Watson v. City of Burton, a Michigan municipal corporation et al

Filing 75

ORDER denying 36 Motion for Summary Judgment; granting in part and denying in part 54 Motion for Summary Judgment; adopting in part 69 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CLIFTON WATSON,
Case No. 17-11833
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
CITY OF BURTON, ET AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [69]; OVERRULING
IN PART PLAINTIFF’S OBJECTION [70]; DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT [36]; AND GRANTING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [54]
Pro se Plaintiff Michael Clifton Watson filed a Complaint1 in the Genesee
County Circuit Court against Defendants the City of Burton, the Burton Police
Department, and individual Burton police officers on May 15, 2017, alleging
violations of his Fourth and Fourteenth Amendment rights, pursuant to 42 U.S.C. §
1983, as well as Michigan common law claims of false arrest and false
imprisonment. Defendants removed the case to this Court on June 9, 2017 [1]. The
Court referred all pretrial matters to the Magistrate Judge [3] on June 20, 2017.
Plaintiff filed a Motion for Summary Judgment [36] on September 20, 2017.
Defendants filed a Motion for Summary Judgment [54] on January 10, 2018.

1

Plaintiff filed an Amended Complaint [24] on August 24, 2017.

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On July 16, 2018, the Magistrate Judge issued a Report and
Recommendation (“R&R”) [69] recommending that the Court grant Defendant’s
Motion for Summary Judgment, deny Plaintiff’s Motion for Summary Judgment,
and dismiss Plaintiff’s Amended Complaint with Prejudice.
Plaintiff filed an Objection [70] to the R&R on July 30, 2018. The R&R and
Objection have been fully briefed.
The Court declines to fully adopt the R&R because it overlooks the critical
fact that the police officers arrested Plaintiff in his home without a warrant. There
were no exigent circumstances present to justify this warrantless arrest. The
question of whether the police had probable cause for the arrest, therefore, is
irrelevant. For that reason, and as explained further below, the Court ADOPTS the
R&R IN PART. Plaintiff’s Objection [156] is OVERRULED IN PART.
Plaintiff’s Motion for Summary Judgment [36] is DENIED. Defendants’ Motion
for Summary Judgment [54] is GRANTED IN PART and DENIED IN PART.
THE REPORT AND RECOMMENDATION
The R&R summarized the record as follows:
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about May 15, 2017, Plaintiff Michael Clifton Watson filed a pro se
civil complaint in Genesee County Circuit Court, naming as Defendants the
City of Burton, the Burton Police Department, Detective Freeman, Detective
David Powell, Officer Dennis Gross, and Detective Sgt. Shawn Duncanson.
The complaint alleges a violation of Plaintiff’s Fourth Amendment rights
based on his arrest and a violation of the Equal Protection Clause, pursuant
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to 42 U.S.C. § 1983, and state law claims of false arrest and false
imprisonment. On June 9, 2017, Defendants removed the case to this Court.
On August 24, 2017, Plaintiff Michael Clifton Watson filed a revised
amended complaint [Doc. #24] in this Court.
Plaintiff alleges that on August 12, 2015, Defendants Detective Eric
Freeman, Detective David Powell, Officer Dennis Gross, and Detective Sgt.
Shawn Duncanson arrested him at his home when there was no warrant for
his arrest. Amended Complaint [Doc. #24], ¶¶ 7-8. The complaint lacks
detail as to the specific facts on which it is based; however, discovery
materials have illustrated the underlying events. Attached to Defendants’
motion are the deposition transcripts of the Plaintiff, the text messages
between Plaintiff and Ms. Vesta Meissner,2 and an excerpt of a personal
protection hearing with testimony from Defendant Detective Freeman.
Plaintiff has also submitted his own affidavit as an exhibit to his response.
This action arises out of an investigation of a victim’s complaint in which
she felt threatened by the Plaintiff, leading to the Plaintiff’s arrest.
Defendants’ Motion for Summary Judgment [Doc. #54], Exhibit 1 – Pl’s
Dep., p.47. Defendant Detective Freeman testified that he received a threat
complaint from Ms. Megan Hubarth, who alleged that the Plaintiff had made
some threatening text messages regarding her. Id. at Exhibit 3 – Transcript
of Personal Protection Hearing, p. 5. The Plaintiff has also submitted a
police report written on August 4, 2015, by Officer Marshall Sabourin,
approved by Defendant Detective Sgt. Shawn Duncanson, in which Ms.
Hubarth alleged that Plaintiff “recently indicated in a text message that he
acquired a gun and intends to kill her.” Plaintiff’s Response. [Doc. #58],
Exhibit 5 – Police Report. After having received the text messages in
question by email, Detective Freeman contacted the City Attorney to see if
there was probable cause to arrest Plaintiff. Defendants’ Motion for
Summary Judgment [Doc. #54], Exhibit 3 at p. 5-6.
The Plaintiff testified that on August 12, 2015, he heard knocks on his door
from three police officers, who asked him to step outside and asked if he had
been sending threatening text messages to Ms. Megan Hubarth. Id. at
Exhibit 1 – Pl’s Dep., p.60-64. Plaintiff admitted that he wrote the text
messages but testified he sent the messages to Ms. Vesta Meissner rather
than to Ms. Hubarth. Id. at 64-65.
2

