Jacobs v. Alam et al

Filing 125

ORDER Regarding Various 80 , 83 , 84 , 86 Motions for Summary Judgment. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDUARDO JACOBS,
Plaintiff,

CASE NO. 15-10516
HON. DENISE PAGE HOOD

v.
RAYMON ALAM,
DAMON KIMBROUGH,
MICHAEL KNOX,
DAVE WEINMAN,
Defendants.
/
ORDER REGARDING VARIOUS MOTIONS FOR
SUMMARY JUDGMENT [#80; #83; #84; #86]
I.

BACKGROUND
On February 9, 2015, Plaintiff Eduardo Jacobs (“Jacobs”) filed this action

against Defendants Ramon Alam (“Alam”), Damon Kimbrough (“Kimbrough”),
Michael Knox (“Knox”), and David Weinman (“Weinman”). (Doc # 1) On July
27, 2015, Jacobs filed a First Amended Complaint alleging two counts: Bivens
Claim (Count I); and Violation of Civil Rights pursuant to 42 U.S.C. § 1983 (Count
II). (Doc # 25) On November 13, 2015, this Court entered an Order Granting
Defendants’ Motion for Summary Judgment on Count II, and dismissed Count II of
the First Amended Complaint. (Doc # 37) This matter is presently before the Court

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on cross motions for summary judgment on the remaining Bivens Claim (Count I).
(Doc # 80; Doc # 83; Doc # 84; Doc # 86) The four motions have been briefed.
On January 3, 2014, Detroit Police Officers Kimbrough and Knox, along with
Wayne County Deputy Sheriffs Alam and Weinman, were executing a federal
immigration warrant for Reyes Vargas at a house located at 5837 Christiancy in
Detroit, Michigan. They were doing so as part of the Detroit Fugitive Apprehension
Team, a law enforcement agency comprised of federal, state, and local law
enforcement agents from southeast Michigan. Present at the house were Javier
Vargas, Sr. (“Vargas, Sr.”), Reyes Vargas’s brother, as well as Javier Vargas, Jr.
(“Vargas, Jr.”) and his friend Michelle Dotson (“Dotson”). Vargas, Sr. was the
tenant of the main floor and second floor of the house. Plaintiff Jacobs was the
tenant of the basement level of the house, and he was not at the house when
Defendants arrived.
Defendants all arrived at the house in separate, unmarked vehicles, and they
all approached the door. They were in plain clothes, and the parties dispute whether
Defendants were displaying their badges on their chests and/or their duty belts. It
was nighttime and dark outside. Vargas, Sr. answered the door and consented to
Defendants’ entry and search of at least the main floor and second floor of the single
house dwelling. The parties dispute whether Vargas, Sr. informed Defendants at
that time that he could not consent to a search of the basement, as that was Jacobs’s
2

unit. However, it is undisputed that Kimbrough and Knox performed a sweep of the
entire house, including the basement. Kimbrough testified that they were looking
for Reyes Vargas and ensuring the house was free of any potential threat. The parties
dispute whether Defendants “ransacked” the basement or moved any items.
While Kimbrough and Knox swept the house, Alam began interviewing
Vargas, Sr., Vargas, Jr., and Dotson in the dining room. Kimbrough and Knox joined
Alam in the dining room after they cleared the house. After a while, Knox and
Vargas, Sr. left the house. Vargas, Sr., Knox, and Weinman went to look for Reyes
Vargas around the neighborhood. Kimbrough and Alam remained inside the house
interviewing Vargas, Jr. and Dotson.
Later that night, Jacobs arrived at the house. He had a concealed pistol license
and a loaded weapon, a Glock 9-millimeter, on his person. At this time, Knox was
outside the house, inside his vehicle. Weinman was outside the house, inside his
own vehicle, interviewing Vargas, Sr. Weinman saw Jacobs pull up to the house in
his truck. Vargas, Sr. told Weinman that Jacobs lived in the basement. (Doc # 837, Pg ID 755) Weinman alerted Kimbrough and Alam—who were still inside the
house with Vargas, Jr. and Dotson—via radio that another person who lived in the
basement, per Vargas, Sr., was possibly going to enter the house. Id. at 757.
Kimbrough went to the front door of the house to wait for Jacobs. Jacobs, however,
entered the house through a rear entry which went directly into the basement level.
3

