Green v. Southfield et al

Filing 214

OPINION AND ORDER Granting 185 Motion for Summary Judgment; and Denying 186 Motion for Sanctions. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dawn Green,
Plaintiff,
v.

Case No. 15-13479

City of Southfield, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
_________________________/
OPINION & ORDER
GRANTING THE SOUTHFIELD DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR SANCTIONS
On October 4, 2012, Plaintiff Dawn Green was involved in an automobile accident in
Southfield, Michigan. She later filed this action, under 42 U.S.C. §§ 1983, 1985(3), and 1986,
asserting that officers of the Southfield Police Department violated her constitutional rights, and
conspired to do so, in the manner in which they investigated the accident.
This matter is currently before the Court on: 1) a Motion for Summary Judgment filed by
the Southfield Defendants; and 2) a Motion by Plaintiff seeking sanctions against the Southfield
Defendants relating to discovery. Those motions were fully briefed by the parties and the Court
concludes that oral argument is not necessary. For the reason set forth below, the Court shall: 1)
GRANT summary judgment in favor of the Southfield Defendants; and 2) DENY Plaintiff’s
motion for sanctions.

1

BACKGROUND
Acting through counsel, D. Rick Martin, Plaintiff Dawn Green filed this action on
October 3, 2015.
Plaintiff’s Operative Complaint
Plaintiff’s Second1 Amended Complaint (D.E. No. 48) is the operative complaint and it
asserts four counts against Defendants.
Count I is titled “42 U.S.C. Section 1983 – Constitutional Deprivation” and it is asserted
against the Individual Southfield Defendants, Birberick, Bassett, and Labrosse. In this count,
Plaintiff alleges that the Southfield Defendants “are civilly liable to Plaintiff pursuant to 42
U.S.C. 1983 for (a) failing to properly and fairly investigate the accident, because of Plaintiff’s
race and/or sex; (b) failing to administer police protective and investigative services in a
nondiscriminatory manner, because of Plaintiff’s race and/or sex; and (c) engaging in the
selective enforcement of traffic laws, because of Plaintiff’s race and/or sex.” (D.E. No. 48 at Pg
ID 882). Plaintiff alleges that Defendants showed deliberate indifference to (a) the UD 10
Traffic Crash Report which falsely stated that Plaintiff ran the red light; (b) the treatment of
Plaintiff differently than the similarly situated white male driver; and (c) the denial of Plaintiff’s
right to equal administration of police protective and investigative services, because of Plaintiff’s
race and/or sex. (Id.).
Count II is titled “42 U.S.C. Section 1983 – Constitutional Deprivation” (Count II), and it
is a “Monell claim” asserted against the City of Southfield.

1

As explained in this Court’s March 8, 2017 Order, despite its title, this was actually the
sixth proposed complaint filed by Plaintiff in this action. (See D.E. No. 138 at Pg ID 3051).
2

Count III is titled “Violation of 42 U.S.C. 1985(3) and 42 U.S.C. 1986” (Count III), and
it is asserted against the Individual Southfield Defendants. In this count, Plaintiff alleges:
88.

The named Defendants, together with the white male driver that ran the
red light and possibly unknown others conspired and committed malicious
acts in furtherance of their conspiracy to deprive Plaintiff of her right to
equal protection under the law, and to injure Plaintiff and deprive her of
rights and privileges of citizens of the United States, and specifically her
right not to be intentionally and falsely determined to have disregarded
traffic signal, which Defendants knew was unsubstantiated and untrue, and
was directly contradicted by an independent eyewitness, the 15 year old
passenger in the white male driver’s SUV, and objective physical
evidence. These conspiratorial acts were in furtherance of their desire to
protect the white male driver from liability, because of Plaintiff’s race
and/or sex.

89.

That Defendants had the authority and power to prevent the conspiracy to
(a) falsely state that Plaintiff disregarded traffic signal; (b) deny Plaintiff
equal administration of police protective and investigative services; and
(c) selectively enforce the traffic laws against Plaintiff, but failed to do so,
because of Plaintiff’s race and/or sex, and their desire to protect the white
male driver from liability.

90.

Defendants, Patterson and possibly others conspired and committed acts in
furtherance of a conspiracy to cover-up the police misconduct, and to
deprive Plaintiff of her rights under the Constitution, because of Plaintiff’s
race and/or sex, and their desire to protect the white male driver from
liability.

91.

Each of the Defendants and Patterson and possibly others acted in
furtherance of their conspiracy by treating Plaintiff differently than the
similarly situated white male driver, by denying Plaintiff’s right to equal
administration of police protective and investigative services, and by
selectively enforcing the traffic laws against Plaintiff, because of
Plaintiff’s race and sex and Defendants’ desire to protect the white male
driver from liability.

