Parnell v. Detroit, City of et al

Filing 49

Order Denying Defendants' Motion For Summary Judgment and finding Defendants' Motions for Protective Order and Reconsideration [#41, #44] Moot. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRY PARNELL,
Plaintiff,
Case No.: 17-12560
Honorable Gershwin A. Drain

v.
RICHARD BILLINGSLEA, et al.,
Defendants.
___________________________/

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND FINDING DEFENDANTS’ MOTIONS FOR
PROTECTIVE ORDER AND RECONSIDERATION [#41, #44] MOOT
I. INTRODUCTION
Plaintiff Terry Parnell commenced the instant action on July 12, 2017 in the
Third Judicial Circuit Court of Michigan. Defendants removed this action on
August 8, 2017. The remaining federal claims include Fourth Amendment claims
for excessive force against Defendants Richard Billingslea and Hakeem Patterson,
false arrest and wrongful detention against Billingslea, and malicious prosecution
against Defendants Clinton Mack and Billingslea,1 as well as state law intentional

In his responsive brief to the Defendants’ Motion for Summary Judgment,
Plaintiff stipulates to the dismissal of his Monell claim, therefore this claim is
DISMISSED. Moreover, to the extent Plaintiff’s Complaint alleges claims under
the Fifth and Fourteenth Amendments; these claims are likewise DISMISSED
because Plaintiff does not address these claims in his brief.
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tort claims of malicious prosecution, false arrest, wrongful imprisonment, and
excessive force against Billingslea.
Presently before the Court is the Defendants’ Motion for Summary
Judgment, filed on April 24, 2018. Plaintiff filed a Response in Opposition on
May 22, 2018, and Defendants filed their Reply in support of Summary Judgment
on June 5, 2018. Also before the Court is the Defendants’ Motions for Protective
Order and for Reconsideration. A hearing was held on the Defendants’ Motions
for Summary Judgment and for Protective Order on June 25, 2018.
For the reasons that follow, the Court will deny the Defendants’ Motion for
Summary Judgment and finds that the Motions for Protective Order and for
Reconsideration are moot.
II.

FACTUAL BACKGROUND
On the evening of January 14, 2017, Plaintiff was at his then fiancé Nicole

Cann’s home located at 10450 Greensboro in Detroit, Michigan. At that time,
Plaintiff and Cann had been together for eight or nine years. They were watching
television and celebrating Plaintiff’s birthday, along with several of Cann’s
grandchildren. Plaintiff was wearing a dark shirt and Cann wore a multi-colored
Hawaiian style shirt.
A week before Plaintiff’s birthday, someone had broken into Cann’s home
and she asked him to load her new Ruger since her carpal tunnel syndrome
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prevented her from doing so. Cann thereafter went out on her front porch and fired
practice shots at an abandoned home located to the north. Plaintiff remained
inside. One of Cann’s neighbors called 911 and alerted police that shots had been
fired in the neighborhood.
Defendants Billingslea and Patterson, Detroit Police Officers from the 5th
Precinct, were dispatched to respond to “a shots in progress” on Greensboro. Their
vehicle was a semi-marked police car. They used their scout car’s spotlight to scan
the area.

They passed Cann’s house, but did not see anything. However,

Billingslea claimed to witness Plaintiff on the front porch shooting a gun towards
their patrol car while looking at his rearview mirror. He claims he saw Plaintiff
run back inside the house.
Billingslea called over the police radio that shots had been fired and the
officers took cover. Several other units from the 5th, 7th and 9th Precincts arrived
on the scene.

