Campbell v. Rodriguez et al
Filing
36
ORDER Granting in Part and Denying in Part Defendants' 26 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEVONTE C. CAMPBELL,
Plaintiff,
Case No. 13-cv-14953
Hon. Matthew F. Leitman
v.
MATTHEW RODRIGUEZ et al.,
Defendants.
_________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (ECF #26)
INTRODUCTION
In April 2013, two police officers employed by the City of Warren Police
Department arrested Plaintiff Devonte Campbell (“Campbell”), a minor, for
possessing alcohol. Campbell claims that after he was transported to the Warren
Police Station, and while he was still handcuffed, two other police officers battered
and injured him. Campbell thereafter filed this action against the City of Warren
and the four officers asserting three claims under 42 U.S.C. § 1983: excessive
force, failure to intervene, and malicious prosecution. Campbell also brings assault
and battery and concert of action claims under Michigan law.
Following the close of discovery, the Defendants moved for summary
judgment (the “Motion”). (See ECF #26.) The Court held a hearing on the Motion
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on May 29, 2015. At the hearing, the Court announced that the Motion would be
granted in part and denied in part. This Order incorporates, expands upon, and
memorializes the Court’s oral ruling. For all of the reasons stated at the hearing,
and for all of the reasons stated below, Defendants’ Motion is GRANTED IN
PART AND DENIED IN PART.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 25, 2013, two Warren police officers, Defendant Brian Price
(“Officer Price”) and David Huffman (“Officer Huffman”) stopped Campbell and
a friend, Kevin Laury (“Laury”), as they drove in Laury’s vehicle. (See, e.g.,
Campbell Deposition, ECF #26-3 at 24, Pg. ID 242.) After the officers first
approached Laury’s car, they smelled intoxicants coming from the vehicle. (See
Price Deposition, ECF #26-4 at 10, Pg. ID 264.) Campbell and Laury were
subsequently arrested for possessing alcohol, handcuffed, and transported to the
Warren Police Station for processing. (See id. at 33-34, Pg. ID 245; see also Price
Dep. at 9-11, Pg. ID 264.)
After Campbell and Laury arrived at the station, they were seated on a bench
in the booking area. (See Campbell Dep. at 45, Pg. ID 248.) During the booking
process, Officer Price removed Laury’s handcuffs, and Laury tossed his jacket
toward Officer Price’s face. (See id. at 45-46, Pg. ID 248; see also Price Dep. at
27-28, Pg. ID 268; see also Booking Video, ECF #26-9.) As Officer Price tried to
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“gain control” over Laury (Price Dep. at 29-30, Pg. ID 269), Campbell, who was
still handcuffed, stood up from the bench “to move out of the way.” (Campbell
Dep. at 47-48, Pg. ID 248.)
According to Campbell, he was then battered on two separate occasions.
First, Campbell says that after he stood up, two officers – Defendants Matthew
Rodriguez (“Officer Rodriguez”) and Steven Campbell (“Officer Campbell”) –
came into the booking area, “choked” him, and “grabbed [him] by [his] legs and
slammed [him] on the ground.” (Id. at 48-49, Pg. ID 248-249.) Campbell insists
that he was not yelling, screaming, obstructing, nor disobeying orders at the time
Officers Rodriguez and Campbell approached him and began slamming him to the
ground. (See id. at 50-52, Pg. ID 249.) Campbell says that after this first battery,
he was seated back on the bench.
Second, Campbell says that shortly after he was returned to the bench,
Officer Rodriguez “grabbed [him] by the collar of [his] shirt and … threw [him] on
the floor.” (Id. at 51, Pg. ID 249.) Officer Rodriguez “then [dragged Campbell]
by the collar, and [] took [him] to a room and closed the door.” (Id. at 51, Pg. ID
249.) Campbell asserts that Officer Rodriguez then began kicking and punching
him, and that Officer Rodriguez cursed at him, saying “[w]elcome to Warren!”
(Id. at 52, Pg. ID 249; see also id. at 54-55, Pg. ID 250.) Officer Rodriguez then
returned Campbell to the booking area. (See id.)
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Following his arrest and booking, Campbell was charged with two crimes:
(1) assaulting/resisting/obstructing a police officer (a felony); and (2) being a
minor in possession of alcohol (a misdemeanor). (See Criminal Complaint, ECF
#31-11, Pg. ID 609.) The assaulting/resisting/obstructing charge was based upon
Campbell’s alleged conduct in the booking area of the Warren Police Department.
