships. Neileigh has a daughter with a man
named Brian Ross, who was not involved in this case. (Pl.’s Dep. at 9-10). A man named
Christopher Kish (“Kish”) is the father of Neileigh’s son. (Defs.’ Stmt. at ¶ 1; Pl.’s Stmt. at ¶ 1).
Neileigh testified that Kish tried to strangle her in 2004 and that she reported the incident to the
Livonia Police Department. (Pl.’s Dep. at 23). According to Neileigh, Kish has not been very
involved in his child’s life, but shows up approximately every two years. (Id. at 55).
In April of 2006, Neileigh and her two children began living at a house located at 305
Arthur Street in Plymouth, Michigan. (Pl.’s Dep. at 9-11). Although they were married at that
time, Thomas lived at a home he owned in Rochester, Michigan. (Id.).
Shortly after Neileigh and Thomas wed, Thomas was hospitalized with both heart and
respiratory failure, which resulted in Thomas being placed on life support for a period of 53 days.
(Pl.’s Br. at 1; Pl.’s Dep. at 37-41). After being released from the hospital, Thomas was placed
in a nursing home, where he remained until the spring of 2008. (Id.).
Upon leaving the nursing home, Thomas initially moved into the house on Arthur Street.
(Id.). After one to two months of living in the house, however, Thomas began having emotional
outbursts and suffering short-term memory problems. (Pl.’s Dep. at 41-42). Thomas then moved
out of the house on Arthur Street and began staying at a Red Roof Inn in Plymouth, Michigan.
(Id.). Neileigh later relocated Thomas to an Extended Stay America hotel in Canton, Michigan.
(Id.).
During the first six months of 2009, Neileigh would visit Thomas at his hotel room
almost every day. (Pl.’s Dep. at 44). During that time period, Thomas would come to the house
on Arthur Street a few times a month and he would go out to dinner with Neileigh and her
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children once a week. (Id. at 44-45 & 52).
At the time of the incidents at issue in this case, which took place in June of 2009,
Thomas had multiple health issues for which he took various medications. (Defs.’ Stmt. at ¶ 5;
Pl.’s Stmt. at ¶ 5). Neileigh testified that Thomas suffered from heart problems, bipolar disorder,
and Alzheimer’s disease. (Pl.’s Dep. at 36-37). Thomas took medications for his heart
problems, his blood pressure, and his Alzheimer’s disease. He was also taking an antidepressant. (Id.).
Neileigh testified that, during the first six months of 2009, Thomas did not talk about
suicide “per se,” but talked about how it was hard to keep going on. (Pl.’s Dep. at 49). Neileigh
understood such comments to mean that Thomas was talking about committing suicide. (Id.).
Thomas’s medications were delivered to the house on Arthur Street via a mail-order
prescription service and Neileigh would bring them to Thomas at the hotel. (Pl.’s Dep. at 46 &
67). Shortly after the beginning of 2009, Neileigh stopped preparing his pills for him and would
let Thomas take his own medication. (Pl.’s Dep. at 51). Neileigh testified as follows:
Q.

A.
Q.
A.
Q.
A.

Q.
A.

Did it ever occur to you that he might, given that he was talking about
what you perceived to be committing, giving him large amounts of pills
like that might not be a good idea?
I hesitated, yes.
Did you do anything about that hesitation?
Yes, I did.
What did you do?
Would check his medications almost on a daily to make sure that he was
taking the certain ones every day, no more, no less, and everything was
where it was supposed to be and everything matched up from when he
should start taking the prescription to what would be left in the bottle.
You said you would do this on almost a daily basis?
Yes.

5

(Pl.’s Dep. at 52).
Neileigh testified that, from time to time, Thomas’s doctors would change his
medications. When Thomas was told to stop taking a given medication, Neileigh would still
keep the remaining pills at her house, in case he was placed back on that medication later. (Pl.’s
Dep. at 68).
The events at issue in this case occurred in June of 2009. In June of 2009, Neileigh was
still living at 305 Arthur Street in Plymouth, Michigan.

(Defs.’ Stmt. at ¶ 3; Pl.’s Stmt. at ¶ 3).

Her son lived there with her and so did her daughter. (Defs.’ Stmt. at ¶ 1; Pl.’s Stmt. at ¶ 1).
Thomas Steiner was not living there; he was still living at the Extended Stay America hotel in
Canton, Michigan. (Defs.’ Stmt. at ¶ 4; Pl.’s Stmt. at ¶ 4).
Kish was in Michigan in June of 2009. (Defs.’ Stmt. at ¶ 7; Pl.’s Stmt. at ¶ 7). Kish
came to the house on Arthur Street to see his son. (Pl.’s Dep. at 57). Kish told Neileigh that he
wanted to be a father to his son. (Pl.’s Dep. at 111). Neileigh was somewhat optimistic about
Kish establishing a relationship with his son. During June of 2009, Kish would come to the
house on Arthur Street to play with his son and also took him to the zoo. (Id.). Within the week
of the events at issue, Kish babysat Neileigh’s two children while Neileigh and Thomas went out
to dinner. (Defs.’ Stmt. at ¶ 8; Pl.’s Stmt. at ¶ 8).
Neileigh testified that at some point in June of 2009, however, her optimism about Kish
changed. Kish asked Neileigh for money and she refused to give him any. (Pl.’s Dep. at 58 &
111). Kish was upset that Neileigh would not give him money and told Neileigh that she would
“be screwed.” (Id. at 58). Neileigh testified that, although she understood that to mean that her
life was in danger, she did not report the incident to any authorities. (Id. at 58-59).
6

Prior to June 19, 2009, Neileigh had never reported any problems with Kish to the
Plymouth Police Department. (Pl.’s Dep. at 61).
On June 18, 2009, Kish went to the Plymouth Police Department and gave a statement.
(Defs.’ Stmt. at ¶ 9; Pl.’s Stmt. at ¶ 9). Kish initially spoke with Officer Matt Stoops. (Cox Dep.
at 21). Officer Stoops asked then-Lieutenant Al Cox to join the conversation with Kish. Prior to
this conversation, Officer Cox had never heard of Kish. (Cox Dep. at 20).
After hearing Kish mention Neileigh Regets, Cox recognized her name because there had
been a series of issues on Arthur Street between Neileigh and her neighbors. (Cox Dep. at 15).
Those incidents involved verbal disputes between Neileigh and her neighbors. (Id. at 15-17).
Officer Cox had also been aware of a prior domestic dispute at the Arthur Street house and it was
his impression that Thomas Steiner did not live there with his wife. (Id. at 17).
Kish told the officers that he had a son with Neileigh and that he had just recently
returned to Michigan. (Cox Dep. at 23 & 26). Kish told the officers that, on several occasions
while visiting his son since returning to Michigan, Neileigh had stated that she was going to help
Thomas Steiner commit suicide. The officers then asked Kish to write out a written statement,
which he did. Kish’s written statement, which he signed under penalty of perjury, states:
This statement is about Neileigh Regets and the attempt to help Tom Steiner
commit suicide. I arrived in town on June 12th. Upon visiting my son, Neileigh
has had many talks about helping Tom commit suicide. Neileigh told me that she
is going to help Tom commit suicide before his life insurance policy ends. She
also stated that she is going to give him pills that have been delivered to her house
on Arthur Street. When the pills arrived at her house, she looked up at me and
said “these are the pills” then her daughter Kaylee said “those are the pills” like
she knew what was happening. Tom and Neileigh also discussed waiting to
commit suicide after Father’s Day. They also discussed when Neileigh was to call
if he didn’t answer the phone then that was the sign to come to the hotel and find

