Ford v. City of Detroit et al
Filing
42
ORDER DENYING 35 Defendants' MOTION for Summary Judgment, and GRANTING IN PART AND DENYING IN PART 34 Plaintiff's MOTION for Leave to Amend. (Response due by 11/29/2019) Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMANUEL FORD,
2:17-CV-12933-TGB
Plaintiff,
vs.
CITY OF DETROIT, CITY OF
DETROIT POLICE
DEPARTMENT, JOHN SVEC,
and JOHN DOE,
ORDER DENYING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
GRANTING IN PART AND
DENYING IN PART
PLAINTIFF’S MOTION FOR
LEAVE TO AMEND
Defendants.
Emanuel Ford, a Detroit property owner, brings this lawsuit
claiming that he was roughed up by Detroit Police Officers and arrested
without any probable cause. The City of Detroit and the accused Officers
are asking for summary judgment in their favor, but there are questions
of fact that must be determined by a jury. Before the Court are Plaintiff’s
Motion to Amend the Complaint (ECF No. 34) and Defendants’ Motion
for Summary Judgment (ECF No. 35).1
Defendants title their Motion a “Motion to Dismiss” but seek relief under Fed. R. Civ. P. 56. (ECF
No. 35, PageID.1000). The Court construes Defendants’ Motion as a motion for summary judgment.
1
I.
Background
On August 18, 2017, Plaintiff Emanuel Ford initiated this action by
filing the Complaint. ECF No. 1. The case was removed from state court
to the Eastern District of Michigan on September 7, 2017. Id. The
allegations of the Complaint arise out of Plaintiff’s alleged unlawful
arrest following a 2016 shooting at Plaintiff’s Detroit rental property. Id.
Plaintiff brought claims against all Defendants for false arrest and
excessive force in violation of the Fourth Amendment; against all
Defendants for violation of Plaintiff’s due process rights under the
Fourteenth Amendment; against the City of Detroit for Monell violations;
against Defendants Svec and John Doe for state law gross negligence and
assault and battery; and two causes of action to recover Plaintiff’s
handguns, concealed carry permit, and cell phone, which were seized at
the time of his arrest. Id.
Over the course of this litigation, Defendants returned Plaintiff’s
handguns, concealed carry permit, and cell phone, rendering Plaintiff’s
causes of action to recover the seized items moot.
ECF No. 39,
PageID.1088. Also during discovery, Plaintiff identified the names of
2
some of the other Officers who were involved in his arrest. He therefore
asks leave to amend the Complaint to add their names. Plaintiff also
concedes that the City of Detroit Police Department is not a separately
suable entity, and Plaintiff consents to the dismissal of the City of Detroit
Police Department from this action. Id. Additionally, Plaintiff consents
to dismissal of his state constitutional claims, his gross negligence claim,
and his Fourteenth Amendment claims.
Id. at PageID.1092–93.
Plaintiff’s Fourth Amendment, Monell, and assault and battery claims
remain before the Court.
II.
Facts
On June 21, 2016, Emanuel Ford received somewhat frantic
telephone calls from some of his tenants reporting that a dispute between
the upstairs and downstairs tenants over placement of a trashcan at his
rental property had escalated into a gun fight where shots were fired.
Ford Dep., ECF No. 39-2, PageID.1114. Plaintiff and his wife drove to
the property, located at 12798 Kentucky Street in Detroit (“rental
property”), and arrived shortly after the shooting had ended and before
any police officers had arrived. Id. at PageID.1115. As Plaintiff parked
on Kentucky St., approximately three houses down from his rental
3
property, a marked police car drove down the street. Id. Plaintiff flagged
the officer down and informed him that he was the landlord of the
property at 12798 Kentucky St., that a shooting had just occurred, that
there were spent shell casings in the street, and that he was armed with
a handgun for which he had a concealed carry permit.
Id. at
PageID.1116. The officer thanked Plaintiff and repositioned his scout car
to block off the street. Id.
Another officer arrived from the opposite direction. Id. Plaintiff
repeated to the second officer what he told the first officer.
