Cratty v. City of Wyandotte

Filing 41

OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT 46 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES PATRICK CRATTY,
Plaintiff,

Case No. 17-cv-10377

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

CITY OF WYANDOTTE,
Defendant.
______________________________/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT [# 20]
I. INTRODUCTION
Presently before the Court is Defendant’s Motion for Summary Judgment.
Dkt. No. 20. Defendant alleges that Plaintiff has failed to show any policy or
custom of malicious prosecution by the City of Wyandotte. For the reasons that
follow, the Court will grant Defendant’s Motion.
II. FACTUAL BACKGROUND
This case arises from the stop and arrest of Plaintiff Charles Cratty by
Wyandotte police officers. On January 1, 2008, officers Kenneth Groat, Daniel
0Torolski, Todd Scheitz, Michael Sadowski, and Detective Joseph Carr pulled

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Plaintiff over on his way home from the grocery store. Dkt. No. 28-5, pg. 28 (Pg.
ID 669). Plaintiff alleges that the police officers told him “[w]e don’t know what
you’re getting a ticket for, but you will be getting one.” Id. Plaintiff alleges
another officer told him “[y]ou are going to jail. We’re not sure for what yet, but
you are going to jail.” Id. at pg. 36 (Pg. ID 670). At one point, the officers told
Plaintiff that they stopped him for failure to signal before turning. Id. at pg. 28 (Pg.
ID 669). During the stop, the officers searched Plaintiff’s vehicle. Id. at pg. 29 (Pg.
ID 670). The officers then confiscated Plaintiff’s cell phone, his oscillating lights,
and an invaluable prayer cloth. Id. at pg. 30 (Pg. ID 671). Then, the officers
arrested Plaintiff and took him into custody. Id. They told Plaintiff that they were
taking him into custody for failure to signal and for having oscillating lights. Id. At
the police station, the officers charged Plaintiff with a violation of the safety belt
law, failure to signal/observe, no proof of insurance, and driving while license
suspended. Dkt No. 20-6, pg. 1, 4, 7, 10 (Pg. ID 251, 254, 25, 2607).
Defendant dismissed the driving while license suspended charge on
December 21, 2010. Id. at pg. 13 (Pg. ID 263). Defendant dismissed the remaining
three charges against Plaintiff on February 11, 2014. Id. at pg. 3, 6, 9 (Pg. ID 253,
256, 259). Plaintiff claims that Defendant never returned his cell phone, oscillating
lights, or prayer cloth to him.