The minor in possession of alcohol charge was based upon Campbell’s alleged
possession of alcohol while in Laury’s vehicle.
On July 25, 2013, the assigned prosecuting attorney informed Campbell and
Campbell’s criminal counsel, Annemarie Marino Lepore (“Lepore”), that he
“would be moving to have Count 1 – the felony count of Assaulting/Resisting/
Obstructing a police officer, dismissed.” (Lepore Affidavit, ECF #31-8 at ¶8.) To
facilitate the dismissal, the prosecutor provided Lepore and Campbell a “preprinted form … titled Motion to Amend and/or Dismiss” (the “First Motion to
Amend Form”). (Id. at ¶9.)
In the first paragraph of the First Motion to Amend Form, the prosecutor
handwrote that the resisting and obstructing charge would be dismissed with
prejudice, and that the minor in possession charge would be set for a pretrial
conference. (See ECF #31-8 at 7, Pg. ID 594.) The First Motion to Amend Form
also included a paragraph titled “Release.” This paragraph stated, in its entirety:
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As a condition of this plea agreement (whether this case
is dismissed or not), Defendant agrees to release the City,
its officers, employees and agents from any and all
claims, damages, or causes of action of any kind because
of alleged injuries or other damages suffered by
Defendant, heirs or assigns that arise from the incident
which gave ri[s]e to the prosecution in this case. It is
stipulated between the parties that this release-stipulation
agreement: 1) is voluntary; 2) that there was no
prosecutorial misconduct; and 3) enforcement of this
agreement will not affect the relevant public interest.
Stamps v. Taylor, 218 Mich App 626 (1996).
(Id.) The final line of the Release was a blank space for a criminal defendant to
place his initials.
Campbell, however, did not place his initials in the space
provided in the Release. Lepore says that she did not discuss the language of the
Release with the prosecutor, and she therefore instructed Campbell not to place his
initials in the paragraph containing the Release.
(See Lepore Aff. at ¶10.)
Campbell therefore left the space for his initials blank.
The assigned judge
thereafter dismissed the felony resisting charge with prejudice. (See id.)
On August 15, 2013, Campbell and the prosecutor reached a plea agreement
on the remaining charge of minor in possession of alcohol. Campbell agreed to
plead no contest to the charge of “disorderly person[] in exchange for the dismissal
of [the minor in possession] charge.” (Id. at ¶11.)
To memorialize the terms of
the plea, the prosecutor presented Campbell and Lepore with another pre-printed
form titled “Motion to Amend and/or Dismiss” (the “Second Motion to Amend
Form”). The pre-printing on this form was identical to that on the First Motion to
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Dismiss Form. (See id. at ¶12.) In the first paragraph, the prosecutor hand wrote
that Campbell was pleading no contest to a new charge of disorderly person, and
that the charge of minor in possession was being dismissed. (See ECF #31-8 at 9,
Pg. ID 596.)
The Second Motion to Amend Form also contained the “Release” paragraph
quoted above from the First Motion to Amend Form, with the same blank space for
a criminal defendant to place his initials. Unlike in the First Motion to Amend, this
time Campbell did place his initials in the space provided. (See ECF #31-8 at 9,
Pg. ID 596.) Lepore says that while she still did not speak with the prosecutor
about the language of the Release, she was comfortable with Campbell signing it.
Lepore did not believe that the Release would apply to any civil claims that
Campbell could assert against the police or the City of Warren related to his
treatment at the police station because the criminal charge arising out of his time at
the station – i.e., the resisting and obstructing charge – had already been dismissed.
(See Lepore Aff. at ¶12.) The judge accepted the plea agreement.
In December 2013, Campbell filed this action related to the incidents that
transpired at the Warren Police Station following his arrest. (See the Complaint,
ECF #1.) He filed an Amended Complaint on March 27, 2014. (See the Amended
Complaint, ECF #12.) In the Amended Complaint, Campbell brings six counts
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against the Defendants, none of which relate to Campbell’s initial arrest for being a
minor in possession of alcohol:
Excessive force in violation of the Fourth Amendment against Officers
Rodriguez and Campbell;
Failure to intervene to stop the incidents of excessive force in violation of
the Fourth Amendment against Officers Campbell, Price, and Huffman1;
Malicious prosecution in violation of the Fourth Amendment against all
Defendants;
Assault and battery in violation of Michigan law against Officers Rodriguez
and Campbell;
Concert of action in violation of Michigan law against all Defendants; and
Municipal liability against the City of Warren (the “City”).