(D.E. No. 48 at Pg ID 884-85).
Count IV is titled “Breach of Contract Claim,” and it is asserted against Defendant Geico

3

Indemnity Company alone.2
Discovery
Since the inception of this case, it has been very contentious, especially between Plaintiff
and the Southfield Defendants. There were numerous discovery disputes, most of which were
addressed by the magistrate judge.
Pursuant to the last Scheduling Order issued, (D.E. No. 60 on July 19, 2016), discovery
closed on April 19, 2017, and motions had to be filed by May 19, 2017.
In an order issued on June 27, 2017, however, this Court resolved all outstanding
discovery issues with all of the parties. (D.E. No. 183). That order allowed the parties to take
some additional depositions, addressed some other issues, and allowed the parties to file new
summary judgment motions, if they elected to do so.
Pending Motions
This Court’s practice guidelines, which are expressly included in the Scheduling Order
issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:
a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled
Counter-Statement of Disputed Facts. The counter-statement shall list in
separately numbered paragraphs following the order or the movant’s statement,
whether each of the facts asserted by the moving party is admitted or denied and

2

Although this count was inserted at page 19 of the Second Amended Complaint,
Plaintiff’s counsel began numbering the paragraphs pertaining to Geico as paragraph 1, so there
are two paragraphs 1, two paragraphs 2, etc.
4

shall also be supported by appropriate citations to the record. The CounterStatement shall also include, in a separate section, a list of each issue of material
fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(Docket Entry No. 60 at 2-3).
Plaintiff’s Summary Judgment Motion As To Defendant Geico
Plaintiff filed a Motion for Summary Judgment as to Geico on May 19, 2017, and it
chose not to file a new one after the Court’s June 27, 2017 order.

Geico responded to that

motion on June 9, 2017, asserting that this matter must go to trial as there are numerous issues of
fact. Plaintiff did not file a reply brief. This motion will be addressed in a separate opinion and
order.
The Southfield Defendants’ Motion For Summary Judgment
On September 29, 2017, Defendants filed a Motion for Summary Judgment. (D.E. No.
185). Defendants’ Motion complied with the Court’s guidelines discussed above.
On October 19, 2017, Plaintiff’s Counsel requested an extension, until, October 30, 2017.
for filing a response to Defendants’ motion. (D.E. No. 190). This Court granted that request.
On October 30, 2017 – the day the delayed response was due – Plaintiff’s Counsel filed
another motion requesting an extension. (D.E. No. 192). Plaintiff requested an extension until
November 6, 2017.
This Court granted the request for the second extension but stated that it would be the last
extension. (See November 1, 2017 text-only order).
On November 6, 2017, Plaintiff’s Counsel filed a response brief, with no exhibits. (D.E.

5

No. 193). The next day, November 7, 2017, Plaintiff’s Counsel filed “an errata sheet” and
attached exhibits in support of the motion. (D.E. No. 194).
Despite having been granted two extensions for filing a response to Defendants’ Motion
for Summary Judgment, the brief filed by Plaintiff on November 6, 2017 did not comply with
this Court’s practice guidelines, as it did not contain the required counter-statement of facts
described above. This Court therefore issued an Order on November 9, 2017 (D.E. No. 195),
wherein the Court struck Plaintiff’s November 6, 2017 brief and November 7, 2017 “errata
sheet” (D.E. Nos. 193 & 194) for failing to comply with this Court’s practice guidelines and
ORDERED that “no later than 9:00 a.m. on November 13, 2017, Plaintiff shall file a response
brief that fully comports with this Court’s practice guidelines, along with any exhibits that
Plaintiff wishes the Court to consider in connection with Defendant’s Motion for Summary
Judgment. The Court further caution[ed] Plaintiff that all exhibits must be in proper form
and that the Court shall consider any further ‘errata sheet’ filings to be improper
supplemental briefs that shall be stricken by the Court.” (Id.) (emphasis in original).
Plaintiff filed her response on November 13, 2017, along with exhibits. Despite this
Court’s warning regarding the form of exhibits, Plaintiff’s counsel submitted an unsigned
affidavit from Plaintiff, that was not notarized. (D.E. No. 196-1 at Pg ID 6455). After
Defendants’ November 27, 2017 Reply Brief highlighted that deficiency, Plaintiff’s Counsel
filed a new affidavit from Plaintiff on December 8, 2017 (D.E. No. 201), without seeking leave
to do so.
Motion For Sanctions
On October 2, 2017, Plaintiff’s Counsel filed a “Motion for Sanctions for Engaging in

6

Dilatory Tactics,” seeking unspecified sanctions against the Southfield Defendants. (D.E. No.
186).
ANALYSIS
I.