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On February 7, 2017, Plaintiff filed the present action in this Court. Dkt. No.
2. Plaintiff brings a federal malicious prosecution claim, state and federal abuse of
process claims, and three state law claims of conspiracy, conversion, and unjust
enrichment. Dkt. No. 2, pg. 2–17 (Pg. ID 20–35). Plaintiff only brings suit
regarding the three January 1, 2008 charges that Defendant dismissed on February
11, 2014. Dkt. No. 28, pg. 2 (Pg. ID 594). On October 9, 2017, Defendant filed its
Motion for Summary Judgment. Dkt. No. 20. Plaintiff opposed the Motion on
October 27, 2017. Dkt. No. 28. In his response, Plaintiff noted that he had not
gotten the opportunity to depose Wyandotte’s Mayor. Id. at pg. 5 (Pg. ID 597).
Plaintiff argued that deposition of the Mayor would support a finding of a policy or
custom of constitutional rights violations. See id. Defendant replied to Plaintiff’s
response on November 10, 2017. Dkt. No. 32. On January 3, 2018, this Court
extended the discovery deadline to allow Plaintiff to depose the City of
Wyandotte’s Mayor, Joseph Peterson. Dkt. No. 34. This Court also allowed
supplemental briefing by both parties regarding Mayor Peterson’s deposition. Id.
On January 10, 2018, Plaintiff deposed Mayor Peterson. Dkt. No. 38-3. Plaintiff
filed his supplemental brief on February 1, 2018. Dkt. No. 38. Defendant filed its
supplemental brief on February 8, 2018. Dkt. No. 39. Defendant argued that
Plaintiff still failed to show a policy or custom of constitutional rights violations by
Defendant. Id.
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III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) governs summary judgment. The Rule
states, “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). “All factual inferences ‘must be viewed in the light most favorable to the
party opposing the motion.’” Id. (quoting Matsushita Elec. Indus., Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). There is a genuine issue of material fact
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(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.
IV. DISCUSSION
Federal Claims
Malicious Prosecution
Plaintiff’s complaint alleges a federal malicious prosecution claim pursuant
to 42 U.S.C. § 1983 against a municipality. Dkt. No. 2, pg 2 (Pg. ID 20).
To prevail in a § 1983 claim against a municipality, one must demonstrate:
(1) the deprivation of a constitutional right; and (2) that the defendant (municipality)
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is liable for the violation. Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455
F.3d 690, 700 (6th Cir. 2006).
1. Deprivation of a Constitutional Right
A federal malicious prosecution claim requires a plaintiff to prove four
elements. Plaintiff must show that: (1) “a criminal prosecution was initiated against
the plaintiff and that the defendant ma[d]e, influence[d], or participate[d] in the
decision to prosecute;” (2) “a lack of probable cause for the criminal prosecution”;
(3) “as a consequence of a legal proceeding, the plaintiff suffered a deprivation
of liberty”; and (4) “the criminal proceeding must have been resolved in the
plaintiff's favor.” Skyes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010).
Here, the police officers that arrested Plaintiff on January 1, 2008, initiated a
criminal prosecution against Plaintiff. However, the record does not show that there
was a lack of probable cause. Plaintiff contends that there was no probable cause.
However, a magistrate Judge issued an arrest warrant for Plaintiff on January 3,
2008, stating that there was probable cause. Dkt. No. 20-8, pg. 1 (Pg. ID 266).
Plaintiff suffered a deprivation of liberty because he was arrested and spent time in
jail. Dkt. No. 28-5, pg. 31 (Pg. ID 672). The criminal proceeding was resolved in
Plaintiff’s favor because Defendant dismissed all of the January 1, 2008 charges
against Plaintiff. Most of the elements of a malicious prosecution claim are met in
this case. However, the record does not support a lack of probable cause. In fact, the
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record supports a finding that there was probable cause. Therefore, the first prong of
a § 1983 claim, showing a constitutional deprivation, has not been met in this case.
2. Defendant’s Liability for the Violation
Even if Plaintiff can meet the above requirements of prong one, Plaintiff does
not meet the requirements of the second prong of a § 1983 claim against a
municipality. Therefore, Plaintiff’s malicious prosecution claim still fails. The
second prong of a § 1983 claim requires the plaintiff to show that Defendant is liable
for the constitutional violation. To do this, Plaintiff “must demonstrate that the
alleged federal violation occurred because of a municipal policy or custom.” Burgess
v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978)). Plaintiff must show one of the following to prove this
claim:
(1) the existence of an illegal official policy or legislative enactment;
(2) that an official with final decision making authority ratified illegal
actions;
(3) the existence of a policy of inadequate training or supervision; or
(4) the existence of a custom of tolerance or acquiescence of federal
rights violations.
Burgess, 735 F.3d at 478 (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005) (emphasis added)). “A municipality ‘may not be sued under § 1983
for an injury inflicted solely by its employees or agents.’” Id. (quoting Monell, 436
U.S. at 694).

