Hill et al v. Detroit, City of et al

Filing 7

ORDER granting 4 Joint MOTION to Dismiss Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LATONYA HILL and
CHARLIE DONTREZ HILL,
Plaintiffs,
CASE NO. 17-CV-10296
HON. GEORGE CARAM STEEH

v.
CITY OF DETROIT,
DETROIT POLICE DEPARTMENT,
DETECTIVE LAWRENCE MITCHELL,
and UNKNOWN DETROIT POLICE
OFFICERS,
Defendants.
/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (Doc. 4)
Mother and son, Latoya Hill and Charlie Dontrez Hill, brought this 42
U.S.C. § 1983 action and related state law claims in Wayne County Circuit
Court, arising out of Mr. Hill’s three-day detention, and 45-day placement
on a tether as a result of his arrest for assault with intent to commit murder
and other crimes. Defendants are the City of Detroit, the Detroit Police
Department, Detective Lawrence Mitchell, and unknown police officers.
The named defendants removed the action here based on federal question
jurisdiction. Now before the court is a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) filed by all of the named
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defendants. Oral argument had been scheduled in this matter, but upon
review of the written submissions, the court determines that a hearing is not
needed pursuant to Local Rule 7.1(f)(2). For the reasons set forth below,
defendants’ motion will be granted.
A. Factual Background
Because the court is addressing a motion to dismiss pursuant to Rule
12(b)(6), the facts summarized here are those set forth in the Complaint.
On a dark and rainy evening on July 31, 2016 at about 7:30 p.m., Douglas
Martin was near a McDonald’s on Jefferson in Detroit, when he was
approached by a young black male who threatened to shoot him. When
Martin turned and ran, he was shot once in the shoulder. On August 1,
2016, Martin gave a statement to the police describing his assailant as a
black male, in his late twenties, thin, approximately 6’3” to 6’4”, with a dark
complexion, a mustache, and armed with a dark revolver. In his statement,
Martin stated that he may have seen the shooter before at the store on
Mack and Rohns, known as the Blue Light Liquor Store.
Two days after the shooting, on August 2, 2016, Martin identified Mr.
Hill from a photo line-up. On August 3, 2016, Mr. Hill was arrested by
Officer Kristopher Hernden. The state charged Mr. Hill with assault with
intent to murder, assault with intent to do great bodily harm less than
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murder, carrying a dangerous weapon with unlawful intent, carrying a
concealed weapon, and felony firearm. He spent three days in jail and 45days on a tether.
At the time of the shooting, Mr. Hill used a cane to walk because of
knee surgery he had undergone in March, 2016. On September 8, 2016,
Mr. Hill’s investigator gave the prosecutor exculpatory documents.

