Palmer v. Allen et al

Filing 89

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT 73 . Signed by District Judge Gershwin A. Drain. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EMMANUEL PALMER,
Case No. 14-cv-12247

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
RYAN ALLEN, et al.,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [73]
I. INTRODUCTION
On June 6, 2014, Emmanuel Palmer (“Palmer” or “Plaintiff”) filed a
Complaint against the Ecorse Police Department, Officers Ryan Allen (“Allen”)
and Christoval Trevino (“Trevino”), Oakwood Hospital, and John Does 1 and 2.
Dkt. No. 1, p. 1 (Pg. ID No. 1). Defendants Oakwood Hospital and John Does 1
and 2 were dismissed by the Court on August 13, 2014. Dkt. No. 8, pp. 2–3 (Pg. ID
No. 40–41). On November 23, 2015, Palmer submitted an Amended Complaint
alleging 13 violations of federal and state law. See Dkt. No. 53, pp. 12–28 (Pg. ID
No. 283–99).

-1- 

Presently before the Court is Defendants’ Motion for Summary Judgment
[73], submitted April 28, 2016. Although the Court specifically extended Palmer’s
response period in its June 7th order, Dkt. No. 88, Palmer did not respond to the
Motion and the period for response has passed.
Upon review of the briefing, the Court concludes that oral argument will not
aid in the resolution of the instant motion. Accordingly, the Court will resolve
Defendant’s present motion on the briefs. See E.D. Mich. L.R. 7.1(f)(2). For the
reasons discussed herein, the Court will GRANT in part and DENY in part
Defendants’ Motion for Summary Judgment [73].
II. BACKGROUND
Around 2:00 a.m. on the morning of August 11, 2012, Palmer was riding
back from a Detroit club as a passenger in a van driven by Quentez McKinney
(“McKinney”) in the City of Ecorse, Michigan. Dkt. No. 53, p. 3 (Pg. ID No. 274).
The vehicle was pulled over by Ecorse Police Officers Ryan Allen and Kevin
Barkman for driving without headlights. Dkt. No. 73, p. 13 (Pg. ID No. 539). Allen
approached the driver-side of the van and asked for McKinney’s driver’s license.
Id. Palmer began filming the encounter on his cellphone. Id.; Dkt. No. 53, p. 3 (Pg.
ID No. 274). Allen asked McKinney to step out of the vehicle, after it was found
that McKinney was driving with a suspended license and had several outstanding

-2- 

warrants for his arrest. Dkt. No. 73, p. 13 (Pg. ID No. 539). McKinney was
arrested and placed in the back of the police vehicle. Id.
Meanwhile, Barkman remained on the passenger side of the vehicle, next to
Palmer. Id. After McKinney was arrested, Palmer asked to walk nine blocks to his
home, but was told that he was being detained for a failure to wear his seatbelt. Id.;
Dkt. No. 53, p. 4 (Pg. ID No. 275). Palmer maintains that he had only removed his
seatbelt because he intended to walk home after McKinney’s arrest. Dkt. No. 73, p.
14 (Pg. ID No. 540). Allen asked Palmer to provide his name, but Palmer refused
to answer, asking again if he was being detained. See id.
At this point, Allen says to Palmer, “We’re not playing this fucking game—
get out of the vehicle nice and easy.” Id. At this point, Palmer claims that Allen
reached into the van to open the door, forcibly grabbed him by his neck and shirt,
pulled him from the vehicle, and slammed him into the side of the vehicle. Dkt.
No. 53, p. 4 (Pg. ID No. 275). The video from Palmer’s cellphone does not support
this accusation, but instead shows Palmer exiting the vehicle without any
noticeable physical altercation. See Dkt. No. 73-4 (Pg. ID No. 603–04). Palmer
asks what the problem is and an officer informs that there was open container of
alcohol in the vehicle. Id. The video does not show Palmer denying that there was
alcohol in the vehicle, instead stating that “it’s not [his] booze.” See id. Allen
responds by stating, “Enough of this fucking stupid game. Relax man, alright—you
-3- 

have open alcohol.” Id. At no time in the video was there footage or sounds that
support Palmer’s accusation that he was grabbed by his neck and shirt, or slammed
into the side of the vehicle.
Palmer then alleges that once Allen realized that the encounter was being
recorded on his cellphone, Allen stated “You fucking recording this?” and pressed
the stop recording button. The video does not support Palmer’s allegation of
Allen’s statement, but it does appear that the cellphone stopped recording during a
search of Palmer. At this point, Palmer alleges that, while in Barkman’s presence,
Allen grabbed Palmer by the neck, making it difficult for him to breathe. Allen
then handcuffed Palmer and walked him to the back of the police car, where
Palmer was made to remove his shoes. Removal of his shoes allegedly caused
Palmer pain due to gout. Palmer was then placed in the back of the police car with
McKinney for transport to the Ecorse Police Department. A subsequent search of
Michigan Law Enforcement Information Network (LEIN) revealed that Palmer had
four outstanding warrants for his arrest. Dkt. No. 73, p. 15 (Pg. ID No. 541).
At the Ecorse Police Department, Palmer alleges that Allen told him that he
was being charged with “weed, liquor, and obstructing me.” Dkt. No. 53, p. 6 (Pg.
ID No. 277). Palmer signed a forfeiture paper for his cellphone, claiming that he
felt under duress at the time. Id. Plaintiff was then placed in an individual holding
cell. Id.
-4- 

Palmer fell asleep in his cell and awoke to flooding in his cell caused by a
backed-up sewer drain. Id. After waiting for a period of time, Palmer was let out of
his cell by Trevino. Id. 6–7. After noticing that Palmer was limping due to
inflammation from gout, Trevino allegedly called Palmer a “pussy motherfucker”
and slapped him in the face, without provocation. Id. at 7. Palmer claims that
Trevino then grabbed him by the shirt, ripping it, pushed him to the floor, and
proceeded to stomp, kick and choke him while Palmer screamed for help. Id. at 8.
Two other inmates, McKinney and Michael Crumby, allegedly witnessed the
beating and yelled for Trevino to stop hurting Palmer. Id.
Palmer alleges that Trevino then used a Taser on him approximately ten to
twenty times after saying, “Nigger motherfucker, I got something for you nigger
motherfucker!” Id.; Dkt. No. 73-3, p. 21 (Pg. ID No. 591). Palmer claims that he
began crawling to a nearby cell after drifting in and out of consciousness. Id. He
claims that Trevino then said, “That’s the wrong mother fucking cell! That’s the
wrong cell!” and used a Taser on him approximately five more times, as Palmer
pleaded for him to stop. Id. at 8–9; Dkt. No. 73-3, p. 21 (Pg. ID No. 591).
According to Palmer, paramedics arrived about one hour after Trevino’s use
of force. Id. at 9. Palmer claims that he told the paramedic about the incident and
his injuries, but that she left after checking his vital signs, without providing
medical treatment or medication. Id. at 9–10.
-5- 

At some time later, Allen allegedly came to Palmer’s cell and directed him
to remove the tissue paper that was covering the cell’s surveillance camera. Id. at
10. After Allen removed the tissue from the camera, Palmer claims Allen said
“Give me that fucking [bed] sheet! You get nothing!” and stated that he was glad
Trevino “fucked [Palmer] up.” Id. Allen allegedly told Palmer that, “I guess what I
said did get around (you) fucking dumb ass” and laughed at Palmer. Id.
Although there are multiple cameras positioned inside the Ecorse jail,
Defendants allege that all of the surveillance video from the period of Palmer’s
detention was corrupted and nontransferable because of a catastrophic failure of
the recording system in early 2013. Dkt. No. 73, p. 16 (Pg. ID No. 543).
Palmer was arraigned on or about August 13, 2012 in 25th District Court in
Ecorse, Michigan on charges including open intoxicants in a motor vehicle,
possession of marijuana, and resisting and obstruction. Dkt. No. 53, p. 11 (Pg. ID
No. 282). The charges were dismissed on October 3, 2012, after Ecorse police
officials failed to produce the Palmer’s cell phone after being ordered to do so by
the judge on three occasions. Id. Palmer requested his phone back, but was told it
was forfeited to the Wayne County Prosecutor’s Office. Id. It was later returned
during this litigation.