The Court Shall Grant The Southfield Defendants’ Motion For Summary Judgment
(D.E. No. 185)
Following the close of discovery, Defendants file a Motion for Summary Judgment,

seeking summary judgment in their favor as to all of Plaintiff’s claims.
A.

Relevant Facts

Defendants complied with the Court’s practice guidelines for motions for summary
judgment such that their motion includes a “Statement of Material Facts Not In Dispute” (D.E.
No. 185 at Pg ID 5322, “Defs.’ “Stmt.”). Plaintiff’s response brief includes a “CounterStatement of Disputed Facts” (D.E. No. 196 at Pg ID 6438, “Pl.’ s Stmt.”).
In response to Defendants’ Motion for Summary Judgment, Plaintiff’s Counsel ultimately
filed a number of exhibits on November 13, 2017. He did not, however, file any portions of the
transcript of Plaintiff’s own deposition and Defendants’ motion attached only a few pages of
Plaintiff’s deposition. As noted previously, the “affidavit” from Plaintiff that Plaintiff’s Counsel
filed with his brief is unsigned and was not notarized. In addition, the exhibits filed by
Plaintiff’s Counsel were mis-numbered and some numbered exhibits were missing. The Court
will therefore refer to the exhibits actually filed by Plaintiff’s Counsel by the “Pg ID” numbers
that appear on the docket, rather the exhibit numbers used by Plaintiff’s Counsel.
The following material facts are gleaned from the evidence submitted by the parties.
Where is there is conflicting evidence, the facts are construed in the light most favorable to
Plaintiff, the nonmoving party.

7

On October 4, 2012, Plaintiff was in an automobile accident with a man named William
Patterson in the City of Southfield, Michigan, at the intersection of Southfield Road and 8 Mile
Road. Plaintiff is a black female and Patterson is a white male. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶
1-2).
Officer Rafid Maya, a Southfield Police Officer, arrived on the scene. Maya testified that
he responded to Plaintiff and Patterson. (Id. at ¶¶ 3-4).
Maya testified that Plaintiff appeared to be injured and was laying on the ground, and
possibly in shock, when he arrived on the scene. He testified that Plaintiff could only say “a few
words here and there,” and that she “didn’t respond too many times” and he didn’t want to try to
ask her too many questions because she was obviously injured. (Maya Dep. at 26-27).
Similarly, Plaintiff testified that while she way laying on the median she was dazed and confused
and was in a great deal of pain (Pl.’s Dep. at 136, filed as Defs.’s Ex. 5) and an Affidavit from
Harris, submitted by Plaintiff, states that Plaintiff “appeared to be disoriented and in pain.”
(Harris Affidavit, D.E. No. 196-1 at Pg ID 6560-61). As a result, Maya did not obtain an
account of the accident from Plaintiff at the scene.
An ambulance was called to assist Plaintiff. Maya does not recall if he called the
ambulance or if citizens called in the accident. (Maya Dep. at 29).
Defendant Keith Birberick, also a Southfield police officer, testified that he responded to
the accident scene after Maya did. Birberick testified as follows. When he arrived, all he saw at
the scene were paramedics, fire fighters, tow truck drivers, and Officer Maya. Birberick’s first
priority was to secure the crash scene and there technically were two: 1) the area was Patterson’s
vehicle was; and 2) the area were Plaintiff’s vehicle was located. The two cars were about 200-

8

300 feet away from one another. Birberick secured the scene where Patterson’s vehicle was and
Maya secured the scene where Plaintiff’s vehicle was located. Birberick walked over to the
scene where Maya was to speak with him, which took some time. (Defs.’ Stmt. & Pl.’s Stmt. at
¶¶ 8-14). Birberick further testified:
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
....
Q.
A.
Q.
A.

I spoke to Officer Maya who indicated that Ms. Green was incoherent or
out of it.
So if she was not out of it, would you have asked her if she could tell you
what happened?
Yes.
And why would you do that?
As I explained before, it’s part of the investigation.
And she should have her side of the story, right?
Correct.
Because it may be different than what Mr. Patterson told you, correct?
Yes, sir.
And you never attempted to ask her to provide you with her statement as
to how the accident happened, correct?
Yes, sir.
Why?
As the scene Officer Maya indicated that she was out of it, and for lack of
better words, and that obviously I saw her being treated by the paramedics
from the Southfield Fire Department.

