Hemphill v. City of Taylor et al

Filing 51

ORDER Accepting 50 Report and Recommendation to Grant Defendants' 33 Motion for Summary Judgment and to Deny as Moot Defendants' Ex-Parte 38 Sealed Motion for Order Permitting John Doe Deposition. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRANDON MAURICE HEMPHILL,
Plaintiff,

CASE NO. 14-14958
HON. DENISE PAGE HOOD

v.
CITY OF TAYLOR, et al.,
Defendants.
/

ORDER ACCEPTING REPORT AND RECOMMENDATION [#50]
TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
[#33] AND TO DENY AS MOOT DEFENDANTS’ EX PARTE SEALED
MOTION FOR ORDER PERMITTING JOHN DOE DEPOSITION [#38]

This matter is before the Court on a Report and Recommendation (Doc # 50)
filed by Magistrate Judge Mona K. Majzoub on Defendants’ Motion for Summary
Judgment (Doc # 33), and Defendants’ Ex Parte Sealed Motion for Order
Permitting Them to Take John Doe Deposition (Doc # 38). To date, no objections
were filed to the Report and Recommendation and the time to file such has passed.
The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo
determination of those portions of the report or the specified proposed findings or
recommendations to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). The
1

court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. In order to preserve the right
to appeal the magistrate judge’s recommendation, a party must file objections to
the Report and Recommendation within fourteen (14) days of service of the Report
and Recommendation. Fed. R. Civ. P. 72(b)(2). Failure to file specific objections
constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140,
155 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09
(6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
After review of the Magistrate Judge’s Report and Recommendation, the
Court finds that her findings and conclusions are correct. The Court agrees with
the Magistrate Judge that the Taylor Police Department is not a proper defendant in
this matter and should be dismissed. The Court agrees that 18 U.S.C. § 241 and 18
U.S.C. § 242 do not provide Plaintiff with a private cause of action. The Court
further agrees with the Magistrate Judge that Plaintiff’s malicious prosecution
Section 1983 claim fails because Plaintiff has failed to set forth any factual
allegations or evidence to show that there was a lack of probable cause for the
prosecution. 1

The Court agrees that any equal protection claim under the

1

Plaintiff’s own admissions during a videotaped police interview following his arrest for armed
robbery, as well as Plaintiff’s written statement to the police and deposition testimony, show that
Plaintiff cannot establish that there was a lack of probable cause. See Doc # 33-5; Doc # 33-7
(stating “I fled the sencen [sic] simply because I had prior warnts [sic] from a few years back and
because I knew there were guns in the car. However I also knew I had touched a few guns so I
felt as if it would had look [sic] like one of them was mines [sic]”); Doc # 33-10, Pg ID 310-11.
2

Fourteenth Amendment also fails because the alleged statements on the part of
Defendant Jason Hall, standing alone, do not rise to the level of a constitutional
violation.2 The Court also agrees with the Magistrate Judge that any claim based
on Defendants’ testimony at the preliminary exam related to the criminal charges
and/or at Plaintiff’s murder trial fails because Defendants are entitled to absolute
immunity from suit on this basis. The Court agrees that Plaintiff’s Monell claim
against Defendant City of Taylor fails because Plaintiff cannot establish that he
suffered a constitutional violation at the hands of the individual Defendants. The
Court agrees that Plaintiff’s conspiracy claim under 42 U.S.C. § 1985(3) fails
because his equal protection claim under Section 1983 cannot survive summary
judgment. Lastly, the Court agrees with the Magistrate Judge that declining to
exercise supplemental jurisdiction over Plaintiff’s state law claims is appropriate
here because the Court will dismiss all of Plaintiff’s federal claims for the reasons
set forth above.
Accordingly,

2

Even if Defendant Hall’s alleged remark that Plaintiff is “just another young black boy from
Inkster waiting on a bullet” is a racial epithet, the isolated use of a racial epithet, while
reprehensible, does not rise to the level of a constitutional violation unless accompanied by other
misconduct on the part of the officer. See Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.
1999); Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999); Brims v. Barlow, 441 F. App’x
674, 678 (11th Cir. 2011); Patton v. Przybylski, 822 F .2d 697, 700 (7th Cir. 1987); Guzinski v.
Hasselbach, 920 F. Supp. 762, 764 n.1 (E.D. Mich. 1996); Davis v. Michigan Dep’t of Corr.,
746 F. Supp. 662, 667 (E.D. Mich. 1990); Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453,
455 (6th Cir. 2012).
3

IT IS ORDERED that Magistrate Judge Mona K. Majzoub’s Report and
Recommendation (Doc # 50) is ACCEPTED and ADOPTED as this Court’s
findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment (Doc # 33) is GRANTED for the reasons set forth above.
IT IS FURTHER ORDERED that Defendants’ Defendants’ Ex Parte Sealed
Motion for Order Permitting Them to Take John Doe Deposition (Doc # 38) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice.

Dated: August 23, 2017

s/Denise Page Hood
Chief, U.S. District Court

I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 23, 2017, by electronic and/or ordinary mail.

s/Julie Owens
Acting in the absence of LaShawn Saulsberry
Case Manager

4