-6- 

In September and October 2012, Palmer filed two citizen complaints with
the City of Ecorse police regarding Trevino. Id. Palmer claims that he never
received a response. Id. at 12.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if ‘there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’ ” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The court must view the facts,
and draw reasonable inferences from those facts, in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No
genuine dispute 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 Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court
evaluates “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52.
IV. DISCUSSION
In his Amended Complaint, Palmer brings 13 claims. In Count I, Palmer
alleges that Defendant Officers violated his constitutional right to be free from

-7- 

unreasonable and excessive physical force. Dkt. No. 53, p. 12 (Pg. ID No.283). In
Count II, Palmer claims that Defendant City of Ecorse violated his right to be free
from “illegal arrest and/or illegal or unreasonable search and/or seizure.” Id. at 12–
13. In Count III, Palmer alleges that Defendant Officers violated his rights under
the First and Fourth Amendments to record video of law enforcement officers and
be protected from unreasonable searches and seizures. Id. at 13–14. In Count IV,
Palmer brings a failure to intervene claim against “Defendant Officers.” Id. 14–15.
In Count V, Palmer alleges that Defendants destroyed materially-favorable
evidence in bad faith, including the jail surveillance and cellphone videos from his
arrest and detention. Id. at 15–17. In Count VI, Palmer claims that Defendant
Officers subjected him to malicious prosecution. Id. at 17–18. In Count VII,
Palmer brings a state law claim for Intentional Infliction of Emotional Distress
against Defendant Officers for “acts and/or omissions and/or conduct” that was
“extreme and outrageous.” Id. at 18–19. In Counts VIII and IX, Palmer brings both
federal and state civil conspiracy charges against Defendant Officers. Id. at 19–21.
In Count X, Palmer alleges that Defendant Officers are guilty of gross negligence.
Id. at 21–23. In Count XI, Palmer claims that Defendant Officers assaulted and
battered him. Id. at 23–24. In Count XII, Palmer alleges that Defendant Officers
engaged in ethnic intimidation, in violation of Michigan Compiled Laws

-8- 

§ 750.147(b). Id. at 24–26. In Count XIII, Palmer asserts that Defendant Officers
are guilty of abuse of process. Id. at 26–28.
In the Motion for Summary Judgment, Defendants seek to have the Court
dismiss all claims against the City of Ecorse and Allen, as well as specifically
addressed claims against Trevino. Dkt. No. 73, p. 37 (Pg. ID No. 563). A detailed
analysis is below.
1. Count I: Excessive Force
First, Palmer brings a claim under 42 U.S.C. § 1983, alleging that Allen and
Trevino violated his Fourth Amendment right to be free of excessive force. Dkt.
No. 53, p. 12 (Pg. ID No. 283). Defendants argue in their Motion for Summary
Judgment that Palmer cannot demonstrate a prima facie case for excessive force as
to Allen, but do not make any arguments as to Trevino. Dkt. No. 73, pp. 23–24
(Pg. ID No. 549–50).
The Court applies the Fourth Amendment’s unreasonable seizure
jurisprudence when analyzing excessive force claims. Morrison v. Bd. of Trustees
of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009). “In determining whether
excessive force was used, courts must ask whether the officer’s actions, in light of
the totality of the circumstances, were objectively reasonable.” Kostrzewa v. City
of Troy, 247 F.3d 633, 639 (6th Cir. 2001) (citing Graham v. Connor, 490 U.S.
386, 396–97 (1989)). Under this fact-specific assessment, three considerations are
-9- 

relevant in determining the reasonableness of force used. See Harris v. City of
Circleville, 583 F.3d 356, 365 (6th Cir. 2009). First, the Court reviews the severity
of the crime at issue. Id. Second, the Court asks whether the suspect posed an
immediate threat to the safety of the police officers or others. Id. And third, the
Court asks whether the suspect actively resisted arrest or attempted to evade arrest
by flight. Id. “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Graham, 490 U.S. at 396.
In assessing the reasonableness of Allen’s actions, the Court analyzes the
events alleged by Palmer in segments. See Phelps v. Coy, 286 F.3d 295, 301 (6th
Cir. 2002). There are three segments: (1) the removal of Palmer from the vehicle
by allegedly grabbing his neck and shirt, then slamming Palmer onto the vehicle;
(2) the alleged choke of Palmer after the cellphone camera was turned off; and
(3) the removal of Palmer’s shoes during his arrest. See Dkt. No. 53, pp. 4–5 (Pg.
ID No. 275–76). Considering the relevant factors, with respect to one of these three
segments, Palmer’s version of the events supports a holding that Allen violated
Palmer’s Fourth Amendment right to be free from excessive force.
Under Palmer’s version of the facts, in the first segment, Allen “reached into
the vehicle, grabbed the door handle and opened the passenger door.” Id. at 4.
Allen then allegedly “grabbed [Palmer] by his neck and shirt, pulling him from the
-10- 

vehicle and slammed him onto the side of the vehicle.” Id. With respect to this
segment, as mentioned earlier, the cellphone video Palmer took of the incident
establishes that some of these allegations—that Allen grabbed or slammed Palmer
onto the vehicle—are verifiably inaccurate. See Dkt. No. 73-4. Accordingly, this
segment is limited solely to Allen’s reaching into the vehicle to open the passenger
door, which does not constitute a force being applied to Palmer.
In the second segment, after Allen realized Palmer’s cellphone was
recording the events, Allen allegedly “grabbed [Palmer] by his neck using extreme
force and pressure such that [Palmer] had difficulty breathing,” and walked Palmer
to the back of the police car with his hands around his neck while Palmer was
handcuffed. Id. at 5.
In the third and final segment, after being walked to the back of the police
car, Allen told Palmer to remove his shoes, despite the fact that Palmer told him
that his feet were extremely sensitive because of gout and it hurt to stand on
cement without his shoes. Id. at 5.
We conclude that the Graham factors weigh against Allen as to the second
segment. Palmer was accused of possessing marijuana and an open intoxicant,
obstructing justice, and having four outstanding warrants for his arrest in the Cities
of Ecorse, Harper Woods, and Southgate. Dkt. No. 73-2, p. 5 (Pg. ID No. 570).
Relatively speaking, none of these crimes stand out as being particularly serious or
-11- 

involving violence. There is no evidence that Palmer presented a threat or
imminent danger to the officers, and Palmer claims that he was handcuffed during
at least part of the alleged choking in the second segment. Additionally, under
Palmer’s version of the facts, he did not actively resist during this portion of the
stop. Accordingly, these facts taken in a light most favorable to Palmer are
sufficient to establish a violation of his constitutional rights under a Fourth
Amendment analysis.
Nevertheless, it is to be noted that neither the first segment, nor the third
segment illustrates conduct by Allen that could be considered objectively
unreasonable. Since McKinney had already been arrested for driving on a
suspended license and having multiple outstanding warrants, it was lawful for
Allen to order Palmer out of the vehicle to conduct an inventory search of
McKinney’s vehicle prior to impoundment. See United States v. Bah, 794 F.3d
617, 627 (6th Cir.), cert. denied sub nom. Harvey v. United States, 136 S. Ct. 561
(2015) (finding that an officer’s request that the passenger exit the vehicle was not
unreasonable where the officer was to conduct an inventory search prior to
impoundment).
Furthermore, the Court is unaware of any case where an arrestee being told
to remove his shoes for search incident to arrest constitutes excessive force. See
Atwater v. City of Lago Vista, 532 U.S. 318, 354–55 (2001) (noting that an arrest
-12- 

for a seatbelt violation, requiring the plaintiff to remove her shoes, jewelry, and
glasses, was no more harmful to her privacy or physical interests than the normal
custodial arrest); United States v. Nevitt, 409 F. Supp. 1075, 1078 (W.D. Mich.),
aff’d, 549 F.2d 803 (6th Cir. 1976) (“Seizure of such items as shoes is permissible
as incident to a valid custodial arrest”). Palmer has not pleaded that his shoes were
medically approved or issued by medical professionals, or even specifed the
amount of time that he was forced to stand barefoot prior to being seated in the
police vehicle. Cf. Dale v. Slyhuis, 313 F. App’x 917, 918 (8th Cir. 2009) (finding
no constitutional violation where plaintiff was temporary denied permission to
remove insoles from his shoes, causing him discomfort, and his physician had not
prescribed the inserts be removed). Palmer’s temporary discomfort because his
shoes were removed for search incident to arrest does not establish that Allen’s
action, in having Palmer remove his shoes, was objectively unreasonable.
Accordingly, the Court will not dismiss Palmer’s excessive force claim as to
Trevino, or as to Allen for the specific allegation that Allen choked Palmer after
the cellphone video ended and prior to being placed in the back of the police car.
2. Count II: Illegal Search and Seizure
Next, in his second claim, Palmer brings a claim against the City of Ecorse
for violating his “rights to be free from illegal arrest and/or illegal or unreasonable
search and/or seizure, as secured by the Fourth and Fourteenth Amendments to the
-13- 