(Ex. 3 to Defs.’ Br. at 118-19).
Birberick did, however, have the opportunity to speak to Patterson at the scene and asked
him how the accident occurred. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 16; Defs.’ Ex. 6 at 21).
Birberick testified that he also looked at the scene of the accident to determine whether
physical evidence corroborated Patterson’s statement. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶ 17).
Birberick testified that he did not see any skid marks at the scene and that the physical evidence
corroborated Patterson’s statement. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶ 18-19).
During the accident, Patterson had his fifteen-year old grandson, Ryan, as a passenger in

9

his vehicle. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶ 20).
It is undisputed that Plaintiff was not issued any kind of citation for a civil traffic
infraction as a result of the accident. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 24-25).
But Birberick did complete a “UD10” for the accident at the scene. (Birberick’s Dep.,
Defs.’ Ex. 3, at 183 & 186).
The Michigan Department of State Police’s UD-10 Traffic Crash Report Manual (Pl.’s
Ex. 11 at Pg ID 6530) states that the State of Michigan Traffic Crash Report form (UD-10 or
UD-10E*)” are prescribed by the Director of the Department of State Police pursuant to Section
257.622 of the Compiled Laws of 1970, as amended” and explains that:
Michigan law requires that the completed crash reports be forwarded to the
Director of the Department of State Police on forms prescribed by that office.
UD-10’s cannot be available for use in any court action (MCL 257.624) but are
used for the purpose of furnishing statistical information on crashes. They also
provide the basis for traffic legislation, enforcement, engineering, education,
driver licensing and public information generally not available from any other
source pursuant to MCL Section 257.624 of the Compiled Laws of 1970, as
amended.
(Id.) (emphasis in original).
The original UD-10 report completed by Birberick (D.E. No. 185-2 at Pg ID 5368)
indicated that, based on the investigation at the scene, Plaintiff disregarded the traffic signal. It
further indicated that Plaintiff was taken via ambulance to Providence Hospital and that
Patterson declined any medical care. It contained the following narrative, in which Plaintiff was
“driver 1” and Patterson was “driver 2:”
Investigation disclosed that driver 2 was stopped behind another unit in the center
lane of NB Southfield.
The Traffic signal for NB Southfield changed to green and the unit in front of
driver 2 entered the intersection. When driver 2 entered the intersection he was
10

struck by driver 1 who was WB on Eight Mile Road.
(Id. at Pg ID 5369).
About a week after the accident, Plaintiff obtained a copy of the UD10 from the
Southfield Police Department. (Pl.’s Dep. at 167-68). Plaintiff read the UD10 and realized that
she was marked at fault for the accident. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 31). Plaintiff testified:
A.

Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Then I went and they gave me a copy, I paid for a copy, and I looked at it
immediately while I was, you know, still there. I had a seat, so I could,
you know, read it or whatever, and I went back up to the desk and asked
her was there - how do you go about getting your police – if your police
report is wrong, how do you go about getting it amended, and she told me
that who I need to contact and she gave me the phone number to, I think
Bassett was first.
Okay. Did you get a ticket?
No.
From the October 2012 accident?
No.
So why did you care if the report was wrong?
Because it was wrong, it had me hitting him.
Why did that matter?
Because it was wrong. Wrong matters.
Why do you think it was wrong?
Because it had me hitting him.

(Pl.’s Dep. at 168).
In January or February of 2013, Plaintiff retained attorney D. Rick Martin (her attorney
in this case), who later filed a civil action against Patterson and Geico in Wayne County Circuit
Court. (Pl.’s Dep. at 172; Defs.’ Ex. 11).
At some point after the accident, Plaintiff came in contact with a man named Douglas
Harris, who claims to have witnessed the accident. Plaintiff’s attorney obtained an affidavit
from Harris, stating that he witnessed the accident and that he helped pull Plaintiff from vehicle
after the accident. He states that “[h]ad the officers asked me what I observed, I would have told

11

them that Mr. Patterson did not stop for the red light” and struck Plaintiff’s vehicle. (D.E. No.
196-3 at Pg ID 6560-61). Harris testified that he left the scene of the accident without speaking
to the police. (D.E. No. 185-15 at Pg ID 5496).
Plaintiff and her attorney contacted the Southfield Police Department and asked that the
UD10 be changed to reflect that Patterson ran the red light. (Defs.’ Stmt. & Pl.’s Stmt. at § 45).
The Police Department was also told that Harris claimed to have witnessed the accident.
Thereafter, the UD10 was amended, to add Harris as a possible witness and listed his
contact information. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 50). In addition, the amended UD10 noted
that Patterson had a passenger in his vehicle and listed Ryan’s name and date of birth. (D.E. No.
196-3 at Pg ID 6557-58).
After that was done, Bassett felt comfortable with the review that was completed and
decided to not dedicate anymore resources to the matter because it was a civil matter, not a
criminal matter, so it was closed. (Defs.’ Stmt. & Pl.’s Stmt. at ¶ 51).
Plaintiff initiated her motor vehicle negligence lawsuit against Patterson on July 22,
2013.
During that litigation, the parties deposed Patterson, his grandson Ryan, and Harris, all of whom
were known or claimed to be present at the scene of the accidence when the accident occurred.
During Plaintiff’s litigation with Patterson, the parties attended case evaluation, where Plaintiff
received a $165,000.00 award, but Patterson rejected the award. Following that, the parties
attended a facilitation during which they settled for $95,000.00. (Defs.’ Stmt. & Pl.’s Stmt. at ¶¶
52-56).
Acting through her same attorney, Mr. Martin, Plaintiff filed this action on October 3,

