KAMATE v. City of Detroit et al

Filing 52

ORDER granting defendant Williams' Motion for Summary Judgment 46 ; granting in part and denying in part defendant Henry's Motion for Summary Judgment 47 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAMONA KAMATE,
Plaintiff,
Case No. 17-CV-13882
vs.
HON. GEORGE CARAM STEEH
YARLEN HENRY, DOMINIQUE
REESE, ELAINE WILLIAMS,
KRISTAL SCOTT AND THE
CITY OF DETROIT,
Defendants.
_____________________________/
ORDER GRANTING DEFENDANT WILLIAMS’ MOTION
FOR SUMMARY JUDGMENT [ECF NO. 46] AND GRANTING
IN PART AND DENYING IN PART DEFENDANT HENRY’S
MOTION FOR SUMMARY JUDGMENT [ECF NO. 47]
Plaintiff Ramona Kamate brings this action against Yarlen Henry and
Elaine Williams.1 Henry is a City of Detroit police officer. As it pertains to
defendant Henry, plaintiff’s complaint presents claims under 42 U.S.C. §
1983 for wrongful arrest, excessive force and malicious prosecution.
Plaintiff asserts claims against both defendants Henry and Williams for
conspiring to falsely arrest and imprison and maliciously prosecute her in

1

Clerk’s entry of default entered against defendant Dominique Reese on
January 15, 2019. Plaintiff stipulated to dismiss defendants Kristal Scott
and the City of Detroit. Only defendants Yarlen Henry and Elaine Williams
remain.
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violation of 42 U.S.C. § 1985. Plaintiff also alleged violations of state law
against Henry for assault and battery, false arrest and imprisonment, and
malicious prosecution. Finally, plaintiff alleges a claim of intentional
infliction of emotional distress against both Henry and Williams.
The matter is before the court on separate motions for summary
judgment filed by Henry and Williams. The parties appeared for oral
argument on August 26, 2019. For the reasons stated below, defendant
Williams’ motion for summary judgment is GRANTED and defendant
Henry’s motion for summary judgment is GRANTED IN PART AND
DENIED IN PART.
FACTUAL BACKGROUND2
In 2015, plaintiff was working for a bail bond agency in Wayne
County. Through her employment, she was routinely assigned to Highland
Park courts. According to plaintiff, she told people at the Highland Park
courts about winning $40,000 from the Michigan lottery and her desire to
use the money to purchase a larger house so she could foster children. A
woman who identified herself as Elaine Cohen told plaintiff she owned a