PageID.1117.
Id. at
The second officer thanked Plaintiff and proceeded to
Plaintiff’s rental property.
Id.
Plaintiff, standing near his vehicle,
observed an individual on a stretcher being transported from the rental
property into an ambulance. Id. Sensing that there was no longer a need
to be armed, Plaintiff removed his weapon from his person, placed it
under a seat in his vehicle, and waited for police to provide him with more
information about what had happened at his rental property. Id.
Approximately forty-five minutes later, Plaintiff was approached at
his vehicle by three police officers. Id. at PageID.1119. Two officers were
in uniform and one, Brian Gibbings, was in plainclothes. Id. One of the
4
uniformed officers, Timothy Sumpter, asked Plaintiff for permission to
retrieve Plaintiff’s handguns.
Id. at PageID.1120.
Plaintiff allowed
Sumpter to retrieve the two handguns he had lodged under a seat in his
vehicle and handed Sumpter his driver’s license and concealed carry
permit. Id. Gibbings then informed Plaintiff that the officers wanted
Plaintiff “to talk to some detectives at the other end, you know, where the
crime scene was” and escorted Plaintiff to a police car parked near his
rental property. Id. at PageID.1121.
Once the pair arrived at the police car, Plaintiff testified that
Gibbings opened the door and told Plaintiff to get in. Id. Plaintiff asked
why he was being told to get into the police car. Id. At that point,
according to Plaintiff, Defendant John Svec, a captain in the Detroit
Police Department, accused Plaintiff of lying to another officer and
“grabbed [Plaintiff] by the back of the hand and slammed [Plaintiff] face
forward into the police car.” Id. Svec then instructed Gibbings to “take
care of him.” Id. Gibbings “started putting his fists, felt like his fists . . .
into the middle of [Plaintiff’s] back.” Id. at PageID.1122. As Gibbings
forcefully handcuffed Plaintiff, Plaintiff began “screaming, hollering . . .
[and] crying.” Id. at PageID.1121. Plaintiff, “partially laid across the
5
[back] seat” of the police car, requested medical attention.
PageID.1123.
Id. at
Another ambulance responded to the scene, Plaintiff
received medical attention, and was transported to Sinai-Grace hospital.
Id. at PageID.1129. Officers did not accompany Plaintiff to the hospital.
Plaintiff has not been charged with an offense in connection with the
shooting.
The parties dispute whether Defendant Svec and the other officers
had probable cause to arrest Plaintiff on June 21, 2016. Defendant Svec
testified that after arriving on the scene, he received a radio call from
another officer, Jason Lord, who had responded to Sinai-Grace hospital
after an individual injured in the shooting had been transported there.
Svec Dep., ECF No. 35-2, PageID.1052. Svec testified that in the radio
transmission, Lord stated that he learned from an individual at the
hospital that “the landlord was involved in the shooting.” Id. Based on
Lord’s radio transmission and Plaintiff’s possession of a weapon with a
spent shell casing,2 Svec ordered Plaintiff’s arrest because “[i]n my mind
we had enough to arrest him. He was being arrested for the shooting.”
Id.
2
At oral argument, Plaintiff disputed for the first time that a shell casing was found in his handgun.
6
The record includes a number of official police reports that contain
time stamps that appear to record the exact time when each entry in the
report took place. For example, the police report entered by Sumpter on
June 22, 2016 states that he recovered Plaintiff’s two firearms at 6:50:50
and 6:50:54 P.M. Ex. J, ECF No. 34-11, PageID.994–95. This style of
report is clearly a computerized form and is printed. Neither counsel
could explain, at oral argument, how exactly the time-referents in the
report were generated. Another kind of report in the record was a handwritten report called an “activity log.” That report was kept to record the
runs conducted by the scout car, operated by Officers Jason Lord and
Margie Everett, which responded to Sinai-Grace on the night of the
shooting. According to that report, the pair arrived at Sinai-Grace at
“19:03”, or 7:03 P.M. Ex. H, ECF No. 39-9, PageID.1174. Lord testified
that he made the radio call in question after arriving at the hospital and
speaking with an individual involved in the shooting. Lord Dep., ECF
No. 39-7, PageID.1164. At his deposition, Lord could not recall who told
him that Plaintiff was involved in the shooting. Id. at PageID.1168.