12

2015.
Two days prior to doing so, a complaint letter from Plaintiff was delivered to the
Southfield Police Department. (D.E. No. 196-3 at Pg ID 6567). In that letter, Plaintiff
complained about the investigation of her accident and the UD10 that had been completed.
During her deposition in this case, Plaintiff testified that had her personal injury case
gone to trial, she could have taken the stand and testified as to her version of how the accident
occurred:
Q.
A.

If you had gone to trial, you could have sat on the stand and testified to
your story, correct?
I could have, I could have testified to that, yes.

(Pl.’s Dep. at 202).
B.

Analysis

Defendants’ motion seeks summary judgment as to all of Plaintiff’s claims. The
arguments will be addressed in turn.
1.

The Officers Are Entitled To Qualified Immunity As To Plaintiff’s
§ 1983 Claims.

To state a claim under § 1983, a plaintiff must set forth facts that, when construed
favorably, establish: 1) the deprivation of a right secured by the Constitution or laws of the
United States; 2) caused by a person acting under the color of state law. Dominguez v.
Correctional Medical Services, 555 F.3d 543, 549 (6th Cir. 2009).
Under the doctrine of qualified immunity, government officials performing discretionary
functions generally are shielded from liability from civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known. Id.; Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008).
13

Determining whether government officials are entitled to qualified immunity generally requires
two inquiries: 1) whether, viewing the facts in the light most favorable to the plaintiff, the
plaintiff has shown that a constitutional violation occurred; and 2) whether the right was clearly
established at the time of the violation. Dominguez, 555 F.3d at 549.
“[A] qualified immunity defense can be raised at various stages of the litigation including
at the pleading stage in a motion to dismiss, after discovery in a motion for summary judgment,
or as an affirmative defense at trial.” English v. Duke, 23 F.3d 1086, 1089 (6th Cir. 1994).
Here, the officers have raised the issue in the instant Motion for Summary Judgment,
filed after the close of discovery.
There are three individual Defendants in this case (Birberick, Bassett, and Labrosse).
“Each defendant’s liability must be assessed individually based on his [or her] own actions.”
Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010).
As explained below, there is insufficient evidence in the record to show that any of the
individual Defendants violated Plaintiff’s constitutional rights – let alone that any such rights
were “clearly established.”
The first step in the qualified immunity analysis is to consider whether, viewing the facts
in the light most favorable to Plaintiff, could Plaintiff establish a Constitutional violation with
respect to any of the three officers.
Here, Count I asserts Plaintiff’s claims under § 1983 and those claims are based upon the
investigation of the accident.
To the extent that Plaintiff asserts a § 1983 claim based upon the officers’ simply having
failed to “properly investigate” the accident, such a claim fails as a matter of law. See, e.g.,

14

Kelso v. City of Toledo, 77 F. App’x 826, 833 (6th Cir. 2003) (noting that what the plaintiffs
were alleging and seeking to prove amounted to “variations on a single theme: that the Toledo
Police Department failed to investigate the case properly, and if they had done a better job,”
more favorable evidence would have been available to the plaintiffs at the time of their personal
injury suit, and explaining that “laxity in investigation, without active concealment,” does not
amount to a constitutional violation.); Flagg v. City of Detroit, 447 F.Supp.2d 824, 829 (E.D.
Mich. 2006) (noting that a § 1983 claim cannot be predicated upon an alleged failure of the
police to properly conduct an investigation); Jarrett v. Township of Bensalem, 312 F. App’x 505
(3rd Cir. 2009) (affirming dismissal of § 1983 claim because the mere existence of an allegedly
incorrect automobile-accident police report does not implicate constitutional rights). Simply
stated, there is no constitutional right to an error-free investigation of an automobile accident by
the police.
Plaintiff has only alleged a potentially viable § 1983 claim based upon the investigation
because she asserts: 1) an equal protection claim, based upon Plaintiff’s allegation that the
officers conducted a discriminatory investigation of the accident because of Plaintiff’s race or
sex; and 2) that, by virtue of their investigation, Defendants violated her constitutional right to
access of the courts.
Equal Protection Claim
The equal protection provision of the United States Constitution demands that persons
similarly situated be treated alike. U.S. Const. amend XIV, § 1; City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985).
In order to establish an equal protection claim, Plaintiff must show that similarly-situated