On

September 9, 2016, the date of the preliminary investigation, Mr. Hill’s
investigator gave defendant Detroit Police Officer Lawrence Mitchell
exculpatory documents showing he could not be the shooter including: (1)
surveillance video from McDonald’s showing that the shooter did not use a
cane, (2) surveillance video from the Blue Light Liquor Store showing that
Mr. Hill was in the store at around 8:34 p.m. on the date of the shooting
while using a cane, and (3) a witness’ affidavit stating that he saw Mr. Hill
at about 8:45 p.m. on the day of the shooting using a cane as Mr. Hill
headed back to his apartment. Mr. Hill claims that he sought to have the
criminal charges against him dismissed based on the exculpatory evidence,
but the prosecution refused to do so and proceeded with the preliminary
examination.
At the preliminary examination on September 9, 2016, Martin testified
but was unable to identify Mr. Hill as the person who shot him, admitting
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that Mr. Hill was considerably taller than him, standing at 6’ 6” tall, while his
assailant was only slightly taller than him. Martin admitted that he had
encountered Mr. Hill at a local liquor store previously, but at the time of the
shooting, he did not tell the police that he recognized his assailant. Martin
admitted that he may have picked out Mr. Hill in the photo lineup because
he recognized him from other encounters, not necessarily because he was
his assailant. He also admitted that it was dark and rainy on the night he
was shot, and he was not sure of the identity of his shooter. Based on
Martin’s inability to positively identify Mr. Hill, the court dismissed the
charges for insufficient evidence and ordered Mr. Hill’s tether to be
removed.
In addition to plaintiffs’ § 1983 claim for alleged violations of their
Fourth Amendment rights, plaintiffs also plead related state law claims of
violations of state constitutional law, false arrest, malicious prosecution,
and gross negligence. The court discusses the federal civil rights claims
below, and determining that plaintiffs have failed to state any federal claim,
remands the related state law claims to state court.
B. Standard of Law
Rule 12(b)(6) allows the Court to make an assessment as to whether
the plaintiff has stated a claim upon which relief may be granted. Under the
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Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 554-56 (2007), the court must construe
the complaint in favor of the plaintiff, accept the allegations of the complaint
as true, and determine whether plaintiff’s factual allegations present
plausible claims. “‘[N]aked assertions’ devoid of ‘further factual
enhancement’” are insufficient to “‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 557, 570). To survive a Rule 12(b)(6) motion to dismiss,
plaintiff’s pleading for relief must provide “‘more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.’” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014)
(quoting Twombly, 550 U.S. at 555). Even though the complaint need not
contain “detailed” factual allegations, its “‘factual allegations must be
enough to raise a right to relief above the speculative level on the
assumption that all of the allegations in the complaint are true.’” New
Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir.
2011) (quoting Twombly, 550 U.S. at 555).
C. Discussion
1.

Latonya Hill
Latonya Hill seeks to recover under § 1983 on the basis that she is
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Mr. Hill’s mother and incurred legal and investigative fees on his behalf and
suffered emotional distress because of his arrest, detention, and imposition
of a tether. Latonya Hill is not a proper plaintiff under § 1983. The Sixth
Circuit has held:
In the Sixth Circuit, a section 1983 cause of action is entirely
personal to the direct victim of the alleged constitutional tort.
Accordingly, only the purported victim, or his estate's
representative(s), may prosecute a section 1983 claim;
conversely, no cause of action may lie under section 1983 for
emotional distress, loss of a loved one, or any other
consequent collateral injuries allegedly suffered personally by
the victim's family members.
Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000) (internal citations
omitted). In her response brief, Latonya Hill consented to dismissal of her
claim. Accordingly, plaintiff Latonya Hill will be dismissed.
2.

City of Detroit Police Department
Mr. Hill has also named the City of Detroit Police Department as a

defendant. A police department is merely a creature of the city and cannot
be sued under ' 1983. The Police Department is not amenable to suit
because A[a] suit against a city police department in Michigan is one
against the city itself, because the city is the real party in interest.@ Glenn v.
Walker, 65 F. App'x 53, 54 (6th Cir. 2003) (quoting Haverstick Enters. v.
Fin. Fed. Credit, 32 F.3d 989, 992 n.1 (6th Cir.1994)). Accordingly, the City
of Detroit Police Department will also be dismissed.
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3.

City of Detroit
Plaintiff has also named the City of Detroit as a defendant. A city

may be liable under ' 1983 only when the injury is caused by the
Aexecution of a government's policy or custom@ under the Supreme Court=s
seminal decision in Monell v. Department of Social Services, 436 U.S. 658,
700-01 (1978). The Sixth Circuit has instructed that, to satisfy the
requirements of Monell, a plaintiff Amust identify the policy, connect the
policy to the city itself and show that the particular injury was incurred
because of the execution of that policy.@ Garner v. Memphis Police Dep=t, 8
F.3d 358, 364 (6th Cir. 1993) (internal citations and quotations omitted).
Plaintiff has failed to allege any unconstitutional custom or policy on the
part of the City of Detroit or its police department. Accordingly, the City
cannot be liable under ' 1983, and the City must be dismissed.
In their response brief, plaintiffs consented to dismissal of the City,
but asks that the dismissal be without prejudice on the theory that
discovery may show that the officers implemented a custom or policy that
was the moving force behind the allegedly unconstitutional conduct. The
court must reject plaintiffs’ proposal to allow the municipal claims to
proceed where the Complaint admittedly fails to meet the strictures of
Twombly.
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4.

