Foley v. Walled Lake et al

Filing 84

ORDER Granting In Part and Denying In Part Defendants' Motion for Summary Judgment 77 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM J. FOLEY,
Plaintiff,
v.

Case No. 11-CV-11856
Honorable Denise Page Hood

CAPTAIN J. ELLSWORTH,
P.O. KENNETH AYERS, and the
VILLAGE OF WOLVERINE LAKE
Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT [#77]
I.

INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 1983. Now before the Court

is remaining Defendants, Village of Wolverine Lake, Captain John Ellsworth, and
Officer Kenneth Ayres’ Motion for Summary Judgment, filed May 16, 2013. [Docket
No. 77] Plaintiff filed a response to this motion [Docket No. 79, filed June 6, 2013]
to which Defendants filed a reply [Docket No. 81, filed June 20, 2013]. For the
reasons discussed below, Defendants’ Motion for Summary Judgment is GRANTED
IN PART and DENIED IN PART.
II.

BACKGROUND
1

Plaintiff is an 81-year-old former Oakland County Commissioner. He brought
this action against numerous defendants pursuant to 42 U.S.C. § 1983. The events
most relevant to the instant Motion occurred on or about February 7, 2011, though for
context purposes, it is important that the Court discuss events that occurred before this
date.
Plaintiff was a resident at H.U.D. property, Walled Lake Villa Apartments
(“Walled Lake”). Plaintiff alleges that he observed and reported various safety code
violations at this living community. A “7 Day Notice of Hazardous Condition”
eviction complaint was filed against Plaintiff but the state court judge did not sign the
writ. On February 4, 2011, Plaintiff received what was titled a “Notice Regarding
Trespass and Restricted Use of Common Area of Building While Termination of
Tenancy Action is Pending.” [Docket No. 77, Pg ID 785] Plaintiff was notified that,
pursuant to M.C.L. 750.552, Walled Lake had “determined that [he was] interfering
with the operation of [the] community to the extent that management and some
residents [felt] threatened in the common areas of the building.” Plaintiff was told that
his use of the common areas was restricted and that any violation of use would be
“considered a trespass pursuant to 750.552.” More specifically, Plaintiff was directed:
1. You are not to approach, enter or use any doors to rooms
or areas designated for management employees, staff,
maintenance, vendors, utility rooms or other areas used by
2

outside contractors.
2. You are not to enter/tamper with or interfere with the use
of the elevator.
3. You are not to touch (turn on or off) any light switch
located in any common use area of the building, including
hallways, community room, kitchen.
4. You are not to enter the office, stand in any doorway, or
approach any person employed or providing services to
your landlord or its residents except in an emergency
situation.
5. If you interfere with any residents’ access to or use of
common area facilities, threaten to sue, harm, or attempt to
intimidate anyone, we will move to restrict your access
from those common areas.
[Docket No. 77, Pg ID 785-86]
On February 5, 2011, with an Oakland County Sheriff, Walled Lake attempted
to evict Plaintiff on the “7-Day Health Hazard Notice.” On February 7, 2011, Plaintiff
had contact with someone at the Walled Lake Police Department where he asked to
speak with the captain “for some relief and acknowledgment of his right of
occupancy.” [Docket No. 47, Pg ID 439] Plaintiff acknowledges that he likely did
not actually speak with the captain/chief, Defendant Ellsworth. [No. 77, Pg ID 794]
At some time later that day, Marcia Stevens, Walled Lake’s building manager placed
a call to the Walled Lake Police Department to report “a disorderly
person/trespassing.” [Docket No. 77, Pg ID 780] Ms. Stevens told the officers that
this was “an ongoing problem” with the Plaintiff and that Plaintiff continued to

