Wheeler v. Billingslea et al
Filing
28
ORDER granting in part and denying in part 23 defendants' Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAMIAN WHEELER,
Plaintiff,
Case No. 18-CV-10346
HON. GEORGE CARAM STEEH
vs.
RICHARD BILLINGSLEA,
And HAKEEM J. PATTERSON, et al.,
Defendants.
__________________________/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 23)
This 42 U.S.C. § 1983 excessive force suit arises out of an incident at
a gas station in which Defendant Detroit Police Officer Richard Billingslea
allegedly removed Plaintiff Damian Wheeler’s semiautomatic pistol from his
person, slammed him against a door, and held his gun to Wheeler’s neck.
Wheeler alleges that Defendant Detroit Police Officer Hakeem J. Patterson
watched the alleged assault with his weapon drawn. Wheeler has also
sued the City of Detroit and two John Doe defendants. Now before the
court is Defendants’ motion for summary judgment. For the reasons set
forth below, Defendants’ motion shall be denied as to the claims against
the individual officers, but shall be granted as to the Monell claim against
the City.
-1-
I. Background Facts
The court construes the facts in the light most favorable to the
nonmoving party, here, Wheeler. On the evening of April 18, 2017,
Wheeler and his friend, Rondale Miller, stopped at a gas station at 17406
Harper in Detroit to purchase fuel. Wheeler testified to the following at his
deposition. When he arrived at the service station, four Detroit police
officers were parked in a police cruiser sitting near the gas pumps. (Doc.
25-3 at PgID 287-88). The officer sitting in the driver’s seat was a light
skinned African American, and the other three officers were white. Id. at
PgID 288. After exiting his vehicle, Wheeler greeted the police officers
through the open windows of their vehicle. Id. at PgID 304. Then, the
police officer who had been in the driver’s seat, stormed out of the vehicle,
and forcefully removed Wheeler’s semiautomatic pistol breaking its holster,
spun him around, drew his gun and pressed the gun to Wheeler’s neck. Id.
at PgID 304-14.
Wheeler further testified that the officer said to him, “Mother fucker,
do you have a license for this? You think you fucking tough? Nigger, get
your ass up on this wall.” Id. at PgID 316. Wheeler testified that the other
three officers exited the police vehicle with their weapons drawn. Id. at
PgID 314. At some point, Wheeler presented the officer with a copy of his
-2-
concealed pistol license, and the officer told him to “get [his] ass off the
street,” and Wheeler was able to leave the gas station. Id. at PgID 322.
Wheeler treated at the hospital the next day for headaches, back pain, and
a sprained arm. Id. at PgID 325.
Wheeler then brought this excessive force suit under § 1983 against
Officers Billingslea and Patterson and two unidentified John Doe Officers,
and the City of Detroit. Wheeler also brought supplemental state law
claims of assault and battery, gross negligence, and intentional infliction of
emotional distress. The parties stipulated to the dismissal of the City of
Detroit as to Count I only. The parties did not stipulate to the dismissal of
Wheeler’s Monell claim against the City of Detroit for negligent supervision,
training, and discipline as pled in Count III.
Wheeler testified that he saw the name tag of the officer who
allegedly assaulted him which read, “Billingslea.” Id. at PgID 293. Wheeler
also submitted an affidavit that he saw a photograph of Defendant
Billingslea and identified him as the officer who pulled his gun on him and
assaulted him. (Doc. 25-4, PgID 372 at ¶ 5). In his affidavit, he also
identified a photograph of Defendant Patterson as one of the officers
present during the incident. Id. at ¶ 6. Wheeler’s companion, Miller, also
submitted an affidavit that he recognized a photograph of Officer Billingslea
-3-
as the officer who pulled the gun on Wheeler, (Doc. 25-5, PgID 379 at ¶ 5),
and recognized a photograph of Officer Patterson as an officer who was
present at the time of the incident. Id. at ¶ 6.
II. 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 Dep’t 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.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
-4-
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).
"[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
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
-5-
Anderson, 477 U.S. at 252).
III. Analysis
Defendants argue that the individual Defendants and the City of
Detroit are entitled to summary judgment. The court discusses these
Defendants separately below.
A.