Detective Lawrence Mitchell
The Complaint makes a single factual allegation against Detective

Mitchell: “[o]n September 9, 2016, before the preliminary examination
began, Mr. Hill’s investigator gave the Detroit Police Department’s officer in
charge of the case, Defendant Mitchell, allegedly exculpatory documents
and information showing that Plaintiff Mr. Hill could not have been the
shooter.” (Complaint, ¶ 42). Although Mr. Hill does not specifically title his
Fourth Amendment claim against Detective Mitchell as a malicious
prosecution claim, defendants analyze it as such, and the court will do so
here.
In order to succeed on a malicious prosecution claim under § 1983
when the plaintiff alleges a violation of his Fourth Amendment rights, a
plaintiff must establish four elements: (1) a criminal prosecution was
initiated against the plaintiff and the defendant made, influenced, or
participated in the decision to prosecute, (2) there was a lack of probable
cause for the criminal prosecution, (3) plaintiff suffered a deprivation of
liberty apart from the initial seizure, and (4) the criminal proceeding must
have been resolved in the plaintiff’s favor. Sykes v. Anderson, 625 F.3d
294, 308-09 (2010). Hill has failed to allege facts sufficient to establish the
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first element; thus, Detective Mitchell must be dismissed.
In order for a police officer to be liable for a malicious prosecution
claim, the officer must have made, influenced, or participated in the
decision to prosecute. Id. at 308. In Sykes, the Sixth Circuit explained that
in order for an officer to be liable for “participating” in the decision to
prosecute, “the officer must participate in a way that aids in the decision, as
opposed to passively or neutrally participating.” Id. at 308 n.5. In Sykes,
the Sixth Circuit affirmed a jury’s verdict finding two police officers liable for
malicious prosecution where one officer testified falsely at the preliminary
hearing, and that false testimony likely was material to the state court’s
finding that there was probable cause to bind the plaintiff over for trial, and
another officer was liable where he made false statements,
misrepresentations, and material omissions in his arrest-warrant application
and investigative report which directly influenced plaintiff’s continued
detention. Id. at 312-16. The Sixth Circuit stressed, however, “[i]t is
absolutely clear, however, than an officer will not be deemed to have
commenced a criminal proceeding against a person when the claim is
predicated on the mere fact that the officer turned over to the prosecution
the officer’s truthful materials.” Id. at 314. An officer’s “participation must
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be marked by some kind of blameworthiness, something beyond mere
negligence or innocent mistake.” Johnson v. Moseley, 790 F.3d 649, 655
(6th Cir. 2015).
In this case, Mr. Hill does not allege that Detective Mitchell made any
false statements or material omissions in his investigative report. Mr. Hill’s
sole complaint against Detective Mitchell is that Mitchell did not stop the
prosecution after Mr. Hill’s investigator presented him with allegedly
exculpatory evidence on the morning of September 9, 2016, the date of the
preliminary examination. Those materials included surveillance videos
from the McDonald’s and the Blue Light Liquor Store, as well as the
affidavit of a witness who saw Mr. Hill walking with a cane on the night of
the shooting. But by Mr. Hill’s own admissions, his investigator went to
Wayne County Prosecutor’s Office on September 8, 2016, and gave the
prosecutor the same exculpatory information. (Complaint, Exhibit 1).
Because the prosecutor had the exculpatory materials before the
preliminary examination began, her decision to continue with that
examination was not based on any omission on Detective Mitchell’s part.
The timing of events is important here. By Mr. Hill’s own allegations
in the Complaint, his investigator did not provide Detective Mitchell with the
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exculpatory information until the morning of the preliminary examination,
which took place on September 9, 2016, and his investigator had already
provided those materials to the prosecutor the day before. Thus, there is
no causal link to suggest that the prosecutor continued with the preliminary