Officers knocked on the door; however Plaintiff and Cann

voluntarily came out of the house. Cann claims that as soon as they exited the
home, she loudly yelled that she was the one who had been shooting. The Officers
ordered them to the ground and they both quickly complied.
Plaintiff claims that the officers then ordered him to stand up, with his arms
in the air, and to walk backwards toward the house immediately south of Cann’s
home. Once Plaintiff walked to the point where the officers were standing, he was
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thrown to the ground and beaten. Plaintiff saw Billingslea kick him. Defendant
Billingslea placed Plaintiff in handcuffs. While Plaintiff could not see Patterson,
he knew that he was in the immediate vicinity. After he was beaten, Billingslea
and Patterson dragged Plaintiff to the patrol car. Plaintiff suffered considerable
bruising, lacerations, pain and suffering from the beating.
Cann informed the officers that the gun was inside the house and she gave
consent for them to go into the house. Officers recovered a 9E Ruger handgun on
the bed with seven live rounds in it. Cann continued to yell that she had been the
one shooting, but the officers ignored her. Cann became so frustrated that she
called 911 and informed the operator that she had been the one shooting and that
the officers were ignoring her and arrested her friend.
The Chief Duty Officer, Officer Thornton, was the highest ranking officer in
the City on January 14, 2017. He prepared a report of his investigation at the
scene. In his report, he noted that he could not determine that shots had been fired
at the officers as Defendant Billingslea claimed because he could not find any
vehicle strikes upon inspection.

Additionally, Sergeant Diaz, an evidence

technician, thoroughly searched the area south of Cann’s home where Defendant
Billingslea claimed the shots were fired, but found no evidence of any bullets.
Diaz spoke with Cann, who told him that she was firing shots at an abandoned
home to the north. Diaz’s team collected bullets and shell casings from the
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abandoned home consistent with Cann’s story and inconsistent with Defendant
Billingslea’s claim that he witnessed Plaintiff shooting at his patrol vehicle.
Plaintiff was transported to the Detroit Detention Center.

Thereafter,

Defendants Billingslea and Patterson went to the police station and prepared their
reports. Defendant Clinton Mack was assigned as the officer in charge of the case.
After reviewing all of the officers’ reports concerning the incident and
interviewing the Plaintiff, Mack generated an investigator’s report. His report
failed to include any of Officer Diaz’s findings. Mack also submitted a warrant
request to the prosecutor. Based on Mack’s, Billingslea’s and Patterson’s report,
as well as speaking with Defendant Billingslea, warrants prosecutor Pachia Young
approved the warrant and Plaintiff was charged with weapons, carrying concealed,
assault with a dangerous weapon and felony firearm. Cann was able to post bond
on January 23, 2017, and Plaintiff was released from the Wayne County Jail.
On January 30, 2017, Mack and Billingslea attended Plaintiff’s preliminary
examination. Billingslea was the only witness to testify. He testified that he saw
Plaintiff on Cann’s front porch, shooting at his patrol vehicle. Based on this
testimony, Plaintiff was bound over for trial, which was scheduled for May 3,
2017.
On the day set for trial, Prosecutor Barbara Lanning requested an
adjournment because she was in the middle of another criminal trial.
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When

Lanning was on a break, Diaz showed Lanning his report and explained the
evidence his team had collected. Prior to this, Lanning had no knowledge of his
team’s findings or of the report, even though Defendant Mack had opportunities to
reveal this evidence to her.

Lanning concluded that Billingslea’s preliminary

examination testimony was impossible based on the physical evidence. She
immediately decided to dismiss the case. Without any reference to the underlying
reason for the dismissal, the trial judge dismissed the case without prejudice.
During her deposition, Lanning testified that she would never go to trial on the
case, nor would she ever bring charges against the Plaintiff again.
Plaintiff asserts that he has developed a sleep disorder, suffers from
flashbacks, intrusive recollections, high blood pressure, nose bleeds, panic attacks
and fearfulness as a result of his encounter with Defendants Patterson and
Billingslea, as well as his subsequent detention and the criminal charges sought
and obtained by Defendant Mack.

Plaintiff has been evaluated by a doctor who

has opined that he has reactive psychological problems that are long-lasting and
permanent.
III.

LAW & ANALYSIS
A.

Standard of Review

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Federal Rule of Civil Procedure 56(a) “directs that summary judgment shall
be granted if there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court
must view the facts, and draw reasonable inferences from those facts, in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material
fact exists where the record “taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, the
court evaluates “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.
B.

Section 1983 claims
1.