Individual Liability
Defendants argue that they have introduced sufficient proofs that
Officers Billingslea and Patterson were not at the Mobil gas station on the
date and time of the alleged assault such that they are entitled to summary
judgment. Defendants are correct that in order to survive summary
judgment, Wheeler must point to sufficient record evidence to create a
disputed issue of material fact as to whether each individual officer was
“personally involved” in the conduct that allegedly violated his constitutional
rights. Fazica v. Jordan, __ F.3d __, No. 18-1457, 2019 WL 2417358, at *4
(6th Cir. June 10, 2019) (citing Binay v. Bettendorf, 601 F.3d 640, 651 (6th
Cir. 2010)). Having direct involvement in the constitutional violation does
not require that an officer necessarily place his hands on the plaintiff. An
officer who fails to prevent excessive force may be liable where, “(1) the
officer observed or had reason to know that excessive force would be or
was being used, and (2) the officer had both the opportunity and the means
-6-
to prevent the harm from occurring.” Id. at *5 (internal quotation marks and
citation omitted).
Defendants argue that Officers Billingslea and Patterson could not
have been involved in the incident because (1) an activity log shows that
Officer Billingslea was working with a black male and white male on April
18, 2017, which does not match racial composition of officers as described
by Wheeler, (2) the activity log does not document an encounter at the
Mobil gas station or with Wheeler, (3) in-car camera footage indicates that
Billingslea’s unit was at the scene of a traffic investigation in the area of
Woodhall and Berden at the time of the alleged incident with Wheeler, (4) a
review of all activity logs of all units working in the Ninth Precinct on April
18, 2017 revealed a unit that matched the racial composition described by
Wheeler consisting of Officer Stephen Heid (white male), Christopher
Rabior (white male), and Marvin Taylor (black male), but these officers
were conducting a narcotics investigation from 6:05 p.m. to 11:05 p.m. and
were not at the Mobil gas station, (5) at the time of the alleged incident,
there were no technical response units on duty, and (6) the Precinct Daily
Detail report shows that Patterson was not on duty on the date and time of
the alleged incident.
In opposition to Defendants’ motion for summary judgment, Wheeler
-7-
relies on his own deposition testimony, and the affidavits sworn to by
himself and his companion, Miller, which identify Officers Billingslea and
Patterson as the officers responsible for the alleged assault. Defendants
argue that police records indicate that these officers could not have been at
the scene of the alleged assault, but these written documents are not
dispositive. Of course, these records may be used to challenge Wheeler’s
and Miller’s credibility, but they would not necessarily preclude reasonable
jurors from finding in Plaintiff’s favor. Defendants also argue that Wheeler’s
and Miller’s identification of them from photographs should be disregarded
because the photographs were black and white, smaller than 1” by 1”, and
were more than five years old. Once again, these considerations go to the
credibility of the identifications made by Wheeler and Miller, which jurors
will be called upon to decide at trial, but these details in and of themselves
are insufficient to entitle these officers to summary judgment. It is possible
that reasonable jurors would credit these photo identifications despite their
limiting characteristics as argued by Defendants. At trial, jurors will be able
to compare Officers Billingslea’s and Patterson’s likeness to the
photographs themselves. In sum, because genuine issues of material fact
exist as to whether Officers Billingslea and Patterson were responsible for
the alleged assault, their motion for summary judgment must be denied.
-8-
B.
Municipal Liability
Count III of the Complaint alleges that the City of Detroit is liable
under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), for failure to
adequately train, supervise, or discipline Officers Billingslea and Patterson,
and claims that the City has inadequate policies related to constitutionally
permissible seizures, use of force, and preservation of evidence. The City
argues it cannot be liable under Monell because Wheeler has not shown
that the conduct giving rise to his alleged injuries is attributable to a policy
or custom of the City, or that the alleged deprivation is attributable to a
failure by the City of Detroit to train, supervise, and discipline its officers.
“To succeed on a municipal liability claim, a plaintiff must establish
that his or her constitutional rights were violated and that a policy or custom
of the municipality was the ‘moving force’ behind the deprivation of the
plaintiff’s constitutional rights.” Brown v. Battle Creek Police Dep’t, 844 F.3d
556, 573 (6th Cir. 2016) (citing Monell, 436 U.S. at 694). Systematically
failing to adequately train police officers can constitute a custom or policy
that leads to municipal liability. Miller v. Sanilac Cty., 606 F.3d 240, 255
(6th Cir. 2010).