Everett did not recall anyone telling her that Plaintiff was involved in
the shooting. Everett Dep., ECF No. 39-8, PageID.1171.
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III. Defendants’ Motion for Summary Judgment
a. Contentions
Defendants contend that they are entitled to summary judgment on
Plaintiff’s Fourth Amendment false arrest claim because Svec had
probable cause to arrest Plaintiff at the scene on June 21, 2016. ECF No.
35, PageID.1011. Defendants argue that Lord’s radio transmission that
“the landlord was involved in the shooting”, coupled with the officers’
knowledge that semiautomatic handgun shell casings were found at the
scene, that Plaintiff possessed a semiautomatic handgun, and that
Plaintiff’s handgun contained a spent shell casing, provided sufficient
probable cause for Plaintiff’s arrest. Id. at PageID.1012. Defendants
further assert that even if Svec was given erroneous information about
Plaintiff’s involvement in the shooting by Lord, Svec is entitled to
qualified immunity for his reasonable reliance on information provided
to him by another police officer—even if it later turned out to be
erroneous. Id. at PageID.1018.
Plaintiff attacks the sufficiency of probable cause based on the
inconsistency in the timeline between Svec’s testimony and the recorded
time-stamps contained in the computerized reports and the hand-written
8
time-entries on the activity log of Lord and Everett. According to Svec,
he had Plaintiff arrested only after the call came over the radio from
officers at the hospital reporting that the landlord may have been
involved in the shooting. This call would have occurred, according to the
time entries on the police activity log of the officers at the hospital, at
some point after 7:03 p.m. But according to the computerized reports,
the seizure of Plaintiff’s firearms—which supposedly took place at
approximately the same time as his arrest—had occurred at 6:50:50 and
6:50:54 P.M. Pointing to this inconsistency, Plaintiff maintains that
because the radio transmission from Lord that Svec purportedly relied
on either occurred after Plaintiff had already been arrested, or perhaps
did not occur at all, there was no probable cause to support his arrest.
ECF No. 39, PageID.1104.
Plaintiff asserts that without the radio
transmission, “[o]ther than having a gun, the officers had no reason to
believe Plaintiff had been involved.” Id.
With respect to Plaintiff’s other claims, Svec contends that he did
not use excessive force in “slamming” Plaintiff face-forward into the
police cruiser, and that he is entitled to state qualified immunity for
Plaintiff’s assault and battery claims. ECF No. 35, PageID.1020–26.
9
Defendant City of Detroit contends that Plaintiff “has not produced a
single shred of evidence in the process of discovery that would sustain a
Monell claim.” Id. at PageID.1026.
Plaintiff contends that force applied by Svec was excessive, and that
Svec is responsible for the force applied by his inferior officers. ECF No.
39, PageID.1102.
With respect to qualified immunity for Plaintiff’s
assault and battery claims under Michigan’s governmental tort
immunity statute, Plaintiff contends that Defendants are not entitled to
qualified immunity because Svec did not have probable cause to arrest
Plaintiff. ECF No. 39, PageID.1103. Plaintiff asserts that because Svec
lacked probable cause, the arrest cannot be said to have been undertaken
in good faith—a requirement to establish qualified immunity under state
law. Id. at PageID.1103. Finally, with respect to Plaintiff’s Monell claim,
Plaintiff asserts that the allegations in the Complaint are sufficient, and
were the Court to disagree, the additional details included in the
proposed amended complaint suffice to establish Plaintiff’s Monell claim.
Id. at PageID.1105.
10
b. Legal Standard
“Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with any
affidavits, show that there is no genuine issue as to any material fact
such that the movant is entitled to a judgment as a matter of law.”
Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013);
see also Fed. R. Civ. P. 56(a). A fact is material only if it might affect the
outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
On a motion for summary judgment, the Court must view the
evidence, and any reasonable inferences drawn from the evidence, in the
light most favorable to the non-moving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations
omitted); Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001). As
the moving party, the Defendants have the initial burden to show that
there is an absence of evidence to support Plaintiff’s case.
Selby v.
Caruso, 734 F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Once the moving party has met its burden, the nonmoving party “may not rest upon its mere allegations or denials of the
11
adverse party’s pleadings, but rather must set forth specific facts showing
that there is a genuine issue for trial.” Ellington v. City of E. Cleveland,
689 F.3d 549, 552 (6th Cir. 2012). Since Defendants’ motion rests in part
on a claim of qualified immunity, Plaintiff bears the burden of showing
that Defendants are not entitled to such immunity under the test
established in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) in order to
survive a motion for summary judgment. Everson v. Leis, 556 F.3d 484,
494 (6th Cir. 2009).
The Harlow test has two prongs. Under the first, the Court must
determine whether the officer’s conduct violated a federal right. Under
the second, the Court must determine whether that right was “clearly
established” at the time, such that a reasonable official would have
known of it. 457 U.S. at 818. However, even when a defendant asserts
qualified immunity as an affirmative defense in a motion for summary
judgment, “the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Tolan v. Cotton, 572
U.S. 650, 651 (2014) (quoting Anderson, 477 U.S. at 255).
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c. Discussion
i. Fourth Amendment Claims
1. Probable Cause
Plaintiff alleges that Defendants did not have probable cause to
arrest him on June 21, 2016, and that when they did arrest him, the
Defendants did so with excessive force.
A warrantless arrest is unlawful unless it was made upon probable
cause. Dunaway v. New York, 442 U.S. 200, 208 (1979). “[C]ommon
rumor or report, suspicion, or even ‘strong reason to suspect’” are
insufficient to establish probable cause, though “[e]vidence required to
establish guilt is not necessary.” Henry v. United States, 361 U.S. 98,
101–02 (1959). Probable cause “means facts and circumstances within
the officer's knowledge that are sufficient to warrant a prudent person,
or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “If the officer
acts with probable cause, he is protected even though it turns out that
the citizen is innocent.” Henry, 361 U.S. at 102.
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Defendant Svec asserts that his probable cause determination was
based on Plaintiff’s possession of a handgun, a spent shell casing found
in the chamber of the handgun, and a radio transmission from officer
Lord that “the landlord was involved in the shooting.” Plaintiff disputes
whether the latter two occurred and has identified a number of factual
inconsistencies between the police report written by Sumpter, the “run
sheet” written by Lord, and the deposition testimony of Svec.
For
example, Svec testified that he based his decision to arrest Plaintiff in
part on a radio transmission from Lord. Sumpter’s police report indicates
that Plaintiff’s weapons were seized at 6:50:50 and 6:50:54 PM, and by
all accounts Plaintiff was arrested mere seconds or minutes after the
firearms were seized. Lord’s run sheet indicates that he did not arrive at
the hospital until 7:03 PM. Lord testified that upon arriving, he entered
the hospital, spoke to a witness whom he cannot remember, and then
radioed that the landlord was involved in the shooting. If Plaintiff was
arrested at or near 6:50 PM, a call from Lord occurring at or near 7:03
PM could not have served as a basis for Plaintiff’s arrest.
At oral argument, Defendants’ counsel asserted that the
discrepancies in the police reports and run sheet were immaterial and
14
urged the Court to look only to the testimony of the Officers. This the
Court cannot do. When considering a motion for summary judgment, a
court must draw all inferences from the record in the light most favorable
to the non-moving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.
Moreover, “at the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.” Anderson, 477
U.S. at 249. Based on the time stamps of the police reports and handwritten entries in the run sheet, there exists a question of fact as to
whether Plaintiff was arrested before or after Lord’s radio transmission.