3

“occupy one of the 2 elevators and refuse[d] to leave or allow anyone else to use it.”
[Id.] She stated that Plaintiff “would hold the elevator door open in the Lobby and
continued to harass the residents in the lobby by yelling at them and creating a
disturbance.” [Id.] Plaintiff disagrees that he kept anyone from using the elevator.
[Docket No. 77, Pg ID 796] Police Chief John Ellsworth and Police Officer Kenneth
Ayres responded to the dispatch call.
Upon arriving at Walled Lake, the officers state that they were informed that
Plaintiff “was trespassing at the location and was not supposed to be” there. [Docket
No. 77, Pg ID 771, 776] The Officers were told that Plaintiff had gone to a third floor
apartment, where the officers went to find him. They knocked on the door and they
were given permission to enter the apartment by the resident, Tom Kallao, who
identified Plaintiff as “Foley.” [Docket No. 77, Pg ID 794] Plaintiff was in the
apartment and, upon entrance by the officers, was notified that a report had been made
that he was being disorderly and had been trespassing on the property. Plaintiff was
told that he “had to leave the premises.” [Id., Pg. ID 771, 777] Plaintiff was notified
that if he did not leave the premises he could be “subject to arrest.” [Id. at 777]
Officer Ayres states that at this point, Plaintiff became “agitated and uncooperative.”
[Id. at 777] The Police report states that after the officers told Plaintiff that he could
be arrested for his behavior, Plaintiff “jumped up out of his chair toward the officers
4

and stuck out his wrists stating ‘Take me to Jail then.’” [Docket No. 77, Pg ID 780]
At his deposition, Plaintiff stated that he “might have” responded in this way, that if
someone threatens to arrest him, his usual response is “Let’s have at it” or “Cuff me
and take me to jail.” [Docket No. 77, Pg ID 797, 798] Plaintiff was arrested and
taken to jail.
III.

STANDARD OF REVIEW
Summary judgment is appropriate in cases where “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The moving party bears the burden of demonstrating that summary
judgment is appropriate. Equal Employment Opportunity Comm’n v. MacMillan
Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974).

The Court must

consider the admissible evidence in the light most favorable to the nonmoving party.
Sagan v. United States of Am., 342 F.3d 493, 497 (6th Cir. 2003).
“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a genuine issue
of material fact, the nonmovant must do more than present “some evidence” of a
5

disputed fact. Any dispute as to a material fact must be established by affidavits or
other documentary evidence. Fed. R. Civ. P. 56(c). “If the [nonmovant’s] evidence
is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (citations omitted).
Accordingly, a nonmovant “must produce evidence that would be sufficient to require
submission to the jury of the dispute over the fact.” Mathieu v. Chun, 828 F. Supp.
495, 497 (E.D. Mich. 1993) (citations omitted). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
IV.

ANALYSIS
In his Amended Complaint [Docket No. 32, filed November 4, 2011], Plaintiff

states ten claims for relief, eight of which remain as to these Defendants: (Count I) Violation of Civil Rights Pursuant to Title 42 U.S.C. § 1983; (Count II) - Violation
of Civil Rights Under 42 U.S.C. § 1983 Municipal Liability (Failure to Implement
Appropriate Policies, Customs, and Practices); (Count III) - Violation of Civil Rights
42 U.S.C. § 1983 (False Arrest); (Count IV) - Violation of Civil Rights 42 U.S.C. §
1983 (Deprivation of Property Without Due Process of Law); Count V - Supervisory
Liability, 42 U.S.C. § 1983 Deprivation of First, Fourth, and Fourteenth Amendment
6

Rights; (Count VI) - Violation of 42 U.S.C. § 1983 (Malicious Prosecution); (Count
IX) - State Law Claims Pursuant to M.C.L. § 691.1401 et seq. for (a) False Arrest, (b)
False Imprisonment, (c) Conversion, (d) Conversion, (e) Assault and Battery, and (f)
Intentional Infliction of Emotional Distress; and (Count XI) - Intentional Infliction of
Extreme Emotional Distress. On July 22, 2013, Plaintiff filed a Notice of Voluntary
Dismissal of Plaintiff’s State Claims Against Defendant Ellsworth. [Docket No. 83]

