Boyd v. City of Warren et al

Filing 28

OPINION AND ORDER ADOPTING IN PART Report and Recommendation 23 and GRANTING IN PART Defendants' Motion to Dismiss 15 . Signed by District Judge Laurie J. Michelson. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES FRANCIS BOYD,
Plaintiff,
v.

Case No. 16-cv-12741
Honorable Laurie J. Michelson
Magistrate Judge R. Steven Whalen

CITY OF WARREN,
WARREN POLICE DEPARTMENT,
WARREN CITY HALL,
JERE GREEN,
COLIN MCCABE,
JEFFREY MASSERANG, JR.,
ROBERT HORLOCKER, and
ROLAND BELL,
Defendants.
OPINION AND ORDER
ADOPTING IN PART REPORT AND RECOMMENDATION [23] AND
GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS [15]
Charles Boyd says that in May 2014, he was in a parked car with some of his friends
when two City of Warren police officers, Colin McCabe and Jeffrey Masserang, approached
under the pretense that one of the occupants was visibly sick. After he exited the vehicle, Boyd
says that McCabe attempted to strike or grab his head which caused him to fall into the backseat
of the car. McCabe proceeded to beat and choke him. Boyd was taken to the police station in
Warren. There, several officers, including McCabe and Masserang, allegedly forced Boyd to
clean up his vomit with a single paper towel. Boyd further claims that during booking, one
officer choked him (while another watched), one slammed his head, and one threw him into a
cell by his hair. Based on these allegations, Boyd sued McCabe, Masserang, the City of Warren,
and others.

Defendants move to dismiss Boyd’s lawsuit. (R. 15.) Magistrate Judge R. Steven
Whalen, to whom all pretrial matters have been referred, recommends that this Court dismiss
some of Boyd’s claims but that the case proceed on others. (R. 23, PID 383.) Boyd has no
objections to this, but Defendants have one. In particular, the City of Warren disagrees with the
Magistrate Judge’s finding that Boyd adequately pled a municipal-liability claim. (R. 24.)
Because the City has objected, the Court reviews anew the City’s argument that Boyd’s
complaint fails to allege a viable municipal-liability claim. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3). Thus, the question for this Court is whether Boyd’s claim against the City of
Warren is “plausible,” i.e., whether the factual allegations of Boyd’s complaint permit “the
reasonable inference” that the City is liable. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Boyd says that the answer is “yes.” (See R. 25, PID 509.) In particular, he argues that his
allegations make it plausible that the City either (1) has a policy of inadequately training or
supervising its officers or (2) has “a custom of tolerance or acquiescence of federal rights
violations,” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). (See R. 25, PID 509.)
Both these theories of municipal liability require a plaintiff to show—or, at this stage of
the case, show that it is plausible—that the City of Warren acted with “deliberate indifference.”
See Connick v. Thompson, 563 U.S. 51, 61 (2011); Stanfield v. City of Lima, No. 17-3305, 2018
WL 1341646, at *8 (6th Cir. Mar. 15, 2018); Marcilis v. Twp. of Redford, 693 F.3d 589, 605 (6th
Cir. 2012.) Deliberate indifference is a “stringent standard of fault,” Connick, 563 U.S. at 61; it
“does not mean a collection of sloppy, or even reckless oversights,” Thomas v. City of
Chattanooga, 398 F.3d 426, 433 (6th Cir. 2005). “[O]rdinarily” (more on this qualifier below)
deliberate indifference means that the municipality knew or should have known of “[a] pattern of
similar constitutional violations” and took no remedial measures. See Connick, 563 U.S. at 61.