At oral argument, Plaintiff also disputed whether a spent shell casing
was actually found in his weapon. As the answers to both of these
questions will require the fact finder to weigh the credibility of witnesses
giving conflicting testimony, both questions must be submitted to the
jury. Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015) (“In
undertaking this [summary judgment] inquiry, credibility judgments and
weighing of the evidence are prohibited.”) (internal quotations and
citations omitted).
15
Without the purported shell casing in Plaintiff’s handgun and the
radio transmission from Lord, the Court cannot conclude that
Defendants had probable cause to arrest Plaintiff on June 21, 2016.
Consequently, a genuine issue of material fact for trial exists as to
whether Defendants had probable cause to arrest Plaintiff.
With respect to qualified immunity, Svec contends he is entitled to
qualified immunity even if he relied on a radio transmission stating that
“the landlord was involved in the shooting” that ultimately turned out to
be erroneous. While that may be true, the Court does not reach this
question because the genuine issue of fact pertains to whether Svec
received the radio transmission before or after Plaintiff’s arrest, not
whether the call was accurate or erroneous.
Svec is not entitled to
qualified immunity on Plaintiff’s Fourth Amendment false arrest claim
at this time. See Miller v. Sanilac Cty., 606 F.3d 240, 247 (6th Cir. 2010)
(qualified immunity is a question for the jury when “the legal question of
immunity is completely dependent upon which view of the [disputed]
facts is accepted by the jury”) (quoting Humphrey v. Mabry, 482 F.3d 840,
846 (6th Cir. 2007)).
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2. Excessive Force
Plaintiff alleges Defendants used excessive force during his arrest.
Specifically, Plaintiff argues that Svec used excessive force when he
“grabbed [Plaintiff] by the back of the hand and slammed [Plaintiff] face
forward into the police car” and a John Doe officer, now identified as
Officer Gibbings, “started putting his firsts, felt like his fists . . . into the
middle of [Plaintiff’s] back” during his arrest. Ford Dep., ECF No. 39-2,
PageID.1122.
The Supreme Court has held that excessive force claims are best
analyzed
under
the
Fourth
Amendment's
protection
against
unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989);
Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001).
In
determining whether excessive force was used, courts must ask whether
the officer's actions, in light of the totality of the circumstances, were
objectively reasonable. Graham, 490 U.S. at 396–97. “Courts should pay
particular attention to ‘the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest
17
by flight.’” Kostrzewa, 247 F.3d at 639 (quoting Graham, 490 U.S. at
396).
Here, Plaintiff was being arrested in connection with a shooting
that occurred at his property. A shooting is no doubt a serious crime. In
this case, however, the events leading up to the shooting significantly
mitigated any actual or perceived threat Plaintiff may have posed to the
officers. Specifically, Plaintiff was at the scene before the officers arrived
and volunteered that he was the landlord, that he was carrying a firearm,
and that he had a CPL. Plaintiff was 66 years of age, stood 5’ 5” tall, and
had his wife with him waiting in his vehicle.
He was polite and
cooperative. Plaintiff voluntarily complied with a search of his vehicle
and facilitated the officers’ taking possession of his handguns. Plaintiff
walked voluntarily to the police car. Upon being told to get into the police
car, Plaintiff asked why he was being told to sit in the police car. Svec
testified that Plaintiff did not immediately comply with the command to
get into the car, but also did not physically resist or attempt to flee.
Plaintiff testifies that he was then “slammed . . . face forward into the
police car” by Svec, and Gibbings “started putting his firsts, felt like his
fists . . . into the middle of [Plaintiff’s] back” during his arrest. Ford Dep.,
18
ECF No. 39-2, PageID.1122. Plaintiff was in pain, began crying, and
immediately requested medical attention.
The Sixth Circuit has found that comparable shows of physical force
have created issues of fact sufficient to preclude summary judgment in
excessive force cases. See, e.g., Vance v. Wade, 546 F.3d 774 (6th Cir.