Shortly thereafter, it is undisputed that Jacobs rapidly ascended the stairs from
the basement and into the kitchen while shouting (something to the effect of, “Who
the fuck went into my house?!”) and forcefully opening the door into the kitchen on
the main floor of the house. Kimbrough was sitting at the dining room table and was
closest to the kitchen. Vargas, Jr. and Dotson were in the dining room. Alam was
pacing back and forth between the dining room and living room area. Upon hearing
the bang of the door, Kimbrough, Vargas, Jr., and Dotson all jumped up. Within
seconds, shots were fired. Many of the details surrounding the shooting are disputed
and testimony at the various criminal proceedings and depositions is at times
conflicting.
Jacobs testified at his deposition that he walked up the stairs with his gun at
his side in its holster, but that he did not have his hand on his gun. (Doc # 84-6, Pg
ID 1308-09) He testified consistently at the criminal trial. (Doc # 84-4, Pg ID 117172) Jacobs stated that he was excited, wanted to find out who went into his property,
and went up the stairs shouting, “Who the fuck went into my house?!” Id. Jacobs
testified that as he opened the door into the kitchen, he saw an “eight-foot black
man” who “was not supposed to be there.” (Doc # 84-6, Pg ID 1309) Jacobs testified
that he immediately turned around, reached for his weapon but was never able to
unholster it, and fell down the steps. Id.; Doc # 84-4, Pg ID 1175, 1193-94, 1214,
1223. He never entered the dining room or kitchen. (Doc # 84-4, Pg ID 1174, 1177)
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Jacobs testified that someone started shooting him as soon as he turned his back, and
that he slid down the stairs as he was being shot at. Id. at 1178; Doc # 84-6, 1310.
Jacobs testified that no one ever identified themselves as Detroit Police or told him
to drop his gun. (Doc # 84-4, Pg ID 1175) Jacobs testified that all he could see when
he got to the top of the stairs was Kimbrough’s face. Id. at 1194-95. He testified
that he reached for his weapon to feel secure, but that Kimbrough had not threatened
him—Jacobs just knew “he wasn’t supposed to be there” because all of his
neighbor’s friends were Hispanic, not black. Id. at 1214-15.
At the preliminary examination, Kimbrough testified that he had his back to
the kitchen when he heard the banging door, and that when he turned around to face
the kitchen, Jacobs was pointing a gun to his face. (Doc # 86-2, Pg ID 1727)
Kimbrough testified that he screamed to him to put the gun down two or three times,
and that he identified himself as a police officer. Id. Jacobs did not comply and
fired his gun at Kimbrough first. Id. Kimbrough then fired back a few rounds from
where he was standing. He saw Jacobs advancing towards him, and Kimbrough ran
into a nearby bedroom for cover. Id. at 1729. Kimbrough also stated that he saw a
live 9-millimeter round on the floor of the kitchen, in the area where Jacobs had been
standing. Id. at 1743. Kimbrough testified consistently at the criminal trial and at
his deposition. (Doc # 84-3, Pg ID 933-35; Doc # 80-2, Pg ID 603-08) Kimbrough
testified that he fired at least three shots through the wall of the bedroom to the area
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at the top of the basement stairs where Jacobs had been standing, with the intention
to kill Jacobs after Jacobs had shot at him two to three times and had ignored his
commands to put the gun down. (Doc # 80-2, Pg ID 608)
At the preliminary examination, Alam testified that Jacobs came from the
basement, swung the door open, and had a gun raised at eye level. (Doc # 86-2, Pg
ID 1701) Alam further testified that Kimbrough said, “police, drop the weapon”
before he heard any shots being fired. Id. at 1702. Alam testified that he then
returned fire because he was in fear for his life, his partner’s life, and the lives of the
two witnesses who were in the house. Id. at 1703. Alam testified consistently at the
criminal trial and deposition. (Doc # 84-3, Pg ID 1059; Doc # 86-3, Pg ID 1790-91)
He testified that he could not see who pulled the trigger, and that it was possible that
Kimbrough shot at Jacobs and that Jacobs never shot at Kimbrough. (Doc # 86-3,
Pg ID 1791)
At the preliminary examination, Dotson testified that after she heard the bang
of the door, the officers said, “Detroit Police,” and she just started hearing gunshots.
(Doc # 86-2, Pg ID 1761) She testified that the officers had their hands on their guns
and said, “Detroit Police” before drawing their guns. Id. at 1767. She also testified
that she could not actually see Jacobs holding or firing the gun. Id. at 1767-68, 1771.
She testified consistently at the criminal trial. (Doc # 84-3, Pg ID 981) She also
testified that she heard gunfire coming from the kitchen area, and that she heard the
6

person who came up to the kitchen from the basement start automatically shooting.
Id. at 983, 991. Dotson testified that everything happened very quickly. Id. at 994.
At the preliminary examination, Vargas, Jr. testified that after he heard the
bang of the door, he heard a shot that he thinks came from the kitchen. (Doc # 862, Pg ID 1777) He testified that he could not see Jacobs. Id. at 1779-80. He also
testified that he thinks he heard two shots before he heard, “Detroit Police.” Id. at
1781. Vargas, Jr. testified consistently at the criminal trial. (Doc # 86-7, Pg ID
1882-83)
At the preliminary examination, there was additional testimony from Sergeant
Joe Abdella (“Abdella”), an officer who was dispatched to the house to investigate
the shooting. Abdella has since passed away. Abdella testified that he spoke with
Jacobs at the Detroit Detention Center on the night of the shooting. (Doc # 86-2, Pg
ID 1746) Abdella attempted to explain to Jacobs his constitutional rights several
times, but Jacobs kept making unsolicited statements. Id. at 1747. Abdella testified
that Jacobs told him that he could have shot the officer, that he had the jump on him,
that he had his gun right on the officer, but that he did not pull the trigger when he
had the opportunity to because he thought he recognized one of the people in the
room. Id. at 1748. Abdella testified consistently at the criminal trial. (Doc # 84-3,
Pg ID 1081-82)

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While shots were being fired, Vargas, Jr. and Dotson ran toward the living
room and the main door of the house. Alam pushed them toward the door and out
of harm’s way. After the shooting subsided, Kimbrough and Alam were on the main
floor of the house, and Jacobs had gone back down to the basement. Kimbrough and
Alam ordered Jacobs to place his gun on top of the washer/dryer in the basement and
to come up the stairs with his hands up. Jacobs did as he was told, and Kimbrough
handcuffed him while Alam provided cover. According to Kimbrough, Jacobs said,
“You look like the motherfucker that robbed me last week.” (Doc # 84-3, Pg ID
940) Weinman and Knox heard the shots from outside and approached the house,
but by the time they entered the house, the shooting was over, and Jacobs was being
handcuffed.
EMS subsequently transported Jacobs to Detroit Receiving Hospital.
According to the medical records, Jacobs sustained a gunshot wound to the left arm
“in the posterior superior aspect” with a retained bullet fragment. (Doc # 86-14, Pg
ID 1988) He also sustained a small skin wound in his left lower abdomen that
“appear[ed] to be another very superficial gunshot wound.” Id. According to
Jacobs, he spent about four hours at the hospital. (Doc # 84-6, Pg ID 1315) The
medical records indicate that he was then discharged and released into police custody
in stable condition. (Doc # 86-14, Pg ID 1988) According to a forensic laboratory

8

report, the bullet fragment removed from Jacobs’s arm came from Kimbrough’s
weapon. (Doc # 83-6, Pg ID 743)
Weinman testified at his deposition that, immediately after the shooting, he
saw a live 9-millimeter round on the kitchen floor. (Doc # 83-3, Pg ID 728) He also
went to the basement and cleared Jacobs’s handgun for safety; there was a bullet in
the chamber, and he placed the gun and the live round back on the washer/dryer. Id.
at 728-29. At the criminal trial, Weinman had also testified that he went to the
basement with another officer, took the weapon and removed the magazine from it,
cleared the chamber, and placed the weapon back where it was on the washer/dryer.
(Doc # 83-7, Pg ID 749) He testified that he did this for officer safety. Id. at 74950.
Following the shooting, Detroit Police Department Officer Mary Gross
(“Gross”) investigated the scene. According to her report, lighting at the scene was
poor. (Doc # 80-4, Pg ID 641) Gross recovered seven 45-caliber shell casings from
the living room floor (later determined to have been fired from Alam’s gun), five
40-caliber shell casings from the bedroom floor (later determined to have been fired
from Kimbrough’s gun), one 9-millimeter live round from the kitchen floor, a Glock
9-millimeter blue steel semiautomatic handgun from on top of the dryer in the
basement, a loaded magazine and a single live round next to the handgun on the
dryer, another 9-millimeter magazine with unknown number of live rounds in the
9