In their Motion for Summary Judgment, Defendants argue that Plaintiff’s claim
for liability as to the Village of Wolverine Lake regarding its alleged failure to train
and supervise its officers should be dismissed because Plaintiff has failed to provide
any evidence that established municipal liability. Regarding the state law claims,
Defendants contend that Plaintiff’s claims should fail because Captain Ellsworth has
absolute governmental immunity1 and Officer Ayres is entitled to qualified immunity.
Defendants also assert that Plaintiff’s federal law claims should fail because
Defendants Ellsworth and Ayres are also protected by the doctrine of qualified
immunity. In response, Plaintiff argues that: (1) Defendants are not entitled to
summary judgment on Plaintiff’s false arrest claim because they did not have the
1

As stated above, the state law claims against Defendant Ellsworth are dismissed by
the Plaintiff.
7

authority to arrest him; (2) Defendants are not entitled summary judgment on
Plaintiff’s malicious prosecution claim because they lacked probable cause to allow
a prosecution to be maintained against Plaintiff; (3) Defendants are not entitled to
summary judgment on plaintiff’s civil conspiracy claim2 because it is reasonable to
believe that their decision to arrest Plaintiff for a misdemeanor not committed in their
presence was done in concert with Walled Lake Villa staff who sought to have
Plaintiff evicted; (4) Defendant Wolverine Lake is not entitled to summary judgment
on Plaintiff’s municipal liability claim because its failure to implement adequate
policies, procedures, or training lead to Ellsworth and Ayres violating Plaintiff’s
rights; and (5) Defendants are not entitled to immunity from Plaintiff’s claims because
their actions were not undertaken in good faith and Plaintiff’s right to be free from
arrest and prosecution that was completely lacking in probable cause was clearly
established.
A.

Municipal Liability - The Village of Wolverine Lake and Chief
Ellsworth (Count II) and Supervisory Liability (Count V)

This claim implicates the principles set forth in Monell v. Department of Social
2

Plaintiff discusses the civil conspiracy claim as against these Defendants in his
response. The Court notes that Plaintiff’s Complaint does not name Ellsworth, Ayres,
or the Village of Wolverine Lake as violative of conspiracy. The Court will not
address this issue and any claim for relief as to conspiracy against these Defendants
is dismissed.
8

Services, 436 U.S. 658, 694 (1978). In Monell, the Supreme Court explained that
municipal liability under § 1983 may only attach where the “execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury”
complained of. To obtain relief on this claim, Plaintiff must prove two basic
elements: (1) that a constitutional violation occurred; and (2) that the Village of
Wolverine Lake “is responsible for that violation.” Doe v. Claiborne Cty., 103 F.3d
495, 505–06 (6th Cir. 1996). This Court need not first decide whether Plaintiff
suffered a deprivation of his constitutional right to be free from arrest and/or
prosecution because it finds that even assuming that a constitutional violation
occurred, the Village of Wolverine Lake cannot be held liable for it.
To assert a § 1983 claim on the basis of a municipal custom or policy, Plaintiff
must “identify the policy, connect the policy to the [Village of Wolverine Lake] itself
and show that the particular injury was incurred because of the execution of that
policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.), cert. denied,
510 U.S. 1177 (1994). Here, viewing the facts in the light most favorable to the
Plaintiff, the Court is satisfied that he fails to point to any particular written policy,
custom, or procedure that the Village of Wolverine Lake has that could have lead to
the alleged claims of false arrest, malicious prosecution, or Plaintiff’s state law claims.
9

Plaintiff is correct that “inadequacy of police training may serve as the basis for §
1983 liability.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). However, this
is “only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” Id. at 388. “Only where a
municipality’s failure to train its employees in a relevant respect evidences a
‘deliberate 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.
at 389.
The main issue before the Court on this claim is whether Plaintiff has alleged
sufficient facts to establish that the alleged constitutional violation happened “because
of the execution” of a police that the Village of Wolverine Lake has. Garner, 8 F.3d
at 364 (emphasis added). Plaintiff must show “a direct causal link” between the
policy and the alleged constitutional violation such that the Village’s “deliberate
conduct” can be deemed the “moving force” behind the violation. Waters v. City of
Morristown, 242 F.3d 353, 362 (6th Cir. 2001) (citing Bd. of Cty. Comm’rs v. Brown,
520 U.S. 397, 404 (1997)). This showing is “necessary to avoid de facto respondeat
superior liability explicitly prohibited by Monell.” Doe, 103 F.3d at 508. Applying
these standards, this Court concludes that Plaintiff has failed to establish the requisite
causal link between any Village of Wolverine Lake policy and the alleged
10