GOVERNING LEGAL STANDARD
A movant is entitled to summary judgment when he “shows that there is no
genuine dispute as to any material fact....” U.S. SEC v. Sierra Brokerage Services,
Inc., 712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)) (quotations omitted). “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. However, summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
1
Officer Huffman has since been dismissed from this action. (See ECF #27.)
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submission to a jury.” Id. at 251-252.
When reviewing the record, “the court must view the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in its
favor.” Id. Indeed, “[c]redibility determinations, the weighing of the evidence,
and the drafting of legitimate inferences from the facts are jury functions, not those
of a judge…” Id. at 255.
ANALYSIS
A.
Defendants Are Not Entitled to Summary Judgment on the Basis that
Campbell Released His Claims Against Them
Defendants argue that Campbell’s signing of the Release entitles them to
summary judgment. (See Mot. at 10-13, Pg. ID 180-183.) Defendants are wrong
for two reasons: (1) it is not clear, as a matter of law, that the Release covers the
claims Campbell asserts here and (2) Defendants have failed to satisfy their burden
on summary judgment to present evidence that enforcing the Release is in the
public’s interest.
First, Defendants are not entitled to summary judgment based on the Release
because the Release does not plainly and unambiguously apply to the claims
Campbell brings in this action. The Release states that Campbell is releasing “all
claims … that arise from the incident which gave rise to the prosecution.” (ECF
#31-8 at 9, Pg. ID 596.)
But here, as described above, Campbell’s criminal
prosecution involved charges related to two separate and distinct incidents (plural):
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Campbell’s initial possession of alcohol, and his later alleged resisting and
obstructing police officers at the Warren Police Station. It is not self-evident, in
light of the use of the word “incident” (singular) in the Release, that Campbell
agreed to release his claims that arose out of the latter incident at the police station.
Moreover, it is undisputed that when Campbell initialed the Release on the Second
Motion to Amend Form, the only “incident” that remained at issue at that point
was his alleged possession of alcohol – the charge related to other incident, the
alleged resisting, had already been dismissed. Under all of these circumstances,
the Court cannot conclude as a matter of law that the Release covers claims arising
out of the incident at the police station.
Second, Defendants have not established, as a matter of law, that the Release
is enforceable against Campbell. A criminal defendant’s agreement to release civil
rights claims in connection with a plea agreement may be enforceable if “(1) the
agreement was voluntary; (2) there was no evidence of prosecutorial misconduct;
and (3) enforcement of the agreement will not adversely affect relevant public
interests.” Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993). A municipal
defendant seeking to enforce a release agreement bears the burden of proof on all
three of these elements. Id. at 973.
In this case, there is no dispute that Campbell voluntarily signed the Release,
nor is there any evidence of prosecutorial misconduct. But the Defendants have
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failed to provide any evidence that the “enforcement of the agreement will not
adversely affect relevant public interests.” To make such a showing, Defendants
must “demonstrate that obtaining the release was motivated by an independent,
legitimate criminal justice objective.” Id. at 975. They could have done this in
many different ways:
Examples of [] legitimate criminal justice objectives that
come to mind are situations where the cost of prosecution
would outweigh the benefit accruing to the public from a
conviction; where the strength of evidence of criminal
conduct is doubtful even though charges were filed in
good faith; where witnesses or evidence are no longer
available; where evidence is subsequently discovered that
points to the criminal case defendant's innocence; or
where criminal charges are not the product of
prosecutorial misconduct and both sides benefit
substantially from a balanced settlement in the sense that
both avoid exposure to potential liabilities and expenses.
Id. Here, however, Defendants have not presented any evidence – such as an
affidavit or testimony from the assigned prosecutor – as to what factors the
prosecutor was considering when he negotiated the plea deal that included the
Release. There simply is no evidence in this record that in this particular case,
enforcement of the Release would not adversely affect the public interest or that
obtaining the Release was motivated by a legitimate criminal justice objective.
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Absent such evidence, the Defendants are not entitled to summary judgment based
upon the Release. 2
B.
