Fizer v. Burton, City of, et al
Filing
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OPINION and ORDER Dismissing Case on Res Judicata Grounds. Signed by District Judge Gerald E. Rosen. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH FIZER,
Plaintiff,
No. 15-cv-13311
vs.
CITY OF BURTON, et al.,
Defendants.
___________________________/
OPINION AND ORDER DISMISSING
CASE ON RES JUDICATA GROUNDS
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on November 18, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Chief Judge
On September 18, 2015, Plaintiff Kenneth Fizer, through counsel, filed the instant
Section 1983 police excessive force action against the City of Burton, Michigan, Mt.
Morris Township, Michigan, and several individual Burton and Mt. Morris police
officers, and Michigan State Troopers arising out of Plaintiff’s stop, arrest and flight
from arresting officers on December 23, 2012. This is the third such Complaint filed by
Plaintiff arising out of these same events.
I. PROCEDURAL BACKGROUND
On December 3, 2013, Plaintiff Kenneth Fizer, acting pro se, filed a Complaint in
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this Court against the Burton Police Department, the Mt. Morris Police Department, two
individual Burton and Mt. Morris police officers -- Jim Broughton and Jeff Iski -- and a
Michigan State Trooper, Jason Sack (all of whom are also named as defendants in the
instant action), alleging that his constitutional rights were violated when he was arrested
and taken into custody on December 23, 2012. See Fizer v. Broughton, et al., E.D. Mich.
No. 13-14928 (“Fizer I”). On May 15, 2014, the Court dismissed that complaint,
without prejudice, for failure to pay the requisite filing fee or establish indigency so as to
entitle Plaintiff to proceed in forma pauperis.
Meanwhile, on January 3, 2014, Fizer filed another pro se Complaint, this time in
State Court, against the Burton Police Department and against a non-governmental
defendant, Smitty’s Towing. Defendants removed the case to this Court on February 20,
2014. See Fizer v. Burton Police Department, et al., E.D. Mich. No. 14-10786 (“Fizer
II”). This second Complaint, challenging the seizure of Plaintiff’s automobile, also arose
out of Plaintiff’s stop, arrest, and flight from arresting officers on December 23, 2012.
Plaintiff alleged in this second Complaint that in seizing his automobile after he was
arrested, the Burton Police violated his constitutional rights to Due Process.
In lieu of answering the Complaint, Defendant moved for dismissal pursuant to
Fed. R. Civ. P. 12(b)(6) and/or 56(c). On June 16, 2014, the Court granted Defendant’s
motion and dismissed the case against the Burton Police Department, with prejudice.
(Smitty’s Towing was dismissed without prejudice for lack of prosecution.)
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Significantly, the police record of the events of December 23, 2012, filed with the Court
as part of the State Court records with Defendant Burton Police Department’s Notice of
Removal and later appended to Defendant’s motion to dismiss or for summary judgment,
were relied upon by the Court in dismissing the case. See id., Dkt. # 2, 7.
Citing the police record, the Court summarized some of the pertinent facts in its
Opinion and Order of June 16, 2014:
Plaintiff Kenneth Alan Fizer, a felony parolee,1 was arrested on December
23, 2012 on charges of flight to evade prosecution - fleeing/eluding and
resisting an officer arising out of a larceny at a Walmart store on East Court
Street in Burton, Michigan, allegedly committed by Fizer’s companion,
Terry Clements. According to the police report of the arrest, Clements
stole several bottles of liquor from the Walmart store then fled the business
without paying in a black 2002 Buick Regal driven by Fizer. The Burton
Police were alerted. . . .
[Fizer v. Burton Police Department, et al., E.D. Mich. No. 14-10786, 6/16/14 Opinion
and Order, Dkt. # 7, Pg. ID 73.]
The Police Reports detailed the ensuing police pursuit, Fizer’s stop and ultimate
arrest:
TRAFFIC PURSUIT
At the time [Burton Police] Officer Broughton was traveling east
hound on Court St. east of Genesee Rd. and observed a black Buick Regal
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Fizer told officers at the time of his arrest that he had just been released from
prison four months earlier and was on parole for robbing a bank. The Michigan
Offender Tracking Information System (OTIS) confirms this and shows that Fizer was
paroled from a 2005 sentence for a bank robbery he committed in November 2004. See
Offender Tracking Information System (OTIS) at http://mdocweb.state.mi.us/otis2/.