living room of the basement unit, and two 30-caliber magazines loaded with
unknown number of live rounds on top of the TV in the basement. Id. at 641-42.
There are questions of fact surrounding the live round found on the kitchen
floor. According to Defendants, the live round was likely expelled from Jacobs’s
gun. Weinman testified at his deposition that if Jacobs had his weapon out and
pulled the slide back to charge the weapon, not realizing that there was already a live
round in the chamber, then that round would have been expelled from the handgun,
landing in the kitchen, near the spot where Jacobs had been standing. (Doc # 83-3,
Pg ID 732) During the criminal trial, Weinman testified consistently on this point.
(Doc # 83-7, Pg ID 752) According to a forensic laboratory report, the 9-millimeter
live round was identified as having been chambered in Jacobs’s Glock 9-millimeter
handgun. (Doc # 83-6, Pg ID 743) According to Jacobs, he never touched or racked
his gun during the incident. (Doc # 84-4, Pg ID 1179)
It is undisputed that no physical evidence was found at the scene showing that
Jacobs actually fired his weapon. Jacobs’s weapon was recovered in the basement
with what appeared to be ten rounds in the clip and a live round that had been cleared
from the chamber. (Doc # 86-23, Pg ID 2092) At his deposition, Jacobs testified
that his handgun had a ten-bullet magazine. (Doc # 84-6, Pg ID 1296) However,
according to an Affidavit of Sergeant David L. Marshall, the photographs attached

10

to the affidavit are of Jacobs’s weapon. (Doc # 94-4) The photographs plainly show
a magazine that can hold seventeen rounds. Id. at 2538.
Following this incident, Jacobs was charged with four counts of Assault with
Intent to Do Great Bodily Harm Less Than Murder, four counts of Assault with a
Dangerous Weapon, two counts of Resisting and Obstructing a Police Officer, and
one count of Felony Firearm. (Doc # 86-20, Pg ID 2082) On February 16, 2014,
the 36th District Court in Detroit, Michigan held a preliminary examination at which
Alam, Kimbrough, Abdella, Dotson, and Vargas, Jr. testified. (Doc # 86-2) The
court found probable cause for Jacobs’s arrest and prosecution and bound him over
for trial. Id. at 1784-85. Jacobs was incarcerated at the Wayne County Jail from
January 4, 2014 to February 20, 2014 when he was released pending the
commencement of the criminal trial. (Doc # 86-21) Jacobs’s trial took place
October 20-23, 2014, and the jury returned a unanimous verdict of Not Guilty on
each count. (Doc # 98-2; Doc # 98-3; Doc # 98-4; Doc # 98-5)
II.

ANALYSIS
A. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedures provides that the court

“shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The presence of factual disputes will preclude granting of
11

summary judgment only if the disputes are genuine and concern material facts.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” only if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. Although the Court must view
admissible evidence in the light most favorable to the nonmoving party, where “the
moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be
entered against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial. In such a situation, there can be “no genuine issue
as to any material fact,” since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial.
Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to
identify which facts are material. Anderson, 477 U.S. at 248. The nonmoving
party’s version of the facts must be relied upon unless blatantly contradicted by
record evidence. Scott v. Harris, 550 U.S. 372, 378, 380-81 (2007).
B. Bivens Claims

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The Court reviews Bivens claims under the same legal principles as Section
1983 actions, except for the requirement of federal action under Bivens and state
action under Section 1983. Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015).
“A plaintiff must prove two elements to prevail on either type of claim: (1) that he
was deprived of a right secured by the Constitution or laws of the United States; and
(2) that the deprivation was caused by a person acting under color of law.” Id. At
this stage, the parties do not dispute that Defendants in this case acted under color
of federal law. The issue here is whether Defendants deprived Jacobs of a right
secured by the Constitution or laws of the United States.
1. Qualified Immunity
Each Defendant argues that he is entitled to qualified immunity on the
constitutional claims against him. Jacobs responds that there are genuine issues of
material facts to preclude summary judgment. Jacobs has also filed his own Motion
for Summary Judgment arguing that he is entitled to judgment as a matter of law on
various claims.
Government officials are entitled to qualified immunity where their actions
do not “violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Green v. Reeves, 80 F.3d 1101, 1104 (6th
Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A government
official will not be immune if, on an objective basis, it is obvious that no reasonably
13

competent officer would have concluded that the action at issue was lawful; but if
the officer of reasonable competence could disagree on this issue, immunity should
be recognized. Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity is
an initial threshold question the court is required to rule on early in the proceeding
so that the costs and expenses of trial are avoided where the defense is dispositive.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity is “an entitlement
not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). The privilege is “an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.” Id.
The first inquiry to determine qualified immunity is whether, taken in the light
most favorable to the party asserting the injury, the facts alleged show the official’s
conduct violated a constitutional right. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
If no constitutional right would have been violated, there is no necessity for further
inquiries concerning qualified immunity. Saucier, 533 U.S. at 201. If a violation
could be made out, the next step is to determine whether the right was clearly
established in light of the specific context of the case, not as a broad general
proposition. Id. Under the doctrine of qualified immunity, an official will not be
found personally liable for money damages unless the official’s actions violate
“clearly established statutory or constitutional rights of which a reasonable person
14

would have known.” Harlow, 457 U.S. at 818. The “clearly established” rights
allegedly violated by the officials cannot be considered at an abstract level, but must
be approached at a level of specificity:

“The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing
violates that right.”

Anderson v. Creighton, 483 U.S. 635, 639 (1987).

“Reasonableness” is a question of law to be decided by the trial court.
2. Excessive Use of Force Claim Against Kimbrough and Alam
Where a plaintiff complains of excessive force in the course of an arrest,
investigatory stop, or other seizure, the claim must be analyzed under the Fourth
Amendment’s objective reasonableness standard, not under a substantive due
process standard. Walton v. City of Southfield, 995 F.2d 1311, 1342 (6th Cir. 1993)
(citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The proper application of the
objective reasonableness standard “requires careful attention to the facts and
circumstances of each particular case, including [1] the severity of the crime at issue,
[2] whether the suspect poses an immediate threat to the safety of the officers or
others, and [3] whether he is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396. “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.” Id. The Supreme Court has further explained:
The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in
15

circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.
Id. at 396-97. The question for the Court is “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Id. at 397. This test
“requires a ‘careful balancing’ of the individual interest in being free from
unreasonable seizures and the important governmental interest in protecting the
safety of its peace officers and the public.” Williams v. City of Grosse Pointe Park,
496 F.3d 482, 486 (6th Cir. 2007) (citing Graham, 490 U.S. at 396). “[L]aw
enforcement officers may employ deadly force where the officer has probable cause
to believe that the suspect poses a threat of serious physical harm, either to the
officers or to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985); Pollard v. City of
Columbus, 780 F.3d 395, 403 (6th Cir. 2015).
Kimbrough argues that he is entitled to summary judgment on the excessive
force claim because he used reasonable force in light of Jacobs’ hostile demeanor,
his pointing of his gun at Kimbrough, and his failure to put his weapon down on
command. Alam argues that he is entitled to qualified immunity on the excessive
force claim because (1) Jacobs cannot demonstrate that Alam shot him, and (2)
because, in the alternative, his actions were reasonable under the circumstances.
Viewing the facts in the light most favorable to Jacobs, the first Graham factor
weighs in favor of Jacobs, as he was not committing any crime. The second Graham
16

factor also weighs in favor of Jacobs, as he was not a threat and testified that he
never held, pointed, or fired his weapon. At most, he startled the officers when he
yelled and banged the kitchen door open. According to Jacobs, having observed no
signs that there were police officers at his house, he arrived home to find his
basement residence had been ransacked. He had a license to carry his weapon, and
the weapon remained in its holster during the entire incident. He was upset and
yelling as he went up the stairs to investigate. He forcefully opened the door at the
top of the stairs, but he testified that he never entered the kitchen, reaching only the
landing at the top of the stairs. He saw Kimbrough and immediately turned around
and fell down the stairs. Jacobs never unholstered his weapon, and he maintains that
he was shot by the officers from behind, as he was falling down the stairs attempting
to retreat back to his basement residence. No physical evidence indicating that
Jacobs fired his gun was found at the scene. Dotson and Vargas, Jr., the two lay
witnesses at the scene, testified that they could not see Jacobs holding or firing the
gun. According to Jacobs, the single live round found on the kitchen floor was
planted there later by an officer, as he never unholstered his weapon or racked it.
The third Graham factor also weighs in Jacobs’s favor because he never resisted the
officers. According to Jacobs, he started retreating back into his basement unit, fell
down the stairs, and then came back upstairs without his weapon with his hands up,
as the officers ordered him to do.
17

The Court concludes that there remain genuine issues of material facts to
preclude summary judgment in favor of Kimbrough or Alam. Taken in the light
most favorable to Jacobs, a reasonable juror could conclude that Kimbrough and
Alam violated Jacobs’s constitutional right when they repeatedly fired at him as he
was retreating back into the basement. Because our precedent clearly establishes a
right not be shot unless perceived to pose a threat to officers or others, see Yates v.
City of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991), the Court denies Kimbrough’s
Motion for Summary Judgment on the excessive use of force claim, as well as deny
Alam’s Motion for Summary Judgment on the excessive use of force claim.
Turning to Jacobs’s Motion, he argues that the Court should grant summary
judgment in his favor on the excessive use of force claim because he posed no threat
to the officers, and any perceived threat to the officers was a direct result of their
failure to inform Jacobs of their presence. Jacobs further argues that he did not resist
the officers, that his gun was in his holster, and that he fled the situation upon seeing
Kimbrough. Jacobs argues that he had no reason to believe that the persons shouting
commands at him were officers because there were no police vehicles outside, his
residence had been ransacked, and the officers were not in uniform.
Viewing the evidence in the light most favorable to the nonmoving parties,
Kimbrough and Alam, the first Graham factor weighs in favor of Defendants, as
they testified that Jacobs was threatening a police officer at gunpoint—a serious
18

crime. The second Graham factor also weighs in favor of Defendants, as Jacobs
posed an immediate and severe threat to the safety of the officers as well as the safety
of Vargas, Jr. and Dotson. According to Kimbrough and Alam, Jacobs slammed the
door open with his gun raised at eye level and pointed at Kimbrough. Kimbrough
testified that Jacobs shot at him first, after he identified himself as a police officer
and ordered him to put his weapon down. Alam testified that he shot his weapon
fearing for his life and his partner’s life after hearing several shots. Dotson testified
that after she heard the bang of the door, the officers said, “Detroit Police,” and she
just started hearing gunshots coming from the kitchen. She testified that she heard
the person who came up to the kitchen from the basement start automatically
shooting. Forensic evidence indicated that the 9-millimeter live round found on the
kitchen floor was chambered in and ejected from Jacobs’s weapon. The third
Graham factor also weighs in Defendants’ favor because, according to them, Jacobs
ignored police commands to drop his weapon.
The Court concludes that there remain genuine issues of material facts to
preclude summary judgment in favor of Jacobs. Viewing the evidence in the light
most favorable to Kimbrough and Alam, a reasonable jury could return a verdict in
their favor. Accordingly, the Court denies Jacobs’s Motion for Summary Judgment
on the excessive use of force claim.
3. Failure to Protect Claim Against Alam, Weinman, and Knox
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“[A] police officer who fails to act to prevent the use of excessive force may
be held liable when (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). Generally, negligence is insufficient to hold a police officer liable
for failure to prevent the use of excessive force; rather, the plaintiff must establish
that the police officer was deliberately indifferent or reckless. See Smoak v. Hall,
460 F.3d 768, 785 (6th Cir. 2006). By definition, if there was no excessive force,
then there can be no failure to intervene. See Abdullahi v. City of Madison, 423 F.3d
763, 767-68 (7th Cir. 2005). “[E]ach defendant’s liability must be assessed
individually based on his own actions.” Pollard, 780 F.3d at 402 (quoting Binay v.
Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)).
Weinman argues that he is entitled to qualified immunity on the failure to
protect claim because he did not observe excessive use of force and had no reason
to know it would be used, and because Jacobs cannot present any plausible scenario
in which Weinman had a realistic opportunity to prevent any excessive force. Knox
and Alam argue that they are entitled to qualified immunity on all claims, but do not
make any arguments specifically related to the failure to protect claim.
With regards to Weinman, it is undisputed that he observed Jacobs approach
the house; was informed by Vargas, Sr. that Jacobs lived in the basement; and alerted
20

