PARKER v. Detroit, City of et al
Filing
86
OPINION AND ORDER DENYING DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT [#81]. Signed by District Judge Gershwin A. Drain. (TBan)
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2271
Page 1 of 14
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMAR PARKER,
Plaintiff,
Case No.: 16-cv-13036
Honorable Gershwin A. Drain
v.
CITY OF DETROIT, et al.,
Defendants.
___________________________/
OPINION AND ORDER DENYING DEFENDANTS’ RENEWED MOTION
FOR SUMMARYJUDGMENT [#81]
I.
INTRODUCTION
On August 22, 2016, Plaintiff Demar Parker filed the instant 42 U.S.C. §
1983 action against Defendants, Police Officers Jerold Blanding, Christopher
Townson and Marcus Ways, as well as the City of Detroit for violations of his
Fourth and Fourteenth Amendment rights to be free from unreasonable seizure and
excessive force. Plaintiff also brought claims of assault and battery and intentional
infliction of emotional distress against the Defendant-Officers.
Presently before the Court is the Defendants’ Renewed Motion for Summary
Judgment, filed on June 8, 2018. Plaintiff filed a Response in Opposition on July
3, 2018, and Defendants filed a Reply Brief on July 18, 2018. For the reasons that
1
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2272
Page 2 of 14
follow, the Court will deny the Defendants’ Renewed Motion for Summary
Judgment.
II.
FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The facts giving rise to the instant action have been set forth in prior orders
of this Court. As such, the Court hereby adopts the factual recitation of the facts
discussed in its June 5, 2018 decision denying the Defendants’ initial Motion for
Summary Judgment. See Dkt. No. 78 at Pg ID 1424-1429.
On October 26, 2016, in lieu of an Answer, Defendants’ first responsive
pleading was an Amended Motion to Dismiss Plaintiff’s Complaint.1 In that
motion, the individual Defendants argued that they were entitled to dismissal of
Plaintiff’s § 1983 claim because they were not acting under color of state law, a
requirement for § 1983 liability, rather their actions were undertaken in a purely
private capacity. On May 30, 2017, the Court denied the Defendants’ Amended
Motion to Dismiss and allowed Plaintiff to file an Amended Complaint. The Court
also entered a Scheduling Order setting a discovery deadline of November 15,
2017, and a dispositive motion cut-off of December 6, 2017.
Defendants filed
their Answers to the Amended Complaint on June 20, 2017. In their Answers, the
The Court struck Defendants’ original Motion to Dismiss for failure to comply
with this Court’s local court rules.
1
2
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2273
Page 3 of 14
Defendants raised governmental immunity, however they failed to expressly raise
qualified immunity as to Plaintiff’s § 1983 claim. See Dkt. Nos. 34-36.
On August 16, 2017, Defendants filed a Motion for Summary Judgment and
reasserted that Plaintiff’s § 1983 claim failed on the merits because the Defendants
were not acting under color of state law, rather their acts were undertaken in a
purely private capacity and not as police officers during the incident giving rise to
Plaintiffs’ claims. The Court denied Defendants’ August 16, 2017 Motion for
Summary Judgment, concluding that there remained unanswered questions of fact
concerning whether their actions can properly be characterized as actions under
color of law. See Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003);
Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975).2
Two days after the Court entered its Order Denying Defendants’ Motion for
Summary Judgment; Defendants filed a Request for Leave to file their present
Renewed Motion for Summary Judgment. The Court granted their Request and
Defendants filed their present motion on June 8, 2018. In their Renewed Motion
for Summary Judgment, Defendants have altered their previous position that they
Defendants incorrectly argue in their Renewed Motion for Summary Judgment
that the Court definitively determined that the “Defendants to this action were
acting under color of state law.” See Dkt. No. 81-2 at Pg ID 1461. Contrary to
Defendants’ assertion, the Court held that whether the Defendants were acting
under color of law remains a jury question. See Dkt. No. 78 at Pg ID 1433 (“[T]he
Court cannot conclude as a matter of law that Defendants were engaged in purely
private conduct and not under color of law.”)
2
3
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2274
Page 4 of 14
were not acting under color of state law, and now assert that as state actors, they
are entitled to qualified immunity.