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occupied by a black male driver and black male passenger traveling west
bound matching the description given by dispatch. Officer Broughton
position[ed the] patrol vehicle behind the Buick Regal in an attempt to
initiate[] a traffic stop. Officer Broughton in a fully marked police cruiser
activated overhead lights and siren at which time the vehicle disregarded to
stop. Dispatch was notified of the vehicle bearing M[ichigan]
R[egistration] CMK2425 failing to stop.
Officer Broughton continued to pursue the vehicle w[est] b[ound]
on Court St. which time the vehicle disregarded a solid red light at Center
Rd. and continued n[orth]b[ound] on Center. The vehicle continued w[est]
b[ound] on Richfield Rd. disregarding [a] solid red light at Western Rd.
onto N[orth] b[ound] Dort Hwy.
As the vehicle continued w[est] b[ound] on Boluvard, north on
James P Cole to w[est] b[ound] Stewart Ave., State Police Trooper Mercier
was able to place stop sticks in the path of the suspect’s vehicle on Stewart
Ave. eventually deflating both driver side tires. The vehicle continued to
flee approximately ½ mile more onto Maines St. when Trooper[s] Carberry
and Saks were able to perform a P.1.T. maneuver forcing the vehicle to
come to rest in the street.
While several marked patrol vehicles with lights and siren’s
activated assisting at different intersections and pursuing the vehicle, the
vehicle failed to stop and attempted to strike patrol vehicles. During the
pursuit several agencies had joined the pursuit including [Burton Police]
Officer Nelson Lakey, State Police Troopers Carberry, Saks, Mercier and
Berdan. Also assisted was Mount Morris Twp K-9 Officer Jeff Iskey [sic].
APPREHENSION
As the vehicle came to rest in the middle of the street Officer
Broughton observed the driver to be a b[lack] m[ale], approximately 6'10"
tall wearing a brown jacket exit the vehicle along with a b[lack] m[ale]
passenger wearing a black jacket both b[lack] m[ale] suspects fled west
behind 4313 Maines St. Officers identified themselves and instructed the
suspects to stop, [but] the suspects continued to flee towards the rear of the
residence.
K-9 Officer Iskey [sic] gave pursuit with his K-9 along with several
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other Officers at which time both suspects had to be forcibly taken into
custody. Both suspects refused several loud verbal commands to place their
hands behind their back and to show their hands. The suspects continued to
force their hands underneath their body pulling away from Officers. After a
brief struggle the suspects were placed into custody and secured in rear of
[separate] patrol vehicles.
[Id., Notice of Removal, State Court Records, Summary Disposition Motion Ex. B,
Police Record, Dkt. # 1, Pg. ID 23-24 (spelling and punctuation corrected).]
Disregarding the Court’s dismissal of his 2014 complaint, with prejudice, on
September 18, 2015, Plaintiff Fizer, through counsel, filed yet a third Complaint (“Fizer
III”) arising out the events of December 23, 2012, naming as party-defendants all of the
individual police officers and municipalities involved in his stop, arrest and flight from
the authorities. In this Complaint, Plaintiff alleges a Section 1983 claim for violation of
his constitutional rights under the Fourth Amendment.
After reviewing Fizer’s Complaint and the record of the previous cases filed by
Fizer and litigated in this Court, it appeared to the Court that Fizer III might be barred
pursuant to the doctrine of res judicata or claim preclusion. Therefore, on October 29,
2015, the Court entered an Order to Show Cause, directing the parties to show cause in
writing why the case should not be dismissed, with prejudice. All parties have responded
to the Show Cause Order.
II. DISCUSSION
It is well-settled that “[u]nder the doctrine of claim preclusion [a/k/a res judicata],
a final judgment on the merits of an action precludes the parties or their privies from
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relitigating issues that were or could have been raised in that action.” Heike v. Central
Michigan University Board of Trustees, 573 F. App’x 476, 480 (6th Cir. 2014) (quoting
Rivet v. Regions Bank of La. 522 U.S. 470, 476 (1998) (emphasis added)). Claim
preclusion applies when (1) there is a final decision on the merits in the first action by a
court of competent jurisdiction; (2) the second action involves the same parties, or their
privies, as the first; (3) the second action raises an issue actually litigated or which should
have been litigated in the first action; and (4) there is an identity of claims between the
first and second actions. Id. (citing Sanders Confectionary Prods., Inc. v. Heller Fin.