constitutional violations. Count II of Plaintiff’s Complaint is DISMISSED. For the
same reasons, Count V of Plaintiff’s Complaint is DISMISSED. Defendants’ Motion
in this regard is GRANTED.
B.

Section 1983 Claims, Counts I, III-VI

To maintain an action under 42 U.S.C § 1983, a plaintiff must demonstrate that
he was deprived of a right guaranteed by the Constitution or laws of the United States
by a person acting under color of state law. Flagg Bros. v. Brooks, 436 U.S. 149, 155
(1978). Plaintiff’s remaining § 1983 claims against Defendants are his overarching
claim of a violation of his civil rights, his claim for false arrest, his claim for
deprivation of property without due process, and malicious prosecution. Determining
that Plaintiff’s claim for deprivation of property without due process of the law is
without merit as to these Defendants, Count IV of Plaintiff’s Complaint is
DISMISSED.
“Qualified immunity provides ‘that government officials performing
discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Champion v. Outlook Nashville,
Inc., 380 F.3d 893, 900 (6th Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). “Qualified immunity is an entitlement not to stand trial or face the other
11

burdens of litigation,” Saucier v. Katz, 533 U.S. 194, 200 (2001), and immunity from
suit, not merely a defense to liability. See id. at 200–01. Once raised, the plaintiff
bears the burden of showing that a defendant is not entitled to qualified immunity.
Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006) (citation omitted).
Summary judgment based on qualified immunity is generally proper if the law
did not put the actor on notice that his conduct would be clearly unlawful. See
Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002). In Saucier v. Katz, 533 U.S.
194, 200 (2001), the Supreme Court set forth a two-part test for determining whether
a defendant is entitled to qualified immunity. The Saucier Court found that the district
court should determine: (a) whether the defendant violated a constitutional right; and
(b) if a constitutional right was violated, whether the right violated was clearly
established. Id. at 201. If the Court finds that genuine issues of material fact exist as
to whether the actor committed acts that would violate a clearly established right, then
summary judgment is improper. Poe v. Haydon, 853 F.2d 418, 425–26 (6th Cir.
1988). If the plaintiff fails to establish either of the two requirements set forth in
Saucier, then qualified immunity applies. See Saucier, 533 U.S. at 201.
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that the
two-part test set forth in Saucier is no longer mandatory. Instead, the Court found that
judges should be allowed discretion in deciding which of the two parts of the qualified
12

immunity test to address first, in light of the circumstances of each case. Id. The
Supreme Court noted that the Saucier application of the test—first deciding whether
a right was violated, and then deciding whether the right was clearly established—is
often the appropriate method. Id. “For qualified immunity to be surrendered,
pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise
a question about), the conclusion for every like-situated, reasonable government agent
that what the defendant is doing violates federal law in the circumstance.” Cope v.
Heltsley, 128 F.3d 452, 459 (6th Cir. 1997).
The Court will first dispose of Plaintiff’s Count V claim, deprivation of
property without due process of law. Plaintiff contends that Defendants Ellsworth and
Ayres “intentionally, maliciously, and wantonly disregarded [his] property rights and
amounted to deprivation of property in violation of the Fourth and Fourteenth
Amendments by evicting him from his leasehold and seizing his van.” [Docket No.
32, Pg ID 249] Plaintiff has not provided the Court with any information that would
lead it to believe that these Defendants were involved with Plaintiff’s eviction process.
Further, as Plaintiff’s deposition testimony states, “as far as [Plaintiff] recall[ed]” his
truck was not impounded on the day of his arrest. [Id. at 803] The Court has no
reason to believe— and Plaintiff has provided none—that these officers were in any
way involved with the impounding of Plaintiff’s truck on February 10. For these
13