Excessive Force

As an initial matter, Defendants maintain that they are entitled to qualified
immunity on Plaintiff’s Fourth Amendment claims. Qualified immunity Ashields
officials from civil liability so long as their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Chapman v. Brown, 814 F.3d 447, 457 (6th Cir. 2016) (quoting
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Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In determining whether a law
enforcement officer is entitled to qualified immunity on an excessive force claim,
two questions must be evaluated. Kent v. Oakland Cty., 810 F.3d 384, 390 (6th Cir.
2016). The first inquiry in the qualified immunity analysis is whether, based on
the facts alleged and considered “in the light most favorable to the party asserting
the injury,” the official=s conduct violated the plaintiff=s constitutional rights under
the Fourth Amendment. Saucier v. Katz, 533 U.S. 194, 201 (2001).
If the district court finds a Fourth Amendment violation, the next step is to
determine whether the right was clearly established at the time of the incident. Id.
at 202. The district court may address the qualified immunity analysis in any
order. Kent, 810 F.3d at 390. The plaintiff bears the ultimate burden of proof,
Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) (citation
omitted), and if the plaintiff fails to carry his burden as to either element of the
qualified immunity analysis, then the official is immune from suit. Cockrell v. City
of Cincinnati, 468 F. App=x 491, 494 (6th Cir. 2012).
To answer the question of whether Defendants Billingslea’s and Patterson’s
use of force violated the Fourth Amendment “turns on whether [their] actions are
objectively reasonable in light of the facts and circumstances confronting them,
without regard to [their] underlying intent or motivation.” Kent, 810 F.3d at 390
(internal quotation marks omitted). “The reasonableness of a particular use of
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force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,
396 (1989).
Factors to consider are: (1) the severity of the crime, (2) whether the suspect
poses an immediate threat to the safety of the officers or others, and (3) whether
the suspect is actively resisting arrest or attempting to flee. Id. “The ultimate
question, however, is whether the totality of the circumstances justifies a particular
sort of seizure.” Kent, 810 F.3d at 390 (internal quotation marks omitted). The
district court “must take into account the fact that police officers are often forced to
make split-second judgments B in circumstances that are tense, uncertain, and
rapidly evolvingBabout the amount of force that is necessary in a particular
situation.” Id
Here, there is a question of fact as to whether Defendants Billingslea and
Patterson used excessive force. While they claim that Defendant Patterson was
some 20 feet away scanning his surroundings while Defendant Billingslea placed
Plaintiff in handcuffs, Plaintiff recalls that Patterson was near enough to have
intervened to protect Plaintiff from Billingslea’s actions. It has long been the law
in this Circuit that a police officer has a duty to protect a citizen against the
unconstitutional conduct of another officer. Bruner v. Dunaway, 684 F.2d 422,
426 (6th Cir. 1982) (holding that a police officer has a duty to try and stop another
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officer who uses excessive force against a person in the officer’s presence). In
view of the facts most favorable to Plaintiff, Patterson had the ability to intervene
and prevent Billingslea’s unconstitutional use of force against the Plaintiff.
Defendants assertion that Billingslea’s conduct was reasonable because he
was responding to “a shots fired in the neighborhood” 911 call is without merit.
Plaintiff and Cann have testified that when Plaintiff was forcibly taken to the
ground, he was walking backwards towards the officers with his hands in the air as
directed by their orders. Defendant Billingslea could see that Plaintiff did not have
a gun in his hand. Plaintiff further testified that once he had been slammed to the
ground and completely subdued, Defendant Billingslea inflicted a knee strike and
continuously struck the Plaintiff. Additionally, Plaintiff maintains that at no time
was he resisting arrest, thus this conduct, as well as dragging him to the patrol
vehicle would allow a reasonable jury to conclude that there was no legitimate
governmental interest in continuing to beat and to kick Plaintiff when he was fully
compliant and not resisting arrest. Phelps v. Coy, 286 F.3d 295, 301 (6th Cir.
2002); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994); McDowell v. Rogers,
863 F.2d 1302, 1306 (6th Cir. 1988).
Additionally, the unlawfulness of Billingslea’s and Patterson’s action would
be clear to a reasonable officer. Assaulting an unarmed and compliant individual
has been a clearly established violation of the Fourth Amendment for decades. See
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Phelps, 286 F.3d at 30; Adams, 31 F.3d at 386; McDowell, 863 F.2d at 1306.
Defendants Billingslea and Patterson are not entitled to summary judgment on
Plaintiff’s Fourth Amendment excessive force claim.