15

persons received different, more favorable treatment than her, and that the difference in
treatment was due to purposeful sex or race discrimination against her.
As Defendants’ motion notes, to be similarly situated, a plaintiff must show that she was
treated differently than those similarly situated in all material respects. (Defs.’ Br. at 10) (citing
Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012). This is analogous to the
burden in employment discrimination disparate treatment claims when a plaintiff must show that
she was treated less favorably than a similarly situated non-protected employee, without
“differentiating or mitigating circumstances” for doing so. See, e.g., Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992).
In opposing a motion for summary judgment, “it is plaintiff who possesses the burden of
demonstrating that the defendants treated similarly situated individuals in a disparate manner.”
Buchanan v. City of Bolivar, Tenn., 99 F.3d 1352, 1360 (6th Cir. 1996).
As a threshold matter, Plaintiff must establish that the Defendant officers treated
similarly situated persons disparately. Ryan v. City of Detroit, 698 F. App’x 272, 279 (6th Cir.
2017). The question of whether persons are similarly situated “may in some cases be a question
of fact for a jury.” Id. at 280. “However, [the Sixth Circuit has] upheld grants of summary
judgment where no reasonable juror could find that the plaintiff’s comparators were similarly
situated in ‘relevant’ or ‘material’ respects.” Id.
Here, Plaintiff asserts that the Officers violated her rights under the Equal Protection
Clause by not giving her an opportunity to provide her version as to how the accident occurred.
(Pl.’s Br. at 21). Plaintiff claims that the officers treated her (a black female) less favorably than
Patterson (a white male) because they asked for his account of the accident while at the accident
16

scene but did not ask for hers.
The fatal flaw with that argument is that Plaintiff and Patterson are not similarly situated
in the relevant or material respects and no reasonable jury could find otherwise based upon the
record evidence before this Court. That is because, while Patterson was uninjured and readily
able to speak with the officers at the scene of the accident, answer questions, and give them a
description of what he believes occurred, Plaintiff was not.
Maya testified that Plaintiff was clearly injured and was laying on the ground, and
possibly in shock, when he arrived on the scene. He testified that Plaintiff could only say “a few
words here and there,” and that she “didn’t respond too many times” and he didn’t want to try to
ask her too many questions because she was obviously quite injured. (Maya Dep. at 26-27).
Similarly, Plaintiff herself testified that while she way laying on the median she was dazed and
confused and was in a great deal of pain (Pl.’s Dep. at 136, filed as Defs.’s Ex. 5). An affidavit
from Harris, submitted by Plaintiff, states that Plaintiff “appeared to be disoriented and in pain.”
Birberick testified that he did not try to get a statement from Plaintiff at the scene because
Officer May had told him that Plaintiff “was out of it,” and Birberick saw that Plaintiff was
being treated by paramedics for her injuries. (Ex. 3 to Defs.’ Br. at 118-19).
This Court therefore concludes that Plaintiff has failed to meet her threshold burden of
establishing that the Defendant officers treated similarly situated persons differently. The
officers are entitled to qualified immunity as to Plaintiff’s equal protection claim.
Backward-Looking Denial of Access To Court Claim
“The Supreme Court has recognized a constitutional right of access to the courts,

