Gale v. O'Donohue et al

Filing 31

OPINION AND ORDER Denying 12 Motion for Preliminary Injunction; and Denying 26 Motion to Expedite. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Joseph Gale,
Plaintiff,
v.

Civil Case No. 17-12172

Corrigan O’Donohue, et al.,

Sean F. Cox
United States District Court Judge

Defendants.
_______________________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION AND MOTION FOR EXPEDITED DISCOVERY
Plaintiff has sued various members of the Royal Oak Police Department after he was
allegedly stopped and frisked unconstitutionally. He seeks a preliminary injunction to halt the
City of Royal Oak’s alleged practice, policy, or custom of unconstitutional stop and frisks. He
also has filed a Motion for Expedited Discovery.
The Court declines to hold an evidentiary hearing on the Motion for Preliminary
Injunction because it can be resolved as a question of law. See Certified Restoration Dry
Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 552 (6th Cir. 2007) (“[A] hearing is
only required when there are disputed factual issues, and not when the issues are primarily
questions of law.”). The Court will also decide the motions on the briefs, the issues having been
adequately presented therein. E.D. Mich. LR 7.1(f)(2).
For the reasons below, the Court shall deny the Motion for Preliminary Injunction
because Plaintiff cannot show a substantial likelihood of success on the merits of his municipal
liability claim (his only claim that plausibly seeks prospective relief) and cannot show
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irreparable harm. The Court shall also deny the Motion for Expedited Discovery.
BACKGROUND
Around 2:30 a.m. on September 4, 2016, a Royal Oak resident called 911 and reported
that a strange man had just knocked on her door. The caller described the man as a white male,
about 5’10”, around 25 years old, and wearing jeans and a shirt. Royal Oak police officers were
dispatched to check the area.
Plaintiff Joseph Gale was walking down the sidewalk in the same neighborhood when he
was stopped by Officer Phillip Klinge. Klinge asked Plaintiff if he had been knocking on doors
and Plaintiff denied that he had been. Shortly thereafter, Officers Mike Paramo and Nathan
Heppner arrived on the scene. Plaintiff alleges that Paramo and Heppner grabbed his arms and
patted him down. Heppner removed Plaintiff’s wallet and ran a warrant check.
Plaintiff told the officers that he was going to his friend’s house but could not provide
them with an exact address. He indicated that his friend lived near The Rock on Third, a bar in
nearby downtown Royal Oak. The officers initially offered to call Plaintiff a taxi but, after
further conversation, offered to give him a ride downtown.
Plaintiff followed Officer Paramo to his patrol car. Paramo told Plaintiff that he was not
under arrest but that he was going to pat him down before Plaintiff entered the vehicle. Plaintiff
alleges that Paramo then aggressively frisked him, bending Plaintiff’s apartment key in the
process. Once Plaintiff entered the vehicle, Paramo attempted to look up the address of
Plaintiff’s friend but Plaintiff did not provide his friend’s last name.
Plaintiff asked Paramo if he was “free to leave the vehicle,” to which Paramo said,
“Yeah. You’re good.” Paramo also told him, “I’m just trying to get your buddy’s name so I can

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get you to your buddy’s instead of taking you to rock on third.” Plaintiff provided his friend’s
first name and then stated “If you’re not going to take me, I’ll just walk.” Paramo replied that
Plaintiff was not under arrest or in trouble and that he was trying to get Plaintiff out of there so
that nobody else would call the police on him. After another back and forth about Plaintiff’s
friend’s name, Plaintiff stated, “I’ll just walk to there, okay?”
Paramo then began to drive the car. Plaintiff again asked if he was free to leave the
vehicle or if he was under arrest. Paramo radioed that he would be taking Plaintiff to the Rock
on Third and dropping him off. At this point, Plaintiff began repeatedly requesting to get out of
the vehicle. Paramo refused these requests, reiterating that he did not want anyone to call on
Plaintiff again and that he would not drop him off on Lincoln Street. When Plaintiff’s
protestations continued, Paramo dropped him off at a gas station on Lincoln Street and Main
Street, located about .8 miles from where Plaintiff was initially stopped.
Following the incident, Plaintiff filed a Citizen’s Complaint with the Royal Oak Police
Department. After he filed the complaint, Plaintiff met with Royal Oak Police Lt. Van Ness to
discuss the incident. During their two-hour meeting, Van Ness explained that it is the
department’s policy to seek identification from individuals that officers stop. He also noted that
the department does not ignore 911 calls and opined that the officers had reasonable suspicion
that Plaintiff may have engaged in criminal activity.
Plaintiff then sued the City of Royal Oak Police Chief Corrigan O’Donohue and Officers
Klinge, Paramo, and Heppner, raising § 1983 claims and state law claims of false imprisonment,
conspiracy to commit false imprisonment, assault and battery, and common law trespass.