7

him. Tom also stated that he wanted to give one of his sons a Rolex. She told me
she wanted to keep it for money it was worth 19,000 and she already found
someone to buy the watch for $9,000.
Note the Bag with the pills is a small grayish white bag. Was last seen in office
on Floor on left side of Desk.
(Ex. C to Defs.’ Br.). Kish also provided the officers with a handwritten diagram of the house on
Arthur Street and the location of the pills.
Officer Cox discussed the situation with then-Chief Wayne Carroll. Chief Carroll also
recognized Neileigh’s name because he was also aware that officers had previously responded to
several minor disputes between neighbors on Arthur Street and that Neileigh had been involved
in some of them. (Carroll Dep. at 33-34 & 38-39). He described those incidents as “two or three
groups of people interact[ing] in a very immature manner.” (Id. at 74). Chief Carroll did not
know Thomas Steiner, but knew that Neileigh had married “an elderly gentlemen”, that there had
been some kind of domestic dispute, and that he “was no longer living in his home, or the home
he had before the marriage. He was living somewhere else.” (Id. at 39-40).
Chief Carroll instructed Officer Cox to contact the Wayne County Prosecutor’s Office.
(Carroll Dep. at 40). Because they had a child together, Chief Carroll was aware that Kish had a
prior relationship with Neileigh and that was one of the reasons that he had Officer Cox get the
Wayne County Prosecutor involved. (Id. at 45).
After Kish left the station, Officer Cox called the Wayne County Prosecutor’s Office and
spoke to Assistant Prosecutor Barb Smith, who referred him to Bob Stevens (“Stevens”) of the
homicide unit. (Cox. Dep. at 42). Officer Cox told Stevens what Kish had told the officers.
Stevens responded that he wanted to speak with Kish himself. (Cox Dep. at 42-43). The

8

following day, Officer Cox picked up Kish and took him to the Wayne County Prosecutor’s
Office. Officer Cox testified:
Q.
A.

....
Q.
A.

Q.
A.
Q.
A.
....
Q.
A.

....
Q.
A.
Q.
A
Q.
A.
Q.

How would you characterize the conversation that Mr. Stevens had with
Mr. Kish in front of you?
Mr. Stevens went through several minutes of reading him the pains of
perjury, he was put under oath and he then answered Mr. Stevens
questions regarding Mr. Kish’s written statement and what he had told us
and we were down there I don’t know how long, we were down there for a
little while while he asked him, you know, tell me what you told them.
All right. When Mr. Stevens put Mr. Kish under oath how did he do that?
He had him raise his right hand and he gave him the same oath that I took
when I came in here and then he proceeded to listen to Mr. Kish speak and
then asked him questions.
Was there any, was there a court reporter present?
Yes, there was.
Have you seen that transcript?
No, I have not.
What was the outcome of that witness statement slash meeting?
After he talked to him he told us he said you need to take her into custody
and we need to get a search warrant for the house and where Mr. Steiner is
staying because Mr. Stevens was aware that Mr. Steiner was staying at a
location other than the house and so we began to, we took Mr. Kish back
to where he was staying then we got to work on search warrants.
As you understand the law if Mr. Stevens tells you you should take her
into custody does that mean you had to do it?
No, we basically consulted with him and he felt that there was enough
probable cause to take her into custody.
Did he tell you that?
Yes.
But the fact that he found or he though there was probable cause that
doesn’t necessarily mean that you had to think there was probable cause?
Correct.
And then the same thing with regard to a search warrant. Simply because
Mr. Steven may say that’s what he would do or he suggest doesn’t mean
you have to do it?
9

A.
Q.
A.
Q.
A.

Correct.
You have the discretion to do that or not do that?
Correct.
You folks went back and in fact did get a search warrant, right, sir?
Yes.

(Cox. Dep. at 45-48).
During his deposition in this action, Stevens confirmed that Officer Cox came to him
with certain information regarding Neileigh and, thereafter, he questioned a witness under oath
pursuant to an investigative subpoena. (Steven Dep. at 9-12). Because he is precluded by statute
from divulging certain information obtained during that process, however, he could not answer
certain questions during his deposition. (Id. at 13-14). Stevens did confirm, however, that he
examined a witness under oath and ultimately concluded that there was sufficient probable cause
to obtain search warrants. (Id. at 64-65). Stevens testified that he did not direct the officers to
take Neileigh into custody because that is a determination that is up to the police officers.
(Stevens Dep. at 30-31). Stevens ultimately reviewed the search warrant affidavits in this case
and approved them over the phone. (Stevens Dep. at 64-65).
Officer Cox then sought, and obtained, search warrants for the Arthur Street house and
Thomas’s room at the Extended Stay America hotel. (Exs. K & L to Pl.’s Br.). The search
warrant affidavit for the search warrant for the Arthur Street house, signed by Officer Cox,
stated:
3: The FACTS establishing probable cause or the grounds for search are:
On 6/18/09, Christopher James Kish came to PLPD and reported to Officer Matt
Stoops that he had received information that Neileigh Regets, who resides at 305
Arthur Street in the City of Plymouth, County of Wayne, MI, is planning to assist
her husband, Thomas James Steiner, in committing suicide very soon.
10

Mr. Kish stated that he is the father of the son of Ms. Regets, and that he has
moved back to Michigan to spend more time with his son who also resides at 305
Arthur Street. Mr. Kish stated that while visiting at 305 Arthur Street, Ms. Regets
advised him that she intends to assist Thomas Steiner in committing suicide. Mr.
Kish advised that Ms. Regets told him that she had convinced Mr. Steiner to kill
himself before his life insurance policy expires. Mr. Kish advised that he does not
know the exact date of expiration, but from what Ms. Regets has told him, he is
under the impression that it expires in about one week. Mr. Kish advised that Ms.
Regets told him that she planned to give Mr. Steiner pills that he would ingest and
ultimately end his life. The pills were to be delivered to the home at 305 Arthur
Street. Mr. Kish stated that on 6/16/2009, while at the Arthur Street home, a
package arrived and Ms. Regets looked at him and stated, “ . . . these are the
pills.”
Mr. Kish stated that Neileigh Regets told him that she and Mr. Steiner had
discussed that Mr. Steiner should wait to commit suicide until after Father’s Day
on 6/21/2009. Ms. Regets also told Mr. Kish that the plan was that she would
give Mr. Steiner the pills, and that she would later call him at his hotel room. If
Mr. Steiner did not answer the phone, that was the sign for Ms. Regets to go to the
hotel and find him deceased. Mr. Kish explained that even though Ms. Regets
and Mr. Steiner are married, Ms. Regets lives at the Arthur Street home with her
children, but that Mr. Steiner resides at the Extended Stay America Hotel, located
near Ford Road in Canton, MI. Mr. Kish does not know the exact room number,
but stated that Ms. Regets has told him that Mr. Steiner lives at the hotel.
Mr. Kish stated that he is also aware of a situation a few days prior to his report in
which Ms. Regets intended to take three large bottles of liquor to Mr. Steiner that
he intended to consumer all-at-once, resulting in his death. Mr. Kish stated that
Ms. Regets had received a text message, from whom he believed to be Mr.
Steiner, making the request that she bring him the liquor. Mr. Kish stated that he
was present as she prepared to leave to purchase the liquor and take it to Mr.
Steiner, but that he was able to convince her not to do it.
Mr. Kish also advised that Ms. Regets had inquired if he thought it would bad if
she kept a $19,000 Rolex watch that Mr. Steiner intended to leave to one of his
sons if anything happened to him. Ms. Regets stated that she wanted to keep the
watch, because she had already found someone willing to buy the watch for
$9000.
Mr. Kish described the package, that Ms. Regets referred to as “. . . these are the
pills,”, as a small grayish white bag that when shaken “ . . .sounded like pills.”
11