Ms. Meissner is one of Plaintiff’s closest friends. (Defs.’ Ex. 2 at 22:9).

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Plaintiff told the detectives where his phone was inside his home and wanted
to show the detectives that he had not sent the text messages to Ms. Hubarth.
Id. at 69-70. The text messages at issue, written by Plaintiff and sent to Ms.
Meissner, are as follows:
PLAINTIFF: She needs to know she is not in any danger at all
MEISSNER: I told he [sic] it was her friends she already knows
PLAINTIFF: Not just them
PLAINTIFF: The rest I will not text but it should be obvious to where
this is headed
PLAINTIFF: And I’m sure they mean a lot to her
PLAINTIFF: Or vice versa
PLAINTIFF: After I am finished and after you hand me over to the
proper authorities, you will take ownership of my possessions, and
accounts, I will not be needing them.
PLAINTIFF: However one phone call can stop all of this
PLAINTIFF: Who said anything about jail
MEISSNER: Then what are you talked about put away?
PLAINTIFF: Vesta everything I’ve said to you has had a double
meaning, the obvious one does not show the intent
PLAINTIFF: Read over everything
PLAINTIFF: Pass it along and I have everything I need to get it done
PLAINTIFF: And I don’t care about myself so I have nothing to lose,
I’m at peace with my decision, when I start it will be [too] late to stop.
I. Will [sic] be at peace when this ends, any more outside people
brought into this pain will make resolving the matter more hectic than
it has to be.
PLAINTIFF: I just want peace
PLAINTIFF: And Damon I’m drunk
PLAINTIFF: So drunk I need to stop texting
PLAINTIFF: Goodnight
MEISSNER: Good night forever or today?
PLAINTIFF: Today, I’ll let you know before the curtain is closed, but
it will never be done before the final act. How does it make you feel
that with the conditions told to her that she doesn’t care, does it make
you question your relationship with her?
PLAINTIFF: I won’t stop until I talk with her one on one
PLAINTIFF: Until then the answer lies within the chorus of drowning
pool’s song bodies
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PLAINTIFF: Remember I don’t do things half ass, go big or go home
and I have nothing left to lose so I’m going home
PLAINTIFF: But hell [I’m] drunk take me seriously or light is up to
everyone else
Id. at Exhibit 2 – Texts from Plaintiff.
The chorus of Drowning Pool’s song “Bodies” reads as follows:
Let the bodies hit the floor.
Let the bodies hit the floor.
Let the bodies hit the floor.
Let the bodies hit the floor.
Let the bodies hit the floor.
Let the bodies hit the floor.3
Plaintiff was charged with Threats by Computer, Ordinance Number
134.05A. Plaintiff’s Response [Doc. #58], Exhibit 3 at 1. Plaintiff testified
that he was taken to Burton Police Department by Detective Freeman and
another officer, and before he was placed in a holding cell, the other officer
in the car with Det. Freeman stated, “That was the easiest arrest that I’ve
made in a while.” Defendants’ Motion for Summary Judgment [Doc. #54],
Exhibit 1 at 74-75. The Plaintiff testified that he was then brought over to
Flint city lockup and released the next day in the afternoon, on August 13,
2015. Id. at 76-79. The Plaintiff also alleges that he was arraigned on or
around September 14, 2015, and his pretrial conference was set for a date in
October. Id. at 87, 91. The Plaintiff testified as follows regarding the pretrial
conference:
Q: And what happened at the pretrial conference?
A: I spoke with a city attorney, and which I showed him that I was
also equally possession with the evidence. And he inquired on where I
got it from followed on by a request from me to asking him to drop
the charges because it’s very clear that I didn’t do this. And which he
made the statement that “Even without the text message I would still
charge you.” And I asked why, and he’s like—he mentioned the
3