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Plaintiff does not specify which element of the Burgess test he believes
precludes summary judgment. Rather, Plaintiff states that his “[c]omplaint illustrates
the Defendant’s illegal municipal policy, practice and/or custom.” Dkt. No. 28, pg.
2 (Pg. ID 594). Therefore, the Court will consider each element.
A. Element One
Element one requires proof of an illegal official policy or legislative
enactment. Nowhere in the record does Plaintiff specifically allege or provide
documentation of an official illegal policy. Nor do any documents in the record show
that Defendant had an official illegal policy or legislative enactment. Therefore, this
Court finds that there is no municipal liability under element one.
B. Element Two
Element two requires a showing that an official with final decision making
authority ratified illegal actions. The record shows that Plaintiff took depositions of
the Mayor Pro Tem and the supervisor who was on duty on January 1, 2008.
Joseph Peterson was the Mayor Pro Tem on January 1, 2008—the night that
police officers arrested Plaintiff. Dkt. No. 38-3, pg. 4 (Pg. ID 836). In Mayor
Peterson’s deposition, he stated, “[a]s far as I’m concerned, my police department
has always followed the law. I have no knowledge of them never following the law
to do something.” Dkt. No. 38-3, pg. 10 (Pg. ID 842). No other testimony in Mayor
Peterson’s deposition shows that he ratified illegal actions. Mayor Peterson was a
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former police officer. Id. at pg. 3 (Pg. ID 835). In his deposition, he testified that
when he pulled someone over for driving while his license was suspended, he may
have “three or four other cops around” for backup. Id. at pg. 5 (Pg. ID 837). Mayor
Peterson also testified that it is within an officer’s discretion whether to write a ticket
or arrest someone who is driving on a suspended license. Id. This testimony does not
create a genuine issue that Mayor Peterson ratified illegal actions. Although it may
be rare for five police officers to pull someone over for driving with a suspended
license, it is not illegal to do so. Additionally, officers have discretion about whether
to write a ticket or arrest someone with a suspended license. Therefore, Plaintiff’s
arrest was not an illegal act that the Mayor ratified. No other facts in Mayor
Peterson’s deposition could arguably support a finding that the Mayor ratified illegal
acts.
In Plaintiff’s deposition, he stated that he spoke with Mayor Peterson in
December of 2010 regarding the tickets from the 2008 stop and arrest. Dkt. No. 2015, pg. 13 (Pg. ID 356). Plaintiff stated that the Mayor said he would have the cases
dismissed, and that the cases should have been heard awhile ago. Id. The City did
not dismiss the cases until four years after that conversation, in 2014. Id. This
testimony from Plaintiff, taken as true, still does not support a finding that Mayor
Peterson ratified illegal conduct. It is arguably unacceptable that it took four years
for the City to dismiss Plaintiff’s charges after Plaintiff’s conversation with the
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Mayor. However, this does not support a showing that Mayor Peterson ratified
illegal acts. No reasonable juror could find that a delay in dropping the charges
equates to a ratification of illegal acts, such as malicious prosecution. There are many
other reasons, such as administrative delay or backup, and the City did eventually
drop the charges against Plaintiff.
Plaintiff also deposed Lieutenant Terence Reed. Lieutenant Reed was either a
sergeant or a lieutenant at the time of Plaintiff’s January 1, 2008 arrest, although he
does not specifically recall. Dkt. No. 38-8, pg. 5 (Pg. ID 903). Regardless, Lieutenant
Reed was the supervisor of officers Groat, Torolski, Scheitz, Carr, and Sadowski on
January 1, 2008. See id. at pg. 8 (Pg. ID 906). Therefore, he had some decision
making authority that properly makes him a subject of this analysis.
In his deposition, Lieutenant Reed stated that he did not know why five police
officers were on the scene to arrest Plaintiff on January 1, 2008. Id. at pg. 10 (Pg. ID
908). Reed also testified that he did not recall having any conversations with any of
the five officers on duty that night about whether they should arrest Plaintiff or just
give him a ticket. Id. at pg. 9 (Pg. ID 907). Reed stated that the only way he would
know if his officers arrested someone was if/when the arrestee was brought into the
police station and booked. Id. at pg. 7–8 (Pg. ID 905–06). These facts, taken together,
do not create a genuine dispute about whether Lieutenant Reed ratified illegal acts.
Reed stated that he did not recall having any conversations with any officers
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regarding Mr. Cratty’s arrest. Nor would Reed know if officers arrested Cratty until
the officers brought Cratty into the police station and booked him. Nothing in Reed’s
deposition shows that Reed had or should have had any knowledge of officers
partaking in illegal actions. No reasonable juror could conclude from Reed’s
testimony that he ratified any illegal acts.
In conclusion, Plaintiff has not shown that an official with final decision
making authority ratified illegal acts. Therefore, this Court finds that there is no
municipal liability under element two.
C. Element Three
To succeed on a failure to train or supervise claim in the Sixth Circuit, Plaintiff
must prove the following:
(1) the training or supervision was inadequate for the tasks performed;
(2) the inadequacy was the result of the municipality’s deliberate
indifference; and
(3) the inadequacy was closely related to or actually caused the injury.
Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.
2006).
Plaintiff does not explicitly argue that Defendant is liable because it failed to
properly train its officers regarding malicious prosecution. See Dkt. No. 20, 38. At
most, Plaintiff appears to argue that Defendant failed to train its police officers to
write a thorough police report.