Inc., 973 F.2d 474, 480 (6th Cir. 1992)).2 Under Michigan law, the doctrine is applied
broadly, barring claims that have been already litigated as well as claims “arising from
the same transaction that the parties, exercising reasonable diligence, could have raised
[in the prior action] but did not.” Adair v. State of Michigan, 470 Mich. 105, 121, 680
N.W.2d 386 (2004).
The Court finds that the elements of res judicata are met here.
First, the parties are in agreement that there was a final decision on the merits in
Fizer II, as it was dismissed with prejudice. Thus for purposes of res judicata, the first
element is satisfied. Pedreira v. Sunrise Children’s Servs.,, 802 F.3d 865, 870 (6th Cir.
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Claim preclusion is distinct from issue preclusion (collateral estoppel). “This
latter doctrine only precludes relitigation of issues of fact or law actually decided in a
prior action between the same parties and necessary to the judgment even if decided as
part of a different claim or cause of action.” Sanders, 973 F.2d at 480.
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2015) (quoting Warfield v. AlliedSignal TBS Holdings, Inc., 267 F.3d 538, 542 (6th Cir.
2002)) (“A dismissal with prejudice ‘operates as a final adjudication on the merits and
has a res judicata effect.’”)
Second, it cannot be disputed that Plaintiff could have brought his Fourth
Amendment excessive force claim in Fizer II. Indeed, its resolution was required under
straightforward operation of Michigan’s compulsory joinder rule in M.C.R. 2.203(A).3
M.C.R. 2.203(A) provides:
(A) Compulsory Joinder. In a pleading that states a claim against an
opposing party, the pleader must join every claim that the pleader has
against that opposing party at the time of serving the pleading, if it arises
out of the transaction or occurrence that is the subject matter of the action
and does not require the presence of third parties over whom the court
cannot acquire jurisdiction.
Under the plain language of the court rule, Plaintiff’s excessive force claim arose
out of the same transaction or occurrence as the seizure of his automobile -- namely his
felony arrest on December 23, 2012. Those claims, moreover, would not have required
any third parties over whom the state court could not acquire jurisdiction as it cannot be
disputed that the state court would have had personal jurisdiction over any law
enforcement officer involved in Plaintiff’s apprehension and arrest. Therefore, the third
element of res judicata is met.
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The Michigan court rule would have applied here as Fizer II was originally
brought in Michigan state court. See Hendrix v. Roscommon Twp., 2004 WL 1197359 at
*4 (May 18, 2004).
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Plaintiff argues, however, that the doctrine does not apply because none of the
parties in the instant lawsuit (except for Plaintiff) were parties in Fizer II. In making this
argument, however, Plaintiff ignores that the doctrine applies if “the second action
involves the same parties or their privies as the first.” Heike at 480; Butler v. FCA U.S.
LLC, 2015 WL 4756743 at *3 (E.D. Mich. Aug. 11, 2015). “Privity,” for the purpose of
res judicata, exists if a party is “so identified in interest with another party that the first
litigant represents the same legal right that the later litigant is trying to assert.” Adair v.
State of Michigan, supra; Butler, supra. “A mutuality of interest, including an identity of
desired result, creates privity between parties for res judicata purposes.” ABS Indus., Inc.
ex rel ABS Litigation Trust v. Fifth Third Bank, 333 F. App’x 994 (6th Cir. 2009).
Here, Defendants and the Burton Police Department (the named municipal
defendant in Fizer II) are in privity. Plaintiff fails to take into consideration the
relationship between Defendants and the Burton Police Department. Under Michigan
law, a municipal police department is a creature of the municipality and as such, it cannot
be sued independently. See M.C.L. § 92.1. The Sixth Circuit has held that “[a] suit
against a city police department in Michigan is one against the city itself, because the city
is the real party in interest.” Haverstick Enterprises, Inc. v. Financial Federal Credit,
Inc., 32 F.3d 989, 992 n.1 (6th Cir. 1994) (citing Moomey v. City of Holland 490 F.
Supp. 188, 190 (W.D. Mich. 1980). Therefore, although the Burton Police Department
was the named defendant in the Fizer II, the real party in interest was the City of Burton,
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one of the named defendants in the instant action.
Moreover, “it is well-settled that a principal-agent relationship satisfies the privity
requirement where the claims alleged are within the scope of the agency.” ABS Indus.,
333 F. App’x at 999. The claims in the instant action against Defendants Broughton and
Lakey arise from the officers’ employment with the Burton Police Department. The
employer-employee relationship between these parties is, therefore, sufficient to establish
privity.