Drowning Pool. “Bodies.” Sinner. The Bicycle Music Company, 2001, Track 2. Lyrics
retrieved from https://www.azlyrics.com/lyrics/drowningpool/bodies.html, last accessed
06/21/18.

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police report. And I said, “But with no evidence? What do you
mean?” And I—Then he was remotely quiet, and I inquired—And I
made the statement to him, “There is only two logical reasons in
which someone would persist with no evidence with just the blatant
allegations that are unfounded, and that would be if you hold a
personal bias towards myself or if you’re racist.”
Q: What did he say to that?
A: He walked away.
Id. 91-92.
Plaintiff alleges violations of his rights under the Fourth Amendment and the
Equal Protection Clause of the Fourteenth Amendment, and state law claims
of false arrest and false imprisonment, seeking damages as a result of
suffering wrongful arrest, wrongful seizure, wrongful incarceration,
hindrance in employment, and emotional and physical injury related to the
events.
LEGAL STANDARD
The Court must make a de novo determination of the portions of the R&R to
which Plaintiff has objected. 28 U.S.C. § 636(b)(1)(C). “A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id.
“The filing of vague, general, or conclusory objections does not meet the
requirement of specific objections and is tantamount to complete failure to object.”
Cole v. Yukins, 7 F. Appx. 354, 356 (6th Cir. 2001). “‘[O]bjections disput[ing] the
correctness of the magistrate’s recommendation but fail[ing] to specify the findings
. . . believed in error’ are too general.” Novak v. Prison Health Services, Inc., No.

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13-11065, 2014 WL 988942, at *3 (E.D. Mich. Mar. 13, 2014) (quoting Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995)).
The Court is mindful of the fact that Plaintiff is a pro se litigant and is
entitled to some degree of leniency in his court filings. See Estelle v. Gamble, 429
U.S. 97, 106 (1976). The Court has a duty to give Plaintiff “the benefit of a liberal
construction of [his] pleadings and filings.” Boswell v. Mayer, 169 F.3d 384, 387
(6th Cir. 1999). That said, the Court “need not accept as true legal conclusions or
unwarranted factual inferences.” Montgomery v. Huntington Bank, 346 F.3d 693,
698 (6th Cir. 2003) (quoting Morgan v. Church's Fried Chicken, 829 F.2d 10, 12
(6th Cir.1987)). In addition, “the lenient treatment generally accorded to pro se
litigants has limits,” and they are “not automatically entitled to take every case to
trial.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
ANALYSIS
Plaintiff sets forth the following objections:
 Defendants had no evidence that Plaintiff committed a criminal offense prior
to arresting Plaintiff.
 Defendants’ police reports are inaccurate and contain misrepresentations.
 Defendants violated Plaintiff’s Fourth Amendment rights.
 “Defendants have edited and altered documentation to match their preferred
narrative.” (Obj. at 4).
 The content of Plaintiff’s text messages and statements are irrelevant.
 Defendants did not read Plaintiff his Miranda rights before questioning him.
 Defendants lacked probable cause to arrest Plaintiff.
 Defendants subjected Plaintiff to unequal treatment based on Plaintiff’s race.

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The Court need not consider Plaintiff’s argument with respect to the alleged
violation of his Miranda rights because it does “not specifically address points
raised in the Report and Recommendation.” Rich v. United States, 2005 WL
2277069 (W.D. Mich. Sept. 19, 2005). The Court does not “entertain issues and
arguments that appear for the first time in objections to a magistrate judge’s report
and recommendation.” Moore v. United States, 2016 WL 4708947, at *2 (E.D. Ky.
Sept. 8, 2016) (citing Moore v. Prevo, 379 Fed. Appx. 425, 428 n.6 (6th Cir.
2010)).
The remaining objections boil down to two core issues: whether Defendants
were justified in arresting Plaintiff without a warrant and whether Defendants
discriminated against Plaintiff on the basis of his race.
I.