United States Constitution.” Dkt. No. 53, pp. 12–13 (Pg. ID No. 283–84).
Defendants argue that Count II must be dismissed because Palmer “articulates no
theory as to how or why the City should be held liable for his alleged illegal arrest,
search, and seizure.” Dkt. No. 73, p. 18 (Pg. ID No. 544).
Since the City of Ecorse is the only Defendant named in Count II, it appears
that Palmer seeks to hold the City liable for these constitutional violations under
Monell v. Dept. of Social Services, 436 U.S. 658 (1978). “Municipalities are not
vicariously liable for the actions of their employees.” Bible Believers v. Wayne
Cty., Mich., 805 F.3d 228, 260 (6th Cir. 2015), cert. denied, No. 15-1090, 2016
WL 776505 (U.S. May 16, 2016). Instead, a municipality may only be found
responsible for § 1983 violations, and held liable for damages, if the plaintiff
demonstrates that the constitutional harm suffered was a result of the
municipality’s policy or custom. Id. “To succeed on a claim that a municipality has
a policy or practice of constitutional violations, a plaintiff must identify an
unconstitutional policy and must show that the policy led to a constitutional
deprivation.” Zucker v. City of Farmington Hills, No. 15-1202, 2016 WL 1019041,
at *15 (6th Cir. Mar. 14, 2016) (emphasis added); see also City of Canton v.
Harris, 489 U.S. 378, 389 (1989) (“[A] municipality can be liable under § 1983
only where its policies are the ‘moving force [behind] the constitutional
violation.’ ” (second alteration in original) (quoting Monell, 436 U.S. at 694)).
-14- 

In the present case, Palmer has not plead any City of Ecorse policy or
practice, specific or otherwise, that led to a deprivation of his Fourth Amendment
rights to be free of illegal search or seizure. Palmer has pled that he heard rumors
that Trevino “disrespects people,” is a “troublemaker,” and “has many misconducts
on his record.” Dkt. No. 73-3, pp. 5, 28 (Pg. ID No. 575, 598). Additionally,
Palmer “assume[s] that [the City] has a policy or custom of letting their police
officers do all types of—of police misconduct.” Id. at 29. None of Palmer’s
allegations, which focus on misconduct by Trevino, address unlawful search or
seizure, nor do they suggest that the City of Ecorse knew or should have known
that Allen would engage in such acts.1
The Court does not find that Palmer’s assumption that a custom must exist,
without any substantiating evidence, “show[s] a direct causal link between the
custom and the constitutional deprivation.” See Doe v. Claiborne Cty., Tenn. By &
Through Claiborne Cty. Bd. of Educ., 103 F.3d 495, 508 (6th Cir. 1996) (“The
evidence must show that the need to act is so obvious that the [municipality’s]

1

Palmer’s Complaint does not allege any conduct by Trevino that could be
interpreted as unlawful search and/or seizure. Instead, the conduct alleged to have
been taken by Trevino—slapping, kicking, stomping, choking, uttering racial
epithets, and use of a Taser—is interpretable under Palmer’s claims of excessive
force, intentional infliction of emotional distress, assault and battery, and ethnic
intimidation.  
-15- 

‘conscious’ decision not to act can be said to amount to a ‘policy’ of deliberate
indifference to [the plaintiff’s] constitutional rights.”). Palmer has not offered any
records, reports, or previous complaints as evidence that the Ecorse police had a
custom of conducting illegal searches, seizures, or arrests.
Palmer additionally asserts, albeit in support of his conspiracy claims, that
the City of Ecorse inadequately investigated the alleged incidents because “[n]o
detective ever came back and called [him] or asked him questions.” Dkt. No. 73-3,
p. 29 (Pg. ID No. 599). An inadequate investigation into misconduct is not, on its
own, sufficient to show deliberate indifference. See Thomas v. City of
Chattanooga, 398 F.3d 426, 433 (6th Cir. 2005). A plaintiff must also show “that
the flaws in this particular investigation were representative of (1) a clear and
persistent pattern of illegal activity, (2) which the [municipality] knew or should
have known about, (3) yet remained deliberately indifferent about, and (4) that the
[municipality’s] custom was the cause of the [constitutional violation].” Id.
Because Palmer failed to offer any evidence in support of his Monell claim
that the City of Ecorse had a custom or policy of illegal searches, seizures, and/or
arrests, the Court will dismiss Palmer’s unlawful seizure claim.
3. Count III: First and Fourth Amendment Violation
In his third claim, Palmer brings a claim against Allen and Trevino for
violating his “right to be free [sic] video record law enforcement officials and the
-16- 

right to be protected from unreasonable searches and seizures guaranteed by the I
and IV amendments to the US Constitution.” Dkt. No. 53, p. 13 (Pg. ID No. 284).
A. Qualified Immunity
Government officials performing discretionary actions are generally
provided qualified immunity and 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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The Court undertakes a two-step inquiry to
determine if qualified immunity applies to the present dispute. First, the Court
considers whether, “[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show [that] the officer’s conduct violated a
constitutional right.” Saucier v. Katz, 533 U.S. 194, 121 (2001). And second, the
Court must determine whether the alleged violation was of “clearly established
constitutional rights of which a reasonable person would have known.” Dickerson
v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (internal quotation omitted).
B. First Amendment Right to Film Law Enforcement
“[T]he First Amendment goes beyond protection of the press and the selfexpression of individuals to prohibit government from limiting the stock of
information from which members of the public may draw.” First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 783 (1978). The protections of the First
-17- 

Amendment include “news gathering,” Branzburg v. Hayes, 408 U.S. 665, 681
(1972), and “the free discussion of governmental affairs.” Mills v. State of Ala.,
384 U.S. 214, 218 (1966). Yet the First Amendment’s protections are not absolute.
See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)
(“Expression, whether oral or written or symbolized by conduct, is subject to
reasonable time, place, or manner restrictions.”).
The Court analyzes First Amendment retaliation claims under a burdenshifting framework. Wenk v. O’Reilly, 783 F.3d 585, 593 (6th Cir. 2015), cert.
denied sub nom. Schott v. Wenk, 136 S. Ct. 792 (2016). “A plaintiff must first
make a prima facie case of retaliation,” which has three elements: “(1) he engaged
in constitutionally protected speech or conduct; (2) an adverse action was taken
against him that would deter a person of ordinary firmness from continuing to
engage in that conduct; [and] (3) there is a causal connection between elements one
and two—that is, the adverse action was motivated at least in part by his protected
conduct.” Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir.2012)
(internal quotation marks omitted). “Although the elements of a First Amendment
retaliation claim remain constant, the underlying concepts that they signify will
vary with the setting—whether activity is ‘protected’ or an action is ‘adverse’ will
depend on context.” Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999).