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Plaintiff states that none of the police officers present at his January 1, 2008
arrest could determine from the police report which officer witnessed his alleged
failure to signal. Dkt. No. 28, pg. 5–6 (Pg. ID 597–98). Plaintiff’s depositions of the
officers Groat, Torolski, Scheitz, Carr, and Sadowski prove that his claim is true.
See Dkts. No. 28-5, pg. 5 (Pg. ID 646); No. 20-11, pg. 3 (Pg. ID 301); No. 20-12,
pg. 3 (Pg. ID 312); No. 20-13, pg. 3 (Pg. ID 321); No. 20-14, pg. 3 (Pg. ID 334).
Plaintiff also appears to be arguing that the police officers were not properly trained
on including their traffic stop location in police reports. See id.
The record does not clearly show that the training on drafting a police report
was inadequate for the tasks performed. In Detective Carr’s deposition, he stated that
the City of Wyandotte Police Department trained him to include in a police report
all the facts about the location of the vehicle at the time of a traffic stop. Dkt. No.
20-12, pg. 3 (Pg. ID 312). Officer Groat stated that the City did not train him to put
this information in a police report. Dkt. No. 20-13, pg. 3 (Pg. ID 321). Officer
Sadowski testified that the City trained him to “put in all facts” in a police report.
Dkt. No. 20-14, pg. 4 (Pg. ID 335). Officer Torolski stated that the City taught him
to put all the facts into a police report, but “sometimes people make mistakes.” Dkt.
No. 3, pg. 11, (Pg. ID 301). Mayor Peterson stated that he was trained to put his
vehicle’s location and if he was stationary or not in a police report. Dkt. No. 38-3,
pg. 11 (Pg. ID 843). These statements do not create an issue of material fact about
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whether there was adequate training on drafting a police report. The record indicates
that the City of Wyandotte does train its officers to draft a thorough police report.
However, depending on the circumstances of an incident and the officer, that officer
may not include every detail. From the record, it appears that human error is also a
factor in how someone writes a police report.
Even if the record does arguably show inadequate training, there must be a
showing of Defendant’s deliberate indifference to succeed on a failure to
train/supervise theory. “‘[D]eliberate indifference’ is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence
of his action.” Regets v. City of Plymouth, 568 Fed. App’x. 380, 394 (6th Cir. 2014)
(quoting Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). There are two
ways to demonstrate deliberate indifference. Plaintiff could “show prior instances of
unconstitutional conduct demonstrating that the [City of Wyandotte] has ignored a
history of abuse and was clearly on notice that the training in this particular area was
deficient and likely to cause injury.” Plinton v. Cnty. of Summit, 540 F.3d 459, 464
(6th Cir. 2008) (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). In the
alternative, Plaintiff could show “a single violation of federal rights, accompanied
by a showing that a municipality has failed to train its employees to handle recurring
situations presenting an obvious potential for such a violation . . . .” Id. (quoting
Bryan Cnty., 520 U.S. at 409).
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The record here does not prove either of the above methods of finding
deliberate indifference. Writing an insufficient police report is not unconstitutional
conduct. It is also not a single violation of federal rights. A reasonable juror could
not find deliberate indifference on the basis of writing an insufficient police report.
As stated earlier, the Plaintiff does not argue that Defendant failed to adequately
train/supervise in any other way. Therefore, this Court holds that there is no
municipal liability under element three.
D. Element Four
Element four requires Plaintiff to show a custom of tolerance or acquiescence
of federal rights violations. In his affidavit, Plaintiff stated that on two separate
occasions, he attempted to file a complaint with the Wyandotte Police Department.
Dkt. No. 28-5, pg. 26 (Pg. ID 667). Plaintiff complained that the City officers should
not have ticketed him, and he alleged malicious prosecution, abuse of process, and
criminal fraud. Id. Plaintiff stated the officer at the front desk refused to take his
complaint on both occasions. Id. Five months after he attempted to make these
complaints, police officers stopped and arrested him on January 1, 2008. Id. at pg.
27 (Pg. ID 668).
Plaintiff’s affidavit appears to be articulating a claim of municipal liability
based on an “inaction theory”—where there is an unwritten policy of tolerating
federal rights violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir.
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2005). To show municipal liability on the basis of an inaction theory, a plaintiff must
show:
(1) the existence of a clear and persistent pattern of [illegal activity];
(2) notice or constructive notice on the part of the [defendant];
(3) the [defendant's] tacit approval of the unconstitutional conduct, such that
their deliberate indifference in their failure to act can be said to amount to an
official policy of inaction; and