However, “[t]he inadequacy of police training only serves as a basis
for § 1983 liability ‘where the failure to train amounts to deliberate
-9-
indifference to the rights of persons with whom the police come into
contact.’” Slusher v. Carson, 540 F.3d 449, 457 (6th Cir. 2008) (quoting
City of Canton v. Harris, 489 U.S. 378, 388 (1989)) (emphasis in original).
Most importantly, “’[t]o establish deliberate indifference, the plaintiff ‘must
show prior instances of unconstitutional conduct demonstrating that the
[City] 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.”
Brown, 844 F.3d at 573 (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th
Cir. 2005)). To succeed on a failure-to-train claim, a plaintiff must prove
the following: (1) the training 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 ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700
(6th Cir. 2006) (citing Harris, 489 U.S. at 387). The standard for finding a
municipality liable essentially amounts to the judicial determination that “the
city itself [decided] to violate the Constitution.” Connick v. Thompson, 563
U.S. 51, 61-62 (2011). Also, liability for failing to investigate or discipline
officers cannot be derived from a single act by a non-policy making
employee. Oklahoma City v. Tuttle, 471 U.S. 808, 821, 824 (1985).
- 10 -
In response to the City’s motion for summary judgment, Wheeler has
come forward with no evidence in support of his Monell claim. Instead,
Wheeler argues that the City has not made Officers Billingslea and
Patterson available for deposition despite four notices prepared by his
counsel. Thus, Wheeler asks the court to delay ruling on the Monell claim
until it deposes these Defendants. In its Reply, the City responds that it
communicated with Wheeler’s counsel on numerous occasions about the
depositions, and made reasonable efforts to schedule those depositions at
mutually agreeable times. In support of its response, the City has attached
several email correspondences which verify its good faith efforts to
schedule the depositions of these officers. (Doc. 26-2, 26-3, 26-4, 26-5).
Wheeler never filed a motion to compel Defendants to appear for
their depositions, and never filed a motion for sanctions for their failure to
do so either. Discovery is now closed. It would be optimal for the parties to
find a mutually agreeable time for those depositions to take place prior to
trial, but the court will not delay ruling on the City of Detroit’s motion for
summary judgment to allow the parties to do so under these
circumstances. Also, it is unlikely that the deposition of Billingslea or
Patterson standing alone would be sufficient to raise a genuine issue of
material fact as to the Monell claim. The City of Detroit also argues that
- 11 -
the fact that Officer Billingslea was criminally charged and terminated from
his employment as a result of another incident, suggests that the City
properly trains, supervises, and disciplines its officers. (Doc. 25-7).
Because Wheeler has failed to introduce any evidence in support of his
Monell claim and discovery has closed, the City of Detroit is entitled to
summary judgment.
C.
John Doe Defendants
In his Complaint, Wheeler names two John Doe defendants, whom
he alleges watched Officer Billingslea assault him with their weapons
drawn. (Complaint, ¶¶ 20-23). Wheeler never sought to amend his
Complaint to name the John Does and failed to serve them as required
under Federal Rule of Civil Procedure 4(m). The Sixth Circuit has held that
a civil action against Doe defendants never commences where they were
not identified by their real names or served with process. Cox v. Treadway,
75 F.3d 230, 240 (6th Cir. 1996) (citing Bufalino v. Michigan Bell Tel. Co.,
404 F.2d 1023, 1028 (6th Cir. 1968)). Until a plaintiff amends his complaint
to identify a John Doe defendant by his true name, “the John Doe
allegations in the complaint are mere superflusage.” Smith v. City of
Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *5 (E.D. Tenn. Nov. 4,
2009) (collecting cases). Here, the discovery deadline was April 15, 2019,
- 12 -
and Wheeler never filed a motion to amend to substitute the real names of
the John Doe Defendants. Accordingly, the John Doe defendants shall be
DISMISSED.
IV. Conclusion
For the reasons set forth above, Defendants’ motion for summary
judgment (Doc. 23) is DENIED IN PART as to Plaintiff’s claims against
Defendants Billingslea and Patterson, and GRANTED IN PART as to the
City of Detroit which is DISMISSED. Also, the John Doe Defendants are
DISMISSED.
IT IS SO ORDERED.
Dated: June 19, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 19, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
- 13 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?