reasons, the Court finds no deprivation of property and Count IV of Plaintiff’s
Complaint is DISMISSED. Defendants’ Motion in this regard is GRANTED.
The gravamen of Plaintiff’s remaining § 1983 claims of relief are that
Defendants violated his civil rights by arresting him without probable cause that he
committed a crime and Defendants’ decision to arrest and detain him violated his right
to be free from false arrest and violated his rights pursuant to the Fourth and
Fourteenth Amendments. Plaintiff further contends that Defendants are not entitled
to summary judgment pursuant to governmental immunity because their actions were
not undertaken in good faith.
Here, the Officers arrested Plaintiff following a phone call claiming that he was
trespassing on the property and was disorderly. This is undisputed. Under the
circumstances present in this case, a question of fact exists as to whether a reasonable
officer could have believed that he had probable cause to arrest Plaintiff for
trespassing and that his actions were lawful. There is no indication on the record
before the Court that at the time of his arrest, Plaintiff was doing anything illegal or,
as written in the police report, trespassing or disturbing the peace. Plaintiff was
arrested in the apartment of his friend, Tom Kallao, and Mr. Kallao did not report to
the officers that Plaintiff was trespassing in his apartment. The officers were called
by building manager Marcia Stevens on a report of trespassing and disorderly
14

conduct. Because the Court believes genuine issues of material fact exist surrounding
the reason for Plaintiff’s arrest and whether he in fact was trespassing or disorderly,
the officers are not entitled to qualified immunity at this stage.
The Fourth Amendment protects the right of individuals to be free from
improper arrest and detention. U.S. Const. amend. IV (“The right of people to be
secure in their persons . . . against unreasonable seizures . . . shall not be violated.”).
“[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment
where there is probable cause to believe that a criminal offense has been or is being
committed,” Devenpeck v. Alford, 543 U.S. 146, 152 (2004), and the “validity of the
arrest does not depend on whether the suspect actually committed a crime.” Michigan
v. DeFillippo, 443 U.S. 31, 36(1979) (emphasis added). Accordingly, “[i]n order for
a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the police
lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir. 2002) (citing
Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999)).
“Probable cause exists if the facts and circumstances known to the officer
warrant a prudent man in believing that the offense has been committed.” Henry v.
United States, 361 U.S. 98, 102 (1959); see also Beck v. Ohio, 379 U.S. 89, 91 (1964);
Illinois v. Gates, 462 U.S. 213, 238 (1983). The inquiry “depends upon the reasonable
conclusion to be drawn from the facts known to the arresting officer at the time of the
15

arrest,” Devenpeck, 543 U.S. at 152, where supported by “reasonably trustworthy
information.” Beck, 379 U.S. at 91. No overly-burdensome duty to investigate
applies to officers faced with the prospect of a warrantless arrest. Officers need not
“investigate independently every claim of innocence” in initially formulating probable
cause. Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000).
After the officer determines, on the basis of the facts and circumstances known
to him, that probable cause exists, the officer has no further duty to investigate or to
search for exculpatory evidence. Ahlers v. Schebil, 188 F.3d 365, 371 (6th Cir. 1999).
The initial probable cause determination must be founded on “both the inculpatory
and exculpatory evidence” known to the arresting officer, Gardenhire, 205 F.3d at
318, and the officer “cannot simply turn a blind eye toward potentially exculpatory
evidence.” Ahlers, 188 F.3d at 372 “In general, the existence of probable cause in a
§ 1983 action presents a jury question, unless there is only one reasonable
determination possible.” Fridley, 291 F.3d at 872 (quotation marks omitted).
As discussed above, Plaintiff was arrested in the building where he was a
resident. On its face, this fact alone would ordinarily preclude qualified immunity
because, as Plaintiff notes, the Michigan trespass statute, M.C.L. § 750.552 requires
one to have “enter[ed] the . . . premises of another without lawful authority after
having been forbidden to do so by the owner or occupant or the agent of the owner or
16