2008) (arrest where plaintiff was “crammed” into a police car while officer
“twisted” plaintiff’s trunk may state claim for excessive force); Sanilac
Cty., 606 F.3d at 253–54 (“[W]e believe that a jury could reasonably find
that slamming an arrestee into a vehicle constitutes excessive force when
the offense is non-violent, the arrestee posed no immediate safety threat,
and the arrestee had not attempted to escape and was not actively
resisting.”); Folks v. Petitt, 676 F. App’x 567, 572 (6th Cir. 2017) (“As far
back as 1999, this court has held that slamming a compliant, nonresisting suspect into a stationary object during an arrest constitutes
excessive force.”); Martin v. Heideman, 106 F.3d 1308, 1313 (6th Cir.
1997) (excessively tight handcuffs may state claim for excessive force);
Kostrzewa, 247 F.3d at 640 (reckless driving with handcuffed plaintiff in
back seat may state claim for excessive force). The Court finds that a
genuine issue of material fact exists as to whether the force applied by
19
Officers Svec and Gibbings was reasonable in this instance. Further,
because the parameters of excessive force in this context were clearly
established in 2016 and there exists a genuine issue of fact as to whether
both Defendants’ use of force was reasonable, qualified immunity would
also be inappropriate. See Kostrzewa, 247 F.3d at 642 (“To put it another
way, if there is a genuine issue of fact as to whether an officer's use of
force was objectively reasonable, then there naturally is a genuine issue
of fact with respect to whether a reasonable officer would have known
such conduct was wrongful.”).
ii. Assault and Battery Claims
Defendants argue that that they are immune from liability for
Plaintiff’s assault and battery claims under Michigan’s governmental
tort immunity statue, Mich. Comp. Laws § 691.1407. Plaintiff contends
that Defendants are not entitled to governmental tort immunity because
they lacked probable cause to arrest Plaintiff. ECF No. 39, PageID.1103.
The Michigan Supreme Court has held that a government employee
is immune from suit for intentional torts under § 691.1407 when “(1) the
employee's challenged acts were undertaken during the course of
employment and that the employee was acting, or reasonably believed he
20
was acting, within the scope of his authority, (2) the acts were
undertaken in good faith, and (3) the acts were discretionary, rather than
ministerial, in nature.” Odom v. Wayne Cty., 760 N.W.2d 217, 218 (Mich.
2008). With respect to the second element, the Michigan Supreme Court
has defined a lack of good faith as including “conduct or a failure to act
that was intended to harm the plaintiff . . . [or] that shows such
indifference to whether harm will result as to be equal to a willingness
that harm will result.” Id. at 225.
In this case, Plaintiff has established a genuine issue of material
fact as to whether Defendants had probable cause to arrest him and
whether excessive force was used during the course of his arrest. Viewing
the evidence in the light most favorable to Plaintiff, a reasonable jury
could find that Defendants’ use of excessive force during the course of
Plaintiff’s arrest shows an intent to harm Plaintiff or “such indifference
to whether harm w[ould] result as to be equal to a willingness that harm
w[ould] result.” Id. See also Smith v. Stoneburner, 716 F.3d 926, 934
(6th Cir. 2013) (“If, as the Smiths allege, the officers banged Charles'
head against a wall, refused to loosen his cuffs when asked and
gratuitously shoved Donnetta, a reasonable jury could find that they
21
acted maliciously.”); Acklin v. City of Inkster, 93 F. Supp. 3d 778, 800
(E.D. Mich. 2015) (reasonable jury could infer officers acted in bad faith
when they used excessive force on plaintiff). Defendants are not entitled
to governmental tort immunity at this time.
IV.
Plaintiff’s Motion for Leave to Amend the Complaint
Plaintiff seeks leave to file an amended complaint that omits a
number of claims from the original complaint, adds Officers Hernandez
and Gibbings3 as defendants, and contains additional facts in support of
the alleged Monell claim. ECF No. 34. Defendants contend that leave to
amend should be denied because Plaintiff’s Monell claims are futile and
Officers Hernandez and Gibbings would suffer prejudice if they were
added to the complaint at this stage in the proceedings. ECF No. 38.
a. Legal Standard
Rule 15(a) of the Federal Rules of Civil Procedure states that leave
to amend “should [be] freely give[n] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “Denial may be appropriate, however, where there is
‘undue delay, bad faith or dilatory motive on the part of the movant,
Defendants’ Opposition argues that Officers Hernandez and “Royer” would suffer prejudice if added
as defendants at this stage in the proceedings, however, at oral argument, defense counsel stated that
“Officer Royer” was a mistake and was intended to refer to Officer Gibbings. “Royer” is Officer
Hernandez’s first name.