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On August 2, 2017, Plaintiff filed this Motion for Preliminary Injunction (Doc. # 12).
Defendants have responded (Doc. # 18). Plaintiff seeks the following injunctive relief:
•

Enjoin the Royal Oak Police Department from continuing its policy, practice,
and/or custom of suspicionless stop and frisks

•

Require Defendants to institute and implement appropriate measures to mandate
that documentation is prepared and maintained in an up to date computerized
database for each stop conducted by an officer

•

Require Defendants to monitor the stop and frisk practice of the police
department, including regularly reviewing new documentation related to the
department’s stop and frisk practices

Plaintiff has also filed a Motion to Expedite Discovery (Doc. # 26) to which Defendants have
responded (Doc. # 27).
STANDARD OF DECISION
“A preliminary injunction is an extraordinary measure that has been characterized as one
of the most drastic tools in the arsenal of judicial remedies.” Bonnell v. Lorenzo, 241 F.3d 800,
808 (6th Cir. 2001) (quotation omitted). In evaluating a motion for preliminary injunction, the
Court must balance the following factors: (1) whether the movant has a strong likelihood of
success on the merits of the claims asserted in the action; (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether the issuance of the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by the issuance of
the injunction. Id. at 809. Plaintiff has “a heavy burden to demonstrate entitlement to a
preliminary injunction.” Erard v. Johnson, 905 F.Supp.2d. 782, 796 (E.D.Mich. 2012).

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ANALYSIS
I. Preliminary Injunction
To begin, the Court will dispose of Defendants’ argument that the law of the case
doctrine applies based on the Court’s prior order denying Plaintiff’s Motion for a Temporary
Restraining Order (Doc. # 7). That order stated that “Plaintiff has not shown that he will suffer
immediate and irreparable harm before Defendants can be heard.” This is, of course, the
standard Plaintiff had to meet; he had to show irreparable injury would occur before Defendants
could be heard. The Court’s determination that Plaintiff did not make this showing was not,
however, a finding that Plaintiff could not show irreparable harm at all. Thus, the law of the
case doctrine does not apply.
Turning to Plaintiff’s request for an injunction, both parties devote a substantial amount
of attention to the merits of all of the claims raised in the complaint. But the Court’s inquiry
need not stretch so broadly. First, because this case is in federal court based on federal question
jurisdiction, the Court shall address only whether any of Plaintiff’s federal claims warrant
injunctive relief. Second, the Court need only consider those claims that address possible future
wrongs. See United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of an
injunction is to prevent future violations.”). This is because to justify an injunction, there must
be “some cognizable danger of recurrent violation[.]” Id. Insofar as Plaintiff raises claims for
prior wrongs, those claims are irrelevant to the question at hand.
Plaintiff has brought § 1983 claims for: (1) unconstitutional search and seizure of his
person and wallet; (2) abuse of process and conspiracy to subject him to an unconstitutional
search and seizure; and (3) municipal liability against Chief O’Donohue in his official capacity

