Payne v. Lowry et al
Filing
44
OPINION AND ORDER Adopting 41 Report and Recommendation, Denying 43 Motion for Summary Judgment by Plaintiff, Granting 32 Motion for Summary Judgment of Defendants, and Dismissing the Complaint with Prejudice. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES U. PAYNE,
Plaintiff,
Case Number 18-11154
Honorable David M. Lawson
Magistrate Judge R. Steven Whalen
v.
JOSEPH LOWRY, OFFICER CLARK, and
KELLIE M. FITTONNEVILLE,
Defendants.
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OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
AND DISMISSING THE COMPLAINT WITH PREJUDICE
This matter is before the Court on objections to an August 15, 2019 report issued by
Magistrate Judge R. Steven Whalen recommending that the Court grant the defendants’ motion
for summary judgment and dismiss the complaint with prejudice. On April 9, 2018, the plaintiff
filed his pro se complaint alleging violations of his rights under the First, Fourth, and Fourteenth
Amendments. The case was referred to Magistrate Judge Whalen for management of all pretrial
proceedings. After a period of discovery, the defendants filed their motion for summary judgment.
The magistrate judge subsequently issued his report recommending dismissal of the case, and the
plaintiff filed timely objections. The matter now is before the Court for a fresh review.
I.
The lawsuit arises from events that followed an April 2016 traffic stop during which the
plaintiff was arrested, and his car and property were searched and seized. The plaintiff contends
that there was no basis for the traffic stop, but his claims are premised solely on events that
occurred after the stop and arrest. First, he alleges that his First Amendment rights were violated
when he was not allowed to speak freely during hearings before the state trial court. Second, he
contends that his Fourth Amendment rights were violated when the police refused to return his
driver license, which was confiscated during or after the traffic stop. Third, he alleges that his
Fourteenth Amendment rights were violated while he was in custody, when officers at the jail
prevented paramedics from taking the plaintiff to the hospital after he had a seizure. Fourth, the
plaintiff alleges that his rights further were violated when, during a probation violation hearing,
defendant probation officer Kellie Fittonneville falsely stated that the plaintiff went to a restaurant
instead of attending a court-ordered meeting with her.
It is undisputed that as a result of the traffic stop and arrest the plaintiff was taken to the
Hazel Park, Michigan jail, and that he subsequently was charged with felony fleeing and eluding.
While in custody, on the morning after he was arrested, the plaintiff complained to jail officers
that he had a seizure and paramedics were called. The plaintiff was examined by them and,
according to his testimony, the paramedics recommended that he be taken to the hospital.
However, unnamed jail officers who were present spoke to the paramedics, who then left, and the
plaintiff then was transported to the Oakland County Jail. The plaintiff later was released from
jail, and he eventually pleaded guilty to a reduced charge of misdemeanor resisting and obstructing
and was sentenced to probation.
After he was sentenced, the plaintiff failed to appear for a scheduled meeting with his
probation officer (defendant Fittonneville), and he was sentenced to 17 days in jail for the
probation violation.
The plaintiff alleges that when he was arrested the police seized from his person and vehicle
around two ounces of marijuana, more than $600 in cash, his driver license, and a state-issued
medical marijuana caregiver identification card. The police also impounded the vehicle and
subsequently served the plaintiff a notice that the car would be subject to forfeiture. The plaintiff
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admits that the police later returned his money and the marijuana caregiver card, but he alleges
that his driver license was not returned, and he had to get a new one in June 2016. The plaintiff
also alleges that he could not retrieve his impounded vehicle because he did not have his original
driver license when he went to the impound facility.
The magistrate judge recommended that all of the claims be dismissed because: (1) the
complaint did not plead any facts to suggest that Officer Clark was in any way personally involved
with any violations of the plaintiff’s rights, and the plaintiff conceded during his deposition and
asserted in various filings that he intended Clark to be involved in the proceedings solely as a
witness, (2) defendant Fittonneville was entitled to absolute quasi-judicial immunity from the
claims of misconduct while performing her court-directed duties as a probation officer, (3) the
claim that property was improperly retained after a valid seizure (during an inventory search of the
plaintiff’s person and vehicle) is not cognizable under the Fourth Amendment, and (4) the
Fourteenth Amendment deliberate indifference claim was unsupported by the evidence because
the record showed that paramedics promptly were summoned when the plaintiff complained to jail
officers that he had a seizure, and the medical notes indicated “normal” vital signs upon
examination; moreover, the magistrate judge noted, the records contained a refusal of ambulance
transport signed by the plaintiff.
II.
The filing of timely objections to a report and recommendation requires the court to “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S.