occupant.” However, the Court notes that this is not the ordinary trespass case in that,
though Plaintiff was a rightful occupant of the building, he had been directed that his
use of the common areas was limited due to past infractions and further, he was told
that his actions were, if continued, going to be considered a violation of Michigan’s
trespass statute.
To prevail on a claim of false arrest, a plaintiff must show that the arrest was
not legal, i.e., the arrest was not based on probable cause. Peterson Novelties, Inc. v.
City of Berkley, 259 Mich. App. 1, 18, 672 N.W.2d 351, 362 (2003). Though there
is no indication—and Plaintiff has not made the argument—that at the time of his
arrest the officer’s knew Plaintiff to be a resident of Walled Lake, based on the facts
of this specific case, the Court is persuaded that viewing the Complaint in the light
most favorable to Plaintiff and assuming that he in fact had not prevented others from
using the elevator, Plaintiff has raised a question of fact as to what, if anything, would
have given the officers reason to believe that their arrest of Plaintiff was committed
with probable cause when it was based only on the phone report and the notice
provided.

Because, the Court is persuaded that Plaintiff has met his burden of

showing that Defendants should not be afforded qualified immunity protection on this
claim, Count III of Plaintiff’s Complaint REMAINS; Defendants’ Motion in this
regard is DENIED.
17

For the same reason the Court finds that Plaintiff has met his burden of showing
that Defendants should not be afforded qualified immunity protection on Plaintiff’s
claim for false arrest, the Court finds Plaintiff’s claim for malicious prosecution is
sufficiently plead. In an action for malicious prosecution, the plaintiff has the burden
of proving (1) that the defendant has initiated a criminal prosecution against him, (2)
that the criminal proceedings terminated in his favor, (3) that the private person who
instituted or maintained the prosecution lacked probable cause for his action, and (4)
that the action was undertaken with malice or a purpose in instituting the criminal
claim other than bringing the offender to justice. Matthews v. Blue Cross & Blue
Shield of Michigan, 456 Mich. 365, 378, 572 N.W.2d 603 (1998). The Court is
satisfied that Plaintiff has met the first two prongs of the test. Defendants arrested
Plaintiff and completed the police report under which he was charged.

The

proceedings against Plaintiff were also dismissed. As noted above, Plaintiff has
sufficiently raised a question of fact as to whether the officers had probable cause to
arrest him and, therefore, there also remains a question of fact as to whether the
officers arrested him in good faith. The Court determines that—based on the
circumstances of this particular case—questions of fact remain regarding Plaintiff’s
claim for malicious prosecution. Count VI of Plaintiff’s Complaint REMAINS;
Defendants’ Motion in this regard is DENIED.
18

For the reasons discussed above, Count IV of Plaintiff’s Complaint seeking 42
U.S.C § 1983 relief for deprivation of property without due process of law is
DISMISSED. Counts I, III, and VI of Plaintiff’s Complaint, seeking 42 U.S.C § 1983
for false arrest, malicious prosecution, and generally, REMAIN and Defendants’
Motion in this regard is DENIED.
C.

State Law Claims

Plaintiff makes state law claims for false arrest, false imprisonment, two counts
of conversion, assault and battery, and intentional infliction of emotional distress. The
Court notes that for the same reasons the Court finds qualified immunity relief is not
available for Defendant Ayres on the federal claim of false arrest, Plaintiff’s state law
claim for false arrest REMAINS. Because Plaintiff’s claim for false arrest survives,
false imprisonment claim also REMAINS. Defendants’ Motion in regard to these
claims is DENIED.
As to Plaintiff’s state law claims of conversion, for the reasons that the Court
did not find a deprivation of property above, Plaintiff’s state law claims for conversion
are DISMISSED. Plaintiff has failed to show that genuine issues of material fact
exist as to whether Defendant Ayres was involved in his eviction proceeding or that
he was involved with the impounding of his truck.
Plaintiff’s remaining state law tort claims must also be dismissed on a grant of
19

summary judgment. The Court notes that, as a general rule pursuant to Michigan law,
intentional torts are not protected by governmental immunity.