Officers Rodriguez and Campbell are Not Entitled to Qualified
Immunity and Are Not Entitled to Summary Judgment on Campbell’s
Excessive Force Claim
Officers Rodriguez and Campbell argue that they are entitled to qualified
immunity on Campbell’s Fourth Amendment excessive force claim because the
level of force they used in the booking area was “not unreasonable as a matter of
law.” (Mot. at 8-10, Pg. ID 178-180; 17-23, Pg. ID 187-193.) The Court disagrees.
“Qualified immunity protects government officials performing discretionary
functions unless their conduct violates a clearly established statutory or
constitutional right of which a reasonable person in the official's position would
have known.”
Brown v. Lewis, 779 F.3d 401, 411 (6th Cir. 2015).
“Each
defendant’s liability must be assessed individually based on his own actions.”
Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). “In assessing qualified
immunity, the court, viewing the facts in the light most favorable to the plaintiff,
determines whether: 1) the violation of a constitutional right has occurred; and 2)
the constitutional right at issue was clearly established at the time of defendant's
2
The Court’s holding that Defendants are not entitled to summary judgment based
upon the Release does not mean that Defendants cannot ultimately prevail on their
defense based upon the Release. At trial, Defendants will have the opportunity to
present evidence that (1) the Release does apply to Campbell’s claims and (2) the
Release is enforceable under the Sixth Circuit’s three-part test.
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alleged misconduct.” Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009). “The
Court may address these prongs in any order, and if the plaintiff cannot make both
showings, the [defendant] officer is entitled to qualified immunity.” Brown, 779
F.3d at 412. “But under either prong, courts may not resolve genuine disputes of
fact in favor of the party seeking summary judgment.” Tolan v. Cotton, 134 S.Ct.
1861, 1866 (2014).
Here, there is no dispute about the clearly-established nature of the right at
issue: “since at least 2009, the use of violence against a subdued and non-resisting
individual has been clearly established as excessive, regardless of whether the
individual had been placed in handcuffs.”
Brown, 779 F.3d at 419.
Thus,
Campbell had the right to be free from violent force if he was subdued and not
resisting.
When the evidence is viewed in the light most favorable to Campbell, there
is a factual dispute as to whether he was subdued and resisting at the time he was
met with violent force, and thus the officers are not entitled to qualified immunity
on Campbell’s excessive force claim.
Campbell testified that while handcuffed,
and while not disobeying any orders or resisting in any way, Officer Campbell
“choked” him and Officer Rodriguez “grabbed [him] by [his] legs and slammed
[him] on the ground.” (Campbell Dep. at 47-50, Pg. ID 248-249.) Campbell also
testified that Officer Rodriguez later “dragged [him] by [his collar]” – while
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Campbell was still handcuffed and not resisting – into another room where
Campbell says Officer Rodriguez repeatedly punched and kicked him. (Id. at 5055, Pg. ID 249-250.) Accepting Campbell’s testimony as true for the purposes of
summary judgment, he did not pose an immediate threat to the officers and was not
actively resisting their commands. See, e.g., Correa v. Simone, 528 Fed App’x
531, 534 (6th Cir. 2013) (“[D]efendants pose no immediate threat where they are
not resisting and have their hands up in the air’”). Yet, the officers still exerted
substantial force on Campbell on two separate occasions in the booking area.
The officers contend that Campbell was disobeying orders, was providing
verbal encouragement to Laury, and that the force they each used was not
excessive. (See, e.g., Officer Campbell Dep., ECF #26-11 at 27, Pg. ID 334;
Officer Rodriguez Dep., ECF #26-10 at 25-28, Pg. ID 323.) But, the officers’
“contentions ... must be rejected for qualified immunity analysis because they are
premised on [the officers’] version of the facts. [ ... ] These material facts are
disputed by [Campbell] and are therefore for a jury to decide at trial.” Grawery,
567 F.3d at 312. The officers also stress that the video tape of the incident
indisputably supports their version of events and that they are thus entitled to
summary judgment notwithstanding Campbell’s contrary testimony. But the Court
has carefully reviewed the video – which does not contain any audio recording (see
ECF # 26-9) – and has concluded that the video is not fundamentally inconsistent
13
with Campbell’s testimony. In fact, it supports his testimony in certain respects.
Thus, the video does not entitled the officers to summary judgment.