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The facts come primarily from the depositions of the parties. The court
notes that plaintiff has not provided documentary evidence to support many
of her allegations, including the deed to the property, the payment of any
property taxes, the alleged improvements made to the property, or any
injuries she sustained due to the acts of defendants.
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house at 265 Boston in Detroit that she thought she would lose in
foreclosure for failure to pay her property taxes. Plaintiff developed
sympathy for Cohen when Cohen explained that she had previously lost a
house to foreclosure in Florida, that she was pregnant, and that her partner
was abusing her. Cohen told plaintiff that she could acquire the Detroit
property if she paid the taxes on the house and fixed the place up.
Plaintiff went to look at the house at 265 Boston. While she was
there, a uniformed police officer who was patrolling the area told plaintiff
the owner of the house was another police officer. Plaintiff told the officer
she was thinking about purchasing the house. Plaintiff could see that the
yard was neglected, and the house was full of garbage, but the house was
locked so she could not enter.
A couple days later, Cohen and another woman met plaintiff at the
house and let her inside. Plaintiff was not introduced to the other woman,
but she later learned the woman was defendant Henry. Once inside the
house, plaintiff saw that it was full of trash and that the wiring, plumbing
and water heater had been removed. Plaintiff decided she wanted to buy
the house.
Plaintiff spoke to the Wayne County Treasurer, who told her that she
needed a deed to the property before she could pay the back taxes.
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Cohen first got upset when plaintiff told her she needed a deed to the
property, but later instructed plaintiff to meet her at a party store where they
could have a quit claim deed notarized. When plaintiff met Cohen at the
notary she saw the person she later identified as Henry waiting in the car.
Cohen and plaintiff went inside and had the deed notarized. They then
went to the County Treasurer’s office where Cohen gave plaintiff the signed
and notarized deed. Plaintiff filed the deed but did not have the money to
pay the taxes at that time. Plaintiff returned to the Treasurer and was told
she only had to pay 10% of the back taxes, or $1,860, to qualify for a
monthly payment plan for the remainder of the back taxes due.
Cohen gave plaintiff the keys to the house. From May to early
August 2015, plaintiff worked on the house. She payed Lawrence Lyons
$6,000 to re-wire and re-plumb the house and to put in a new circuit
breaker. Plaintiff also had a new water heater installed for $400. Plaintiff
and her family cut the grass, planted flowers and cleaned the trash from the
house. She bought a mattress and refrigerator and started living in the
house. In July, plaintiff found a note on the door of the house, written by
Henry, telling plaintiff she had to vacate the premises.
On August 3, 2015, plaintiff was confronted with a locksmith outside
the house who said he was there to change the locks for the owner, who he
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identified as Miss Henry. When plaintiff said she was the new owner of the
house, the locksmith called Henry. Henry arrived at the house, identified
herself as a police officer, and instructed plaintiff to leave. Henry was on
duty and was dressed in her Detroit Police polo shirt.
Defendant Elaine Williams also arrived at the property. Plaintiff did
not recognize this person as the woman she knew as Elaine Cohen.
However, when plaintiff listed off the details she knew about Cohen,
Williams admitted those things were true about her. Plaintiff recognized
Henry as the woman she previously saw with Cohen/Williams in the car
when she looked at the house and when she signed and filed the deed to
the property.
Plaintiff called 911 and requested a supervisor because she was
having a problem with a police officer. The responding officers came from
the same precinct as Henry. The supervisor looked over plaintiff’s
paperwork and spoke to Henry. The supervisor demanded that plaintiff
open the door or face being arrested. Plaintiff opened the door and the
officers entered, along with Henry and Cohen/Williams. Plaintiff asked for
permission to remove her possessions, but Henry and Cohen/Williams
falsely stated that the mattress was theirs. Plaintiff became upset when
she realized she had been swindled. She went to the basement and
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started to pull out the circuit breakers and wires that she had installed.
Henry and two other officers followed plaintiff downstairs and told her she
was going to jail. Henry allegedly pushed plaintiff to the ground and, along
with the other officers, started to beat and kick plaintiff. Cohen/Williams
witnessed the beating but did not participate. The supervisor was still
upstairs and asked what was going on. Henry and the officers went back
upstairs. Plaintiff lost two teeth in the beating. Plaintiff was not arrested.
Cohen/Williams testified that she previously lived in Florida with
Henry, and the two were girlfriends. She lost her Florida home to
foreclosure. She purchased the house at 265 Boston in 2007. She and
Henry lived in the house until 2013 when they broke up. One of
Cohen/Williams’ cousins lived in the house for a couple of months in 2013.
After the cousin moved out the house was vacant, and vandals stripped it
of all copper wiring and plumbing, as well as the water heater.
Cohen/Williams acknowledges she did not pay any taxes on the
house for years. She received several notifications from Wayne County
that the house was subject to foreclosure. Henry and Cohen/Williams both
testified they checked on the house during the period it was vacant. Henry
testified that she left the note on the door in July 2015 instructing the
occupant to vacate because a fellow police officer told her that someone
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else was living in the house. Henry also testified that prior to August 3 only
she and her father had a key to the house.
After plaintiff was evicted from the house on August 3,
Cohen/Williams went to the precinct and filed a police report. She claimed
to be a victim of a fraudulent transfer of a deed by plaintiff. Cohen/Williams
identified Henry as a witness to the crime.
Plaintiff attempted to make a report of police misconduct, but she
contends that the police would not take the report. Plaintiff and her
attorney eventually met with a detective, Henry and Cohen/Williams. At the
meeting, Henry and Cohen/Williams insisted on pursuing their criminal
complaint against plaintiff. Plaintiff offered to deed the property back to
Cohen/Williams if she and Henry paid plaintiff back for the taxes and repair
expenses she incurred. Cohen/Williams and Henry refused plaintiff’s offer.
Plaintiff contends that Cohen/Williams and Henry made statements to
the police against her in their combined attempt to maliciously prosecute
her. (Williams Statement, November, 2015; Henry Statement February,
2016). On April 13, 2016, a warrant was issued against plaintiff. On July 5,
2016, both Cohen/Williams and Henry testified against plaintiff at her
preliminary examination. Following trial on charges of forging and