However,

governmental actions which would normally constitute intentional torts are protected
by governmental immunity if those actions are justified. See Brewer v. Perrin, 132
Mich. App. 520, 528, 349 N.W.2d 198 (1984). Specifically, a police officer may use
reasonable force when making an arrest. Id. Plaintiff alleges that the Defendants
used unreasonable force by “bending his nose to down to his knees and handcuffing
him from the rear,” [Docket No. 77, Pg ID 802] committing an assault and battery.
However, the Court notes that Plaintiff has not claimed any outrageous actions during
the arrest either in his Complaint or his deposition and acknowledges that he was not
kicked, punched, or hit. [Id.] Though the court is satisfied that being kicked, punched,
or hit are not the only acts that can satisfy an assault and battery claim, the use of
handcuffs, by itself, is not the type of unreasonable force necessary to satisfy this
claim. Id. at 529, 349 N.W.2d 198. Because Plaintiff has not made a prima facie
showing of unreasonable force by the arresting officers, this Court grants summary
judgment on the assault and battery claim.
Similarly, Plaintiff has failed to make a prima facie showing on his intentional
infliction of emotional distress claim as Plaintiff has not identified any extreme and
outrageous conduct. The Michigan Supreme Court has not explicitly recognized a tort
20

for intentional infliction of emotional distress. Smith v. Calvary Christian Church,
614 N.W.2d 590, 593, n.7 (Mich. 2000). However, the court has recognized that a
claim could be made under the standard described in the Second Restatements: (1)
extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4)
plaintiff suffered severe emotional distress. Robert v. Auto-Owners Ins. Co., 374
N.W.2d 905, 908 (Mich. 1985). The Court notes that the threshold for what is deemed
outrageous conduct is high. Conduct is sufficiently outrageous when “where the
conduct 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.” Id. (quoting Restatement Torts, 2d., § 46,
comment g). “[M]ere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities” are insufficient. Id. “[T]he trial judge [initially] decide[s] whether
defendant’s conduct might reasonably be regarded as so extreme and outrageous as
to allow recovery for intentional infliction of emotional distress.” Sawabini v.
Desenberg, 372 N.W.2d 559, 565 (Mich. Ct. App. 1985).
Here, Plaintiff’s claim for relief is based on the officers “taking away . . . his
liberty, the conversion of his vehicle, the taking of his liberty by false imprisonment,
deprivation of his property rights, threats of imminent bodily harm, malicious
prosecution and intentional infliction of emotional distress.” [Docket No. 32, Pd ID
21

252] Because the Court is satisfied that Plaintiff has failed to make sufficient claims
of extreme and outrageous conduct, intent or recklessness, or that he has suffered
severe emotional distress, Plaintiff’s claim for relief based on intentional infliction of
emotional distress is DISMISSED.
V.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendants the Village of Wolverine Lake, Captain

John Ellsworth, and Officer Kenneth Ayres’ Motion for Summary Judgment [Docket
No. 77, filed May 16, 2013] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that as to Plaintiff’s claims for relief pursuant
to 42 U.S.C § 1983, Counts II, IV, and V of Plaintiff’s Complaint are DISMISSED.
Defendants’ Motion as to these claims is GRANTED. Counts I, III, and VI
REMAIN. Defendants’ Motion as to these claims is DENIED.
IT IS FURTHER ORDERED that as to Plaintiff’s state law claims for relief,
Counts IX is DISMISSED as to Plaintiff’s claims for conversion, assault and battery,
and intentional infliction of emotional distress. As to Plaintiff’s state law claims for
false arrest and false imprisonment, Count IX of Plaintiff’s Complaint REMAINS

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against Defendant Ayres. Defendants’ Motion in this regard is DENIED.
IT IS SO ORDERED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 31, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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