examination based on Detective Mitchell’s possible failure to turn over
those allegedly exculpatory materials. Accordingly, Detective Mitchell is
not liable for malicious prosecution under § 1983 and will be dismissed.
Mr. Hill does not analyze his § 1983 claim against Detective Mitchell
as a malicious prosecution claim, but rather characterizes the claim as a
violation of Mr. Hill’s Fourth Amendment rights because he was detained
after giving the allegedly exculpatory materials to Detective Mitchell which
allegedly obviated probable cause. Mr. Hill is correct that the Sixth Circuit
recognizes that a Fourth Amendment claim exists under § 1983 for a
continuing detention when there is an absence of probable cause, which
need not be analyzed under the malicious prosecution rubric. Gregory v.
City of Louisville, 444 F.3d 725, 748-50 (6th Cir. 2006). In Gregory, the
plaintiff had served more than seven years in custody on charges of rape,
attempted rape, and burglary when his conviction was vacated based on
DNA evidence which exonerated him. Id. at 731. Gregory then brought a
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§ 1983 claim against numerous defendants, including a claim against a
state police crime laboratory examiner who allegedly withheld evidence that
hairs found on a pair of nylons the alleged perpetrator wore during the
crime did not match Gregory’s hair and who allegedly fabricated a false
laboratory report. Id. at 750. The Sixth Circuit ruled it was a jury question
whether the examiner’s conduct would have dissolved probable cause such
that the defendant could be liable under § 1983. Id. at 750.
Unlike Gregory, there is no allegation here that Detective Mitchell
withheld or fabricated evidence which would vitiate probable cause, but the
allegation is that Detective Mitchell’s receipt of allegedly exculpatory
evidence from Mr. Hill’s investigator should have put him on notice that Mr.
Hill could not have been the shooter. That evidence consisted of
surveillance video from the McDonald’s restaurant showing that the
perpetrator did not use a cane at the time of the shooting at 7:30 p.m., and
video footage from the Blue Light Liquor store from approximately an hour
later showing Mr. Hill using a cane in the store, as well as a witness
statement that at about 8:45 p.m. on the night of the shooting, he saw Mr.
Hill walking home to his apartment using a cane. It is not clear that this
evidence would obviate probable cause which was based on the fact that
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the victim picked Mr. Hill out of a photo array.
Even if the surveillance videos and witness affidavit would have
dissolved probable cause for Mr. Hill’s detention, Mr. Hill cannot show that
his seizure continued or was caused by Detective Mitchell. Mr. Hill
presented the material to Detective Mitchell the morning of September 9,
2016, prior to the preliminary examination, and he was released and the
charges were dismissed before noon the same day. The exculpatory
materials were known to the prosecutor prior to the time Mr. Hill provided
them to Detective Mitchell. Under these circumstances, Detective Mitchell
cannot be liable for detaining Mr. Hill without probable cause, and Mr. Hill’s
Fourth Amendment claim under § 1983 must be dismissed.
D. Conclusion
For the reasons set forth above, defendants’ motion to dismiss
plaintiffs’ § 1983 claims (Doc. 4) against all named defendants are
GRANTED.
Having dismissed all of the federal claims, this court declines to
exercise supplemental jurisdiction over the remaining state law claims. 28
U.S.C. § 1367(c)(3). “When all federal claims are dismissed before trial,
the balance of considerations usually will point to dismissing the state law
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claims, or remanding them to state court if the action was removed.”
Musson Theatrical v. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th
Cir. 1996). Plaintiffs consent to dismissal of the state constitutional
violations pled in Count II. Accordingly, the state law claims set forth in
Counts III, IV, and V in case number 16-014268-NZ are REMANDED to
Wayne County Circuit Court.
IT IS SO ORDERED.
Dated: April 18, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 18, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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