the other officers that Jacobs lived in the basement and was possibly going to enter
the house. It is undisputed that, at this point, Weinman had never entered the
basement of the house. There is no evidence in the record that Weinman or any of
the other officers were aware of a rear entry leading directly into the basement.
Rather, Kimbrough went to the front door of the house to wait for Jacobs. It is
undisputed that Weinman did not observe any excessive use of force, and under these
facts, the Court finds that there is no question of material fact regarding whether
Weinman had reason to know that excessive force would be or was being used. The
Court concludes that Weinman is entitled to qualified immunity on the failure to
protect claim.
With regards to Knox, there is no evidence that he saw Jacobs arrive at the
house, or that he knew that Jacobs would possibly be entering the house. It is
undisputed that Knox was sitting in his vehicle by himself when he heard gunshots
which he eventually realized were coming from inside the house. Knox testified that
the time between him hearing the gunshots and going inside the house was less than
a minute, and that he made a quick pace to get back to the house. (Doc # 80-7, Pg
ID 685) It is undisputed that by the time he entered the house, the shooting was over
and Kimbrough was handcuffing Jacobs. Id. It is undisputed that Knox did not
observe any excessive use of force, and under these facts, the Court finds that there
is no material issue of fact that Knox had no reason to know that excessive force
21

would be or was being used. Nothing in the record indicates that Knox would have
had the opportunity to prevent any harm from occurring. Knox is entitled to
qualified immunity on the failure to protect claim.
With regards to Alam, even viewing the facts in the light most favorable to
Jacobs, the Court finds that there is no material issue of fact that Alam did not have
the opportunity to prevent harm from occurring. According to Jacobs, after arriving
to his basement residence, Jacobs headed up the stairs yelling and forcefully opened
the door. He saw Kimbrough and immediately turned around and fell down the
stairs. Kimbrough immediately started shooting at him from behind as Jacobs fell
down the stairs. It is undisputed that Kimbrough was much closer to Jacobs than
Alam, and Jacobs testified that he did not even see Alam until after he came back
upstairs with his hands up. It is undisputed that the events took place very quickly,
and that the shooting was over within seconds. The Court concludes that Alam is
entitled to qualified immunity on the failure to protect claim. See Amerson v.
Waterford Twp., 562 F. App'x 484, 490 (6th Cir. 2014) (unpublished) (“[Plaintiff]
presents no evidence showing that Mahoney knew or had reason to know of the
impending excessive force or had the opportunity or means to intervene. Indeed, the
span of time within which Mahoney should have perceived the excessive force and
developed and implemented an intervention strategy could not have been more than

22

a few seconds. Mahoney had no opportunity to prevent the alleged use of force,
given that the alleged events took place quickly and without any forewarning.”).
Jacobs argues that the Court should grant summary judgment in his favor on
the failure to protect claim because Weinman and Knox observed Jacobs entering
the house, knew that he was unaware of the ongoing investigation, and could have
but failed to alert Jacobs. For the same reasons discussed above, the Court denies
Jacobs’s Motion for Summary Judgment on the failure to protect claim.
4. Fabrication of Evidence Claim Against Kimbrough, Alam,
Weinman, and Knox
“It is well established that a person’s constitutional rights are violated when
evidence is knowingly fabricated and a reasonable likelihood exists that the false
evidence would have affected the decision of the jury.” Gregory v. City of Louisville,
444 F.3d 725, 737 (6th Cir. 2006). “[A] reasonable police officer would know that
fabricating probable cause, thereby effectuating a seizure, would violate a suspect’s
clearly established Fourth Amendment right to be free from unreasonable seizures.”
Supurlock v. Satterfield, 167 F.3d 995, 1006 (6th Cir. 1999).
Alam argues that he is entitled to summary judgment on the fabrication of
evidence claim because Jacobs lied at his deposition about the capacity of his
handgun to support this frivolous claim. Alam further argues that there is no
evidence that Alam intentionally misrepresented any material details in his police
report. Kimbrough, Knox, and Weinman argue that they are entitled to qualified
23

immunity on all claims, but do not make any arguments specifically related to the
fabrication of evidence claim.
Viewing the facts in the light most favorable to Jacobs, there remain genuine
issues of material facts to preclude summary judgment in Defendants’ favor.
According to Jacobs, the single 9-millimeter live round found on the kitchen floor
was planted there later by an officer, as he never unholstered his weapon or racked
it during the incident. There were an unknown number of 9-millimeter rounds in the
basement to which the officers had access while Jacobs waited outside to be
transported by EMS to the hospital. It is undisputed that Weinman handled Jacobs’s
gun and 9-millimeter live rounds immediately following the shooting. According to
Jacobs, Weinman planted a live 9-millimeter round on the kitchen floor to help
corroborate his fellow officers’ story, and Kimbrough testified falsely about seeing
the live round during the shooting on the kitchen floor, in the area where Jacobs had
been standing. According to Jacobs, Kimbrough and Alam falsely reported and
falsely testified about Jacobs having his gun pointed at them, raised at eye level, and
Kimbrough further falsely reported and falsely testified about Jacobs shooting at
him.
The Court concludes that, there are material questions of fact regarding
whether Kimbrough, Alam, and Weinman planted a live round which they ejected
from Jacobs’s Glock 9-millimeter handgun after Jacobs had been arrested. Under
24

Sixth Circuit precedent, it is clearly established that a person’s rights are violated
when evidence is knowingly fabricated and a reasonable likelihood exists that the
false evidence would have affected the decision of the jury. Supurlock, 167 F.3d at
1006.

The Court denies Kimbrough’s, Alam’s and Weinman’s Motions for

Summary Judgment on the fabrication of evidence claim.
Regarding Knox, the Court finds that Jacobs has produced no evidence that
Knox fabricated evidence.

Knox testified that he did not even participate in

investigating the scene after the shooting. (Doc # 80-7, Pg ID 686) He only assisted
with securing the perimeter outside the house. The Court grants Knox’s Motion for
Summary Judgment as to the fabrication of evidence claim.
Turning to Jacobs’s Motion, he argues that the Court should grant summary
judgment in his favor on the fabrication of evidence claim because: (1) the 9milimeter live round found on the kitchen floor was not sent to the lab for forensic
analysis; (2) it is absurd to think that Jacobs would have removed the clip from his
gun while being shot at; (3) the maximum number of live rounds that Jacobs’s gun
could hold was ten, and Jacobs’s gun had ten live rounds in it when Weinman cleared
it after the shooting. Jacobs argues that the only possible explanation is that
Defendants took a bullet from Jacobs’s basement and placed it at the top of the stairs
in a desperate attempt to frame him and corroborate their story that Jacobs shot at
them. Jacobs further argues that Kimbrough and Alam made false statements in
25

police reports, specifically that Kimbrough falsely stated that Jacobs shot at him, and
that Alam falsely stated that Jacobs had a gun in his hand.
Viewing the facts in the light most favorable to Defendants, according to
Kimbrough and Alam, Jacobs slammed the door open with his gun raised at eye level
and pointed at Kimbrough. Weinman testified that Jacobs could have easily and
quickly racked his gun by simply pulling the slide back, which would have ejected
any live round that was already in the chamber. There is no evidence that Jacobs
would have had to remove the clip from his gun in order to rack it. According to the
officers, Kimbrough saw the 9-millimeter live round on the kitchen floor during the
shooting, and Weinman saw it immediately after the shooting, indicating that the
officers did not plant it there. After the shooting, Gross recovered the 9-millimeter
live round from the kitchen floor, and it was sent to a lab for forensic analysis and
determined to have been chambered in Jacobs’s Glock 9-millimeter handgun. At his
deposition, Jacobs testified that the maximum number of live rounds that his gun
could hold was ten, but according to the officers, Jacobs’s gun recovered at the scene
had a magazine that could hold seventeen rounds. Regarding the statements in the
police reports, those statements conform to the officers’ versions of the events, and
whether the statements are false presents genuine issues of material facts. The Court
concludes that viewing the evidence in the light most favorable to Defendants, a