Mr. Kish stated that he does not know the type of pills or where they came from.
When asked where the pills were now located, Mr. Kish also drew a map of the
home describing the location of the pills (attached). Mr. Kish last left the Arthur
Street home on 6/17/09. He advised that he told Ms. Regets that she should not
assist Mr. Steiner in committing suicide.
On 6/18/2009, Mr. Kish told Affiant, via telephone, that he is certain that Ms.
Regets’s children are also aware of the situation, because he stated that he has
heard Ms. Regets tell them that they will have a “last dinner” with Mr. Steiner.
Mr. Kish also stated that Ms. Regets’s 11 year old daughter also made a reference
to the above referenced pills as “. . . those are the pills,” as if she knew the plan as
well.
Based on Affiant’s training and experience, subjects contemplating suicide will at
times research various methods such as drugs and their interactions with other
drugs. Affiant is also aware that the research may include reading about suicide in
books, such as the “Final Exit . . .” by Derek Humphrey. The Internet also
contains great amounts of information regarding drugs, their interactions, as well
as suicide.
Affiant is also aware that Ms. Regets has been engaged in on-going neighbor
disputes with several neighbors on her street. At one point, PLPD Officers were
advised that Ms. Regets had placed a video recording device in one of her
windows which captured outside activity. The audio captured on this device
however would be conversations that took place within the home, to perhaps
include the very conversations reported by Mr. Kish.
(Search Warrant Affidavit for Arthur Street house, Docket Entry No. 56-1 at Pg ID 970-73).
The search warrant affidavit for the Extended Stay America hotel room where Thomas was
staying is substantially the same. (Docket Entry No. 56-1 at Pg ID 974-77).
On June 19, 2009, two search warrants were issued which authorized searches of,
respectively, 305 Arthur Street and Thomas’s room at the Extended Stay America hotel. (Defs.’
Stmt. at ¶ 10; Pl.’s Stmt. at ¶ 10). Those search warrants were signed by Judge Plakas.
On June 19, 2009, Chief Carroll, Officer Cox, and Officer Grabowski went to the Arthur

12

Street residence to execute the search warrant. Neileigh was outside of the residence when they
arrived. (Cox Dep. at 62). Neileigh was told by Officer Cox that she was being arrested for
attempting to assist Thomas Steiner commit suicide in violation of Michigan law. (Pl.’s Br. at 5;
Cox Dep. at 70-71). Neileigh denied the allegation. (Id.; Cox Dep. at 70-71). Neileigh was
placed under arrest, was handcuffed, and taken into custody. (Cox Dep. at 62). Officer Cox
believes that Chief Carroll is the officer who actually took Neileigh into custody. (Cox Dep. at
62). Neileigh’s children were present at the time of her arrest. (Pl.’s Dep. at 78).
Following Neileigh’s arrest, Plymouth police officers conducted a search of 305 Arthur
Street and confiscated certain medications. (Defs.’ Stmt. at ¶ 12; Pl.’s Stmt. at ¶ 12). The
officers recovered twenty-five prescription bottles from the house, a sandwich bag with
suspected marijuana, and drug paraphernalia. (Cox Dep. at 66-67).
Several Plymouth police officers then conducted a search of Thomas’s room at the
Extended Stay America hotel and confiscated certain medications. (Defs.’ Stmt. at ¶ 13; Pl.’s
Stmt. at ¶ 13). Officer Grabowski testified that the officers proceeded to the front desk at the
hotel in order to gain access to Thomas’s room. (Grabowski Dep. at 19-20). When they entered
the room, they found it dark and empty. Thomas was not there. (Id. at 20). Upon entering the
hotel room, Officer Grabowski saw a number of prescription bottles lined up on a table and,
based on the way the bottles were lined up, he concluded those bottles contained daily
medications:
A.

I remember when we were executing the search warrant these were located
and there was debate on whether we should seize these based on the search
warrant, it said all medications. I decided at that point in time that we
were not going to seize these because they appeared to be daily
medication.
13

Q.
A.
Q.
A.
Q.
A.

You’re the one that made that determination?
Correct.
Did you consult with anyone?
I called Chief Cox or Lieutenant Cox at that time to let him know what I
was planning on doing which was leaving these medications in the room.
What led you to believe these were daily medications?
They way they were lined up, you know, sitting on a table. It appeared as
though they were being taken on a regular basis. Just they way that they
were setup. Another photo if you look at it, if you look at the table itself it
has multiple things, it has a razor, a nail clippers, matches, cell phone, a
calculator. It appears to be like a work station type area where somebody
would be putting their medical things or things they take care of on a daily
basis.

(Grabowski Dep. at 27-28). Officer Grabowski did not know how long the pills in the bottles
that he left behind would last Thomas. (Id. at 32). Officer Grabowski did, however, decide to
confiscate two sealed grayish-white mailing packages from the hotel room, which sounded like
they contained pills. (Grabowski Dep. at 34; Cox Dep. at 63-65). Those sealed packages were
not opened by the officers. (Id.).
Although Officer Cox did not participate in the search at the hotel, he contacted Thomas
Steiner via telephone after Officer Grabowski provided him Thomas’s telephone number (Cox
Dep. at 62 & 93-94). Thomas told Officer Cox that the officers had taken medications from his
hotel room that were for his bipolar condition, memory loss, his heart, and his cholesterol. (Cox
Dep. at 94 & 97). Thomas advised Officer Cox that the medications were strong and that if he
were to take an overdose of them, he believed he would die. (Id.) Thomas told Officer Cox that
he had talked a lot about suicide but denied that Neileigh had ever helped him plan to commit
suicide. Officer Cox asked Thomas how he was feeling at that time and if he had any intention
of harming himself at that time. Thomas replied that he was feeling good and was not going to