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for the City of Royal Oak’s alleged policy of conducting searches and seizures without
reasonable suspicion or probable cause. The first two claims both address past, not future,
wrongs and are therefore irrelevant to the request for injunctive relief.1 Plaintiff’s municipal
liability claim, however, does raise the possibility of prospective harm and must be addressed
accordingly.
a. Plaintiff’s Unconstitutional Policy, Practice, or Custom Claim
Plaintiff’s complaint alleges that it is the Royal Oak Police Department’s policy to force
individuals stopped by the police to turn over their identification. The complaint also alleges
that it is the department’s policy to stop individuals if there is a 911 report indicating “open
intoxication,” regardless of whether the officers witness any suspicious activity themselves. In
his brief, Plaintiff ties these alleged policies together by arguing that the department has an
“unconstitutional stop and frisk policy.”
“When a party seeks a preliminary injunction on the basis of a potential constitutional
violation, the likelihood of success on the merits often will be the determinative factor.” Obama
for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). And “if it is found that a
constitutional right is being threatened or impaired, a finding of irreparable harm is mandated.”
Bonnell, 241 F.3d at 809. Thus, the Court shall begin with whether Plaintiff has a strong
likelihood of succeeding on his municipal liability claim.
Under § 1983, a municipality can be held liable where an alleged unconstitutional action
“implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers.” Monell v. Dep’t. of Social Services, 436 U.S. 658, 690

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Likewise, Plaintiff’s state law claims also only address past harms.
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(1978). “To establish municipal liability, the plaintiff must prove (1) the existence of a municipal
policy or custom and (2) a direct causal link between the policy or custom and the alleged
constitutional deprivation.” Lilly v. City of Clarksville, 510 F. App’x. 374, 376 (6th Cir. 2013).
“To show the existence of a municipal policy or custom leading to the alleged violation, a
plaintiff can identify: (1) the municipality's legislative enactments or official policies; (2) actions
taken by officials with final decision-making authority; (3) a policy of inadequate training or
supervision; or (4) a custom of tolerance of acquiescence of federal violations.” Baynes v.
Cleland, 799 F.3d 600, 621 (6th Cir. 2015). Plaintiff cannot show that he is substantially likely
to establish the existence of a unconstitutional policy or custom through any of these theories.
First, he has provided no evidence that a Royal Oak city ordinance or police department
official policy promulgated an unconstitutional stop and frisk regime. Absent this, Plaintiff must
show that “there is a particular custom or practice that although not authorized by written law or
express municipal policy, is so permanent and well settled as to constitute a custom or usage
with the force of law.” Jones v. Muskegon County, 625 F.3d 935, 946 (6th Cir. 2010) (quotation
marks omitted). To show this, Plaintiff relies on his stop, the stops of two other individuals, and
the statements made to him by Lt. Van Ness. But isolated evidence of a few allegedly
suspicionless stop and frisks is insufficient to demonstrate a custom that is “so widespread,
permanent, and well settled as to have the force of law.” Id. (holding that evidence that five
inmate medical requests had been ignored by jail personnel was insufficient to show a
widespread and permanent custom of ignoring inmate requests).
Additionally, Lt. Van Ness’s statements cannot bear the weight Plaintiff places upon

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them.2 Plaintiff contends that Van Ness confirmed the existence of an unconstitutional policy by
stating that suspicionless stops happen “all the time” and that it is police department policy to
detain individuals in response to 911 calls indicating open intoxication. But Plaintiff cannot
show a widespread and permanent police department custom endorsing unconstitutional stop and
frisks by plucking isolated, out-of-context statements from a two-hour meeting. Considered in
context, Van Ness’s statements described innocuous, routine police work: responding to calls,
investigating suspicious activity, managing intoxicated individuals, and identifying persons
stopped by police. What his statements did not describe is a widespread, permanent, and wellsettled custom in the Royal Oak Police Department of violating the Fourth Amendment.
Second, even if Chief O’Donohue is an official with final decision-making authority,
Plaintiff has not shown that any of O’Donohue’s actions demonstrate that an unconstitutional
municipal policy or custom exists. Plaintiff alleges that O’Donohue confirmed that Van Ness
was “transparent” about Royal Oak policies and that he found that the officers did not “engage in
any improper conduct.” But, as discussed above, Van Ness’s statements do not permit an
inference that an unconstitutional policy or custom exists. And Plaintiff has not cited any cases
for the proposition that a decision-maker’s ratification of one incident of allegedly
unconstitutional conduct permits such an inference.
Third, Plaintiff has not shown that Royal Oak has a policy of inadequate training or
supervision. To succeed on a failure to train claim, Plaintiff must show: “(1) the training or