(4) that the [defendant's] custom was the “moving force” or direct causal
link in the constitutional deprivation.
Id.
In this case, the record does not reflect the existence of a clear and persistent
pattern of illegal activity. Plaintiff’s affidavit states that he attempted to file
complaints about prior tickets that he received from the Wyandotte Police
Department. Dkt. No. 28-5, pg. 26 (Pg. ID 667). Plaintiff also attempted to allege
malicious prosecution and abuse of process in these complaints. Id. Wyandotte
police officers previously gave Plaintiff tickets for having tinted windows and
driving with a suspended license. Id. at pg. 22 (Pg. ID 663). These tickets do not
evidence a clear and persistent pattern of illegal activity. Plaintiff bought a car with
tinted windows from a man who bought the car as-is from the City of Wyandotte
Police Department at an auction. Id. at pg. 21. Although the police never cited or
ticketed the previous owner of the car for tinted windows, Plaintiff got ticketed for
having tinted windows when he drove the car on May 22, 2007. Id. Plaintiff’s
ticket for having tinted windows is arguably unfair, but it does not rise to the level
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of showing a clear and persistent pattern of malicious prosecution. Police also
ticketed Plaintiff for driving with a suspended license. Id. at pg. 22 (Pg. ID 663).
Plaintiff stated that he told the officer that the cases which resulted in the
suspension were resolved, and Plaintiff just needed to pay his clearance fees. Id.
However, the officer still charged him with driving with a suspended license and
took him to jail. Id. Plaintiff also stated that this officer told him, “I know who you
are and you’re going to jail.” Id.
Although the actions of the police officer are arguably harsh, these actions
do not show the existence of a clear and persistent pattern of malicious
prosecution. When the officer pulled Plaintiff over, Plaintiff still had a driving with
a suspended license charge that was in the system. Even though the police officer
may have been insensitive toward Plaintiff, the officer charged and arrested
Plaintiff for a legitimate reason. This cannot establish a clear pattern of rights
violations that warrants holding the City of Wyandotte liable. Taken together, these
two incidents still do not show a clear and persistent pattern of illegal activity. On
both occasions where Plaintiff got tickets and/or was arrested, it was pursuant to a
legitimate legal action. The officers could have acted differently and chosen not to
ticket or arrest Plaintiff in these situations. However, they were not required to act
differently than they did. For these reasons, a reasonable juror could not find that
the previous tickets and arrest show a clear and persistent pattern of illegal activity.
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The next element of the inaction theory test requires the defendant to have
notice or constructive notice of the pattern of rights violations. Because this Court
holds that element one of the inaction theory test has not been met, element two
must also fail.
Element three of the inaction theory test requires the defendant’s tacit
approval of the unconstitutional conduct. This Court has held that there was no
clear pattern of unconstitutional conduct, so there was no unconstitutional conduct
for Defendant to tacitly approve. Therefore, element three is not met.
The last element of the inaction theory test requires that the defendant’s
custom was the moving force or direct cause for the constitutional deprivation.
Here, no such causation exists. The record fails to establish that Defendant had a
custom of malicious prosecution. Additionally, the record does not establish that a
custom of Defendant’s caused Plaintiff’s alleged constitutional deprivation.
In conclusion, the Court holds that the record does not establish enough facts
to create a genuine issue of material fact about municipal liability. Plaintiff cannot
show liability through any of the four approaches from the Burgess test. Plaintiff
also did not establish that there is a genuine issue of material fact regarding
malicious prosecution because there was probable cause to arrest him. Therefore,
this Court will grant summary judgment in favor of Defendant on Plaintiff’s Count
I of malicious prosecution.
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Abuse of Process
Plaintiff’s complaint alleges a federal abuse of process claim against a
municipality. Dkt. No. 2, pg 10 (Pg. ID 28). The Sixth Circuit has not yet
recognized abuse of process as a federal claim that plaintiffs are allowed to bring
pursuant to § 1983. Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 676 (6th
Cir. 2005). However, if this claim is cognizable, the elements to prove this claim
“would likely mirror those of state law.” Id. As stated above, for Plaintiff to
succeed in a § 1983 claim against Defendant, he must demonstrate: (1) the
deprivation of a constitutional right; and (2) that the defendant (municipality) is
liable for the violation. Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455
F.3d 690, 700 (6th Cir. 2006). It is unlikely that a federal abuse of process claim
exists in this circuit. However, even if the claim does exist, Plaintiff has not made a