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The allegations of Boyd’s complaint do not make it plausible that the City of Warren
knew or should have known of repeat excessive-force violations by its police officers.
The Court starts, as Iqbal directs, by identifying allegations “that, because they are no
more than conclusions, are not entitled to the assumption of truth.” 556 U.S. at 679. That means,
for purposes of assessing plausibility, the Court need not credit allegations like this: the City of
Warren “acted recklessly and/or with deliberate indifference when it practiced and/or permitted
customs and/or policies and/or practices that resulted in constitutional violations to Plaintiff.” (R.
11, PID 147.) Or this: the City “failed to adequately train [its officers, including McCabe,
Masserang, Horlocker,] with regard to reasonable seizures.” (Id.) Or this: the City “exhibited a
deliberate indifference as to whether or not members of the public, such as Plaintiff, would be
hurt by its/their failure to properly train or supervise Defendants.” (R. 11, PID 149.) Whether the
City acted with “deliberate indifference,” “failed to adequately train,” or “exhibited a deliberate
indifference,” are legal conclusions.
Another set of allegations, while narrowly escaping the legal-conclusion label, do little to
“nudge[]” Boyd’s municipal-liability claim “across the line from conceivable to plausible.”
Iqbal, 556 U.S. at 680. In this set, are allegations like these two: the City failed to terminate or
discipline its officers, including Defendants, “after it was clear that such officers had histories of
violating the rights of citizens” (R. 11, PID 147) and “[g]iven the prior accounts of constitutional
violations against [the City] . . . [it was] clearly on notice that such abuse . . . would likely occur
in the future if [it] . . . continued to fail to properly hire, train, or supervise its police officers,
which it did fail to do.” (R. 11, PID 149.) Unlike pure legal conclusions, these allegations at least
contain a shred of factual matter: whether Warren police officers, including Defendants, had
“histories of violating the rights of citizens” and whether there were “prior accounts of

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constitutional violations” are questions that have an objectively true or false answer. But the
standard is still plausibility, and without saying more about these “histories” and “prior
accounts”—what happened and when—these allegations are too vague to show that there was a
“pattern” of constitutional violations and that the constitutional violations were “similar,” see
Connick, 563 U.S. at 61.
That leaves the portions of Boyd’s complaint where he does specify what happened and
when. Boyd avers that in November 2013, “a potential rape victim was abused by the Warren
Police Department by having her hair ripped or cut off by officers while restrained in a chair and
while in the presence of other officers who either took part in it or watched.” (R. 11, PID 150.)
And Boyd’s complaint states that in January 2014, the “Warren Police Department improperly
assaulted a man named Torres at his home and falsified reports (including falsely stating that
Torres resisted his arrest) [and] [a]t least one officer was thereafter charged with [a]ssault.” (R.
11, PID 150.) Boyd also alleges that “Defendant Officer McCabe has already been sued in this
Federal District Court in the matter of Laskey v. City of Warren, Kimberley Teolis and Colin
McCabe (2:13-CV-14538)” and that the case also involves claims of excessive force. (R. 11, PID
150–51.)
Although these allegations are undoubtedly factual, they still do not make it plausible that
the City of Warren knew or should of known that there was “[a] pattern of similar constitutional
violations,” Connick, 563 U.S. at 61. As an initial matter, these three incidents do not seem all
that similar. And even assuming it is enough that they all fall under the broad umbrella of
“excessive force,” three does not a pattern make. Given that there are about 135,000 people in
Warren, see U.S. Census Bureau, https://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml
(last visited Apr. 18, 2018), the City’s police force likely engages in hundreds of arrests and

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bookings each year. As such, one instance of excessive force in 2011 (Laskey), one in 2013 (the
hair ripping), and one in 2014 (Torres), does not make it plausible that the City knew or should
have known of a pattern of excessive force. See Ellis ex rel. Pendergrass v. Cleveland Mun. Sch.
Dist., 455 F.3d 690, 701 (6th Cir. 2006) (finding that two prior incidents over a two-year period
did not establish a pattern for purposes of municipal liability).1
In his complaint, Boyd promised additional examples of misconduct by Warren police
officers. He alleged that there are a “plethora” of examples (R. 11, PID 137), that the “instances
[were] too many to include in [the] Complaint” (R. 11, PID 150), and that examples were
“aplenty” and would be “further explored in Discovery” (R. 11, PID 151). Presumably Boyd had
particular instances in mind when he pled this. Yet in response to Defendants’ motion to dismiss
and in response to Defendants’ objections, Boyd has not come up with any examples other than
the three just discussed.
Thus, Boyd’s complaint does not make it plausible that the City knew or should have
known of a pattern of federal-rights violations.
Remaining is the issue of the qualifier—that showing deliberate indifference “ordinarily”
requires showing a known or obvious pattern of misconduct. “[T]he [Supreme] Court [has] left
open the possibility that, ‘in a narrow range of circumstances,’ a pattern of similar violations
might not be necessary to show deliberate indifference.” Connick, 563 U.S. at 63. In particular,
“the need for more or different training [may be] so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can reasonably be
1