14

attempt suicide. (Cox Dep. at 95).
Officer Cox and Thomas then discussed the packages that the officers had confiscated
from his hotel room. (Cox Dep. at 97). Thomas advised that Neileigh had delivered those
packages to him a day or two before the search and that he had not yet opened those packages.
(Cox Dep. at 97-98). Thomas stated that if he really intended to kill himself he would have taken
the pills the day that Neileigh delivered them to him. (Id.). Officer Cox told Thomas that the
officers had advised that they believed they left the medications that Thomas uses on a daily
basis in the room. Officer Cox asked Thomas if he would be alright without the two packages of
medications that had been confiscated by the officers that day. Thomas told Officer Cox that he
would be ok and that he did not need the medications in the packages at that time. He stated that
he had the medications that he needed and that he would be fine over the weekend and into the
week when he could go to the pharmacy and get another prescription for those medications.
(Cox Dep. at 101-102). Officer Cox testified that he pressed Thomas on this issue and that
Thomas responded again that he would be fine without the medications that had been confiscated
by the officers. (Id.).
On June 22, 2009, Neileigh was released from jail. (Defs.’ Stmt. at ¶ 14; Pl.’s Stmt. at ¶
14). Neileigh testified that when she was released from custody she was told not to have any
contact with Thomas. (Pl.’s Dep. at 94-95). While she was in custody, Neileigh had received 30
phone calls from Thomas and he had left her 14 messages. (Pl.’s Dep. at 112). On June 22,
2009, after being released from custody, Neileigh went to the Extended Stay hotel with her son
and a man named Derek Stegall (“Stegall”) because Neileigh wanted to make sure her husband
was okay. (Pl.’s Dep. at 94). Stegall went into the hotel and asked a receptionist from the hotel
15

to check on Thomas in his room. After checking on Thomas, the receptionist initially came
down and told them that Thomas was sleeping. (Id. at 96). Neileigh had Stegall ask the
receptionist to check again. The receptionist then checked again and, when she returned, she said
to call 911. (Id. at 96).
Thomas Steiner was found dead at the Extended Stay hotel in Canton, Michigan on June
22, 2009. (Defs.’ Stmt. at ¶ 15; Pl.’s Stmt. at ¶ 15).
The Wayne County Medical Examiner’s Office has concluded that the cause of Thomas’s
death was natural disease and that no prescription medications were found in his bloodstream.
(Defs.’ Stmt. at ¶ 16; Pl.’s Stmt. at ¶ 16).
An expert witness retained by Neileigh, Dr. Werner Spitz, is prepared to testify at trial
that “Mr. Steiner died as a result of the sudden and unexpected withdrawal of [his] prescribed
medications which negatively impacted his heart. Hence, had Mr. Steiner been given his
prescribed medication outlined above in their therapeutic levels, Mr. Steiner would not have died
that day from these conditions.” (Dr. Spitz Affidavit, attached as Ex. I to Pl.’s Br.). Dr. Spitz’s
Affidavit further states that “[m]oreover, had Mr. Steiner been appropriately medically and/or
psychiatrically evaluated on Friday, June 19, 2009 he would have been given his prescribed
medications and would not have died on Monday, June 22, 2009.” (Id.).
Plaintiff’s First Suit, Case No. 10-12354
Acting through counsel,2 Plaintiff first filed suit in federal court
incidents

regarding the above

on June 14, 2010, in Case No. 10-12354. In that case, Plaintiff named the City of

Plymouth, the three Defendants named in this action, and other named and unidentified “john
2

Plaintiff’s current counsel in this case did not represent her in Case No. 10-12354.
16

doe” Defendants.
There were significant delays in serving various Defendants in that action. In an Order
issued on March 14, 2011, this Court denied a motion to extend summons and dismissed
Plaintiff’s claims against the City of Plymouth, and the claims against Defendants Carroll, Cox,
and Grabowski, without prejudice. (See Docket Entry No. 36 in Case No. 10-12354).
On November 22, 2011, the parties stipulated to the dismissal, with prejudice, of
Plaintiff’s claims against: 1) the Township of Plymouth; 2) the Township of Canton; 3) Detective
Lieutenant Al Cox;3 and 4) Chief Thomas Tiderington. (Docket Entry No. 43).
On December 19, 2011, the parties stipulated to the dismissal, with prejudice, of
Plaintiff’s claims against Robert Kerr. (Docket Entry No. 44). That was the last order and closed
the case.
Plaintiff Files This Second Action On April 21, 2011
Plaintiff filed this action, Case No. 11-11746, on April 21, 2011. In this action, Plaintiff
named the City of Plymouth and the following three officers as Defendants: 1) Chief Carroll; 2)
Lieutenant Al Cox; 3) Sergeant Jamie Grabowski.
Kish has not been deposed in this action because his whereabouts are currently unknown.
Plaintiff deposed Kish’s father during discovery, who testified that he does not know where his
son is currently. (Ex. E to Pl.’s Br.). Kish’s father also testified that he “probably could take a
guess at” what his son’s signature looks like and that, after looking at Kish’s sworn statement
given to the officers, he thinks the signature is similar but he “would say no” as to whether he

3

Thus, Plaintiff has already voluntarily dismissed with prejudice
Officer Cox that arise out of the events that form the basis of this action.
17

the claims against

believes it is his son’s signature. (Id.).
Plaintiff filed a Motion in Limine, seeking to exclude Kish’s statement at trial. (Docket
Entry No. 36). That motion was referred to Magistrate Judge Mark Randon for hearing and
determination. Judge Randon denied the motion, after full briefing by the parties and a hearing,
in an order issued on December 13, 2012. (Docket Entry No. 49). Plaintiff did not file
objections to that order or seek reconsideration of it and the time for doing so has passed.
Standard of Decision
Summary judgment will be granted where there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S at 252.
The court “must view the evidence, all facts, and any inferences that may be drawn from
the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High Sch.,
305 F.3d 520, 526 (6th Cir. 2002). “The court’s duty to view the facts in the light most favorable
to the nonmovant does not require or permit the court to accept mere allegations that are not
supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009).
“This is so because the nonmovant, in response to a properly made and supported motion for
summary judgment, cannot rely merely on allegations but must set out specific facts showing a
genuine issue for trial.” Id.
18

ANALYSIS
I.

The Individual Defendants Are Entitled To Qualified Immunity With Respect To
Plaintiff’s Section 1983 Claims
To state a claim under § 1983, a plaintiff must set forth facts that, when construed

favorably, establish: 1) the deprivation of a right secured by the Constitution or laws of the
United States; 2) caused by a person acting under the color of state law. Dominguez v.
Correctional Medical Services, 555 F.3d 543, 549 (6th Cir. 2009).
Under the doctrine of qualified immunity, government officials performing discretionary
functions generally are shielded from liability from civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known. Id.; Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008).
Determining whether government officials are entitled to qualified immunity generally requires
two inquiries: 1) whether, viewing the facts in the light most favorable to the plaintiff, the
plaintiff has shown that a constitutional violation occurred; and 2) whether the right was clearly
established at the time of the violation. Dominguez, 555 F.3d at 549.
“[A] qualified immunity defense can be raised at various stages of the litigation including
at the pleading stage in a motion to dismiss, after discovery in a motion for summary judgment,
or as an affirmative defense at trial.” English v. Duke, 23 F.3d 1086, 1089 (6th Cir. 1994).
Here, Defendants have raised the issue in the instant Motion for Summary Judgment,
filed after the close of discovery.
There are three individual Defendants in this case (Officers Cox, Grabowski, and
Carroll). “Each defendant’s liability must be assessed individually based on his [or her] own

19

actions.” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). Generally, mere presence at
the scene, without a showing of direct responsibility for the action, will not subject an officer to
liability. Id.
Plaintiff’s Complaint asserts the following § 1983 claims against the three individual
Defendants: 1) “False Arrest And False Imprisonment

Ms. Regets” (Count I); 2) “Violation of

the Fourth Amendment: Unreasonable Search and Seizure 42 U.S.C. § 1988 [sic]

Ms. Regets”

(Count II); 3) “Civil Conspiracy to Violate Plaintiff’s Civil Rights 42 U.S.C. § 1983

Ms.