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recording a fraudulent deed to real property, a jury found plaintiff not guilty
on all charges.
Cohen/Williams brought a quiet title action in Wayne County. On
May 3, 2018, title to 265 Boston was quieted in favor of Cohen/Williams.
STANDARD FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." See Redding v. St.
Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair
and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir.
1995).
The standard for determining whether summary judgment is
appropriate is "'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.'" Amway Distributors Benefits Ass’n v.
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Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Tolan v. Cotton, 572 U.S. 650, 660 (2014); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also National
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which a jury
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could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
ANALYSIS
I. 42 U.S.C. 1983 - Defendant Henry
Defendant Henry argues that she is entitled to qualified immunity on
plaintiff’s constitutional claims. In determining whether a government
official defendant is entitled to qualified immunity, the court must engage in
two inquiries. One, whether the facts the plaintiff has shown make out a
violation of a constitutional right, and two, whether the right at issue was
clearly established at the time of defendant’s alleged misconduct. The
order in which these two prongs of the qualified immunity analysis are
considered depends on the circumstances of the particular case. Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
Here, the court finds it helpful to first examine the claims plaintiff is
alleging.
A. Excessive Force
Plaintiff testified she went to the basement and proceeded to pull out
the wires and circuit breaker she had paid to have installed. As she was
doing so, Henry and two other officers allegedly pushed her down, beat her
and kicked her, causing injury including the loss of two of her teeth. When
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the supervisor came to the top of the stairs and asked what was going on,
Henry and the other officers stopped their attack and went upstairs without
handcuffing or arresting plaintiff. Plaintiff’s alleged constitutional violation
appears to be the use of excessive force and assault and battery where
less force was needed to stop her from committing property damage.
Henry denies engaging in any physical attack on plaintiff. The only
eyewitness who was deposed was Williams, who denied seeing an attack
on plaintiff. Finally, plaintiff did not provide any evidence documenting her
alleged injuries.
Accepting plaintiff’s testimony as true and giving her the benefit of all
reasonable inferences, a jury could find that to the extent plaintiff posed a
threat, more force was used than was necessary. If a jury finds that plaintiff
was not a threat once she was pushed to the ground, this could make
Henry’s beating and kicking of her excessive. See Lawler v. City of Taylor,
268 Fed.Appx. 384, 387 (6th Cir. 2008).
In this case there is a triable issue of fact whether Henry used
objectively unreasonable force against plaintiff. It is well-established that
there is a Fourth Amendment right to be free from the use of excessive
force and a police officer engaging in excessive force is not protected by
qualified immunity. Smoak v. Hall, 460 F.3d 768, 787–88 (6th Cir. 2006)
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(citation omitted). Henry is not entitled to qualified immunity for plaintiff’s
allegations of excessive force. Summary judgment on this claim is denied.
B.

Wrongful Arrest and Malicious Prosecution

Plaintiff also alleges that Henry violated her constitutional rights by
falsely claiming that plaintiff fraudulently obtained the deed to the home.
According to plaintiff, Henry and Cohen/Williams were the ones who
arranged for someone to quit claim deed the property to plaintiff, and then
benefited from plaintiff’s payment of delinquent taxes and renovations.
Based on Henry’s fabrication of evidence, plaintiff was arrested and
prosecuted for fraud and falsifying a deed to real property.
However, plaintiff does not accuse Henry of wrongful arrest or
malicious prosecution in her capacity as a police officer. Rather, she
alleges that Henry filed a wrongful police report and falsely testified at the
preliminary examination as a private citizen in order to have plaintiff
prosecuted for fraud.
The court finds that plaintiff has not stated a cause of action against
Henry for wrongful arrest or malicious prosecution under 42 U.S.C. 1983.
Therefore, summary judgment on this claim is granted.

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II.

Intentional State Torts – Henry
Plaintiff alleges that Henry arranged for a woman to pretend to be

Elaine Cohen/Williams and commit a fraud on plaintiff. Plaintiff further
alleges that during the course of the fraud, Henry was acting as a police
officer when she kicked and beat her in the basement of the house,
knocking out two of her teeth. Subsequently, Henry allegedly filed a false
police report against plaintiff and testified falsely at the preliminary
examination in plaintiff’s fraud case.
A.