2

The Court has reviewed the audio recording of Plaintiff’s conversation with Lt. Van
Ness–a recording that is central to the complaint–in full. See Weiner v. Klais & Co., Inc., 108
F.3d 86, 89 (6th Cir. 1997) (authorizing a court to consider materials attached to a defendant’s
motion to dismiss when they were referred to in the complaint and central to the claim therein).
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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 v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006). At a
minimum, Plaintiff’s claim fails because he cannot show deliberate indifference.
To show deliberate indifference, Plaintiff “must show prior instances of unconstitutional
conduct demonstrating that the [municipality] 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.” Fisher v.
Harden, 398 F.3d 837, 849 (6th Cir. 2005). He has not done so. Plaintiff has not alleged, or
provided evidence of, a history of abuse that would place Royal Oak on notice that its training of
police officers was deficient. And mere allegations that an individual officer was
unsatisfactorily trained are insufficient. See Harvey v. Campbell County, 453 F. App’x. 557, 567
(6th Cir. 2011).
Fourth, Plaintiff similarly has not shown that Royal Oak has a custom of tolerance of
acquiescence of federal violations, which “requires a showing that there was a pattern of
inadequately investigating similar claims.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.
2013). At this stage, he has not alleged or provided any facts showing prior instances of similar
misconduct.
In sum, even accepting as true the facts presented in Plaintiff’s complaint, he lacks a
viable theory of municipal liability and therefore cannot establish a strong likelihood of success
on the merits on that claim (the only one in which he could plausibly allege prospective harm).
Additionally, Plaintiff has not shown irreparable harm. He has not shown that a constitutional
right has been impaired and there is no indication of “a sufficient likelihood that he will again be

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wronged in a similar way[.]” See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
Because Plaintiff has not carried his heavy burden to show entitlement to the extraordinary
remedy he seeks, the Court shall deny his Motion for Preliminary Injunction. See Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008); see also Lorillard Tobacco Co.
v. Amouri’s Grand Foods, Inc., 453 F.3d 377, 380 (6th Cir. 2006) (holding that a district court
need not make specific findings on all four factors if “fewer factors are dispositive of the
issue.”).
II. Expedited Discovery
Plaintiff has also moved for expedited discovery; seeking six interrogatories, seven
document requests, and four requests for admission. The Court’s decision to deny the Motion
for Preliminary Injunction renders Plaintiff’s request for expedited discovery moot.
The Court also notes that, in any event, Plaintiff did not show good cause for expedited
discovery. Ordinarily, a district court may authorize expedited discovery upon a showing of
good cause. North Atlantic Operating Co, Inc. v. JingJing Huang, 194 F.Supp.3d 634, 637 (E.D.
Mich. 2016). “[D]istrict courts have found good cause for granting expedited discovery when
the true identities of the defendants are unknown, when the moving party alleges infringement,
when the scope of the discovery sought is narrow, and when expedited discovery would
substantially contribute to moving the case forward.” Id.
Good cause may also exist when a party requests preliminary injunctive relief. See Bug Juice
Brands, Inc. v. Great Lakes Bottling Co., 2010 WL 1418032 at * 1 (W.D. Mich. 2010).
In essence, Plaintiff seeks expedited discovery solely by virtue of filing a complaint and
an accompanying request for injunctive relief. There is no indication, either in the complaint or

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the record, that the materials he seeks may reveal the existence of an unconstitutional policy or
practice such that he may be entitled to a preliminary injunction. Indeed, several of his
discovery requests are wholly irrelevant to this question. Thus, Plaintiff has not shown good
cause to deviate from the normal discovery procedure. Authorizing expedited discovery in such
circumstances would seemingly open the door to expedited discovery to every plaintiff that
seeks a preliminary injunction at the outset of a case, regardless of the merits of the request.
This the Court will not do. Therefore, the Court shall deny the Motion for Expedited Discovery.
CONCLUSION
For the reasons above, IT IS ORDERED that Plaintiff’s Motion for Preliminary
Injunction and Motion for Expedited Discovery are DENIED.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: January 30, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
January 30, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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