667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires
the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge
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in order to determine whether the recommendation should be accepted, rejected, or modified in
whole or in part. 28 U.S.C. ‘ 636(b)(1). “The filing of objections provides the district court with
the opportunity to consider the specific contentions of the parties and to correct any errors
immediately,” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues —
factual and legal — that are at the heart of the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147
(1985). As a result, “‘[o]nly those specific objections to the magistrate’s report made to the district
court will be preserved for appellate review; making some objections but failing to raise others
will not preserve all the objections a party may have.’” McClanahan v. Comm’r of Soc. Sec., 474
F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d
1370, 1373 (6th Cir. 1987)).
“Section 1983 of Title 42 of the United States Code imposes civil liability on those
individuals who, acting under color of state law, deprive a citizen of, among other things, his
federally guaranteed constitutional rights.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015)
(citing Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004)). “To state a claim under § 1983, a
plaintiff must set forth facts that, when favorably construed, establish: (1) the deprivation of a right
secured by the Constitution or laws of the United States; (2) caused by a person acting under the
color of state law.” Ibid. (citing Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.
2006)). The plaintiff must establish the liability of each individual defendant by that person’s own
conduct. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable
to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.”).
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A. Defendant Officer Clark
As an initial matter, the plaintiff does not raise any objection to the dismissal of all claims
against defendant Officer Clark. The plaintiff conceded at his deposition and admits in his
objections that he did not intend to bring any claims against Officer Clark and only wanted him to
participate in the lawsuit as a witness. The claims against defendant Clark will be dismissed
because the plaintiff has not alleged any facts or presented any evidence that Clark personally was
involved with any of the claimed constitutional violations.
B. Free Speech Claims (First Amendment)
The magistrate judge correctly concluded that all of the First Amendment claims must be
dismissed because the plaintiff has not put forth any evidence that the named defendants were
involved in any suppression of his protected speech. The plaintiff alleged in his complaint,
testified at his deposition, and reiterated in his objections that the purported violations of his First
Amendment rights occurred when the state court trial judge repeatedly instructed him not to speak
or to stop speaking, on pain of being sentenced to additional jail time. None of the facts alluded
to in the pleadings or the record suggest that any of the named defendants had any personal
involvement in stopping the plaintiff from speaking at any court proceeding; nor is it even plainly
alleged or suggested by the record that defendants Clark, Lowry, or Fittonneville even were present
when the trial judge allegedly told the plaintiff to stop speaking. Because there are no facts in the
record suggesting that any of the defendants personally were involved in any First Amendment
violations, all of those claims must be dismissed.
C. Deliberate Indifference Claims (Fourteenth Amendment)
The magistrate judge concluded that no cognizable Eighth or Fourteenth Amendment
claims for deliberate indifference had been made out because the plaintiff had not put forth any
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evidence that he had a sufficiently serious medical condition, and medical records indicated that
he signed a form refusing to be transported to the hospital. The plaintiff’s deposition testimony
contradicts that assessment of the record, because the plaintiff insisted that he did not refuse to be
transported, and he testified that he had an actual seizure and that in the past he had been
hospitalized following similar episodes. Nevertheless, the deliberate indifference claims must be
dismissed for a more basic reason, which is that the plaintiff has not pleaded any facts or offered
any evidence to suggest that any of the three named defendants were involved in the alleged denial
of medical care.
The plaintiff testified at his deposition that two unidentified officers were present when
paramedics were called to examine him at the Hazel Park jail. Plf.’s Dep. at 66-37, ECF No. 324, PageID.194-95; id. at 70-71 (“I don’t know their two names, but I know what they look like.”).
The plaintiff admitted that Officer Clark was not involved in the denial of medical care, and he
testified only that Clark later told the plaintiff that he should have been taken to the hospital by the
officers who were present. Id. at 71. The plaintiff also conceded during his testimony that
defendant Lowry was not involved in the denial of medical care, and when he was asked why he
had sued Lowry, the plaintiff stated that it was solely due to the allegedly improper retention or
destruction of his property. Id. at 75-76 (“Q. Any other reasons why Officer Lowry is in this
lawsuit? A. Just for the driver’s license and for the medical marijuana that wasn’t returned back to
me when I had my cards and stuff for that. And — and my vehicle not being released properly to
my mother.”). The plaintiff also testified that the claims against defendant Fittonneville are based
solely on her statements about his whereabouts when he missed a probation interview. Id. at 79
(“Q. [W]hat are your claims against [Ms. Fittonneville]? A. That she lied under oath, said that I
was at Tim [H]orton’s and was eating some food and got to the court late and that I was trying to
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grab my property and escape and leave from downstairs when she lied and they put me back in jail
for 17 more extra days for nothing. And then they found out that it wasn’t me at Tim Horton’s.”).