2.

False Arrest, Wrongful Detention and Malicious
Prosecution

Plaintiff has also alleged Fourth Amendment claims of false arrest and false
imprisonment against Defendant Billingslea. The Court concludes that Plaintiff
has sufficiently shown that there remains a material question of fact for the jury’s
determination with respect to these claims. Similar to the plaintiff in Spurlock v.
Satterfield, 167 F.3d 995 (6th Cir. 1999), who alleged that the defendant-officer
fabricated evidence to support the plaintiff’s arrest and prosecution for murder,
Plaintiff has produced evidence of the Diaz report and witness testimony that
Defendant Billingslea fabricated evidence against Plaintiff to support probable
cause for his arrest and prosecution. Id. at 1005.
violate Plaintiff’s constitutional rights.

This conduct, if true, would

Id. (holding that the defendant-officer

“cannot seriously contend that a reasonable police officer would not know that
such actions were inappropriate and performed in violation of an individual’s
constitutional” rights.)
Moreover, it is well settled that arrest and imprisonment based on fabrication
of evidence to support probable cause and continued detention is a clearly
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established constitutional violation. Id. at 1006. The Spurlock court considered
this very issue and concluded that “a reasonable police officer would know that
fabricating probable cause, thereby effectuating a seizure, would violate a
suspect’s clearly established Fourth Amendment right to be free from unreasonable
seizures.” Id. Thus, Defendant Billingslea is not entitled to judgment in his favor
on Plaintiff’s Fourth Amendment unlawful arrest and detention claims.
As to Plaintiff’s Fourth Amendment malicious prosecution claim against
Defendants Billingslea and Mack, the Court likewise concludes that summary
judgment in their favor is without basis. In Gregory, the plaintiff alleged that
police officers misled the court at the preliminary examination and, therefore, the
defendant officers could not reasonably rely on the court’s determination of
probable cause during the preliminary examination. The Sixth Circuit found a
Fourth Amendment violation because the defendant-officers could not “rely on a
judicial determination of probable cause when that determination was premised on
an officer’s own material misrepresentations to the court.” Gregory, 444 F.3d at
758. Additionally, the Gregory court held that whether the defendant-officers
testified truthfully was a question for the jury and not the court because the
plaintiff had presented sufficient evidence for the jury to conclude that the
defendant-officers “deliberately obfuscated the truth at the preliminary hearing[,]

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thus the “[p]laintiff’s continuing detention in reliance on the preliminary hearing
findings would be unreasonable.” Id. at 759.
Based on the record before this Court, a reasonable jury could conclude that
Defendant Billingslea fabricated evidence by indicating in his report, as well as by
testifying at the preliminary examination that Plaintiff had fired shots at his
vehicle. Similarly, a reasonable jury could conclude that Defendant Mack
purposefully held material information from the prosecution when he failed to
apprise them of the Diaz report and its findings. Thus, a reasonable jury could
conclude that both Defendants violated Plaintiff’s constitutional rights to be free
from wrongful arrest and detention.
Additionally, it is beyond dispute that Plaintiff’s constitutional right to be
free from wrongful arrest, detention and malicious prosecution based on the
fabrication of evidence has been established well before the incident giving rise to
the instant action. See Gregory, 444 F.3d at 758-59; Spurlock, 167 F.3d at 100506.
While Defendants argue collateral estoppel precludes Plaintiff’s claims, such
an argument is meritless because the basis of Plaintiff’s claim stems from
Defendants’ fabrication of, or failure to produce material evidence of Plaintiff’s
innocence. See Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001) (holding
that a preliminary examination finding of probable cause does not bar subsequent
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litigation of wrongful arrest and detention where the claims are based on fabricated
evidence). Defendants also argue that Plaintiff cannot show his criminal case was
terminated in his favor because it was dismissed without prejudice, thus he cannot
establish a malicious prosecution claim. Defendants rely on a decision by this
Court in support of this argument-Craft v. Billingslea, No. 17-cv-12752-however,
this decision is distinguishable in that it was resolved during the Rule 12(b)(6)
stage.