Viewing the evidence in the light most favorable to Campbell, a jury could
determine that both officers (and in the case of Officer Rodriguez, in both of his
applications of force) exerted excessive and unreasonable force upon a nonresisting Rodriguez. Officers Campbell and Rodriguez are therefore not entitled to
summary judgment on their qualified immunity defense.
D.
Officers Campbell and Rodriguez Are Not Entitled to Summary
Judgment on Campbell’s State-Law Assault and Battery Claim
Officers Campbell and Rodriguez argue that they are entitled to summary
judgment on Campbell’s claim for assault and battery under Michigan law for
same the reason they are entitled to qualified immunity: namely, that their actions
were “objectively reasonable under the circumstances.” (See Mot. at 17-23, Pg. ID
187-194.) The officers also argue they are entitled to “governmental immunity”
under Michigan law. (See id. at 9, Pg. ID 179.) The Court again disagrees.
“Under Michigan law an assault is ‘an attempt to commit a battery or an
unlawful act which places another in reasonable apprehension of receiving an
immediate battery.’ A battery is ‘an unintentional, unconsented and harmful or
offensive touching of the person of another, or of something closely connected
with the person.’” Grawey, 567 F.3d at 315 (quoting People v. Nickens, 470 Mich.
622, 685 N.W.2d 657, 661 (2004)).
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For all of the reasons stated above, when the Court views the evidence in
Campbell’s favor, there is a clear factual dispute as to whether Officers Campbell
and Rodriguez subjected Campbell to an unlawful assault and battery. Accepting
Campbell’s testimony as true for the purposes of summary judgment, a jury could
find that the actions of Officers Campbell and Rodriguez placed Campbell “in
reasonable apprehension of receiving an immediate battery” and that both officers
battered him.
Moreover, Officers Campbell and Rodriguez are not entitled to
governmental immunity under Michigan law.
Michigan state law imposes a subjective test for
governmental immunity for intentional torts, based on the
officials' state of mind, in contrast to the objective test for
federal qualified immunity. Michigan governmental
immunity ‘protects a defendant's honest belief and goodfaith conduct with the cloak of immunity while exposing
to liability a defendant who acts with malicious intent.’
[…] That malicious intent is defined as ‘conduct or a
failure to act that was intended to harm the plaintiff ...
[or] that shows such indifference to whether harm will
result as to be equal to a willingness that harm will
result.’
Brown, 779 F.3d at 420 (quoting Odom v. Wayne County, 482 Mich. 459, 760
N.W.2d 217, 228 (2008)).
Taking Campbell’s version of events as true, the
officers battered him and threw him onto the ground despite the fact that he was
not resisting or obstructing. “A jury could find that this behavior ‘shows such
indifference to whether harm would result as to be equal to a willingness that harm
15
would result.’” Id. at 421 (quoting Odom, 760 N.W.2d at 225.) Officers Campbell
and Rodriguez are therefore not entitled to summary judgment on Campbell’s
Michigan law assault and battery claims.
E.
Defendants Are Entitled to Summary Judgment on Campbell’s
Malicious Prosecution Claim
Defendants argue that they are entitled to summary judgment on Campbell’s
malicious prosecution claim. (See Mot. at 13-15, Pg. ID 183-185.) The Court
agrees. “To prevail on a 42 U.S.C. § 1983 malicious prosecution claim premised
on a violation of the Fourth Amendment,” a plaintiff must prove:
(1) the defendant made, influenced, or participated in the
decision to prosecute the plaintiff; (2) there was a lack of
probable cause for the prosecution; (3) as a consequence
of the prosecution, the plaintiff suffered a deprivation of
liberty, as understood in Fourth Amendment
jurisprudence, apart from the initial seizure; and (4) the
criminal proceeding was resolved in the plaintiff's favor.
Halasah v. City of Kirtland, Ohio, 574 Fed. App’x 624, 631 (6th Cir. 2014)
(emphasis added) (citing Sykes v. Anderson, 625 F.3d 294, 308-309 (6th Cir.
2010)).
Campbell has not provided any evidence that “as a consequence of the
prosecution, [he] suffered a deprivation of liberty, as understood in Fourth
Amendment jurisprudence, apart from the initial seizure.” Campbell asserts that
“his ability [to post a bond] was greatly diminished when [he was] charged with
[resisting arrest, a felony], [which] require[ed] [him to spend] additional time in
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jail before being able to post the requisite bond.” (Campbell Response Br., ECF
#31 at 33-34, Pg. ID 474-475.) But Campbell has not supported this claim with
any actual evidence that the addition of the felony charge resulted in a higher bond.