-18- 

Thus, to qualify as First Amendment retaliation, for which qualified
immunity does not apply, the right to secretly film law enforcement officers at a
traffic stop must be both constitutionally protected conduct and a right so clearly
established that a reasonable person would know of it. The Court is unable to say
that such a right was clearly established in Michigan as of August 2012.
“The Supreme Court and Sixth Circuit have not ruled specifically on the
right of the public openly to film police officers and their actions in a public
setting,” although “[o]ther circuit courts have . . . ruled such a right exists.”
Crawford v. Geiger (Crawford II), 131 F. Supp. 3d 703, 714 (N.D. Ohio 2015).
Additionally, while other jurisdictions indicate there is a right to film law
enforcement in certain contexts, this right is not uniform or clearly established in
the context of traffic stops or surreptitious filming. Williams v. Boggs, No. CIV.A.
6:13-65-DCR, 2014 WL 585373, at *5 (E.D. Ky. Feb. 13, 2014) (noting the lack of
clarity as applied to traffic stops); Crawford v. Geiger (Crawford I), 996 F. Supp.
2d 603, 615 n.9 (N.D. Ohio 2014) (noting the ruling’s right to openly film police
officers carrying out their duties did not apply to those who recorded police
officers surreptitiously). Compare Kelly v. Borough of Carlisle, 622 F.3d 248, 263
(3d Cir. 2010) (“For these reasons, we hold that the right to videotape police
officers during traffic stops was not clearly established and Officer Rogers was
entitled to qualified immunity on Kelly’s First Amendment claim.”); with Gericke
-19- 

v. Begin, 753 F.3d 1, 3 (1st Cir. 2014) (holding that there is a First Amendment
right to openly film police officers at a traffic stop).
Based on the legal ambiguity that surrounds a right to surreptitiously film
police officers at a traffic stop, this Court cannot say that this right was clearly
established in this Circuit at the time of the incident. Such a determination is
consistent with other district courts within this Circuit. See Williams v. City Of
Paris, No. 5: 15-108-DCR, 2016 WL 2354230, at *4 (E.D. Ky. May 4, 2016)
(determining that defendant officer was entitled to qualified immunity because the
right to openly film police was not clearly established in July 2014); Crawford v.
Geiger (Crawford II), 131 F. Supp. 3d 703, 715 (N.D. Ohio 2015), appeal
docketed, No. 15-4181 (6th Cir. Oct. 29, 2015) (“On further consideration in
connection with the instant motions, however, I believe the right openly to film
police carrying out their duties is not so clear cut that it is proper in this case to
withhold qualified immunity as to the First Amendment claim.”); Williams v.
Boggs, No. CIV.A. 6:13-65-DCR, 2014 WL 585373, at *1 (E.D. Ky. Feb. 13,
2014) (finding that the right to record a confrontation with law enforcement was
not clearly established in January 2013, and dismissing claim).
Accordingly, as the Court has not found the right to secretly film police
officers at a traffic stop was so clearly established in August 2012, such that it
would “put a reasonably competent officer on ‘fair notice’ that seizing a camera
-20- 

. . . would violate the First Amendment,” Kelly, 622 F.3d at 262, Defendant
Officers2 are entitled to qualified immunity as to Palmer’s claim for seizing his
phone. The Court dismisses Palmer’s First Amendment claim.
C. Unreasonable Search and Seizure
Palmer’s allegations as to Trevino do not give rise to an unreasonable search
and seizure claim, so the Court will accordingly analyze Palmer’s claim solely as it
applies to Allen.
The Fourth Amendment prohibits unreasonable searches and seizures.
Graves v. Mahoning Cty., No. 15-3175, 2016 WL 2753907, at *2 (6th Cir. May 12,
2016). “In conformity with the rule at common law, 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).
Notably absent within Palmer’s Count III Fourth Amendment claim is any
mention of probable cause. See Graves, 2016 WL 2753907, at *3 (“Without facts
going to this “crucial question,” the plaintiffs cannot state a Fourth Amendment
§ 1983 claim against anyone . . . because they have not alleged a violation of their
2

There are no factual allegations that Trevino seized Palmer’s phone, but as the
Amended Complaint names both of them in the First Amendment claim, the Court
has included Trevino in this finding. 
-21- 

rights.”). However, despite the absence of allegations as to probable cause in Count
III, the Court will proceed and analyze the facts in the light most favorable to
Palmer, to determine whether there was sufficient probable cause for his seizure,
search, and arrest following the traffic stop.
Allen and his partner pulled over the vehicle driven by McKinney, in which
Palmer was a passenger, at 2:50 a.m. on August 11, 2012, for driving without its
headlights activated. Dkt. No. 73-2, p. 4 (Pg. ID No. 569). Driving at night without
headlights activated provides sufficient probable cause to perform a traffic stop for
violation of the Michigan Vehicle Code. See United States v. Gaskin, 587 F. App’x
290, 295 (6th Cir. 2014), cert. denied, 135 S. Ct. 1579 (2015) (finding that an
officer’s reasonable belief that an individual was driving without headlights after
sunset, a violation of the Ohio Traffic Code, satisfied probable cause for traffic
stop); MICH. COMP. LAWS § 257.684(a) (“Every vehicle upon a highway within
this state at any time from a half hour after sunset to a half hour before sunrise . . .
shall display lighted lamps and illuminating devices”). Since Palmer has not
claimed the headlights were activated, this issue is not in dispute and the officers
had probable cause to pull over McKinney and Palmer.
Also not in dispute is the fact that McKinney was driving without a valid
license. Dkt. No. 53, p. 4 (Pg. ID No. 275). Accordingly, the officers acted within
their discretion to tow and impound the vehicle because the driver had a suspended
-22- 

license and three outstanding warrants, and Palmer does not argue that he had a
valid license or permission to take possession of the vehicle. Dkt. No. 73, p. 2 (Pg.
ID No. 569); see also United States v. Hockenberry, 730 F.3d 645, 660 (6th Cir.
2013) (officers had authority to impound vehicle where the drier was operating
under a suspended license and passengers either did not have valid licenses or had
active warrants for arrest).
Where officers have probable cause to stop a vehicle and make a reasonable
decision to impound the vehicle, the Sixth Circuit has found that police may
conduct an investigatory search of the vehicle. Hockenberry, 730 F.3d at 660;
United States v. Jackson, 682 F.3d 448, 455 (6th Cir. 2012) (“It is settled law that
the police may conduct an inventory search of an automobile that is being
impounded without running afoul of the Fourth Amendment.”). Palmer could not
remain in a vehicle that was to be lawfully impounded, thus it was necessary for
him to step out. See United States v. Bah, 794 F.3d 617, 627 (6th Cir.), cert. denied
sub nom. Harvey v. United States, 136 S. Ct. 561 (2015) (noting that “having the
vehicle towed” “would necessarily require that [the passenger] exit the vehicle”).
Allen provided Palmer with two reasons for his arrest after Palmer exited the
vehicle: Palmer was not wearing his seatbelt, which Palmer disputes, and there was
an open alcohol container in plain view in the vehicle’s center console, which
Palmer has not disputed. Dkt. No. 73-4. Although Palmer claims in the video that
-23- 

the alcohol was not his, he does not dispute that there was open alcohol next to him
in the vehicle. Id. Michigan law makes it illegal for both drivers and passengers to
transport open alcohol in the passenger area of a vehicle. MICH. COMP. LAWS
§ 257.624a (“Except as provided in subsections (2) and (5), a person who is an
operator or occupant shall not transport or possess alcoholic liquor in a container
that is open or uncapped or upon which the seal is broken within the passenger area
of a vehicle . . . .”); see also United States v. Copeland, 321 F.3d 582, 591 (6th Cir.
2003) (affirming reasonability of a traffic stop for parking violations, wherein both
the driver and passenger were arrested for transporting open intoxicants).
Thus, Allen’s arrest and seizure of Palmer was not unreasonable under the
circumstances, which provided probable cause to arrest him for open intoxicants in
a vehicle. Further support for the arrest came from the undisputed evidence that
Palmer had four outstanding warrants for his arrest in various Michigan cities, and
the disputed evidence that Palmer was in possession of marijuana. Dkt. No. 73-2,
p. 5 (Pg. ID No. 570). Search of Palmer’s person was also reasonable at this point,
as a search incident to arrest. See United States v. Robinson, 414 U.S. 218, 235
(1973) (“[W]e hold that in the case of a lawful custodial arrest a full search of the
person is not only an exception to the warrant requirement of the Fourth
Amendment, but is also a ‘reasonable’ search under that Amendment.”).