Regets” (Count III); 4) “Deliberate Indifference to a Known Medical Condition 42 U.S.C. § 1983
Fourteenth And/Or Eighth
Force 42 U.S.C. § 1983
A.

Estate” (Count VI); and 5) “Unreasonable Search and Seizure, Fatal

Under Fourth Amendment

Estate” (Count VII).

Viewing The Facts In The Light Most Favorable To Plaintiff, Plaintiff Has
Not Established A Constitutional Violation As To Any Of The Officers

The first step in the qualified immunity analysis is to consider whether, viewing the facts
in the light most favorable to Plaintiff, could Plaintiff establish a Constitutional violation with
respect to either of the officers.
1.

Right To Be Free From Unreasonable Searches

In Count II, Plaintiff alleges that the officers searched Plaintiff’s house and seized
property without probable cause. In Count VII, asserted on behalf of the Estate, Plaintiff alleges
that the officers searched Thomas’s hotel room and seized his personal property without probable
cause.
In their Motion for Summary Judgment, Defendants note that both Plaintiff’s house and
Thomas’s hotel room were searched pursuant to search warrants. As such, they direct the Court

20

to Messerschmidt v. Millender, __ U.S. __, 132 S.Ct. 1235, 1245 (2012) and assert that the
officers are entitled to qualified immunity because, even construing the facts in the light most
favorable to Plaintiff, Plaintiff cannot establish that no reasonably competent officers could have
concluded that these warrants should have been issued. (Defs.’ Br. at 10-2).
Defendants further assert that there is an even lesser basis for asserting a claim against
Officer Grabowski, who was not involved in interviewing Kish, or preparing the search warrants
or affidavits, and simply helped execute them.
In response, Plaintiff assert that the officers were required to independently corroborate
Kish’s statement to them in order for probable cause to have existed. (See Pl.’s Br. at 11). In
making this argument, Plaintiff cites a case that deals with the situation were officers are
confronted with “hearsay information from a confidential informant” that is used to obtain a
search warrant. (Id., citing United States v. Frazier, 423 F.3d 536, 532 (6th Cir. 2005)). But, as
Defendants note in their Reply Brief, this is not a situation where a search warrant was obtained
based upon hearsay statements from a confidential informant. Kish was not a confidential
informant; he was a known informant identified in the search warrant affidavit who also gave a
sworn written statement. That is, Kish came to the Plymouth Police Department and, under
penalty of perjury, signed a sworn statement. Moreover, the officers then contacted the Wayne
County Prosecutor’s Office and Stevens examined Kish under oath. Stevens then advised the
officers that he believed probable cause for the warrants existed. Plaintiff’s reliance on Frazier
is misplaced.4
4

And even though Kish was not a confidential informant, what he was telling the officers
did, in fact, correspond with the officers’ own pre-existing knowledge. Kish told the officers that
Neileigh planned to help her husband commit suicide at a hotel by bringing him medications to
21

As explained below, given the applicable standard, Plaintiff cannot establish a
constitutional violation as to any of the officers, even when evidence is construed in the light
most favorable to Plaintiff.
Like the plaintiff in Messerschmidt, Plaintiff alleges that she and Mr. Steiner were
subjected to unreasonable searches in violation of the Fourth Amendment because the warrants
authorizing the searches were not supported by probable cause. The officers in this case, like the
officers in Messerschmidt, assert that they are entitled to qualified immunity as to these claims.
“Qualified immunity ‘gives government officials breathing room to make reasonable but
mistaken judgments,’ and ‘protects all but the plainly incompetent or those who knowingly
violate the law.’” Messerschmidt, supra, at 1244 (quoting Ashcroft v. al-Kidd, 563 U.S. __, 131
S.C. 2074, 2085 (2011)).
“Where the alleged Fourth Amendment violation involves a search or seizure pursuant to
a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the
officers acted in an objectively reasonable manner or, as we have sometimes put it, in ‘objective
good faith.’” Messerschmidt, supra, at 1245. Nevertheless, “the fact that a neutral magistrate has
issued a warrant authorizing the allegedly unconstitutional search or seizure does not end the
inquiry into objective reasonableness.” Id. The Supreme Court has “recognized an exception
allowing suit when ‘it is obvious that no reasonably competent officer would have concluded that
a warrant should issue.’” Messerschmidt, supra, at 1245 (quoting Malley v. Briggs, 475 U.S. 335,
341, (1986)). “The ‘shield of immunity’ otherwise conferred by the warrant” “will be lost, for

be delivered to her house. Chief Carroll knew, from the department having responded to a
domestic dispute at the house, that Neileigh had married “an elderly gentlemen” and that, for
some reason, he was not living at the Arthur Street home with his Neileigh.
22

example, where the warrant was ‘based on an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable.’” Messerschmidt, supra, at 1245
(quoting United States v. Leon, 468 U.S. 897, 923 (1984)). The Supreme has noted that “the
threshold for establishing this exception is a high one, and it should be.” Messerschmidt, supra,
at 1245.
The Court concludes that this high standard is not met here. This is simply not one of
those rare situations where, despite the issuance of a search warrant by a neutral magistrate, “it is
obvious that no reasonably competent officer would have concluded that a warrant should
issue.’” Messerschmidt, supra, at 1245.
2.

Right To Be Free From False Arrest / Imprisonment

Plaintiff’s Complaint asserts false imprisonment claims on behalf of both Neileigh and
the Estate. They are fundamentally different claims and must be analyzed separately.
a.

False Imprisonment Brought On Behalf Of Neileigh

In Count I, Plaintiff asserts, pursuant to § 1983, a claim for “False Arrest And False
Imprisonment.” Neileigh alleges that she was arrested without probable cause. (Compl. at ¶ 43).
In their Motion for Summary Judgment, Defendants contend that they are entitled to
qualified immunity as to this claim. They contend that, even when the facts are construed in the
light most favorable to Plaintiff, she cannot establish a Constitutional violation because her arrest
was supported by probable cause. The Court agrees.
In order for a plaintiff to prevail on a theory of wrongful arrest under § 1983, she must
prove that the police lacked probable cause. Painter v. Robertson, 185 F.3d 557, 569 (6th Cir.
1999); Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). As explained in Fridley:

23

A police officer has probable cause if there is a “fair probability” that the
individual to be arrested has either committed or intends to commit a crime.
Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001) (quoting United States v.
Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1, (1989)), cert denied, 535
U.S. 955, 122 S.Ct. 1358, 152 L.Ed.2d 354 (2002). A police officer determines
the existence of probable cause by examining the facts and circumstances within
his knowledge that are sufficient to inform “a prudent person, or one of reasonable
caution,” that the suspect “has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d
343 (1979).
Fridley, 291 F.3d at 872.
The parties have directed the Court to two Michigan statutes prohibiting assisting another
person to commit suicide, M.C.L. § 752.1027 and M.C.L. § 750.329a. (See Defs.’ Br. at 14-15;
Pl.’s Br. at 14). M.C.L. § 752.1027, titled “Criminal assistance to suicide,” provides, in
pertinent part, that:
(1)

A person who has knowledge that another person intends to commit or
attempt to commit suicide and who intentionally does either of the
following is guilty of criminal assistance to suicide, a felony punishable by
imprisonment for not more than 4 years or a fine of not more than
$2,000.00, or both:
(a)

Provides the physical means by which the other person attempts or
commits suicide.