The complaint does not allege that any of the named defendants were responsible for any denial
of medical care, and nothing in the plaintiff’s testimony suggests that they were. Because the
plaintiff has failed to put forth evidence that the defendants personally were responsible for
denying him any needed care, the deliberate indifference claims must be dismissed.
D. Unlawful Seizure Claims (Fourth Amendment)
The magistrate judge concluded that the Fourth Amendment claims must be dismissed
because claims that property improperly was retained after a lawful seizure are not cognizable
under the Fourth Amendment. In his objections, the plaintiff merely reiterates his insistence that
his driver license and marijuana were not returned and that he had difficulty retrieving his vehicle
because he did not have his driver license available. But he has not cited any legal authority
contrary to the well settled rule that an allegedly improper failure to return property taken into
custody via a lawful search and seizure does not amount to a Fourth Amendment violation. In this
case, the plaintiff does not raise any challenge to the arrest or initial seizure of his property and
vehicle during an inventory search contemporaneous with the arrest. That initial seizure was
lawful because it is well settled that police may take property into custody during a routine
inventory search incident to arrest. South Dakota v. Opperman, 428 U.S. 364 (1976). The
subsequent refusal to return property seized via a lawful search does not support any cognizable
Fourth Amendment claim. Fox v. Oosterum, 176 F.3d 342, 351 (6th Cir. 1999) (“[T]he Fourth
Amendment protects an individual’s interest in retaining possession of property but not the interest
in regaining possession of property. Once that act of taking the property is complete, the seizure
has ended and the Fourth Amendment no longer applies. Our holding that no seizure occurred here
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is limited to the situation before us — an initial, lawful seizure of a piece of property followed by
a refusal to return that property.” (citations and footnotes omitted)). Moreover, the Fox court also
held, on facts identical to those alleged here, that no viable Fourteenth Amendment procedural due
process claim had been advanced, because an arrestee is not entitled to any pre-deprivation process
before property is seized via an inventory search, and there was no showing that post-deprivation
process available under state law, e.g., Mich. Ct. Rule 3.105; Mich. Comp. Laws §§ 600.2920,
600.6401, was inadequate to challenge the confiscation. Id. at 349 (citing Hudson v. Palmer, 468
U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981); Harris v. City of Akron, 20 F.3d 1396
(6th Cir. 1994)). The plaintiff has failed to advance any cognizable claim that he was deprived of
his property under either the Fourth or the Fourteenth Amendments, and all of his claims for failure
to return the items seized must be dismissed.
E. Defendant Kellie M. Fittonneville
In his objections, the plaintiff merely reiterates his allegation that during a probation
violation hearing defendant Fittonneville lied about the plaintiff’s whereabouts when he was late
for a required meeting with her. Throughout his complaint and in his testimony the plaintiff
advanced no other basis for the claims against her other than the purportedly false statements to
the trial court during the probation proceeding. But he has not cited any authority contrary to the
decisions cited by the magistrate judge holding that a probation officer is entitled to absolute quasijudicial immunity against claims premised on her statements made during court ordered
proceedings to assess whether a defendant violated the terms of his probation. Loggins v. Franklin
County, 218 F. App’x 466, 476-77 (6th Cir. 2007) (citing Demoran v. Witt, 781 F.2d 155, 157–58
(9th Cir. 1985)). There was no error in the magistrate judge’s conclusion that all of the claims
against defendant Fittonneville are precluded by her immunity from suit.
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III.
The plaintiff has failed either to plead or to advance any evidence to suggest that any of
the three named individual defendants personally were involved in or responsible for any
unconstitutional conduct under the First, Fourteenth, and Eighth Amendments, and he concedes
that defendant Clark did nothing that violated his rights. Settled law forecloses the claims based
on retention of the plaintiff’s seized property under the Fourth and Fourteenth Amendments.
Defendant Fittoneville is entitled to absolute quasi-judicial immunity against the claims based on
her allegedly false statements to the state trial court during a probation violation hearing. The
defendants are entitled to judgment as a matter of law on all of the claims pleaded against them,
and their motion for summary judgment therefore will be granted.
Accordingly, it is ORDERED that the report and recommendation (ECF No. 41) is
ADOPTED, the plaintiff’s objections (ECF No. 42) are OVERRULED, and the defendants’
motion for summary judgment (ECF No. 32) is GRANTED.
It is further ORDERED that the complaint is DISMISSED WITH PREJUDICE.
It is further ORDERED that the plaintiff’s motion to suspend the proceedings (ECF No.
40) and motion for jury trial (ECF No. 43) are DISMISSED as moot.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: September 11, 2019
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was
served upon each attorney or party of record herein by
electronic means or first-class U.S. mail on September 11,
2019.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI
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