III.
LAW & ANALYSIS
A.
Standard of Review
Federal Rule of Civil Procedure 56(a) “directs that summary judgment shall
be granted if there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court
must view the facts, and draw reasonable inferences from those facts, in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material
fact exists where the record “taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, the
court evaluates “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.
4
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
B.
PageID.2275
Page 5 of 14
Qualified Immunity
1.
Defendants Waived the Defense of Qualified Immunity
during the Summary Judgment Stage of the Instant Action
Plaintiff first argues that Defendants have waived their right to rely on the
doctrine of qualified immunity because they failed to raise it earlier in the instant
proceeding.
As an initial matter, the Court notes that Defendants assert they raised this
defense in their Affirmative Defenses. However, the Court has reviewed their
Affirmative Defenses, and while they expressly invoke governmental immunity as
a defense to Plaintiff’s state law claims, they do not expressly invoke qualified
immunity as to Plaintiff’s § 1983 claims. Moreover, Defendants failed to raise the
defense of qualified immunity in their Amended Motion to Dismiss or in their
original Motion for Summary Judgment. Rather, Defendants were steadfast in
their position that they were not acting under color of state law and thus qualified
immunity was irrelevant to this action.
Moreover, the Court rejects the litigation strategy undertaken here as
unsound.
Defendants argue that they filed their initial Motion for Summary
Judgment well before the close of discovery and dispositive motion cutoff so they
could raise qualified immunity in a second Motion for Summary Judgment if their
first Motion for Summary Judgment was denied. This district abhors such strategic
5
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2276
Page 6 of 14
maneuvers because it leads to inefficient and lengthy resolution of cases. In fact,
this district does not permit parties to file piecemeal summary judgment arguments
without leave of court. See E.D. Mich. L.R. 7.1(b)(2) (requiring a party to “obtain
leave of court to file more than one motion for summary judgment.”). The Court
advises counsel to raise all of his arguments in support of summary judgment in a
single motion in future cases in this district.
The Sixth Circuit Court of Appeals recognizes that the defense of qualified
immunity may be raised at various points in the progression of litigation. See
English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994). However, this Court has the
discretion to find a waiver “if a defendant fails to assert the defense within time
limits set by the court or if the court otherwise finds that a defendant has failed to
exercise due diligence or has asserted the defense for dilatory purposes.” Id.
“Such a waiver, however, need not waive the defense for all purposes but would
generally only waive the defense for the stage at which the defense should have
been asserted.” Id.
Accordingly, pursuant to Sixth Circuit authority, the Court finds that
Defendants have waived their affirmative defense of qualified immunity at the
summary judgment stage of the instant action and they may not use this defense as
a basis for interlocutory appeal.
6
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
2.
PageID.2277
Page 7 of 14
Material Factual Questions Preclude a Qualified Immunity
Determination
Plaintiff also argues that Defendants are not entitled to qualified immunity
because there are material questions of fact in this dispute which precludes
determining whether Defendants are entitled to qualified immunity. The Court
agrees.
Just as this Court found in its Order denying Defendants’ first Motion for
Summary Judgment, the parties’ materially disputed facts preclude the Court from
resolving whether they are entitled to qualified immunity. See Adams v. Metiva,
31 F.3d 375, 387 (6th Cir. 1994) (finding that summary judgment based on
qualified immunity is improper if the facts on which the decision must be based are
in dispute). It is well settled that summary judgment based on qualified immunity
may not be granted when “[t]he legal question of immunity is completely
dependent upon which view of the facts is accepted by the jury.” Id.; Poe v.
Haydon, 853 F.2d 418, 425 (6th Cir. 1988); Buckner v. Kilgore, 36 F.3d 536, 539
(6th Cir. 1994); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000).
The Court has already set forth the disputed material facts in its prior Order
denying Defendants’ first Motion for Summary Judgment, see Dkt. No. 78 at Pg
ID 1426-1429, 1434-35, 1437 (noting that “[t]he events that unfolded once the
Defendants arrived at the Sanchez home is in dispute[,] and [t]he Defendants’
7
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2278
Page 8 of 14
version of what transpired at the point Plaintiff returned to the scene is markedly
different.”