-24- 

Based on the evidence presented, taken in the light most favorable to
Palmer, Allen’s search, seizure, and arrest of Palmer was not unreasonable.
Therefore, the Court dismisses Palmer’s Fourth Amendment claim for unlawful
search and seizure against Allen. The Court also dismisses Palmer’s Fourth
Amendment claim for unlawful search and seizure against Trevino, as Palmer has
not alleged any facts that indicate that Trevino ever searched or seized him.
Accordingly, the Court dismisses Count III in its entirety.
4. Count IV: Failure to Intervene
Next, in his fourth claim, Palmer alleges that Defendant Officers stood by
and failed to intervene during the violation of his constitutional rights, even though
they had the opportunity to do so. Dkt. No. 53, pp. 14–15 (Pg. ID No. 285–86).
Defendants argue that Count IV must be dismissed as to Allen and Trevino
because Palmer did not allege that either was present while the other violated his
rights. Dkt. No. 73, p. 27 (Pg. ID No. 552).
The Court finds Defendants’ argument to be meritorious. To hold an officer
liable for failure to intervene, a plaintiff must show that “(1) the officer observed or
had reason to know that excessive force would be or was being used, and (2) the
officer had both the opportunity and the means to prevent the harm from
occurring.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). Palmer has satisfied
neither prong.
-25- 

In his Complaint, the instances where Allen allegedly violated his rights
occurred outside of the presence of Trevino, at the traffic stop with Officer
Barkman, who was not named as a defendant. During Palmer’s alleged altercation
with Trevino, he does not name any officer that was present and had the
opportunity to intervene. Accordingly, the Court dismisses Palmer’s failure to
intervene claim in its entirety.
5. Count V: Destruction of Evidence
In his fifth claim, Palmer seeks to hold all Defendants liable for suppression
and/or destruction of evidence, including his cellphone video and the jail
surveillance cameras. Dkt. No. 53, pp. 15–17 (Pg. ID No. 286–88). Defendants
argue this claim must be dismissed because Palmer’s cellphone was returned and
contained the video; there is no evidence that Trevino or Allen ever possessed the
jail video or caused it to be destroyed; and Palmer can obtain evidence comparable
to the jail video through the testimony of Quentez McKinney and Michael
Crumbly. Dkt. No. 73, pp. 28–29 (Pg. ID No. 554–55).
As an initial matter, the portion of Palmer’s allegations addressing the
cellphone video must be dismissed, as he has conceded that Defendants returned
the cellphone to him, including the video, as of November 2015. See Dkt. No. 733, pp. 30–32 (Pg. ID No. 600–02) (including allegations by Palmer that the video
was altered because it seemed “fuzzy and distorted,” although he could not identify
-26- 

any parts of the video that were removed). Furthermore, the criminal allegations
against Palmer were dismissed when the video was not produced to the district
court. See United States v. Gaskin, 587 F. App’x 290, 295 (6th Cir. 2014), cert.
denied, 135 S. Ct. 1579 (2015) (finding a failure to preserve a video of a traffic
stop was not prejudicial because there was no reasonable probability that a hearing
result would be different had the tape been produced). It cannot be said that Palmer
was denied a fair criminal trial where no trial actually occurred. See Gannett Co. v.
DePasquale, 443 U.S. 368, 394 (1979) (Burger, J., concurring) (noting, by
definition, that a pretrial hearing is not a trial). Additionally, having viewed
Palmer’s cellphone video, it does not appear that there was any “materially
exculpatory” evidence on it. The video shows that at least some of Palmer’s
excessive force allegations were false, and that there was no dispute regarding the
presence of open alcohol in the vehicle. See Dkt. No. 73-4. Accordingly, the video
demonstrated that there was probable cause to arrest Palmer and that no force was
used against him while the video recorded. See id.
Accordingly, the Court will analyze Palmer’s destruction of evidence claim
specifically with regard to the Ecorse jail surveillance video, which Defendants
argue is unavailable due to a “catastrophic failure of its recording system in early
2013.” Dkt. No. 73, p. 29 (Pg. ID No. 555).

-27- 

A. Duty to Preserve Material Exculpatory Evidence
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that a
prosecutor’s suppression of evidence favorable to the accused violates due process
where the evidence is material and exculpatory. The Sixth Circuit extended that
protection further, holding that “the constitutional principles recognized in Brady
apply just as equally to similar conduct on the part of police, and thus support our
recognizing that the police can commit a constitutional deprivation analogous to
that recognized in Brady by withholding or suppressing exculpatory material.”
Moldowan v. City of Warren, 578 F.3d 351, 378–79 (6th Cir. 2009).
“Unlike the destruction or concealment of merely ‘potentially useful’
evidence, the loss of ‘materially exculpatory’ evidence directly threatens the
fundamental fairness of a criminal trial, and thus undoubtedly implicates the Due
Process Clause.” Id. at 385. Brady defined “material exculpatory” evidence as
evidence “favorable to an accused . . . [and] material either to guilt or to
punishment.” 373 U.S. at 87. In “that class of cases where the interests of justice
most clearly require it,” there is a higher burden imposed on state actors. Arizona v.
Youngblood, 488 U.S. 51, 61–62 (1988). Additionally, material exculpatory
evidence must “be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” California v.
Trombetta, 467 U.S. 479, 489 (1984). “Under Trombetta, . . . all that matters is that
-28- 

some reasonable alternative means exists for attempting to do what one would
have attempted to do with the destroyed evidence.” Elmore v. Foltz, 768 F.2d 773,
778 (6th Cir. 1985).
Conversely, where a state actor failed to preserve “potentially useful
evidence” does not constitute a denial of due process of law unless a criminal
defendant can show bad faith on the part of a state actor. Youngblood, 488 U.S. at
58. Even gross negligence by the state actor is insufficient to rise to the level of
bath faith required to find a constitutional violation for the destruction of
potentially useful evidence. United States v. Wright, 260 F.3d 568, 571 (6th Cir.
2001).
B. Claim Against Defendant Officers
Although Palmer has not presented any evidence that Allen or Trevino were
ever in possession of the jail surveillance video, or had means to control the video,
that is not the only reason that his destruction of evidence claim fails as to
Defendant Officers. Palmer’s own allegations and testimony confirm that he has
the ability to obtain comparable evidence through other means, namely the
testimony of Quentez McKinney and Michael Crumbly, who he alleges witnesses
the events in the jail. Dkt. No. 53, p. 8 (Pg. ID No. 279); see, e.g., United States v.
Gaither, 65 F. App’x 514, 517 (6th Cir. 2003) (noting that the defendant’s
testimony at trial and presentation to the jury of his contention that the missing
-29- 

audiotape contained exculpatory evidence, and cross-examination of the
government’s witnesses of this contention, was “comparable evidence by other
means).
Accordingly, the Court will dismiss Palmer’s destruction of evidence claim
as to Allen and Trevino.
C. Claim Against the City of Ecorse
Palmer seeks to hold the City of Ecorse liable for suppression and/or
destruction of evidence through “the conduct of its employees and/or agents and/or
representatives falling within this Count” “[t]hrough the doctrine of respondeat
superior[.]” Dkt. No. 53, p. 16 (Pg. ID No. 287). The Court finds the presence of
this argument concerning. As Palmer’s counsel is well aware from his work in
other cases, “[i]t is well-settled that a municipality cannot be held liable under 42
U.S.C. § 1983 based on a theory of respondeat superior.” Freeman v. City of
Detroit, No. 09-CV-13184, 2011 WL 1869434, at *3 (E.D. Mich. May 16, 2011)
(dismissing the plaintiff’s section 1983 claim and respondeat superior claims
against the City of Detroit with prejudice where Palmer’s counsel represented the
plaintiff). Plaintiff’s counsel is reminded of his obligations under Federal Rule of
Civil Procedure 11(b), that he must perform a reasonable inquiry into whether the
claims within his pleading “are warranted by existing law or by a nonfrivolous

-30- 

argument for extending, modifying, or reversing existing law or for establishing
new law.”
Additionally, Palmer asserts in the Amended Complaint that “Defendant
City of Ecorse is liable because the violation of [Palmer’s] rights described more
fully in this complaint were caused by the policies, practices, customs, and/or
decisions and/or indecisions of policymakers for the Defendants.” Dkt. No. 53,
p. 16 (Pg. ID No. 287). At no point in the Amended Complaint or in any of the
evidence submitted pursuant to this Motion does Palmer flesh out those “policies,
practices, customs, and/or decisions and/or indecisions” in further detail. Palmer
never identifies an official with decision-making authority in his Amended
Complaint, or in his deposition. Even after discovery, Palmer never cites to another
incident where evidence was destroyed—let alone a clear and persistent pattern—
or even mentions a scintilla of evidence that would establish that this was anything
more than an isolated incident of equipment failure. See Thomas v. City of
Chattanooga, 398 F.3d 426, 433 (6th Cir. 2005) (“the plaintiff bears a heavy
burden in proving municipal liability, and he cannot rely solely on a single instance
to infer a policy of deliberate indifference” to constitutional violations).
Thus, the Court will dismiss Palmer’s destruction of evidence claim as to the
City of Ecorse, as well as to the Defendant Officers.