3
22
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.’” Morse v. McWhorter, 290
F.3d 795, 800 (6th Cir. 2002) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)). With respect to futility of amendment, “[a] court is within its
discretion to refuse amendment and dismiss the complaint if it ‘concludes
that the pleading as amended could not withstand a motion to dismiss.’”
Hoover v. Langston Equip. Assocs., 958 F.2d 742, 746 (6th Cir. 1992)
(quoting Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th
Cir. 1986)). Ultimately, the decision to grant or deny leave to amend a
pleading is left to the sound discretion of the trial court. Robinson v.
Michigan Consol. Gas Co., Inc., 918 F.2d 579, 591 (6th Cir. 1990).
b. Discussion
i. Monell Claim
Plaintiff seeks to amend the complaint in part to allege certain new
facts in support of Plaintiff’s Monell claim. Specifically, in the proposed
amended complaint, Plaintiff now alleges (i) that Defendants Gibbings
and Svec were each once previously named as a defendant in a settled
excessive force lawsuit; (ii) that Detroit police officers—but not
23
captains—receive approximately one hour of use-of-force training
annually; and (iii) that the City of Detroit has a history of excessive force
complaints. Proposed Am. Compl., ECF No. 34-2.
Defendants contend that Plaintiff fails to state a claim under
Monell because Plaintiff cannot show that Svec lacked effective training
on the use of force or that the alleged lack of training was the moving
force that caused Plaintiff’s injuries. ECF No. 38, PageID.1065–68.
The Supreme Court has approved municipal liability based on §
1983 when “the [municipal] action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers,” or
where such actions emanate from informal governmental custom. Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). In other words, the
constitutional violation must have sprung from “official policy” in one
form or another. Id. at 694. As such, local government units cannot be
held liable mechanically for their employees' actions under a respondeat
superior theory.
Id. at 691.
The plaintiff must “demonstrate that,
through its deliberate conduct, the municipality was the ‘moving force’
24
behind the injury alleged.” Bryan Cnty. Bd. of Comm'rs v. Brown, 520
U.S. 397, 404 (1997).
When a § 1983 plaintiff alleges that a “failure to train” led to his
injury, courts in the Sixth Circuit require the plaintiff to prove “three
distinct facts”: “that a training program is inadequate to the tasks that
the officers must perform; that the inadequacy is the result of the city's
deliberate indifference; and that the inadequacy is ‘closely related to’ or
‘actually caused’ the plaintiff's injury.’” Hill v. McIntyre, 884 F.2d 271,
275 (6th Cir. 1989) (citing City of Canton v. Harris, 489 U.S. 378, 390–91
(1989)).
In this case, the record shows that Svec received yearly excessive
force training from the police department until he was promoted to
captain in April of 2016. Svec Dep., ECF No. 34-4, PageID.653. On the
night of the arrest of Plaintiff, it had been less than a year since Svec’s
last use-of-force training. Plaintiff contends that the excessive force
training Svec received was inadequate, but Plaintiff can point to no
specific evidence of any shortcomings or problems with the City’s
excessive force training. Indeed, Plaintiff had the opportunity to request
25
the content of the City’s use-of-force training program during discovery
but admitted at oral argument that he did not do so.