Additionally, “Defendants ignore relevant portions of Plaintiff’s
deposition testimony[,]” and “the[se] material[ly] disputed facts must go to the
jury.” Lastly, “[h]ere again Defendants advance their position by ignoring the
totality of the evidence before the Court.” ) In their Renewed Motion for Summary
Judgment, Defendants again advance their theory by ignoring all of the evidence
presented by Plaintiff. As such, they once again fail to appreciate that the Court
must analyze their Motion in the light most favorable to the Plaintiff. Because the
determination of whether Defendants are entitled to qualified immunity turns on
which version of the facts is accepted, it would be error for this Court to grant
qualified immunity.
3.
Interlocutory Appeal is Unavailable
As previously discussed, Defendants may not take an interlocutory appeal
based on this Court’s denial of qualified immunity because they waived this
defense during the summary judgment stage of this action.
Moreover, even if they had not waived qualified immunity during the
summary judgment stage, because the Court also concludes that material questions
of fact preclude finding as a matter of law that they are entitled to qualified
immunity, an interlocutory appeal is also inappropriate for this separate reason.
“[O]fficials may immediately appeal an adverse ruling on their defense of qualified
8
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2279
Page 9 of 14
immunity; however, they may only do so if the appeal presents a neat abstract
[issue] of law rather than the question of whether the record demonstrates a
genuine issue of fact for trial.” Hoover v. Radabaugh, 307 F.3d 460, 465 (2007)
(dismissing appeal and holding that “we do not have jurisdiction . . . [b]ecause the
determination of the district court was factual and did not raise significant legal
questions[.]”)
Based on these reasons, the Court warns Defendants that should they file an
interlocutory appeal in this matter; a stay of these proceedings will likely be denied
because such an appeal would be frivolous. See Behrens v. Pelletier, 516 U.S.
299, 310 (1996) (recognizing a district court’s power to certify interlocutory
appeals as frivolous and proceed with the case), Yates v. City of Cleveland, 941
F.2d 444, 449 (6th Cir. 1991); Jennings v. Genesee County, No. 13-13308, 2015
U.S. Dist. LEXIS 118096, *1 (E.D. Mich. Sept. 4, 2015); Englar v Davis, No. 04cv-73977, 2011 U.S. Dist. LEXIS 77033, *13-14 (E.D. Mich. Jul. 15, 2011).
B.
Municipal Liability
Defendants also argue that the City of Detroit is entitled to summary
judgment because Plaintiff cannot “proffer a single micro-dot of admissible
evidence that any City of Detroit policy, custom, or procedure, was the moving
force behind the alleged constitutionally aberrant conduct.” See Renewed Mot.
9
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
Summ. J. at Pg ID 1480.
PageID.2280
Page 10 of 14
To the contrary, Plaintiff has come forward with
sufficient evidence demonstrating that whether the City is liable under a Monell
theory is for the jury’s determination. See Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 690-91 (1978). It is telling that the Defendants fail to
address the evidence and arguments raised in Plaintiff’s Responsive Brief.
In City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), the United States
Supreme Court established that “inadequacy of police training may serve as the
basis for § 1983 liability . . . where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact.” In
support of his Monell claim, Plaintiff first directs the Court to the Department’s
history with respect to allegations of excessive force. For instance, Defendant
Jerold Blanding has been a repeat offender. He has been sued repeatedly in this
Court for claims of excessive force. See case numbers 98-73711, 99-60276. The
City settled the first action.
As a result of the numerous shootings of unarmed African American men
during this time period, then Mayor Dennis Archer requested that the Department
of Justice investigate the operations of the Department. This investigation revealed
that a high percentage of shootings were not legally justified because there was no
imminent threat of harm, or were shootings at persons who were only suspected of
committing misdemeanors. See Plf.’s Resp. at Ex. E. Twenty percent of the
10
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2281
Page 11 of 14
shootings deemed to be justified were found to be avoidable had the officers not
unnecessarily placed themselves in dangerous situations, or fired shots without first
establishing a target. Id. Ultimately the DOJ filed suit alleging a pattern or
practice of excessive force due to a failure to adequately train, supervise and
monitor police officers, to investigate use of force incidents and discipline officers.