Assault and Battery

Under Michigan law, an individual may bring an assault and battery
claim against an officer who “uses more force than reasonably necessary in
effecting an arrest,” White v. City of Vassar, 157 Mich.App. 282, 403
N.W.2d 124, 130 (1987) (per curiam), and “actions which would normally
constitute intentional torts are protected by governmental immunity” only if
“those actions are justified,” Brewer v. Perrin, 132 Mich.App. 520, 349
N.W.2d 198, 202 (1984).
Immunity for a government employee’s intentional torts is set by
statute. MCL 691.1407(3). A government employee has immunity if: (1)
the challenged acts were undertaken during the course of employment and
within the scope of the employee’s authority; (2) the acts were undertaken
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in good faith; and (3) the acts were discretionary, rather than ministerial, in
nature. Odom v. Wayne County, 482 Mich. 459, 461 (2008). An employee
is not acting in good faith when he acts maliciously or with wanton or
reckless disregard of the rights of another. Id. at 464.
Plaintiff alleges that Henry, acting as a police officer, assaulted and
battered her when she pushed her down and kicked and beat her, causing
plaintiff injury, including the loss of two teeth. There is a preliminary issue
of material fact whether Henry committed an assault and battery against
plaintiff in this case. If so, there is a further issue whether Henry undertook
such actions against plaintiff in good faith for purposes of governmental
immunity.
Henry’s motion for summary judgment is DENIED as to the claim of
assault and battery.
B.

False Arrest and Imprisonment

There is no evidence to support a claim that Henry arrested plaintiff in
her capacity as a police officer. Plaintiff does argue that Henry, as a
private individual, caused her to be arrested by filing a false police report
and testifying falsely at her preliminary examination. To prevail on a claim
of false arrest or false imprisonment, a plaintiff must show that the arrest
was made without legal authority. Peterson Novelties, Inc. v. City of
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Berkley, 259 Mich. App. 1, 18 (2003) (citations omitted). In this case,
plaintiff was arrested under legal authority, pursuant to a warrant, though
she was ultimately exonerated of the charges brought against her. Plaintiff
has not supported a cause of action against Henry for false arrest and
imprisonment.
Summary judgment is granted in favor of Henry.
C.

Malicious Prosecution

Plaintiff alleges that Henry initiated charges against plaintiff by
providing falsified evidence of the crime of fraud and forgery to the police
and the court. Again, plaintiff alleges that Henry acted in her individual
capacity. “The plaintiff has the burden of proving (1) that the defendant has
initiated a criminal prosecution against him, (2) that the criminal
proceedings terminated in his favor, (3) that the private person who
instituted or maintained the prosecution lacked probable cause for his
actions, and (4) that the action was undertaken with malice or a purpose in
instituting the criminal claim other than bringing the offender to justice.”
Matthews v. Blue Cross & Blue Shield of Michigan, 456 Mich. 365, 378,
(1998) (citations omitted).
Plaintiff alleges that Henry, along with Cohen/Williams, caused and
continued a prosecution against her. Defendants allegedly accomplished
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this by having someone impersonate Williams and issue a deed to plaintiff.
They then initiated a police report alleging that plaintiff committed fraud
against them and provided falsified evidence of a crime to the police and
the court. However, a warrant may not be issued without the prosecutor’s
written authorization. Id. at 384. Therefore, in Michigan, the prosecutor's
exercise of his or her independent discretion in initiating and maintaining a
prosecution is a complete defense to an action for malicious prosecution.
Id. (citation omitted). Plaintiff has not made any allegation, nor has she
offered any evidence, that the prosecutor did not exercise independent
discretion in issuing the warrant against her.
Summary judgment is granted in favor of defendants as to this cause
of action.
III. 42 U.S.C. 1985 - Defendants Henry and Cohen/Williams
Federal statute provides a cause of action against private
conspiracies to violate a person’s constitutional rights. 42 U.S.C. § 1985.
Plaintiff alleges that Cohen/Williams and Henry conspired to wrongfully
cause her to be arrested and prosecuted, knowing that plaintiff had not
engaged in any wrongdoing herself.
Defendant Cohen/Williams points out that on May 3, 2018, legal title
to 625 Boston was quieted in favor of herself by Judge Leslie Smith of the
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Wayne County Circuit Court. In addition, Cohen/Williams cites to plaintiff’s
deposition testimony in the quiet title action for the proposition that plaintiff
admitted she did not receive a validly signed deed from Cohen/Williams,
and for that reason the property was never lawfully conveyed to plaintiff.
Based on this evidence, Cohen/Williams asks the court to summarily
conclude that there is no genuine issue of material fact as to any claim
made by plaintiff against her.
The parties agree that Cohen/Williams and plaintiff never directly
interacted before August 3, 2015. Plaintiff believes that a woman she knew
as Elaine Cohen was posing as the owner of the house. The imposter was
the person who signed the deed over to plaintiff and gave her the keys to
the property. Cohen/Williams contends that plaintiff is not able to maintain
a cause of action against her after admitting she was not the person who
allegedly gave plaintiff the deed and that the deed she obtained was not
valid. However, this evidence alone is not a defense to plaintiff’s theory
that defendants conspired to violate her constitutional rights and benefited
from the fraud they allegedly committed against her.
A.