-31- 

6. Count VI: Malicious Prosecution
Next, in his sixth claim, Palmer alleges that “Defendant Officers accused
Plaintiff of criminal activity knowing those accusations to be without genuine
probable cause and they made statements to prosecutors with the intent of exerting
influence and to institute and continue judicial proceedings.” Dkt. No. 53, pp. 17–
18 (Pg. ID No. 288–89). Defendants argue that Count VI must be dismissed
because there was probable cause to arrest and charge Palmer, therefore Palmer
cannot satisfy essential elements of this claim. Dkt. No. 73, pp. 29–31 (Pg. ID No.
555–57).
To succeed on a claim for malicious prosecution, a plaintiff must show the
following three elements: “(1) a criminal prosecution instituted against plaintiff by
defendant, terminating in plaintiff’s favor, (2) absence of probable cause for the
criminal proceeding, and (3) malice or a primary purpose in bringing the action
other than bringing the offender to justice.” Rivers v. Ex-Cell-O Corp., 100 Mich.
App. 824, 832, 300 N.W.2d 420, 424 (1980).
Palmer’s claim is premised on lack of probable cause. Palmer was arraigned
in 25th District Court in Ecorse for three charges: open intoxicants in a motor
vehicle, misdemeanor possession of marijuana, and resisting and obstruction. Dkt.
No. 53, p. 11 (Pg. ID No. 282). All criminal charges were dismissed on October 3,
2012 after police did not produce Palmer’s cellphone. Id. There are no allegations
-32- 

that the district court made this determination based on a finding that the officers
lacked probable cause to arrest Palmer.
“Where the facts are undisputed, the determination whether probable cause
exists is a question of law for the court to decide.” Peterson Novelties, Inc. v. City
of Berkley, 259 Mich. App. 1, 18, 672 N.W.2d 351, 362 (2003). Here, there are
undisputed facts that there was an open container of alcohol in the vehicle next to
Palmer. That alone, excluding the additional allegations that Palmer was not
wearing his seatbelt, was enough for an officer to have probable cause to arrest
him, as discussed in a previous section. Furthermore, once officers were able to
obtain Palmer’s identification—information he previously refused to provide—
there is undisputed evidence that there were four outstanding warrants for Palmer’s
arrest. Accordingly, the criminal proceeding instituted against Palmer by Allen was
not entirely lacking in probable cause, and thus Palmer cannot sustain a claim
against Allen for malicious prosecution.
As in his other claims, Palmer named both Defendant Officers in this count.
However, Palmer failed to allege any facts or provide evidence that would give rise
for a claim of malicious prosecution against Trevino. Accordingly, the Court
dismisses Palmer’s malicious prosecution claim in its entirety.

-33- 

7. Count VII: Intentional Infliction of Emotional Distress
In his seventh claim, Palmer alleges that “the acts and/or omissions and/or
conduct of the Defendant Officers . . . were extreme and outrageous.” Dkt. No. 53,
pp. 18–19 (Pg. ID No. 289–90). Defendants argue that Count VII must be
dismissed as to Allen because Palmer cannot demonstrate a prima facie case of
intentional infliction of emotional distress as to Allen. Dkt. No. 73, p. 31 (Pg. ID
No. 557).
In Michigan, to establish a claim of intentional infliction of emotional
distress, “a plaintiff must show (1) extreme and outrageous conduct, (2) intent or
recklessness, (3) causation, and (4) severe emotional distress.” Teadt v. Lutheran
Church Missouri Synod, 237 Mich. App. 567, 582, 603 N.W.2d 816, 823 (1999).
“Liability for such a claim 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.” Id. at 582, 603 N.W.2d 823–24. “It has been said that
the case is generally one in which the recitation of facts to an average member of
the community would arouse resentment against the actor, and lead the average
member of the community to exclaim ‘Outrageous!’ ” Id., 603 N.W.2d 824.
This is a demanding standard. Graham v. Ford, 237 Mich. App. 670, 674,
604 N.W.2d 713, 716 (1999). “It is not enough that the defendant has acted with an
-34- 

intent that is tortious or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by ‘malice,’ or a degree of
aggravation that would entitle the plaintiff to punitive damages for another tort.”
Id. The trial court generally determines whether alleged conduct meets this
standard, but the question is for the jury where reasonable minds may differ.
Garretson v. City of Madison Heights, 407 F.3d 789, 799 (6th Cir. 2005).
“Whether a defendant’s acts were sufficiently outrageous depends upon the
context in which the defendant committed them.” Bhama v. Bhama, 169 Mich.
App. 73, 80, 425 N.W.2d 733 (1988). The extreme and outrageous character of a
defendant’s conduct may arise when the defendant abuses a relationship that puts
him in a position of actual or apparent authority over plaintiff or gives the
defendant power to affect plaintiff’s interests. Warren v. June’s Mobile Home Vill.
& Sales, Inc., 66 Mich. App. 386, 391, 239 N.W.2d 380, 383 (1976).
The Court finds that a reasonable jury would be unable to conclude that
Allen’s alleged choking of Palmer was sufficiently outrageous to sustain a claim
for intentional infliction of emotional distress. Compare Hayward v. Cleveland
Clinic Found., 759 F.3d 601, 619–20 (6th Cir. 2014) (breaking down plaintiffs’
door, blindly deploying Tasers, shouting racial epithets, beating individual, and
threatening elderly couple with physical violence was sufficiently outrageous);
with Turner v. Viviano, No. 04-CV-70509-DT, 2005 WL 1678895, at *14 (E.D.
-35- 

Mich. July 15, 2005) (finding allegations that officers simultaneously choked and
struck plaintiff, and used at least one racial epithet to be insufficiently outrageous).
Accordingly, the Court will dismiss Palmer’s intentional infliction of
emotional distress claim as to Allen only.
8. Count VIII: Federal Civil Conspiracy
Next, in his eighth claim, Palmer alleges that Defendant Officers engaged in
a federal civil conspiracy, “by concerted action and/or inaction and/or omission to
act, sought to make false allegation and/or misrepresentations to and against
[Palmer], immediately resulting in and/or was a proximate cause of the illegal
arrest and/or illegal search and seizure of his person and/or property and/or
destruction of property and/or loss and/or destruction of evidence and/or false
imprisonment and/or malicious prosecution and/or assault and battery and/or
excessive force of [Palmer] on or about August 11, 2012.” Dkt. No. 53, pp. 19–20
(Pg. ID No. 290–91). Defendants assert that this claim must be dismissed because
Palmer has not provided any evidence to support an alleged conspiracy. Dkt. No.
73, pp. 32–33 (Pg. ID No. 558–59).
“A civil conspiracy is ‘an agreement between two or more persons to injure
another by unlawful action.’ ” Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004)
(quoting Weberg v. Franks, 229 F.3d 514, 526 (6th Cir. 2000)). Palmer must show
(1) “that there was a single plan”; (2) “that the alleged coconspirator shared in the
-36- 

general conspiratorial objective”; and (3) “that an overt act was committed in
furtherance of the conspiracy that caused injury to the complainant.” Hooks v.
Hooks, 771 F.2d 935 (6th Cir. 1985). “Claims of conspiracy must be pled with
some specificity: vague and conclusory allegations that are unsupported by
material facts are not sufficient to state a § 1983 claim.” Farhat, 370 F.3d at 599
(citing Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)).
Defendants argue that they are entitled to summary judgment on both
Palmer’s federal and state conspiracy claims because of a lack of evidence. In his
deposition, the only evidence that Palmer offered of conspiracy, aside from the
alleged actions and statements by Allen and Trevino, was that “[n]o detective ever
came back and called [Palmer] or asked [him] questions about [the incidents about
which he submitted complaints.]” Dkt. No. 73-3, p. 29 (Pg. ID No. 599).
The only interaction Palmer alleges between Allen and Trevino occurred
after both instances of alleged force. See Dkt. No. 73-3, p. 25 (Pg. ID No. 595).
Palmer claims that two men were talking and Allen stated “I’m glad you beat
[Palmer’s] ass” and “what I said the other day must have got around.” Id. (failing
to identify what Allen allegedly said that “got around”). There are no allegations
that the two men used force together, or that they talked, met, or otherwise
communicated to form a single plan between Allen’s alleged use of force and
Trevino’s alleged use of force. See, e.g., Johnson v. City of Ecorse, 137 F. Supp.
-37- 