Plaintiff’s false arrest claims
A. Fourth Amendment false arrest
It’s tempting to say that one of the issues in this case is whether Defendants

had probable cause to arrest Plaintiff. That question, however, glosses over a key
fact: that the police officers arrested Plaintiff in his home without a warrant.
On August 12, 2015, approximately one week after receiving a complaint
from Megan Hubarth, Detective Freeman, Detective Powell, Officer Gross, and
Detective Sergeant Duncanson went to Plaintiff’s apartment. (Defs.’ Ex. 1 at
61:18, 72:12-13). They knocked on Plaintiff’s door twice. Id. at 62:7-15. Plaintiff
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opened the door. Plaintiff stated that the officers asked him to step outside and
stated, “[w]e need to see you outside.” Id. at 62:22, 63:9-10. Without waiting for a
response, “one of the officers reached in, grabbed [Plaintiff’s] arm and led [him]
outside.” Id. at 63:1-2. The officers then handcuffed Plaintiff and patted him down.
Id. at 66:22-24.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. Amend. IV.
Courts have long recognized that “searches and seizures inside a home
without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980). Plaintiff’s deposition testimony – the only evidence in the record
that provides details about how the arrest transpired – demonstrates that Plaintiff
was seized – indeed, arrested – the moment the officer reached inside the house
and grabbed Plaintiff’s arm. See California v. Hodari D., 499 U.S. 621, 626 (1991)
(explaining that “[a]n arrest requires either physical force . . . or . . . submission to
the assertion of authority.”). Absent a specific exception to the Fourth Amendment
warrant requirement, such as consent or exigent circumstances, Defendants had no
basis to execute a warrantless arrest of Plaintiff.
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Defendants here do not meet the “heavy burden” of demonstrating any need
to arrest Plaintiff without a warrant. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
This is especially true given the fact that courts are “reluctan[t] to sanction
warrantless intrusions into a home for misdemeanor arrests like this.” Brenay v.
Schartow, 709 Fed. Appx. 331, 334 (6th Cir. 2017) (citing Welsh, 466 U.S. at 750).
Megan Hubarth contacted the police about her troubles with Plaintiff on
August 4. Even with the (arguably troubling) text messages, and Megan’s claim
that “she had been told that [Plaintiff] had gotten a gun,” Defendants waited to
arrest Plaintiff until August 12, eight days later. (Defs.’ Ex. 1 at 48:5-6).
Defendants clearly felt no sense of urgency about confronting and arresting
Plaintiff, and, more importantly, they had ample time to secure a warrant. Given
that Detective Freeman spoke to the city attorney about Ms. Hubarth’s complaint,
and got her approval as to a probable cause determination, there’s no reason that he
could not have then taken the time to obtain an arrest warrant. “Police officers may
not, in their zeal to arrest an individual, ignore the fourth amendment’s warrant
requirement merely because it is inconvenient.” U.S. v. Morgan, 743 F.2d 1158,
1164 (6th Cir. 1984).
Having determined that there was a constitutional violation, the Court must
now consider Defendants’ assertion of qualified immunity. Defendants are entitled
to qualified immunity unless Plaintiff can show that Defendants’ conduct violated
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a clearly established statutory or constitutional right. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). A right is clearly established when it is “clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Saucier v.
Katz, 533 U.S. 194, 202 (2001).
Defendants here had plenty of “fair warning” that their actions – putting
their hands on Plaintiff and removing him from his home to arrest him – were
unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Payton and Welsh,
decades-old United States Supreme Court cases, forbid law enforcement officers
from executing warrantless, non-consensual entries into a house to make an arrest.
Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005). In addition, under
Sixth Circuit case law, it is clearly established that police may not arrest a person
in his home unless they have a warrant, consent, or exigent circumstances exist.
See U.S. v. Saari, 272 F.3d 804, 809 (6th Cir. 2001) (citing Morgan, 743 F.2d at
1166). Reasonable officers would know of the constitutional protections of a
person in his house, and therefore, Defendants are not entitled to qualified
immunity. Plaintiff’s objection is SUSTAINED.
B. Michigan false arrest
Plaintiff also raises a claim of false arrest against Defendants under
Michigan common law. Unlike Plaintiff’s constitutional claim, however, the
common law claim is subject to the defense of Michigan governmental immunity.
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Under Michigan law, a governmental employee may establish immunity to an
intentional tort claim by showing the following:
(a) The acts were undertaken during the course of employment and
the employee was acting, or reasonably believed that he was acting,
within the scope of his authority,
(b) the acts were undertaken in good faith, or were not undertaken
with malice, and
(c) the acts were discretionary, as opposed to ministerial.
Odom v. Wayne County, 760 N.W.2d 217, 228 (Mich. 2008).
The good faith standard for Michigan governmental immunity, in contrast to
the objective standard used when evaluating federal qualified immunity, is a
subjective test based on the officers’ state of mind. Brown v. Lewis, 779 F.3d 401,
420 (6th Cir. 2015). “Michigan governmental immunity ‘protects a defendant’s
honest belief and good-faith conduct with the cloak of immunity while exposing to
liability a defendant who acts with malicious intent.’” Id. (quoting Odom, 760
N.W.2d at 228).
Because Plaintiff has presented no evidence placing the officers’ good faith
in question, and because the officers’ decision to question and arrest Plaintiff was
undoubtedly discretionary in nature, the police officer defendants are entitled to
governmental immunity. Ross v. Consumers Power Co., 420 Mich. 567, 634
(1984) (explaining that discretionary acts “require personal deliberation, decision,
and judgment.”). Plaintiff’s objection on this claim is OVERRULED.