(b)

Participates in a physical act by which the other person attempts or
commits suicide.

M.C.L. § 752.1027(1).
M.C.L. § 750.329a, titled “Intent to assist an individual in killing oneself; common law
assisted suicide offense,” provides, in pertinent part, that:
(1)

A person who knows that an individual intends to kill himself or herself
and does any of the following with the intent to assist the individual in
killing himself or herself is guilty of criminal assistance to the killing of an
individual, a felony punishable by imprisonment for not more than 5 years
or a fine of not more than $10,000.00, or both:
24

(a)

Provides the means by which the individual attempts to kill himself
or herself or kills himself or herself;

(b)

Participates in an act by which the individual attempts to kill
himself or herself or kills himself or herself;

(c)

Helps the individual plan to attempt to kill himself or herself or to
kill himself or herself.

M.C.L. § 750.329a.
The existence of probable cause in a § 1983 action presents a jury question, “unless there
is only one reasonable determination possible.” Plyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995). The Court finds that is the situation here. Even when viewing the facts in the light most
favorable to Plaintiff, there was probable cause to arrest Plaintiff on June 19, 2009.
In order for Chief Carroll to have probable cause to arrest Neileigh on June 19, 2009, he
needed only a “fair probability” that Neileigh intended to commit a crime by violating one of the
statutes above.
At the time that Chief Carroll arrested Neileigh, he and Officer Cox were aware that Kish
had given a detailed account of the alleged plan to assist Thomas Steiner in committing suicide,
in violation of the above statutes. Kish gave an oral statement, followed by a sworn written
statement, on June 18, 2009. He also included a handwritten diagram indicating where he had
personally observed the medications that Neileigh stated she was going to give to Thomas to
enable him to commit suicide. Out of an abundance of caution, the officers then contacted the
Wayne County Prosecutor’s Office for assistance in evaluating the information provided to them.
On June 19, 2009, Officer Cox took Kish to the Wayne County Prosecutor’s Office. After
Stevens spent “several minutes of reading him the pains of perjury,” Stevens put Kish under oath
and examined him. Kish’s description of the events he had heard and witnessed remained
25

consistent. In addition, according to the information Kish provided to them, time was of the
essence because the plan was for Thomas to commit suicide within the week, before his life
insurance policy expired.
Based on the facts and circumstances within his knowledge, there was a “fair probability”
that Neileigh intended to commit a crime by violating one of the statutes above.
Plaintiff’s brief argues that probable cause was lacking here because Kish had tried to
strangle her in 2004, and because Kish had recently become angry when Neileigh denied his
request for money, which gave him a motive to lie.
But the “probable cause determination turns on what the officers knew at the time of the
arrest.” Fridley v. Horrighs, 291 F.3d 867, 873 (6th Cir. 2002). At the time of the arrest, the
officers did not know of the alleged incident with Kish in 2004. Nor did the officers have any
knowledge of Kish’s recent request for money from Neileigh’s, or Kish’s alleged statement to
Neileigh that she “would be screwed.” Neileigh testified that, while she understood that to mean
that her life was in danger, she did not report the incident to any authorities

let alone the

Plymouth Police Department. (Pl.’s Dep. at 58-59). Indeed, prior to June 19, 2009, Neileigh had
never reported any problems with Kish to the Plymouth Police Department. (Pl.’s Dep. at 61).
b.

False Imprisonment Claim Brought On Behalf Of Estate

In Count X, Plaintiff asserts a false imprisonment claim on behalf of the Estate. That
count alleges that Defendants “knew or should have known that by seizing Mr. Steiner’s lifesustaining medication and access to Ms. Regets without probable cause, he would become unable
to care for himself, communicate his needs and leave his hotel room to receive assistance.”
(Compl. at ¶ 100). That is, Plaintiff alleges that “Defendants knew or should have known that

26

their actions would directly or indirectly result in Mr. Steiner being confined within his hotel
room.” (Compl. at ¶ 101).
In seeking summary judgment as to this Count, Defendants assert that the allegations as
to this claim have no support in the record. First, Defendants note that the officers did not seize
all the medications from Thomas’s hotel room and that Officer Cox specifically asked Thomas if
the seizure of the two unopened packages would cause him any problems and he responded in the
negative. Second, Defendants note that there is no evidence in the record to support the
allegation that Thomas was somehow confined to his hotel room by virtue of not having his
medication or by virtue of Neileigh being in jail. The Court agrees.
There is no evidence in the record before this Court to establish that the officers knew or
should have known that Thomas would be unable to care for himself without the medications in
the seized packages or that he would be unable to leave his room if he did not have those
packages or access to Neileigh.
The evidence reflects that Thomas told Officer Cox that he would be ok and that he did
not need the medications in the seized packages at that time. Thomas stated that he had the
medications that he needed and that he would be fine over the weekend and into the week when
he could go to the pharmacy and get another prescription for those medications. (Cox Dep. at
101-102) (emphasis added). Based on Thomas’s statements including that Thomas could go to
the pharmacy Officer Cox would have no reason to believe that Thomas would somehow be
confined to his hotel room by virtue of not having the seized packages.
And Plaintiff’s allegation that Defendants knew or should have known that Thomas
would be unable to leave his hotel room if he “lacked access to Neileigh” fares no better.

27

On the date in question, Neileigh was arrested before any of the officers went to the Extended
Stay hotel to execute the search warrant there. Although Neileigh had already been arrested by
the time the officers went to Thomas’s hotel room, Thomas was not in the hotel room when they
arrived. Thus, the record does not support Plaintiff’s allegation that the officer’s should have
known that Thomas was unable to leave the hotel room without Neileigh.
The Court concludes that the officers are entitled to qualified immunity as to this claim.
Even construing the facts in the light most favorable to Plaintiff, there was no Constitutional
violation.
II.

Defendants Are Entitled To Summary Judgment As To Plaintiff’s Conspiracy
Claims
Although Count III of Plaintiff’s Complaint is titled “Civil Conspiracy to Violate

Plaintiff’s Civil Rights 42 U.S.C. § 1983

Ms. Regets”, the body of that count indicates that

Plaintiff alleges a civil conspiracy under both § 1983 and § 1985. (See Compl. at ¶ 58).
A.