26

reasonable jury could return a verdict in their favor. Accordingly, the Court denies
Jacobs’s Motion for Summary Judgment on the fabrication of evidence claim.
5. Conspiracy Claim Against Kimbrough, Alam, Weinman, and
Knox
A civil conspiracy under Bivens is “an agreement between two or more
persons to injure another by unlawful action.” Webb, 789 F.3d at 670 (internal
quotations and citations omitted). “A plaintiff must show that (1) a single plan
existed; (2) defendants shared in the general conspiratorial objective to deprive the
plaintiff of his constitutional rights; and (3) an overt act was committed in
furtherance of the conspiracy that caused the plaintiff’s injury.”

Id. (internal

quotations and citations omitted). “[T]he overt-act element requires only that at least
one of the alleged conspirators committed an overt act or omission in furtherance of
the conspiracy.” Id. at 671. “It is well-settled that conspiracy claims must be pled
with some degree of specificity and that vague and conclusory allegations
unsupported by material facts will not be sufficient” to state a Bivens claim.
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Circumstantial evidence
may, however, provide adequate proof of conspiracy. Webb, 789 F.3d at 671.
Weinman and Alam argue that they are entitled to qualified immunity on the
civil conspiracy claim because Jacobs has failed to allege his claim with sufficient
specificity and has failed to support his claim with any evidence. Alam notes that
his account of what occurred that night is slightly different from Kimbrough’s
27

indicating that there was no conspiracy between them. Kimbrough and Knox argue
that they are entitled to qualified immunity on all claims, but do not make any
arguments specifically related to the civil conspiracy claim.
Jacobs responds that Defendants conspired in a single plan with the general
conspiratorial objective of fabricating evidence in order to justify their
unconscionable shooting of Jacobs. Jacobs argues that Kimbrough and Alam
fabricated evidence by providing perjured testimony that Jacobs shot at them, that
they identified themselves as police officers, and that the instructed Jacobs to drop
his weapon. Jacobs further argues that Weinman planted the 9-millimeter live round
on the kitchen floor. Jacobs does not move for summary judgment on this claim.
The Court finds that there are genuine issues of material facts, and under
Jacobs’s version of events, there would be circumstantial evidence that could enable
a reasonable jury to infer the existence of a shared conspiratorial plan to frame
Jacobs. Viewing the facts in the light most favorable to Jacobs, he was upset upon
finding his apartment had been ransaked. He forcefully opened the door at the top of
the basement stairs and saw a strange man. According to Jacobs, he immediately
turned around to go back to the basement in fear and fell, never unholstering his
weapon. He was then shot at from behind as he was falling down the stairs. The
officers never identified themselves or gave him any commands until after the
shooting was over. Jacobs maintains that, in order to cover up the circumstances of
28

this shooting, Kimbrough and Alam falsely arrested Jacobs. Kimbrough and Alam
then falsely reported and falsely testified about Jacobs having his gun pointed at
them, raised at eye level—something that only the two of them could testify to given
that Vargas, Jr. and Dotson, the only other people in the house at the time, could not
see Jacobs when he came up from the basement. According to Jacobs, Kimbrough
further falsely reported and falsely testified about Jacobs shooting at him, a fact that
no one else, not even Alam, could corroborate. According to Jacobs, Weinman
planted a live 9-millimeter round on the kitchen floor to help corroborate his fellow
officers’ story, and Kimbrough testified falsely about seeing the live round during
the shooting. The Court finds these alleged misdeeds are sufficiently intertwined so
as to permit the inference of an agreement between the perpetrators to cover up their
actions by framing Jacobs, followed by overt acts of false arrest, fabrication of
evidence, false reporting, and false testimony. Those acts in turn caused Jacobs to
be charged with eleven counts and to be incarcerated for 48 days.
The Court concludes that, taken in the light most favorable to Jacobs, there is
at least a question of fact as to whether Kimbrough, Alam, and Weinman violated
Jacobs’s constitutional right by conspiring to cover up their actions and frame
Jacobs, and then fabricating evidence and providing false reports and false testimony
in furtherance of their conspiracy. Under Sixth Circuit precedent, it is clearly
established that a person’s rights are violated when evidence is knowingly fabricated
29

as discussed above, as well as when a person is falsely arrested as discussed below.
The Court denies Kimbrough’s, Alam’s, and Weinman’s Motions for Summary
Judgment on the civil conspiracy claim.
It is unclear whether Jacobs asserts a civil conspiracy claim against Knox. To
the extent that Jacobs relies exclusively on the aforementioned misdeeds of the
Detroit Fugitive Apprehension Team, Jacobs was required to show that Knox shared
a common plan to violate his constitutional rights. The Court finds that Jacobs has
produced no evidence that Knox personally participated in framing him. The Court
grants Knox’s Motion for Summary Judgment as to any civil conspiracy claim
against him.
6. False Arrest Claim Against Kimbrough and Alam
“A false arrest claim under federal law requires a plaintiff to prove that the
arresting officer lacked probable cause to arrest the plaintiff.” Voyticky v. Vill. of
Timberlake, 412 F.3d 669, 677 (6th Cir. 2005). Where probable cause to arrest
exists, no constitutional violation occurs, and the Court does not even reach the issue
of qualified immunity. Criss v. City of Kent, 867 F.2d 259 (6th Cir. 1988). Probable
cause to arrest has been defined as “facts and circumstances within the officer’s
knowledge that are sufficient to warrant a prudent person or one of reasonable
caution, in believing in the circumstances shown that the suspect has committed, is
committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S.
30

31, 37 (1979). Probable cause requires merely the probability of criminal activity,
and need not show a “prima facie” case of the crime. Illinois v. Gates, 462 U.S. 213
(1983).