Here, Plaintiff has come forward with considerable evidence that the

charges against him will never be brought again. The Wayne County prosecutor
has provided testimony that based on witness statements, as well as the physical
evidence uncovered by Diaz and his team precludes recharging Plaintiff with any
firearms offenses.
For all of these reasons, Defendants Billingslea and Mack are not entitled to
judgment in their favor on Plaintiff’s federal false arrest, wrongful detention and
malicious prosecution claims.
C.

State Law Claims

Because the Court concludes that Plaintiff has established material questions
of fact remain on his federal claims of false arrest, wrongful detention, malicious
prosecution and excessive force against Defendant Billingslea, he has similarly
established that his corresponding state law intentional tort claims must be
submitted to the jury. See Smith v. Stolberg, 231 Mich. App. 256, 260; 586
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N.W.2d 103 (1998)(assault and battery); Moore v. City of Detroit, 252 Mich. App.
384, 652 N.W.2d 688 (2002)(false arrest and imprisonment); Payton v. Detroit,
211 Mich. App. 375, 394-95; 536 N.W.2d 233 (1995)(malicious prosecution).
The Court further concludes that Defendant Billingslea is not entitled to
governmental immunity. Governmental immunity is available when:
(1)

(2)
(3)

the employee’s challenged acts were undertaken during the
course of employment and that the employee was acting, or
reasonably believed he was acting, within the scope of his
authority,
the acts were undertaken in good faith, and
the acts were discretionary, rather than ministerial, in nature.

Odom v. Wayne County, 482 Mich. 459; 760 N.W.2d 217 (2008). A government
employee acts without good faith when he acts maliciously or with a wanton or
reckless disregard of the rights of another. Id. at 464.
Here, the evidence shows that Defendant Billingslea did not engage in good
faith when he lied about observing Plaintiff shoot at his vehicle, prepared a police
report containing this false information and repeated these false observations
during Plaintiff’s preliminary examination while knowing his claims were untrue.
Defendant Billingslea is likewise not entitled to judgment in his favor on Plaintiff’s
state law intentional tort claims.
D.

Disciplinary Files and Internal Affairs Investigation Records

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On May 17, 2018, the Court entered an Order granting in part and denying
in part Plaintiff’s Motion to Compel, which sought disciplinary and internal affairs
records pertaining to the named Defendants herein.

While the Court granted

Plaintiff’s motion with respect to this request, the Court ordered the Plaintiff to
submit a revised request for production seeking only those disciplinary files and
internal affairs records that are relevant to the issues raised in the instant action by
the end of May. Thereafter, Defendants filed a Motion for Protective Order and a
Motion for Reconsideration with respect to these records.
On June 11, 2018, Defendants filed a Notice with the Court indicating that
Plaintiff had failed to submit to Defendants the list required by this Court’s May
17, 2018 Order. Moreover, Plaintiff has stipulated to the dismissal of his Monell
claim, which was the basis upon which he sought Defendants’ disciplinary and
internal affairs records.
Accordingly, based on Plaintiff’s failure to submit the revised production list
identifying the records sought as directed by the Court, as well as his agreement to
dismiss his Monell claim from this action, Defendants’ Motion for Protective
Order and Motion for Reconsideration are rendered moot.
IV.

CONCLUSION

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Accordingly, the Defendants’ Motion for Summary Judgment [#34] is
DENIED.

Defendants’ Motion for Protective Order [#41] and Motion for

Reconsideration [#44] are both moot.
SO ORDERED.
Dated: June 29, 2018

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

CERTIFICATE OF SERVICE
A copy of this order was served upon attorneys of record on
June 29, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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