Conspiracy Claim Under § 1983

Defendants contend that Plaintiff cannot establish a civil conspiracy claim. They contend
that Plaintiff has failed to plead any facts or proffer any evidence suggesting the existence of an
agreement to engage in any unlawful action. They contend that Plaintiff’s conspiracy claim
under § 1983 is based on mere speculation and conjecture and it should therefore be dismissed.
The Court agrees.
As set stated in Hensley v. Gassman, 693 F.3d 681 (6th Cir. 2012), the “standard for
proving a civil conspiracy claim in the Sixth Circuit” is as follows:
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
28

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.
Id. at 695 (quoting Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)).
Here, Plaintiff offers no evidence of an agreement among the alleged conspirators.
Rather, Plaintiff bases the conspiracy claims on the fact that the officers obtained search warrants
and arrested Plaintiff. As set forth above, however, the officers had probable cause to do so.
And while a conspiracy may be demonstrated by circumstantial evidence, “circumstantial
evidence alone cannot support a finding of conspiracy when the evidence is equally consistent
with independent conduct.” Re/Max Intern., Inc. v. Realty One, Inc., 173 F.3d 995, 1009 (6th
Cir. 1999); see also Hensley, supra. As was the situation in Hensley, the officers’ actions in this
case were as consistent with independent conduct as with a conspiracy. Hensley, 693 F.3d at
695.
Plaintiff offers nothing beyond mere conjecture and speculation that an agreement existed
in this case. Defendants are therefore entitled to summary judgment as to this claim. Moore v.
City of Paducah, 890 F.2d 831, 834-35 (6th Cir. 1990).
B.

Conspiracy Claim Under § 1985

In response to Defendants’ Motion for Summary Judgment, Plaintiff agrees that her
conspiracy claims under § 1985 should be dismissed. (Pl.’s Br. at 20 & 26).
III.

Defendants Are Entitled To Qualified Immunity As To Count VI Because Plaintiff
Cannot Establish That Defendants Acted With Deliberate Indifference To The
Decedent’s Health Or Safety
Count VI of Plaintiff’s Complaint is titled “Deliberate Indifference To A Known Medical

29

Condition 42 U.S.C. § 1983 Fourteenth And/Or Eighth

Estate.” This Count alleges that “[o]n

June 19, 2009, Defendants knew or should have known that Mr. Steiner was a person who
required certain medical prescriptions and certain medical and/or psychiatric care.” (Compl. at ¶
76). The Complaint alleges that “Defendants were deliberately indifferent to Mr. Steiner’s
Fourteenth and Eighth Amendment right to medical and psychiatric care. By removing Mr.
Steiner’s prescription medication in his then-unstable mental and physical state, Defendants
caused unreasonable and unnecessary conditions and stresses that caused and/or contributed to
his death on June 22, 2009.” (Compl. at ¶ 77). It alleges that the “actions of the Defendants
were so severe, so wanton and reflect such quantum disregard for the constitutionally protected
rights under the substantive due process clause of the Fourteenth Amendment and Eighth
Amendments, Ms. Regets, as Personal Representative of the Estate of Thomas J. Steiner,
requests punitive damages for the constitutional violations.” (Id. at ¶ 78).
A.

No Eighth Amendment Claim Exists Because Steiner Was Not A Prisoner.

“The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners
from the ‘unnecessary and wanton infliction of pain.’” Villegas v. Metropolitan Govt. of
Nashville, __ F.3d __ (6th Cir. 2013) (citations omitted) (emphasis added). “Proving an Eighth
Amendment claim requires that the plaintiff make a showing of deliberate indifference.” Id.
Claims that a state actor has acted with deliberate indifference to a prisoner’s health or medical
needs are not uncommon.
Such claims of deliberate indifference to health can also be brought by a pre-trial
detainee, “though they sound in the Due Process Clause of the Fourteenth Amendment rather
than the Eighth Amendment.” Id. (emphasis added).

30

Here, Thomas Steiner was not a prisoner at any time. Indeed, he was not even a pre-trial
detainee at any point. Thus, there can be no Eighth Amendment claim asserted on his behalf.
B.

The Deliberate Indifference Standard Applies To The Estate’s Substantive
Due Process Claim Under The Fourteenth Amendment.

“The Due Process Clause Of the Fourteenth Amendment is ‘phrased as a limitation on the
State’s power to act, not as a guarantee of certain minimal levels of safety and security.’” Ewolski
v. City of Brunswick, 287 F.3d 492, 509 (6th Cir. 2002) (citing DeShaney v. Winnebago County
Dep’t of Social Servs., 489 U.S. 189, 195 (1987)). State officials may therefore be subject to
constitutional liability if they fail to provide protection for individuals in state custody.” Ewolski,
287 F.3d at 509.
“Even in noncustodial settings, however, state officials may violate the Due Process
Clause when their affirmative actions directly increase the vulnerability of citizens to dangers or
otherwise place citizens in harm’s way.” Id. Such claims are based upon a “state-created
danger” theory. Id.
Given that Thomas was never in custody, the Estate’s only viable theory is that the
officers violated Thomas Steiner’s substantive due process rights by removing the packages of
medications from his room and thereby leaving him vulnerable and/or increasing the risk that he
would die.
But the “due process guarantee does not entail a body of constitutional law imposing
liability whenever someone cloaked with state authority causes harm.” County of Sacramento v.
Lewis, 523 U.S. 833, 848 (1998). A plaintiff “must demonstrate the state acted with the requisite
culpability to establish a substantive due process violation under the Fourteenth Amendment.”
Ewolski, 287 F.3d at 510. As stated in Ewolski:
31

The Supreme Court has explained, this requires that the § 1983 plaintiff show that
the challenged action was so “egregious” that it can be said to be “arbitrary in the
constitutional sense.” Id. at 846, 118 S.Ct. 1708 (quotation omitted). The
Supreme Court, in elaborating upon this standard, has repeatedly instructed that
the Fourteenth Amendment protects only against abuse of executive power which
“shocks the conscience.” Id.
Ewolski, 287 F.3d at 510.
Whether conduct reaches the level of conscience shocking “depends upon the facts and
circumstances of the individual case.” Ewolski, 287 F.3d at 510. The “critical question in
determining the appropriate standard of culpability is whether the circumstances allowed the state
actors time to fully consider the potential consequences of their conduct.” Id. Thus, in situations
where actual deliberation is practical, the deliberate indifference standard is applied. Id. at 510511. On the other hand, where circumstances require an instant judgment, as the situation seen
with high speed vehicle chases, deliberation is not practical and a violation occurs only when the
police act with malice and intent to harm. Id. at 511.
Applying this framework, the Court concludes that this particular case falls within the
“‘middle-range’ between custodial settings and high-speed chases,’” and the appropriate standard
to be applied is deliberate indifference. Ewolski, 287 F.3d 492 at 511. This is because the
officers had time to deliberate their decision as to whether to confiscate the two unopened
packages.
As explained by the Sixth Circuit in Ewolski, “[d]eliberate indifference has been equated
with subjective recklessness, and requires the § 1983 plaintiff to show that the state official
knows of and disregards an excessive risk to [the victim’s] health or safety.” Ewolski, 287 F.3d
at 513 (citations omitted). “Thus, ‘the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
32

inference.’” Id. And, having drawn the inference, the official must act or fail to act in a manner
demonstrating “reckless or callous indifference” toward the individual’s rights. Id.
Here, upon entering the hotel room to execute the search warrant, Officer Grabowski
found what appeared to him as the medications that Thomas was taking on a daily basis. He
decided not to confiscate those and left them in the room. Officer Grabowski did decide to
confiscate two sealed grayish-white mailing packages from the hotel room, which sounded like
they contained pills. (Grabowski Dep. at 34; Cox Dep. at 63-65). Those sealed packages were
not opened by the officers. (Id.). Officer Grabowski then gave Officer Cox Thomas’s telephone
number so that he could be contacted.
Officer Cox then contacted Thomas via telephone. Officer Cox asked Thomas how he
was feeling at that time and if he had any intention of harming himself at that time. Thomas
replied that he was feeling good and was not going to attempt suicide. (Cox Dep. at 95).
Officer Cox and Thomas then discussed the packages that the officers had confiscated
from his hotel room. (Cox Dep. at 97). Thomas advised that Neileigh had delivered those
packages to him a day or two before the search and that he had not yet opened those packages.
(Cox Dep. at 97-98). Officer Cox told Thomas that the officers had advised that they believed
they left the medications that Thomas uses on a daily basis in the room. Officer Cox asked
Thomas if he would be all right without the two packages of medications that had been
confiscated by the officers that day. Thomas told Officer Cox that he would be ok and that he
did not need the medications in the packages at that time. He stated that he had the medications
that he needed and that he would be fine over the weekend and into the week when he could go
to the pharmacy and get another prescription for those medications. (Cox Dep. at 101-102).