Whether probable cause exists is determined by the totality of the

circumstances. Id. at 238. A valid arrest based upon a then-existing probable cause
is not vitiated if the suspect is later acquitted or the charges are dismissed. Criss,
867 F.2d at 262. An officer “is under no obligation to give any credence to a
suspect’s story nor should a plausible explanation in any sense require the officer to
forego arrest pending further investigation if the facts as initially discovered provide
probable cause.” Id. at 263. “The Constitution does not guarantee that only the
guilty will be arrested. If it did, Section 1983 would provide a cause of action for
every defendant acquitted—indeed, for every suspect released.” Id.
Alam argues that he is entitled to summary judgment on the false arrest claim
because his perception of events was supported by Abdella’s testimony and
Kimbrough’s testimony at the preliminary examination. Alam further argues that
there is no evidence that Alam provided knowingly false information in his report or
in his testimony at the preliminary examination. Kimbrough argues that he is
entitled to qualified immunity on all claims, but does not make any arguments
specifically related to the false arrest claim.
Viewing the facts in the light most favorable to Jacobs, Jacobs testified that
he never held, pointed, or fired his weapon. According to Jacobs, he was shot at by
31

Kimbrough and Alam from behind, as he was falling down the stairs attempting to
retreat back into the basement unit. No physical evidence indicating that Jacobs
fired his gun was found at the scene. Dotson and Vargas, Jr., the two lay witnesses
at the scene, testified that they could not see Jacobs holding or firing the gun.
According to Jacobs, the single live round found on the kitchen floor was planted
there later by an officer, as he never unholstered his weapon or racked it. It is
undisputed that immediately following the shooting, only Jacobs, Kimbrough, and
Alam were inside the house. Kimbrough and Alam ordered Jacobs to place his
weapon on the washer/dryer and to come upstairs with his hands up. Jacobs fully
complied. Kimbrough and Alam then arrested Jacobs, and he did not resist. Jacobs
was subsequently charged with four counts of Assault with Intent to Do Great Bodily
Harm Less Than Murder, four counts of Assault with a Dangerous Weapon, two
counts of Resisting and Obstructing a Police Officer, and one count of Felony
Firearm. The 36th District Court found probable cause for Jacobs’s arrest after
hearing testimony from Kimbrough, Alam, Abdella, Vargas, Jr., and Dotson, but
there is at least a question of fact as to whether Kimbrough and Alam provided false
testimony at the preliminary examination as discussed above.
The Court finds that there remain issues of material fact as to whether Alam
and Kimbrough had probable cause to arrest Jacobs for any of the aforementioned
counts. Taken in the light most favorable to Jacobs, a reasonable juror could
32

conclude that Kimbrough and Alam violated Jacobs’s constitutional right when they
arrested him without probable cause. Because Sixth Circuit precedent clearly
establishes a right not be arrested without probable cause, see Criss, 867 F.2d at 252,
the Court denies Kimbrough’s and Alam’s Motions for Summary Judgment on the
false arrest claim.
Turning to Jacobs’s Motion, he argues that the Court should grant summary
judgment in his favor on the false arrest claim because Kimbrough and Alam lacked
probable cause and cannot rely on the results of the preliminary examination during
which they knowingly provided false testimony. Jacobs asserts that “[t]he criminal
investigation concluded that Plaintiff never shot at Defendants,” and that the court
relied on fabricated evidence to determine there was probable cause.
Viewing the facts in the light most favorable to Kimbrough and Alam, each
one has been consistent in their police reports, preliminary examination testimony,
trial testimony, and deposition testimony. Both maintain that they saw Jacobs
pointing his gun at Kimbrough, and that Jacobs’s gun was raised at eye level.
Kimbrough maintains that Jacobs fired his gun at him. Under either account, Jacobs
posed an immediate and severe threat to the safety of the officers as well as the safety
of Vargas, Jr. and Dotson. According to Kimbrough and Alam, they identified
themselves as Detroit Police and ordered Jacobs to put his gun down, but he did not
comply. Abdella’s testimony at the preliminary examination and criminal trial
33

supported Kimbrough and Alam’s accounts. Abdella testified that, on the night of
the shooting, Jacobs told him that that he could have shot the officer, that he had the
jump on him, and that he had his gun right on the officer. After the shooting, Gross
recovered a 9-millimeter live round from the kitchen floor, in the area where Jacobs
had been standing, and forensic analysis determined that the live round had been
chambered in Jacobs’s gun. While it is undisputed that no physical evidence was
found at the scene showing that Jacobs actually fired his weapon, there is at least a
question of fact regarding whether Jacobs was pointing his gun, ready to fire.
Contrary to Jacobs’s assertion, the fact that no physical evidence was found at the
scene showing that Jacobs actually fired his weapon does not definitively conclude
that Jacobs never fired his weapon. Gross’s report indicates that lighting at the scene
was poor, and she might have not been able to locate all of the shell casings from the
scene; genuine questions of material fact remain.
The Court finds that, under Kimbrough and Alam’s version of events, they
would have had probable cause to arrest Jacobs for Assault with Intent to Do Great
Bodily Harm Less Than Murder, Assault with a Dangerous Weapon, Resisting and
Obstructing a Police Officer, and Felony Firearm. The Court concludes that,
viewing the evidence in the light most favorable to Kimbrough and Alam, a
reasonable jury could return a verdict in their favor. Accordingly, the Court denies
Jacobs’s Motion for Summary Judgment on the false arrest claim.
34

7. Malicious Prosecution
Weinman, and Knox

Claim

Against

Kimbrough,

Alam,

The Sixth Circuit recognizes a separate constitutionally cognizable claim of
malicious prosecution under the Fourth Amendment, which is entirely distinct from
that of a false arrest claim, since a malicious prosecution claim remedies detention
accompanied by wrongful institution of legal process. Sykes v. Anderson, 625 F.3d
294, 308 (6th Cir. 2010). The plaintiff must show four elements to succeed on a
malicious prosecution claim based on the Fourth Amendment: (1) that a criminal
prosecution was initiated against the plaintiff, and that the defendant made,
influenced, or participated in the decision to prosecute; (2) that there was a lack of
probable cause for the criminal prosecution; (3) that as a consequence of the legal
proceeding, the plaintiff suffered a deprivation of liberty, apart from the initial
seizure; and (4) that the criminal proceeding was resolved in the plaintiff’s favor.
Id. Here, there is no dispute that Jacobs was deprived of his liberty as a result of
criminal proceedings that were resolved in his favor. Accordingly, the Court focuses
on the first and second elements.
Alam argues that there is no evidence that he provided knowingly false
information at the preliminary examination, and that even excluding his testimony,
there is no reason to believe that the court would not have reached the same
conclusion. Weinman argues that he did not influence or participate in the decision
to prosecute Jacobs because he was not personally involved in the shooting and did
35