17

whereby a plaintiff with a nonfrivolous legal claim has the right to bring that claim to a court of
law.” Flagg v. City of Detroit, 715 F.3d 165, 173 (6th Cir. 2013). The Sixth Circuit has stated
that “the right of access to the courts finds support in several provisions” of the United States
Constitution, including the Due Process Clause of the Fourteenth Amendment, the First
Amendment, and the Privileges and Immunities Clause of Article IV. Swekel v. City of River
Rouge, 119 F.3d 1259, 1261-62 (6th Cir. 1997). “Denial of access to the courts claims may be
‘forward-looking’ or ‘backward-looking.’” Flagg, 715 F.3d at 173.
“In forward-looking claims, the plaintiff accuses the government of creating or
maintaining some ‘frustrating condition,’ that stands between the plaintiff and ‘the courthouse
door.’” Id. “The object of the suit is to eliminate the condition, thereby allowing the plaintiff,
usually an inmate,” “to sue on some underlying legal claim.” Id. Here, nothing prevented
Plaintiff from filing a personal injury suit against Patterson and she did so. Therefore, Plaintiff
does not assert a forward-looking claim in this action. What Plaintiff asserts here is a
“backward-looking” access-to-courts claim.
“In backward-looking claims,” “the government is accused of barring the courthouse
door by concealing or destroying evidence so that the plaintiff is unable to ever obtain an
adequate remedy on the underlying claim.” Flagg, 715 F.3d at 173. While backward-looking
claims “are much less established that forward-looking claims,” the Sixth Circuit does recognize
them. Id. The essential elements of a backward-looking denial-of-access claim are: 1) a nonfrivolous underlying claim; 2) obstructive actions by state actors; 3) “substantial prejudice” to
the underlying claim that cannot be remedied by the state court; 4) a request for relief which the
plaintiff would have sought on the underlying claim and is now otherwise unattainable. Id. at
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174. Moreover, a plaintiff “must make out the denial-of-access elements against each defendant
in conformance with the requirements of § 1983.” Id.
In Swekel, the Sixth Circuit further distinguished between a denial of access claim where
the alleged abuse “occurred pre- or post-filing,” and explained:
When the abuse transpired post-filing, the aggrieved party is already in court and
that court usually can address the abuse, and thus, an access to courts claim
typically will not be viable. If the abuse occurs pre-filing, then the plaintiff must
establish that such abuse denied her “effective” and “meaningful” access to the
courts. She can do this only by showing that the defendants’ actions foreclosed
her from filing suit in state court or rendered ineffective any state court remedy
she previously may have had.
Swekel, 119 F.3d at 1263 (Emphasis added).
Plaintiff’s brief does not even set forth the essential elements that must be met in order to
proceed with her claim, much less present evidence to make the required showings. Rather,
Plaintiff simply assert that she “has shown that she was forced to settle her state court case for an
inadequate amount because of Defendant Birberick’s and officer Maya’s cover-up of the true
facts,” which she says includes the officers not getting her statement at the scene and not getting
statements from witnesses at the scene. (See Pl.’s Br. at 25). Plaintiff asserts that, due to those
actions, she was “substantially prejudiced in state court because she was deprived of credible
witnesses to rebut the Defendant Birberick’s finding and the white male’s assertion that she ran
the red light at trial.” (Id.).
Defendants’ brief explains why Plaintiff cannot establish a viable denial of access to
courts claim based on the record evidence here:
Plaintiff asserts that an error on the UD10 denied her access to the Courts.
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However, a UD10 and the statements contained therein could not have been
submitted as evidence in the underlying litigation because police reports are
inadmissible hearsay. See Galli v. Reutter, 148 Mich. App. 313, 318; 384 N.W.2d
43 (1985). Additionally, UD10s, completed as required by MCL 257.622, “shall
not be available for use in a court action.” MCL 257.624. Thus, Plaintiff’s
reliance on the UD10 to settle her case in the underlying litigation was misguided.
The statements in the UD10 did not render her access to the courts ineffective
because she should have ignored the UD10 when making her decision to settle
because it holds no evidentiary value whatsoever, which should have been readily
apparent to her attorney, who should have advised her of the same.
Plaintiff’s claim also fails because she effectively used the court system:
she filed her complaint on July 22, 2013, she conducted discovery, she deposed
witnesses, she went through case evaluation, and she facilitated the case. She
settled it because she was told that the UD10 marking her at fault was detrimental
to her case, despite the fact that it was inadmissible into evidence. She could have
testified at trial. She could have called Harris, who claimed that Patterson was at
fault for the accident, at trial, knowing that the UD10 could not impact his
testimony. Instead, she decided to forgo the opportunity to meaningfully use the
Court system and accepted a settlement.
(Defs.’ Br. at 15).
The Court agrees with Defendants that the officers are all entitled to qualified immunity
on this claim because Plaintiff cannot establish the essential elements of her backward-looking
denial-of-access-to-courts claim, which is based upon pre-filing conduct.
Plaintiff can meet the first element, a non-frivolous underlying claim, because she had a
non-frivolous personal injury lawsuit against Patterson.
Plaintiff has not, however, presented any evidence of any “obstructive conduct,” on the
part of the officers because she has not presented any evidence that they destroyed or concealed
evidence. Rather, she argues that the officers could have performed a better or more thorough
investigation, which would have uncovered witnesses that may have been favorable to her case.
And most notably, Plaintiff cannot establish that the officers’ actions denied her effective
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or meaningful access to the courts, such that her state court remedy was rendered ineffective.
That is because, regardless of the officers’ investigation, Plaintiff was aware of the alleged
witnesses to the accident (Patterson’s grandson and Harris) and could have called them to testify
at trial in her personal injury action if she chose to do so. Plaintiff also could have testified and
told her own version of how the accident occurred at trial – as she acknowledged in her
deposition in this case:
Q.

If you had gone to trial, you could have sat on the stand and testified to
your story, correct?

A.

I could have, I could have testified to that, yes.

(Pl.’s Dep. at 202). In addition, as Defendants have stressed, per statute, the UD10 was
inadmissible at trial. Accordingly, on this record, Plaintiff cannot establish a denial of access to
courts claim and all three officers are entitled to qualified immunity.
2.