2d 886, 893-94 (E.D. Mich. 2001) (denying summary judgment on a civil
conspiracy claim where the defendant officers were alleged to have used excessive
force together, simultaneously, in their arrest of the plaintiff for driving on a
suspended license).
Thus, based on all the evidence presented, it is clear that Palmer’s federal
civil conspiracy claim lacks the degree of specificity and support of material facts
necessary to state such a claim under § 1983 at the summary judgment stage. See
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); Dunn v. Sch. Dist. of the
City of Detroit, No. 07-11950, 2008 WL 4279363, at *5 (E.D. Mich. Sept. 16,
2008) (denying summary judgment on a civil conspiracy claim where the
plaintiff’s pleadings and deposition testimony went “beyond generalized
allegations of a conspiracy to identify a specific intent to use excessive force . . .
and to fabricate a cover-up story in support of a criminal complaint”).
Accordingly, the Court dismisses Palmer’s federal civil conspiracy claim as
to Allen and Trevino.
9. Count IX: State Civil Conspiracy
In his ninth claim, Palmer alleges that Defendant Officers engaged in a civil
conspiracy under state law by “committ[ing] overt acts and . . . willful[ly]
participat[ing] in joint activity including but not limited to illegal arrest and/or
illegal search and seizure of his person and/or property and/or destruction of
-38- 

property and/or loss and/or destruction of evidence and/or false imprisonment
and/or malicious prosecution and/or assault and battery and/or excessive force of
[Palmer] on or about August 11, 2012.” Dkt. No. 53, pp. 20–21 (Pg. ID No. 291–
92). As in their argument to dismiss Palmer’s federal civil conspiracy claim,
Defendant Officers argue that this claim must be dismissed because Palmer has not
provided any evidence to support an alleged conspiracy. Dkt. No. 73, pp. 32–33
(Pg. ID No. 558–59).
“Under Michigan Law, a civil conspiracy consists of (1) a concerted action,
(2) by a combination of two or more persons, (3) to accomplish an unlawful
purpose, (4) or to accomplish a lawful purpose by unlawful means.” Keyes v.
Deutsche Bank Nat. Trust Co., 921 F. Supp. 2d 749, 763 (E.D. Mich. 2013). Again,
conspiracy claims must be pled with some degree of specificity. See Moldowan v.
City of Warren, 578 F.3d 351, 395 (6th Cir. 2009). Vague and conclusory
allegations unsupported by material facts will not suffice. Id.
Palmer’s Amended Complaint contains nothing more than just these kinds of
“vague and conclusory allegations.” Indeed, Palmer has pleaded no specific facts
to support a finding that Allen and Trevino communicated prior to the separate
instances of alleged assault, or that they conspired together to assault Palmer.
Therefore, Palmer’s state conspiracy claim with respect to Allen and Trevino lacks

-39- 

the requisite material facts and specificity required and it therefore fails to state a
cognizable claim at the summary judgment stage.
The Court dismisses Palmer’s state civil conspiracy claim as to Allen and
Trevino.
10. Count X: Gross Negligence
Next, in his tenth count, Palmer states a claim against Defendant Officers for
gross negligence. Dkt. No. 53, pp. 21–23 (Pg. ID No. 292–94). The Amended
Complaint lists the following allegations in support of the gross negligence claim:
“[u]sing unreasonable, unnecessary force”; “[b]rutally assaulting and battering”
Palmer; “Allen’s act of grabbing [Palmer] by his neck and squeezing so tightly that
he had difficulty breathing ; “Trevino’s use of the department issued TASER
repeatedly”; “[f]alsely arresting and imprisoning” Palmer; and “[t]aking [Palmer’s]
cell phone and precluding him from recording public agents and/or officials and/or
representatives while on-duty[.]” Id. at 22. Defendants argue that this claim must
be dismissed because it is supported solely by Palmer’s intentional tort allegations.
Dkt. No. 73, pp. 33–34 (Pg. ID No. 559–60).
Michigan’s Governmental Immunity Act, MICH. COMP. LAWS § 691.1407,
provides that “a governmental employee is not liable in tort for personal injuries so
long as the employee’s ‘conduct does not amount to gross negligence that is the
proximate cause of the injury or damage.’ ” Oliver v. Smith, 269 Mich. App. 560,
-40- 

715 N.W.2d 314, 317 (2006) (quoting MICH. COMP. LAWS § 691.1407(2)(c)).
Under Michigan law, a police officer may be held liable in tort only if “the officer
has utilized wanton or malicious conduct or demonstrated a reckless indifference to
the common dictates of humanity.” Bennett v. Krakowski, 671 F.3d 553, 560 (6th
Cir. 2011) (internal quotation marks omitted). Further, tort liability will not lie
unless the officer’s conduct “is the proximate cause of the injury or damage.”
Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 408 (6th Cir. 2007) (internal
quotation marks omitted). “[T]he Michigan Supreme Court [has] defined ‘the
proximate cause’ under § 691.1407(2)(c) to mean ‘the one most immediate,
efficient, and direct cause preceding an injury.’ ” Id. (quoting Robinson v. City of
Detroit, 462 Mich. 439, 613 N.W.2d 307, 317 (2000)).
Michigan law “reject[s] attempts to transform claims involving elements of
intentional torts into claims of gross negligence.” See VanVorous v. Burmeister,
687 N.W.2d 132, 143 (Mich. Ct. App. 2004), overruled in part on other grounds
by Odom v. Wayne Co., 482 Mich. 459, 760 N.W.2d 217 (2008). Therefore, “if a
claim of gross negligence is premised on [an] alleged assault of plaintiff,”
summary disposition of the gross negligence claim is appropriate. Norris v. Police
Officers, 808 N.W.2d 578, 584 (Mich. Ct. App. 2011).
Similarly, the Sixth Circuit has clearly held that “gross negligence” is not an
independent cause of action for claims that sound in excessive force:
-41- 

In Count I of her amended complaint, plaintiff claims that defendants’
alleged use of excessive force constituted gross negligence, which is
actionable under MICH. COMP. LAWS § 691.1407. Although
establishing that a governmental official’s conduct amounted to “gross
negligence” is a prerequisite to avoiding that official’s statutory
governmental immunity, it is not an independent cause of action. The
only cause of action available to plaintiff for allegations of this nature
would be for assault and battery. See, e.g., VanVorous v. Burmeister,
262 Mich. App. 467, 687 N.W.2d 132, 143 (2004) (“Thus, plaintiff’s
claim of gross negligence is fully premised on her claim of excessive
force. As defendants correctly note, this Court has rejected attempts to
transform claims involving elements of intentional torts into claims of
gross negligence. Thus, plaintiff did not state a claim on which relief
could be granted.”) (citations omitted); see also Livermore, 476 F.3d
at 408 (rejecting gross-negligence claim against an officer-defendant
because it was “undoubtedly premised on the intentional tort of
battery” where it was based on a shooting that resulted in death).
Therefore, the district court erred in not dismissing plaintiff’s statelaw gross-negligence claim. As a result, we reverse the district court’s
decision to deny summary judgment on this claim.
Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011); see also Nelson v. Green Oak
Twp., No. 14-10502, 2016 WL 233100, at *21–22 (E.D. Mich. Jan. 20, 2016)
(collecting cases where gross negligence claims were dismissed based on reliance
on intentional torts).
Accordingly, if a jury concludes that Allen and Trevino used excessive force
against Palmer, “such conduct would be considered intentional” and would give
rise not to a claim for gross negligence but to claims for excessive force and assault
and battery. See Jackson v. City of Highland Park, No. 15-10678, 2015 WL
3409013, at *3 (E.D. Mich. May 27, 2015). Accordingly, the Court dismisses
Palmer’s gross negligence claim.
-42- 