Instead, Plaintiff asks the Court to infer that the City’s training
was inadequate from the fact that, despite receiving such training, the
officers still allegedly used excessive force while arresting Plaintiff, and
because Svec and Gibbings were each previously named as a defendant
in an excessive force case. With respect to the latter, both Medina et al.
v. City of Detroit et al., 2:15-cv-12121-BAF-DRG, which named Gibbings
as a defendant, and Johnson v. City of Detroit et al., 2:05-cv-71787-AJTMKM, which named Svec as a defendant, were settled and voluntarily
dismissed. Neither case involved a judicial finding that either officer
used excessive force. Thus, neither case is probative here. As to the
former, the lack of any evidence that the training was inadequate
forestalls any conclusion that inadequate training was “closely related
to” or “actually caused” Plaintiff's injury. See, e.g., Harvey v. Campbell
Cty., 453 F. App’x 557, 568 (6th Cir. 2011) (holding that because no
evidence of inadequacy of training had been presented by plaintiff, “it is
not reasonable to draw inferences—as the district court appears to have
done—of inadequate training, deliberate indifference and causal effect
26
from the mere fact that, given the training [officer] had, [he still injured
plaintiff]”).
The Sixth Circuit requires Plaintiff to make three showings to
substantiate a Monell claim under a failure to train theory: that the
training program is inadequate, that the inadequacy is the result of the
city's deliberate indifference, and that the inadequacy is ‘closely related
to’ or ‘actually caused’ the plaintiff's injury. Here, Plaintiff has failed to
meet his burden on all three. Consequently, Plaintiff’s Monell claim is
futile.
Moreover, because Plaintiff has already had the benefit of
discovery in this matter, the Court declines to provide further leave to
amend Plaintiff’s Monell claim.
ii. Other Claims
Plaintiff contends that Officers Gibbings and Hernandez will not
suffer prejudice if the Court allows them to be added at this stage in the
proceedings. ECF No. 34, PageID.436. Both officers have been deposed,
have been aware of the existence of this action, and will continue to be
represented by City counsel like Defendant Svec. Id.
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Defendants contend that adding Officers Hernandez and Gibbings
as defendants would place “an unfair burden” on them because discovery
has already closed in this matter. ECF No. 38, PageID.1069.
Rule 15 requires that leave to amend be freely given. Fed. R. Civ.
P. 15(a)(2). While Defendants claim prejudice because discovery has
closed, Officers Hernandez and Gibbings would presumably be
represented by the same counsel who has represented Defendant Svec
and the City for over two years, and they do not identify what additional
discovery they would seek. If there is a need for additional discovery,
Officers Hernandez and Gibbings may raise this issue with the Court.
Based on this record, Defendants have not made a showing of prejudice
sufficient to overcome the presumption under Rule 15(a) in favor of
granting leave to amend. See Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1052 (9th Cir. 2003) (“Absent prejudice, or a strong showing
of any of the remaining Foman factors, there exists a presumption under
Rule 15(a) in favor of granting leave to amend.”).
Although gross negligence and Fourteenth Amendment claims are
included in the proposed amended complaint, Plaintiff has indicated in
his response that he is no longer pursing those claims. ECF No. 39,
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PageID.1092–93. Accordingly, this Court denies Defendants’ summary
judgment motion with respect to Plaintiff’s Fourth Amendment and
assault and battery claims, denies Plaintiff leave to amend on his Monell
claim, and grants Plaintiff leave to amend to add as defendants Officers
Hernandez and Gibbings. Within fourteen (14) days of the entry of this
Order, Plaintiff may file an amended complaint containing his remaining
Fourth Amendment and assault and battery claims and adding
defendants.
V.
Conclusion
IT IS HEREBY ORDERED THAT Defendants’ Motion for
Summary Judgment (ECF No. 35) is DENIED.
Plaintiff’s Fourth
Amendment and assault and battery claims must be decided by a jury.
IT IS FURTHER ORDERED THAT Plaintiff’s Motion for Leave
to Amend (ECF No. 34) is GRANTED IN PART AND DENIED IN
PART. The Court declines to permit Plaintiff to amend his Monell claim
because doing so would be futile.
Plaintiff shall file an amended
complaint consistent with this Order within fourteen (14) days of the
entry of this Order.
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SO ORDERED.
DATED November 15, 2019.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
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