Plaintiff Cannot Proceed With A Monell Claim Against The City.

Defendants’ motion asserts that Plaintiff cannot proceed with a Monell claim against the
City because she cannot present evidence of an unconstitutional policy that Southfield has, and
cannot adduce sufficient evidence to show that the City failed to train or supervise its officers.
The Court need not reach those arguments, however, because, as Defendants’ motion notes, a
simpler reason requires dismissal of this claim. It is well-established that “[i]f no constitutional
violation by the individual defendants is established, the municipal defendants cannot be held
liable under § 1983.” Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001).
3.

Plaintiff’s Conspiracy Count Fails Also.

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Count III asserts civil conspiracy claims against the Defendant officers under 42 U.S.C. §
1985(3) and § 1986.
To establish a civil conspiracy under § 1985(3), a plaintiff must show that: 1) two or
more persons conspired; 2) for the purpose of depriving the plaintiff of the equal protection of
the laws due to racial or class-based animus and that the conspirators; 3) committed an act in
furtherance of the object of such conspiracy; 4) that injured the claimant. Maxwell v. Dodd, 662
F.3d 418 (6th Cir. 2011).
Section 1986 “establishes a cause of action against anyone, who has knowledge of a
conspiracy under § 1985, and ‘having power to prevent or aid in preventing the commission of
the same, neglects or refuses to do so.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314
(6th Cir. 2005); 42 U.S.C. § 1985. “But ‘[w]here plaintiff has stated no cause of action under §
1985, no cause of action exists under § 1986.” Id.
Defendants’ Motion for Summary Judgment asserts that Plaintiff’s civil conspiracy
claims fail as a matter of law. The Court agrees.
“Under both federal and Michigan law, civil conspiracy claims are derivative. They are
cognizable only insofar as there is an underlying cognizable” claim for a constitutional violation.
Van Buren v. Crawford County, 2017 WL 3479546 (E.D. Mich. 2017) (citing Spadafore v.
Gardner, 330 F.3d 849, 854 (6th Cir. 2003)); see also Wiley v. Oberlin Police Dept., 330 F.
App’x 524, 530 (6th Cir. 2009) (explaining that, ‘[s]imiliar to the municipal liability claim, [the
plaintiff] cannot succeed on a conspiracy claim because there was no underlying constitutional
violation that injured her.”); Bauss v. Plymouth Twp., 233 F. App’x 490, 500 (6th Cir. 2007);
Thompson v. City of Memphis, 86 F. App’x 96, 103 (6th Cir. 2004) (explaining that conspiracy
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claim under § 1985(3) depends on the plaintiff successfully establishing the alleged
constitutional violation); Umani v. Michigan Dept. of Corrections, 432 F. App’x 453,462 (6th
Cir. 2011) (same).
Here, Plaintiff alleges a conspiracy by the officers and Patterson, to violate Plaintiff’s
constitutional rights to equal protection and access to the courts. Because Plaintiff cannot
establish either of the alleged constitutional violations, Plaintiff’s conspiracy claims fail too.
II.

The Court Shall Deny Plaintiff’s Motion for Sanctions (D.E. No. 186).
On October 2, 2017, Plaintiff filed a “Motion for Sanctions for Engaging in Dilatory

Tactics.” (D.E. No. 186). In this motion, Plaintiff’s Counsel asks this Court for unspecified
sanctions against Defense Counsel for: 1) for having initially responded that the City had no
record of Plaintiff’s October 1, 2015 letter complaining about how here investigation was
handled, when, in fact, the letter was received; and 2) for having belatedly produced some
training materials. Plaintiff’s Counsel was ultimately provided with the discovery at issue.
Moreover, neither of these items change the outcome of Defendants’ Motion for Summary
Judgment. Finally, to the extent that Plaintiff’s Counsel is arguing that Defense Counsel’s
actions have caused him to incur unnecessary expenses, the Court rejects that argument. This
case has been very contentious, on both sides. And since the inception of this case Plaintiff’s
counsel has failed to follow applicable court rules, has filed numerous “errata sheets” to correct
drafting and filing errors, failed to follow this Court’s practice guidelines, failed to meet
deadlines, etc. – all of which has caused both the Court and opposing counsel to spend more time
than should have been necessary in this case. The Court shall deny this motion.

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CONCLUSION & ORDER
For the reasons set forth above, IT IS ORDERED that: 1) the Southfield Defendants’
Motion for Summary Judgment is GRANTED and the claims against the Southfield Defendants
shall be DISMISSED WITH PREJUDICE; and 2) Plaintiff’s Motion for Sanctions is
DENIED.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 7, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 7, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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