not witness it, did not participate in the decision to arrest Jacobs, did not testify at
his preliminary examination, and testified only briefly at the criminal trial. Weinman
further argues that there was probable cause for the criminal prosecution.
Kimbrough and Knox argue that they are entitled to qualified immunity on all
claims, but do not make any arguments specifically related to the malicious
prosecution claim.
Regarding the first element, “[t]o be liable for participating in the decision to
prosecute, the officer must participate in a way that aids in the decision, as opposed
to passively or neutrally participating.” Webb, 789 F.3d at 660 (internal quotations
omitted). Jacobs provides no evidence or argument that the prosecutor or state court
relied on any report or testimony from Knox. Accordingly, the Court grants Knox’s
Motion for Summary Judgment on the malicious prosecution claim.
As to Weinman, he did not testify at the preliminary examination. During the
criminal trial, his brief testimony was mostly limited to how he cleared Jacobs’s gun
for officer safety after the shooting, and an explanation of what racking a gun entails.
Weinman had no knowledge and made no report of any assault or officer resistance
on the part of Jacobs. As with Knox, Jacobs has not shown that any report or
testimony from Weinman affected the court’s finding of probable cause to prosecute
or the prosecutor’s decision to charge and prosecute Jacobs for Assault with Intent
to Do Great Bodily Harm Less Than Murder, Assault with a Dangerous Weapon,
36

Resisting and Obstructing a Police Officer, and/or Felony Firearm. Accordingly, the
Court grants Weinman’s Motion for Summary Judgment on the malicious
prosecution claim.
Kimbrough and Alam, on the other hand, as the only ones who actually saw
Jacobs allegedly pointing and/or shooting a gun at the officers, wrote detailed reports
and provided extensive testimony at both the preliminary examination and trial. The
Court finds for purposes of this motion that Kimbrough and Alam influenced the
decision to prosecute Jacobs.
Regarding the second element, “probable cause to initiate a criminal
prosecution exists where facts and circumstances are sufficient to lead an ordinarily
prudent person to believe the accused was guilty of the crime charged.” Id. (internal
quotations omitted). The 36th District Court found probable cause for Jacobs’s
prosecution after hearing testimony from Kimbrough, Alam, Abdella, Vargas, Jr.,
and Dotson. It is undisputed that Abdella was not at the scene during the shooting,
and that Vargas, Jr. and Dotson testified that they could not see Jacobs and did not
see him pointing or holding a gun. Again, Kimbrough and Alam were the only
witness who actually saw Jacobs allegedly pointing and/or shooting a gun at the
officers.

Jacobs alleges that Kimbrough and Alam knowingly or recklessly

presented false testimony at the preliminary examination on this point. As discussed
above, drawing factual inferences in Jacobs’s favor, Kimbrough’s testimony and
37

Alam’s testimony at the preliminary examination contained knowing or reckless
falsehoods. The Court findd that there remain genuine issues of material facts as to
this element to preclude summary judgment in favor of Kimbrough or Alam.
Because our precedent clearly establishes a right to be free from malicious
prosecution based on false testimony, see id. at 659, 665-66; Sykes, 625 F.3d at 308,
the Court denies Kimbrough’s and Alam’s Motions for Summary Judgment on the
malicious prosecution claim.
Turning to Jacobs’s Motion, he argues that the Court should grant summary
judgment in his favor on the malicious prosecution claim because Kimbrough and
Alam influenced and participated in the decision to prosecute Jacobs by providing
false testimony at the preliminary examination. Jacobs further argues that there was
no probable cause for his criminal prosecution because “the investigation conducted
by the crime scene investigators unequivocally determined that Plaintiff never fired
a single shot” and because Kimbrough and Alam knowingly presented false
testimony at the preliminary examination.
Viewing the facts in the light most favorable to Defendants, Jacobs cannot
establish the second element of his malicious prosecution claim at this stage. As
discussed above under the false arrest claim discussion, the Court finds that, under
Kimbrough and Alam’s version of events, there was probable cause to prosecute
Jacobs for each of the charges. The Court concludes that, viewing the evidence in
38

the light most favorable to Kimbrough and Alam, a reasonable jury could return a
verdict in their favor. Accordingly, the Court denies Jacobs’s Motion for Summary
Judgment on the malicious prosecution claim.
8. Substantive Due Process Violation of Right to Liberty Claim
Against Kimbrough and Alam
Jacobs argues that the officers used unnecessary force when they shot him,
and that their conduct, in shooting a civilian who posed no threat with the intention
to kill him, shocks the conscience. Defendants do not address this substantive due
process claim.
As noted above, where a plaintiff complains of excessive force in the course
of an arrest, investigatory stop, or other seizure, the claim must be analyzed under
the Fourth Amendment’s objective reasonableness standard, not under a substantive
due process standard. Walton, 995 F.2d at 1342 (citing Graham, 490 U.S. at 395).
Accordingly, the Court grants Defendants’ Motions for Summary Judgment on any
due process claim and denies Jacobs’s Motion for Summary Judgment on any
substantive due process claim.
IV.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants Damon Kimbrough and Michael

Knox’s Motion for Summary Judgment (Doc # 80) is GRANTED IN PART as to
the substantive due process claim against Kimbrough, and as to all claims against
39

Knox, and DENIED IN PART as to the excessive force, fabrication of evidence,
civil conspiracy, false arrest, and malicious prosecution claims against Kimbrough.
IT IS FURTHER ORDERED that Defendant Michael Knox is DISMISSED
from this action.
IT IS FURTHER ORDERED that Defendant David Weinman’s Motion for
Summary Judgment (Doc # 83) is GRANTED IN PART as to the failure to protect
and malicious prosecution claims, and DENIED IN PART as to the fabrication of
evidence and civil conspiracy claims.
IT IS FURTHER ORDERED that Plaintiff Eduardo Jacobs’s Motion for
Summary Judgment (Doc # 84) is DENIED.
IT IS FURTHER ORDERED that Defendant Ramon Alam’s Motion for
Summary Judgment (Doc # 86) is GRANTED IN PART as to the failure to protect
and substantive due process claims, and DENIED IN PART as to the excessive force,
fabrication of evidence, civil conspiracy, false arrest, and malicious prosecution
claims.
Dated: August 23, 2017

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

40

CERTIFICATE OF SERVICE
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 R. Saulsberry
Case Manager

41