A search of the Eastern District of Michigan’s case-management system suggests that
the officers involved in the Laskey and Torres incidents were not adjudged liable. In Laskey, the
defendants, including McCabe, were granted summary judgment. See Laskey v. City of Warren,
No. 13-14538 (E.D. Mich. Sept. 25, 2015) (order granting summary judgment). And Torres
agreed to dismiss his case. Torres v. Gill, No. 14-11414 (E.D. Mich. Feb. 11, 2015) (stipulated
order of dismissal); see also Repp v. Gill, 14-13609 (E.D. Mich. filed Sept. 17, 2014).
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said to have been deliberately indifferent to the need.” City of Canton, Ohio v. Harris, 489 U.S.
378, 390 (1989). For example, if a city were to arm its police officers without training on the
constitutional limits of deadly force, the city might be deliberately indifferent given the known
frequency in which police would encounter fleeing felons. Id. at 390 n.10; see also Connick, 563
U.S. at 63 (discussing Canton’s hypothetical).
It appears that Boyd is attempting to allege that this case falls within the “narrow range of
circumstances” contemplated in Canton. His complaint says, “As another method of
demonstrating deliberate indifference by [the City], Plaintiff can establish that Defendants have
failed to train their employees to handle recurring situations.” (R. 11, PID 151.) Boyd adds,
“[e]very day, [City of Warren officers] arrest individuals and then transport them to the Warren
Jail for booking and holding.” (R. 11, PID 151.)
But Boyd has not adequately pled that the City is liable under the “possibility of singleincident liability that the Court left open in Canton.” Connick, 563 U.S. at 68. For one, Boyd has
not alleged that Defendants, or Warren police officers generally, received no training on what is
constitutionally proper force during arrest or booking. See id. at 67 (providing that “[t]he Canton
hypothetical assumes that the armed police officers have no knowledge at all of the constitutional
limits on the use of deadly force” and explaining that “the utter lack of an ability to cope with
constitutional situations . . . underlies the Canton hypothetical”). Moreover, Boyd’s examples of
misconduct and conclusory statements about inadequate training do not make it plausible to infer
that it was “so obvious” to the City that its officers needed more training on the use of force
during arrests and bookings and that absent more training it was “so likely” that its officers
would violate the constitutional rights of its residents. See Canton, 489 U.S. at 390.

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In sum, the allegations of Boyd’s complaint do not contain sufficient “factual content” for
this Court to “reasonabl[y] infer[] that the [City] is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Count VI of Boyd’s complaint will be dismissed.
That resolves the sole objection to the Magistrate Judge’s report. As for the remainder of
his report and the rest of his recommendations, neither party has complained about those. As
such, the parties have forfeited any right to have this Court review anything other than the City’s
argument that Boyd has not pled a municipal-liability claim. See Thomas v. Arn, 474 U.S. 140,
144 (1985); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); Garrison v. Equifax
Info. Servs., LLC, No. 10-13990, 2012 WL 1278044, at *8 (E.D. Mich. Apr. 16, 2012).
Accordingly, the Court ACCEPTS IN PART the Magistrate Judge’s recommendation
(R. 23, PID 404) and GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss
(R. 15). In particular, the Court ORDERS as follows:
(1) Count III, Boyd’s gross-negligence claim, is DISMISSED;
(2) Count IV, Boyd’s assault-and-battery claim, is DISMISSED only insofar as the claim is
against Robert Horlocker;
(3) Count V, Boyd’s intentional-infliction-of-emotional-distress claim, is DISMISSED only
insofar as the claim is against Horlocker; and
(4) Count VI, Boyd’s municipal-liability claim, is DISMISSED and Defendants City of
Warren and Warren Police Department are DISMISSED from this case.

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All other claims remain in this case.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE

Dated: April 18, 2018

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on April 18, 2018.
s/Keisha Jackson
Case Manager

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