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Officer Cox testified that he pressed Thomas on this issue and that Thomas responded again that
he would be fine without the medications that had been confiscated by the officers. (Id.).
Applying this deliberate indifference standard, the Court concludes that Plaintiff has not
shown a genuine issue of material fact as to whether the conduct of the officers rose to the level
of conscience shocking under the particular circumstances presented. The Court concludes that
the Defendant Officers are entitled to qualified immunity with respect to this claim.
IV.

Counts IV And VIII Shall Be Dismissed Because Plaintiff Cannot Establish
Municipal Liability
Counts IV and VIII of Plaintiff’s Complaint assert municipal liability claims against the

City, on behalf of Plaintiff and the Estate.
Defendants’ motion contends that all claims against the City must be dismissed because
Plaintiff cannot establish municipal liability. Defendants contend that Plaintiff’s claims against
the City must be dismissed because Plaintiff cannot establish municipal liability here based on a
failure-to-train theory.
A.

Given That The Court Finds That Plaintiff Cannot Establish That The
Officers Violated Her (Or Decedent’s) Constitutional Rights, Plaintiff’s
Municipal Liability Claims Must Also Be Dismissed

Counts IV and VIII of Plaintiff’s Complaint seeks to hold the City liable for the alleged
Constitutional violations by the officers.
Given that this Court finds that the individuals officers did not violate Plaintiff’s (or the
decedent’s) Constitutional rights, however, Plaintiff cannot rely on their conduct to establish a
claim of municipal liability against the City and Counts IV and VIII must be dismissed.
Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 404 (6th Cir. 2010); see also Watkins v. City
of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001) (“If no constitutional violation by the
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individual defendant is established, the municipal defendants cannot be held liable under §
1983.”).
Accordingly, Counts IV and VIII must be dismissed and no further analysis as to
municipal liability is necessary.
B.

In Addition, Even If Plaintiff Could Establish A Constitutional Violation By
An Officer, Plaintiff Could Not Establish Municipal Liability Here.

A local government is only liable under § 1983 for its own wrongdoing and not under any
theory of respondeat superior. A municipality may, however, “be held liable under § 1983 if it
maintained a policy or custom that caused the violation” of the plaintiff’s rights. Harvey v.
Campbell County, 453 Fed.App’x 557, 562 (6th Cir. 2011).
“A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy
must identify the policy, connect the policy to the County itself and show that the particular
injury was incurred because of the execution of that policy.” Graham ex rel. Estate of Graham v.
County of Washtenaw, 358 F.3d 377, 383 (6th Cir. 2004).
Here, however, Plaintiff does not base the claims against the City on any actual custom or
policy. Rather, Plaintiff’s § 1983 claim against the City is a claim predicated upon a “failure to
train” theory of municipal liability.
In limited circumstances, a local government’s failure to train police officers may be
deemed a “policy or custom” for purposes of municipal liability. City of Canton v. Harris, 489
U.S. 378, 389 (1989). “[I]nadequacy of police training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate indifference to the rights of persons with
whom the police come into contact.” City of Canton v. Harris, 489 U.S. 378, 389 (1989). “Only
where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate
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indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a
city ‘policy or custom’ that is actionable under § 1983.” Id.
“To establish deliberate indifference, the plaintiff ‘must show prior instances of
unconstitutional conduct demonstrating that the [City] has ignored a history of abuse and was
clearly on notice that the training in this particular area was deficient and likely to cause injury.’”
Miller, 606 F.3d at 255 (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)).
Here, Plaintiff has not shown that the City knew of prior unconstitutional actions by its
officers and failed to respond. Fisher, 398 F.3d at 849. Accordingly, the City would be entitled
to summary judgment as to Counts IV and VIII even if Plaintiff could establish a constitutional
violation by one of the three individual Defendants.
V.

It Is Now Undisputed That The Court Should Dismiss The ADA Claims Asserted In
Count IX Of Plaintiff’s Complaint.
Count IX of Plaintiff’s Complaint asserts claims under the Americans with Disabilities

Act. Defendants’ Motion for Summary Judgment seeks dismissal of that count.
In response to Defendants’ Motion for Summary Judgment, Plaintiff states that she does
“not contest summary judgment in regard to that count.” (Pl.’s Br. at 26.).
Accordingly, the Court shall dismiss Count IX.
VI.

Defendants Are Entitled To Summary Judgment As To Counts V And XI Because
Plaintiff Cannot Establish Intentional Infliction Of Emotional Distress Claims
Under Michigan Law
Counts VI and XI of Plaintiff’s Complaint assert claims for intentional infliction of

emotional distress on behalf of Plaintiff and the Estate.
Under Michigan law, the essential elements of a claim of intentional infliction of
emotional distress are: 1) extreme and outrageous conduct, 2) intent or recklessness, 3) causation,
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and 4) severe emotional distress. Graham v. Ford, 237 Mich.App. 670, 674 (2000); Webster v.
United Auto Workers, Local 51, 394 F.3d 436, 442 (6th Cir. 2005). In ruling on such a claim, it
is initially for the trial court to determine whether the defendant’s conduct reasonably may be
regarded as so extreme and outrageous to permit recovery. Webster, 394 F.3d at 442. If
reasonable minds may differ, however, “it is for the jury, subject to the control of the court, to
determine whether, in the particular case, the conduct is sufficiently extreme and outrageous to
result in liability. Id.
“Liability for the intentional infliction of emotional distress has been found only where
the conduct complained of has been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.” Graham, 237 Mich. App. at 674.
Defendants asserts that they are entitled to summary judgment with respect to these
claims because Plaintiff cannot establish the essential elements of the claim. Defendants assert
that Plaintiff cannot identify any conduct on the part of the officers that could be considered
extreme or outrageous such as to support a claim for intentional infliction of emotional distress.
The Court agrees.
The officers had probable cause to obtain the search warrants at issue in this case, and
probable cause to arrest Neileigh. And as explained above, Officer Cox made a reasonable
judgment call, based upon Thomas Steiner’s statements to him, that he would be fine without the
medications that were confiscated. There was no extreme or outrageous conduct by any of the
officers that could support a claim for intentional infliction of emotional distress.

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CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that Defendants’ Motion for Summary
Judgment is GRANTED and this action shall be DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: April 8, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
April 8, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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