Nor has he presented evidence that he was, in fact, unable to pay the higher bond
that allegedly resulted from the addition of the felony charge. And Campbell’s
counsel at the hearing confirmed that there is no evidence in the record supporting
Campbell’s assertions regarding his inability to pay the bond. Defendants are
therefore entitled to summary judgment on Campbell’s claim for malicious
prosecution.
F.
The City of Warren is Entitled to Summary Judgment on Campbell’s
Claim for “Municipal Liability”
The City argues that Campbell’s claim for “municipal liability” fails because
“Campbell has failed to identify an official policy or custom at the City of Warren
or City of Warren Police Department that resulted in the deprivation of his of his
civil rights.” (Mot. at 15-16, Pg. ID 185-186.) The Court agrees.
Campbell “cannot base his claims against [the City] solely on the individual
defendants’ conduct because respondeat superior is not available as a theory of
recovery under section 1983.’” Vereecke v. Huron Valley School Dist., 609 F.3d
392, 403 (6th Cir. 2010) (internal quotation marks omitted) (refusing to apply
respondeat superior liability under 42 U.S.C. § 1983); see also Jenkins v. Rock
Hill Local School Dist., 513 F.3d 580, 589 (6th Cir. 2008) (“The district court also
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did not err in granting summary judgment…because there is no respondeat
superior liability in actions under § 1983”). Instead, “[t]o hold [the City] liable,
[Campbell] must: “(1) identify [a] [City] policy or custom, (2) connect the policy
to [the City], and (3) show that his particular injury was incurred due to the
execution of that policy.” Vereecke, 609 F.3d at 403. He has failed to do so.
Campbell has failed to point to any specific policy or custom that caused his
claimed injuries. Campbell argues that the City has made public comments that
amount to an “adopt[ion of] the unlawful actions of the defendant officers,” and he
says “it is evident, and overtly obvious, the position of the City is the Officers can
use whatever force they wish towards those they arrest.” (Mot. at 36-37, Pg. ID
477-478.) But the vague and non-binding statements Campbell identifies cannot
support a finding that there is a policy or custom that caused his injuries, and
Campbell has not presented any other evidence to support his claim that the
Defendant officers could “use whatever force they wish.” His municipal liability
claim therefore fails.
G.
All Defendants Are Entitled to Summary Judgment on Campbell’s
“Concert of Action” and “Failure to Intervene” Claims
Finally, Defendants argue that they are entitled to summary judgment on
Campell’s “concert of action” and “failure to intervene” claims. The Court agrees
that these claims fail.
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In order to proceed with his “concert of action” claim, Campbell must prove
“that all defendants acted tortuously pursuant to a common design.” Abel v. Eli
Lilly & Co., 343 N.W.2d 164, 176 (Mich. 1984.) Campbell, however, has not
presented any evidence that the Defendants acted with such a “common design” or
that there was any agreement between the Defendants to injure him. Campbell
appears to rely on the fact that “[n]ot one of the defendant officers in this case did
anything to stop” Campbell from being injured (see Resp. Br. at 35, Pg. ID 476),
but he has not cited any authority that a “concert of action” theory can proceed on
this basis, or that the Defendants were in any position to stop what happened to
him.
Likewise, Campbell’s “failure to intervene” claim fails. The officers in this
case were reacting to a chaotic event in the booking area, and there is no evidence
in the record that any officer had the ability to predict or stop what happened to
Campbell. Indeed, Officer Price was busy attempting to control Laury (who had
previously thrown his jacket toward Officer Price’s face), and there is no evidence
Officer Campbell had an opportunity to stop Officer Rodriguez from dragging
Campbell into the back hallway. Campbell has not presented any evidence that
can support this claim.
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CONCLUSION
For all of the reasons stated above, Defendants’ Motion for Summary
Judgment (ECF #26) is GRANTED IN PART AND DENIED IN PART AS
FOLLOWS:
Defendants are DENIED summary judgment based on the Release;
Officers Campbell and Rodriguez are DENIED summary judgment with
respect to Campbell’s excessive force and assault and battery claims; and
Defendants are GRANTED summary judgment with respect to
Campbell’s malicious prosecution, failure to intervene, concert of action,
and municipal liability claims.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 8, 2015
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on June 8, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
(313) 234-5113
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