sufficient showing to prove the claim.
1. Deprivation of a Constitutional Right
“To recover upon a theory of abuse of process, a plaintiff must plead and
prove (1) an ulterior purpose and (2) an act in the use of process which is improper
in the regular prosecution of the proceeding.” Lawrence v. Burdi, 886 N.W.2d 748,
754 (Mich. Ct. App. 2016). In his supplemental brief, Plaintiff argues that he was
the only person ticketed for tinted windows by Officer Fitzpatrick in 2007. Dkt.
No. 38, pg. 2 (Pg. ID 814). Plaintiff also stated that he was the only person cited
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for failure to use his signal turn by Officer Scheitz in six months. Id. at pg. 3 (Pg.
ID 815). Plaintiff stated that none of the police officers that arrested him on
January 1, 2008 wrote any other citations on their shifts. Id. These statements,
taken as true, do not create a genuine issue of fact regarding an ulterior purpose.
Just because Plaintiff was the only person cited in various respects does not mean
that it was because the officers had an ulterior purpose. At most, Plaintiff’s
statements do not amount to a finding of ulterior purpose. Moreover, they do not
reach the level of supporting a claim of ulterior purpose.
Plaintiff stated in his affidavit that on January 1, 2008 that the officers who
arrested him said, “I don’t know what you are going to receive a ticket for but you
are going to receive a ticket.” Dkt. No. 28-5, pg. 23–24 (Pg. ID 664–65). The
officers also told him, “you think you’re smart, don’t you?” Id. Officer Hunter said
to Plaintiff, “[y]ou’re days are numbered. You’re not going to make it in this town.
This is my town.” Id. These statements, taken as true, do create a genuine issue of
material fact about ulterior purpose. A reasonable juror could take these statements
and believe the officers were ticketing and arresting Plaintiff for non-legitimate
reasons, like running Plaintiff out of town.
The next element in an abuse of process claim is showing an act in the use of
process that is improper in the regular prosecution of the proceeding. The abuse of
process action is “for the improper use of process after it has been issued, not for
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maliciously causing it to issue.” Lawrence v. Burdi, 886 N.W.2d 748, 754 (Mich.
Ct. App. 2016). A regular use of process with bad intentions is not actionable, but
subsequent misuse after proper issuance may be actionable. Larsen, Sonja. 24
Michigan Civil Jurisprudence § 22 (2018). A court should determine the manner of
the use and not the intention when evaluating this claim. Id. In his complaint,
Plaintiff states that Defendant abused the legal process “by purposely prolonging
and delaying legal proceedings.” Dkt. No. 2, pg. 11 (Pg. ID 29). There is no
evidence in the record that Defendant purposely prolonged and delayed Plaintiff’s
legal proceedings. The record does not demonstrate any reason for the delay in
dropping the charges. The record only reflects Plaintiff’s opinion that Defendant
purposely delayed his legal proceedings. Therefore, based on the record, there is no
actionable abuse of process.
Plaintiff argued in his response that the act of the police filing a false police
report meets the improper act requirement. See Dkt. No. 21 (Pg. ID 613). In
Chancellor v. City of Detroit, this Court held that the defendants knowingly filed a
false police report, which met the improper act requirement. 454 F. Supp. 2d 645,
664 (E.D. Mich. 2006). Here, Plaintiff claims that the police knowingly filed a
false police report. However, the arrest warrant issued by the magistrate judge
negates Plaintiff’s opinion testimony. So the record still does not sufficiently show
an abuse of process claim.
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2. Defendant’s Liability for the Violation
Even if there was abuse of process by the police officers, Plaintiff does not
meet the requirements of the second prong of a § 1983 claim against a municipality.
Therefore, Plaintiff’s abuse of process claim still fails. The second prong of a § 1983
claim requires the plaintiff to show that Defendant, a city, is liable for the abuse of
process. To do this, Plaintiff “must demonstrate that the alleged federal violation
occurred because of a municipal policy or custom.” Burgess v. Fischer, 735 F.3d
462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978)). As stated in the malicious prosecution discussion, Plaintiff must show one
of the following to prove this claim:
(1) the existence of an illegal official policy or legislative enactment;
(2) that an official with final decision making authority ratified illegal
actions;
(3) the existence of a policy of inadequate training or supervision; or
(4) the existence of a custom of tolerance or acquiescence of federal
rights violations.
Burgess, 735 F.3d at 478 (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005) (emphasis added)). “A municipality ‘may not be sued under § 1983
for an injury inflicted solely by its employees or agents.’” Id. (quoting Monell, 436
U.S. at 694).
A. Element One
Element one requires the existence of an illegal official policy or legislative
enactment. The record in this case does not support a claim that there was an official
20