11. Count XI: Assault and Battery
In his eleventh claim, Palmer alleges that Defendant Officers are guilty of
assault and battery for “willfully and intentionally touch[ing] [Palmer] against his
will[.]” Dkt. No. 53, pp. 23–24 (Pg. ID No. 294–95). Defendants assert Allen is
entitled to qualified immunity with respect to this claim. Dkt. No. 73, pp. 33–34
(Pg. ID No. 559–60).
“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.’ ” Grawey v. Drury, 567 F.3d 302, 315 (6th Cir. 2009) (quoting
People v. Nickens, 470 Mich. 622, 685 N.W.2d 657, 661 (2004)). A battery is
defined as “ ’an unintentional, unconsented and harmful or offensive touching of
the person of another, or of something closely connected with the person.’ ” Id.
The Michigan Supreme Court has stated that the proper method for
determining whether governmental immunity applies to intentional torts, such as
assault and battery, is to apply the test set forth in Ross v. Consumers Power Co.,
420 Mich. 567, 363 N.W.2d 641, 647 (1984). Odom v. Wayne County, 482 Mich.
459, 760 N.W.2d 217, 228 (2008). “Under the Ross test, an employee enjoys a
right to immunity if (1) the employee undertook the challenged acts during the
course of his employment and was acting, or reasonably believed that he was
acting, within the scope of his authority; (2) the employee undertook the
-43- 

challenged acts in good faith or without malice; and (3) the acts were discretionary,
rather than ministerial, in nature.” Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir.
2011) (citing Odom, 760 N.W.2d at 228). “Defendants bear the burden of
establishing their entitlement to immunity from plaintiff’s state-law claims.” Id.
The only factor disputed in the present case is whether Allen was acting in
good faith and without malice when he allegedly assaulted Palmer at the traffic
stop. The Ross test differs from qualified immunity under federal law, because it is
subjective, rather than objective, in nature. Odom, 482 Mich. at 481–82. “It
protects a defendant’s honest belief and good-faith conduct with the cloak of
immunity while exposing to liability a defendant who acts with malicious intent.”
Id. Thus, Defendants must establish that Allen acted without malice. Id. at 475.
Viewing the evidence in a light most favorable to Palmer, it is not
impossible for a reasonable jury to find that Allen acted with malice. Here, Palmer
alleges that he was not resisting at the time of the alleged choking incident, or
engaging in any other conduct that would make choking an action meeting a
subjective standard of good faith. See Dkt. No. 73-3, p. 12 (Pg. ID No. 582).
Accordingly, Allen is not entitled to qualified immunity and the Court will not
dismiss Palmer’s assault and battery claim as to Allen or Trevino.

-44- 

12. Count XII: Ethnic Intimidation
Next, in his twelfth claim, Palmer brings a state law claim for ethic
intimidation, MICH. COMP. LAWS § 750.147b, as to the Defendant Officers. Dkt.
No. 53, pp. 24–26 (Pg. ID No. 295–97). Defendants assert that Palmer failed to
allege Allen engaged in acts due to racial animus, and thus he must be dismissed
from this claim. Dkt. No. 73, pp. 32–33 (Pg. ID No. 558–59).
Michigan law provides a civil cause of action to “a person who suffers injury
to his or her person or damage to his or her property as a result of ethnic
intimation.” MICH. COMP. LAWS § 750.147b(3). Palmer claims that Allen and
Trevino “brutalized, intimidated, harassed, battered and assaulted” and “screamed
racial ethnic slurs” at Palmer because he is of African American descent. Dkt. No.
53, p. 25 (Pg. ID No. 296). Nevertheless, Palmer has not produced any evidence
that Allen uttered racial slurs or otherwise discriminated against him because of his
race. All of Palmer’s evidence of racial animus focused solely on Trevino.
Because “[t]he statute is satisfied only when there is evidence of an
underlying predicate criminal act committed because of racial animosity, People v.
Richards, 202 Mich. App. 377, 379, 509 N.W.2d 528, 529 (1993), Palmer has not
presented sufficient evidence to make a claim of ethnic intimidation against Allen.
See, e.g., Devoe v. Rebant, No. 05-71863, 2006 WL 334297, at *8 (E.D. Mich.
Feb. 13, 2006) (dismissing ethnic intimidation claim where the plaintiff “fail[ed] to
-45- 

present any evidence suggesting that defendants’ conduct was motivated in any
degree by his race); Owens v. Fraser Pub. Sch., No. 94-CV-71872-DT, 1995 WL
871216, at *12 (E.D. Mich. Oct. 31, 1995) (granting summary judgment where the
plaintiff proffered no evidence that the defendant acted with the specific intent to
harass plaintiff because of his race); People v. Stevens, 230 Mich. App. 502, 506,
584 N.W.2d 369, 371 (1998) (defendant’s “use of the word ‘nigger,’ his reference
to the complainant as a ‘black bitch,’ and his remark that ‘you people shouldn’t be
allowed in here’ ” provided strong evidence of racist motive).
Thus, the Court will dismiss this claim as to Allen only.
13. Count XIII: Abuse of Process
In the thirteenth and final count, Palmer alleges that the Defendant Officers
are liable for abuse of process because they provided allegedly false documentation
to commence criminal proceedings against Palmer. Dkt. No. 53, pp. 26–28 (Pg. ID
No. 26–29). Defendants argue that an abuse of process claim cannot be sustained
because all the facts allege that Defendant Officers wrongfully initiated a criminal
proceeding, not that they misused the process. Dkt. No. 73, pp. 36–37 (Pg. ID No.
562–63).
In Michigan, “[t]o recover upon a theory of abuse of process, a plaintiff must
plead and prove (1) an ulterior purpose and (2) an act in the use of process which is
improper in the regular prosecution of the proceeding.” Friedman v. Dozorc, 412
-46- 

Mich. 1, 30, 312 N.W.2d 585, 594 (1981). “The gravamen of the misconduct for
which the liability stated in this Section is imposed is not the wrongful
procurement of legal process or the wrongful initiation of criminal or civil
proceedings; it is the misuse of process, no matter how properly obtained, for any
purpose other than that which it was designed to accomplish.” Id. at n.18 (quoting
Restatement (Second) of Torts § 682 cmt. a (1977)).
Accordingly, Palmer’s abuse-of-process claim against Allen and Trevino
fails because the Defendant Officers’ alleged conduct is entirely rooted with the
initiation of criminal proceedings, not the misuse of the process. Spear v. Pendill,
164 Mich. 620, 623, 130 N.W. 343, 344 (1911) (an “action for the abuse of process
lies for the improper use of process after it has been issued, not for maliciously
causing it to issue.”); see also Garcia v. Thorne, 520 Fed. App’x. 304, 311 (6th
Cir. 2013); DirecTV, Inc. v. Zink, 286 F. Supp. 2d 873, 876 (E.D. Mich. 2003).
The Court is unable to find any support that Palmer’s claim for abuse of
process was “warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law.” FED.
R. CIV. P. 11(b). Other Courts have found that an attorney’s filing such a claim
may be sanctionable conduct. See Powell v. Squire, Sanders & Dempsey, 182 F.3d
918 (6th Cir. 1999) (table) (upholding in part imposition of sanctions because
abuse of process claim “utterly lacked any basis in law”); Cruz v. Don Pancho
-47- 

Mkt., LLC, No. 1:15-CV-698, 2016 WL 929332, at *6–7 (W.D. Mich. Mar. 8,
2016) (ordering party that filed abuse of process claim to show cause why the
pleading did not violate Rule 11(b)).
The Court dismisses Palmer’s abuse of process claim.
V. CONCLUSION
For the reasons stated herein, the Court will GRANT in part and DENY in
part Defendants’ Motion for Summary Judgment [73]. The Court will DISMISS
Count II against the City of Ecorse; Count III against Allen and Trevino; Count IV
against Allen and Trevino; Count V against the City of Ecorse, Allen, and Trevino;
Count VI against Allen and Trevino; Count VII against Allen; Count VIII against
Allen and Trevino; Count IX against Allen and Trevino; Count X against Allen
and Trevino; Count XII against Allen; and Count XIII against Allen and Trevino.
According, the remaining counts are Count I (excessive force) against Allen
and Trevino; Count VII (intentional infliction of emotional distress) against
Trevino; Count XI (assault and battery) against Allen and Trevino; and Count XII
(ethnic intimidation) against Trevino.
IT IS SO ORDERED.
Dated: June 21, 2016
Detroit, Michigan

s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

-48- 

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court's ECF System
to their respective email or First Class U.S. mail addresses disclosed on the Notice
of Electronic Filing on June 21, 2016.
s/Tanya R. Bankston
TANYA R.BANKSTON
Case Manager & Deputy Clerk

-49-