Id. at Ex. AA. In that case, the parties entered a consent decree and monitors were
put in place to enforce the decree, however by 2014, federal monitors concluded
that the Department was not sustainably compliant with respect to constitutional
standards of excessive force, as well as found that training on de-escalation to
avoid unnecessary confrontations with citizens was needed. Id. at Ex. H. The
monitors also concluded that the Department was not compliant with standards
agreed to in the decree regarding investigating and disciplining for the misuse of
force. Id. However, the DOJ recommended releasing the City when it was in
bankruptcy, concluding that it was mostly compliant. Id. at Ex. E.
Plaintiff has also presented evidence that the City is apparently not
endeavoring to rectify its deficiencies with respect to training. Defendant Marcus
Ways testified during his deposition that he cannot explain how he has been trained
on the use of force. Id. at Ex. C. Nor could Defendant Christopher Townson recall
any training on when or how to use force while on-duty versus while off-duty. Id.
at Ex. B. Moreover, the Department’s Rule 30(b)(6) witness indicated that he is
11
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2282
Page 12 of 14
unaware of any training at all on de-escalation, nor could he identify any updates in
training over the past fifteen years. Id. at Ex. I. He is unaware of anyone ever
being referred for use of force training because of concerns with the misuse of
force. Id. While the Department uses a computer program to track use of force, he
likewise could not identify any case of someone sent to training under this system.
Id. Further, citizen complaints are not addressed during officer evaluations. Id.
Plaintiff has also brought forth evidence that the Department does not
adequately investigate claims of excessive force or provide additional training to
officers who have had repeated incidents involving misuse of force. For example,
the investigation into the circumstances giving rise to this action took an inordinate
amount of time, nearly three months for the interviews of Defendants Ways and
Townson, and roughly ten months for Defendant Blanding. The Defendants’
interviews were short and inconsistencies between the officers’ versions of the
incident were not followed up with further questioning. Moreover, Defendant
Blanding’s history including dozens of citizen complaints and two lawsuits
alleging excessive force is absent from the Department’s computer system that
supposedly tracks these incidents. Thus, his history was not uncovered and the
investigator was unaware of a repeated pattern and potential need for training on
the use of force. Lastly, none of the officers were disciplined or referred for
12
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2283
Page 13 of 14
further training despite the fact that Plaintiff’s vehicle was shot at a dozen times,
with one bullet entering his leg during the subject incident.
All of this evidence shows that a reasonable trier of fact could conclude that
the Department’s failure to train these Defendants and apparent ratification of the
Defendants’ conduct amounts to deliberate indifference to the constitutional rights
of Plaintiff and other citizens to be free from the excessive use of force.
C.
Governmental Immunity
Lastly, Defendants argue that they are entitled to governmental immunity on
Plaintiff’s state law claims. While Defendants raised governmental immunity as
an affirmative defense, they failed to argue it during their initial Motion for
Summary Judgment.
In order to obtain governmental immunity, Defendants must establish that
(1) the complained of acts were undertaken during the course of Defendants’
employment and within the scope of their authority, (2) the acts were in good faith,
and (3) the acts were discretionary, as opposed to ministerial. Ross v. Consumers
Power Co., 420 Mich. 567 (1984). Whether a defendant “acted in the course of his
employment and within the scope of his authority . . . are [generally] questions of
fact. Where reasonable minds could differ, these questions should be left to the
jury.” Gillam v. Lloyd, 172 Mich. App. 563, 577 (1988).
13
Case 2:16-cv-13036-GAD-SDD ECF No. 86 filed 09/04/18
PageID.2284
Page 14 of 14
Similar to this Court’s conclusion with respect to qualified immunity, the
Court finds that Defendants have waived this argument during this stage of the
proceeding.
IV.
CONCLUSION
Accordingly, for the reasons articulated above, Defendants’ Renewed
Motion for Summary Judgment [#81] is DENIED.
Motions in Limine are due no later than October 5, 2018. Responses are due
no later than October 22, 2018. Reply briefs may be filed no later than October 30,
2018. All remaining dates in this Court’s June 14, 2018 Order (Dkt. No. 83)
remain unchanged.
SO ORDERED.
Dated: September 4, 2018
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 4, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?