But an employer-employee relationship is not the only basis for finding privity
among the parties. The Burton Defendants, as well as all of the other municipal and
State Defendants sued in the instant action stand in privity with the Burton Police
Department because of their substantial identity of interests.
As explained by the Michigan Supreme Court in finding that the doctrine of res
judicata applied in Adair,
To be in privity is to be so identified in interest with another party that the
first litigant represents the same legal right that the later litigant is trying to
assert. The other limit of the doctrine traditionally requires both a
“substantial identity of interests” and a “working functional relationship” in
which the interests of the non party are presented and protected by the party
in the litigation. . . . [Thus,] a perfect identity of the parties is not required,
only a “substantial identity of interests” that are adequately presented and
protected by the first litigant.
470 Mich. at 122-23 (citations and some internal punctuation omitted). See also
Richards v. Jefferson County, 517 U.S. 793, 799, 116 S.Ct. 1761 (1996) (“[T]he
term “privity” is now used to describe various relationships between litigants that would
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not have come within the traditional definition of that term. . . . We have recognized an
exception to the general rule when, in certain limited circumstances, a person, although
not a party, has his interests adequately represented by someone with the same interests
who is a party.” (citations and internal punctuation omitted)).
Adair is exemplary of such an interest-related relationship establishing privity
among the parties. In that case, a group of voters filed a lawsuit challenging a portion of
the Headlee Amendment. After that case was decided on the merits, a second distinct
group of voters filed a similar lawsuit, but this time challenging a different part of the
Headlee Amendment. Despite the facts that different individual voters were partyplaintiffs in the two cases and the objects of the two suits, while related, were not
identical, the Supreme Court determined that privity existed between the two groups of
plaintiffs because both were pursuing substantially the same interests. Id.
The same is true here: With respect to Plaintiff’s allegations against the Burton
Police Department in Fizer II and against the municipal and State law enforcement
defendants in the present action, there is a substantial identity of interest and a working
functional relationship such that they stand in privity with one another.
Finally, there is an identity of claims between the first and second actions.
Michigan uses a transactional test pursuant to which “the assertion of different kinds of
theories of relief still constitutes a single cause of action if a single group of operative
facts give rise to the assertion of relief.” Adair at 124. Courts take a pragmatic approach
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and consider “whether the facts are related in time, space, origin, or motivation, [and]
whether they form a convenient trial unit.” Id. at 125. Therefore, even if a plaintiff
alleges distinct causes of action or different legal theories, they must be brought in the
same suit if they are based on a “common nucleus of operative facts.” Nguyen ex rel
United States v. City of Cleveland, 534 F. App’x 445, 451 (6th Cir. 2013) (citing Mich.
Bell Tel. Co. v. MCI Metro Access Transmission Servs., Inc., 323 F.3d 348, 362 (6th Cir.
2003) and United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966)).
In Buck v. Thomas M. Cooley Law School, 597 F.3d 812 (6th Cir. 2010) and
Dubuc v. Green Oak Twp., 312 F.3d 736 (6th Cir. 2002), the Sixth Circuit upheld the
application of the doctrine of res judicata to prevent the litigation of claims in the federal
district courts that should have been brought in prior state court actions. In each of those
cases, the plaintiffs filed a lawsuit in state court, which was dismissed, and then filed
lawsuits in federal court alleging claims that, while presenting distinct theories of
recovery, occurred during the pendency of the earlier state actions and arose from the
same transactions. In dismissing Buck and Dubuc, the Sixth Circuit held that res
judicata barred the subsequent federal claims because the plaintiffs could have brought
their new federal claims in the earlier actions.
A review of Fizer II and the instant Complaint demonstrate that the present claims
were viable during the pendency of Fizer II and both are based on the same facts:
Plaintiff’s December 23, 2012 arrest. [See Dkt. #1, Pg ID 3-4, ¶ 16; Fizer II Dkt. #4-2,
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Pg ID 51, ¶ 3.] Thus, under Buck and Dubuc, Plaintiff’s failure to bring his present
claims in Fizer II bars the instant action pursuant to the doctrine of res judicata.
III. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that, pursuant to the doctrine of res judicata,
Plaintiff’s claims in this action be, and hereby are DISMISSED in their entirety, with
prejudice.
Let Judgment be entered accordingly.
s/Gerald E. Rosen
United States District Judge
Dated: November 18, 2016
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on November 18, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, (313) 234-5135
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