illegal policy. The Plaintiff also does not allege that Defendant had an official illegal
policy or legislative enactment. Therefore, element one does not show municipal
liability.
B. Element Two
Element two requires that an official ratified illegal actions. The record does
not reflect that any official ratified abuse of process. Neither Mayor Peterson nor
Lieutenant Reed gave testimony that could lead a reasonable juror to conclude that
they approved of anything illegal. See Dkts. No. 38-3, 38-8. The four-year delay to
dismiss the actions against Plaintiff after Plaintiff’s discussion with Mayor Peterson
is also not sufficient to meet element two. The record does not provide any evidence
that the Mayor ratified the length of time that it took to dismiss the actions. As stated
in the malicious prosecution discussion, Lieutenant Reed did not discuss Plaintiff’s
ticketing and arrest with the officers. The record does not provide any evidence to
support a finding that Lieutenant Reed ratified any improper actions that the officers
may have taken on January 1, 2008. For these reasons, there is no municipal liability
under element two.

C. Element Three
Element three requires Plaintiff to show that Defendant had a policy of
inadequate training or supervision. Plaintiff does not explicitly allege that Defendant
21

had inadequate training or supervision regarding abuse of process. Nor does the
record present any evidence that supports this finding. As mentioned above,
Plaintiff’s inadequate training argument focuses on writing police reports. The
record does not reflect that Defendant was deliberately indifferent about police
report training. Nor does it show that inadequate police report training caused abuse
of process. The record shows that any insufficient police report that the police wrote
was likely caused by human variance or error. Therefore, there is no municipal
liability under element three.
D. Element Four
Element four requires showing a custom of tolerance or acquiescence of
federal rights violations. As stated in the malicious prosecution discussion, element
four is not met under an inaction theory because there is no clear pattern of illegal
activity. Nothing else in the record supports a finding that Defendant tolerated
violations of federal rights. Therefore, there is no municipal liability under element
four.
In conclusion, Sixth Circuit precedent does not recognize a federal abuse of
process claim. However, if the claim is recognized, the evidence in this case does
not support a finding of abuse of process. There is not enough evidence for a
reasonable juror to conclude that there was abuse of process and that Defendant is

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responsible for it. Therefore, this Court will grant Defendant’s Motion on Plaintiff’s
federal abuse of process claim.
State Law Claims
In Counts II–V of his complaint, Plaintiff alleges state claims of abuse of
process, conspiracy, conversion, and unjust enrichment. Dkt. No. 2, pg. 10–17 (Pg.
ID 28–35).
Pursuant to 28 U.S.C. § 1367, district courts may exercise supplemental
jurisdiction over state law claims. However, “supplemental jurisdiction is
discretionary, not mandatory.” Charvat v. NMP, LLC, 656 F.3d 440, 446 (6th Cir.
2011). A district court may decline to exercise supplemental jurisdiction when:
(1) the claim raises a novel or complex issue of state law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis added); Hucul Advert., LLC v. Charter
Twp. Of Gaines, 748 F.3d 273, 281 (6th Cir. 2014).
In this case, the Court has granted summary judgment in favor of the
Defendant on both of Plaintiff’s federal claims. Therefore, this Court has
dismissed all claims over which it has original jurisdiction. Pursuant to 28
U.S.C. § 1367(c), this Court declines supplemental jurisdiction over
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Plaintiff’s state law claims of abuse of process, conspiracy, conversion, and
unjust enrichment. The Court dismisses these counts without prejudice.
V. CONCLUSION
For the reasons discussed herein, the Court will grant Defendant’s Motion
for Summary Judgment. Plaintiffs state law claims are dismissed without
prejudice.

Dated: February 21, 2018

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

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