False Arrest and Imprisonment

Plaintiff accuses Cohen/Williams and Henry of conspiring to
wrongfully defraud her and then fabricating the basis for her to be arrested.
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To prevail on a claim of false arrest or false imprisonment, a plaintiff must
show that the arrest was made without legal authority. Peterson Novelties,
Inc. 259 Mich. App. at 18 (citations omitted). The guilt or innocence of the
person arrested or imprisoned is not relevant because actual innocence is
not an element of false arrest or false imprisonment. Id.
Plaintiff asserts that Cohen/Williams and Henry conspired to have
plaintiff arrested and imprisoned by making a false police report and
testifying falsely at her preliminary examination. This does not support a
cause of action for false arrest or false imprisonment, however, because
there is no allegation that plaintiff was not arrested under legal authority.
“One who instigates or participates in a lawful arrest, as for example an
arrest made under a properly issued warrant by an officer charged with the
duty of enforcing it, may become liable for malicious prosecution, . . . but he
is not liable for false [arrest or] imprisonment, since no false [arrest or]
imprisonment has occurred.” Id.
Summary judgment is granted in favor of the defendants.
B.

Malicious Prosecution

Plaintiff’s claim that Henry and Williams/Cohen conspired to
maliciously prosecute her fails for the reasons discussed above in section
II C.
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Summary judgment is granted in favor of the defendants.
IIV. Intentional Infliction of Emotion Distress – Henry and Williams
Plaintiff brings a state law claim for intentional infliction of emotional
distress against both defendants Henry and Cohen/Williams. The elements
of intentional infliction of emotion distress require plaintiff to prove the
following:
(1) extreme and outrageous conduct,
(2) intent or recklessness,
(3) causation, and
(4) severe emotional distress.
VanVorous v Burmeister, 262 Mich App 467, 483 (2004).
Plaintiff argues Henry and Cohen/Williams conspired to defraud her
to get her to pay their property tax bill and make repairs to their house.
They used Henry’s position as a police officer to further intimidate plaintiff.
They allegedly lied to authorities in a police report and at the preliminary
examination, which resulted in plaintiff’s arrest and alleged malicious
prosecution. They brought a quiet title action to get back the title to the
property and cover up their own fraud, all while benefiting from the work
and money invested by plaintiff while she believed she owned the property.

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The level of emotional distress contemplated by the Restatement
drafters is such that “no reasonable man could be expected to endure it.”
Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 610 (1985). While the
allegations made by plaintiff, if proven to be true, might rise to the level of
extreme and outrageous conduct, plaintiff has not provided any evidence of
her suffering severe emotional distress. Plaintiff must provide evidence of
each element of the cause of action for her claim to go to the jury. In this
case plaintiff has failed to provide any evidence in to support her allegation
of experiencing severe emotional distress at the hands of defendants.
Summary judgment is granted to defendants.
CONCLUSION
For the reasons stated above, defendant Henry’s motion for summary
judgment is DENIED as to plaintiff’s § 1983 excessive force claim and
assault and battery claim. Defendant Henry’s motion for summary
judgment is GRANTED as to all other claims. Defendant William’s motion
for summary judgment is GRANTED in its entirety.
Dated: October 7, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
October 7, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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