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II.

Plaintiff’s Equal Protection claim
The Fourteenth Amendment’s Equal Protection Clause prohibits

governmental discrimination that “burdens a fundamental right, targets a suspect
class, or intentionally treats one differently than others similarly situated without
any rational basis for the difference.” Loesel v. City of Frankenmuth, 692 F.3d 452,
461 (6th Cir. 2012) (internal quotations omitted). Because Plaintiff alleges
selective enforcement, he “must establish that the challenged police action ‘had a
discriminatory effect and that it was motivated by a discriminatory purpose.’”
Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th Cir. 2005) (quoting Wayte v.
United States, 470 U.S. 598, 608 (1985)).
Plaintiff can establish neither discriminatory effect nor discriminatory
purpose. He has not proffered statistical or anecdotal “evidence showing similarly
situated individuals of another race were treated differently.” Id. (citing King v.
City of Eastpointe, 86 Fed. Appx. 790, 802 (6th Cir. 2003). Additionally, he has
not shown discriminatory purpose because he has not presented “evidence that an
official chose to prosecute or engage in some other action at least in part because
of, not merely in spite of, its adverse effects upon an identifiable group.” King, 86
Fed. Appx. at 802 (citing Wayte, 470 U.S. at 610). Plaintiff’s objections on this
claim are therefore OVERRULED.

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CONCLUSION
The Court having reviewed the record,
IT IS ORDERED that the Report & Recommendation [69] is ADOPTED
IN PART. The Court ADOPTS the findings and conclusions of the R&R with
respect to Plaintiff’s common law false arrest, false imprisonment, and equal
protection claims against the individual police officers, as well as all claims against
the Burton Police Department and the City of Burton. The Burton Police
Department and the City of Burton are DISMISSED from this action.
IT IS ORDERED that Plaintiff’s Objection [71] is SUSTAINED IN PART
and OVERRULED IN PART. Plaintiff may proceed with his Fourth Amendment
false arrest claim against the individual police officer defendants. All other claims
are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [36] is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment [54] is GRANTED IN PART and DENIED IN PART. As explained
above, Defendants’ motion is granted with respect to all of Plaintiff’s claims
against the Burton Police Department and the City of Burton, as well Plaintiff’s
common law false arrest, false imprisonment, and equal protection claims against

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the individual police officers. Defendants’ motion is denied with respect to
Plaintiff’s Fourth Amendment false arrest claim.
SO ORDERED.

Dated: August 22, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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