Lundy v. Pontiac, City of et al
Filing
90
OPINION AND ORDER Granting In Part and Denying In Part 45 Motion for Summary Judgment. Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES LUNDY,
Plaintiff,
Case No.12-cv-10965
HON. GERSHWIN A. DRAIN
vs.
CITY OF PONTIAC, a municipal corporation,
et al.
Defendants.
_____________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [#45]
I. INTRODUCTION
This lawsuit arises out of Defendants’ alleged violations of Plaintiff’s federal
constitutional rights as secured by the Fourth and Fourteenth Amendments to the United
States Constitution. Consequently, Plaintiff argues he has viable claims for damages under
42 U.S.C. §1983 because the arresting officers used excessive force in arresting him.
Plaintiff has other federal claims and also alleges he has viable state law claims. These
claims are presently before the Court on Defendants’ FED. R. CIV. P. 56 Motion for
Summary Judgment1. Plaintiff has responded to Defendants’ motion. For the reasons
1
The Court notes that Defendants have moved for Summary Judgment under Fed. R. Civ. P.
12(b)(6) and Fed. R. Civ. P. 56. Rule 12 of the Federal Rules of Civil Procedure is not applicable at this
stage of the case due to Defendants’ multiple filings that require the Court to consider matters outside of
the pleadings. The Court is constrained to consider the motion as provided for by Rule 56. See FED. R.
CIV. P. 56.
stated below, the Defendants’ Motion for Summary Judgment is GRANTED IN PART AND
DENIED IN PART. This Opinion and Order sets forth the Court’s ruling.
II. FACTUAL BACKGROUND
During the late evening of June 9, 2010, Plaintiff states he was on the porch of his
home with his neighbor, Jose Santiago, drinking alcohol at approximately 11:00 p.m., when
a car slowly approached and fired a shot in the air.
Shortly thereafter, Pontiac police dispatch received a call that a bald, black male was
standing in the driveway shooting a gun.
Officer Donald Russell (“Russell”) was the first officer to arrive on the scene. Russell
parked his vehicle away from Plaintiff’s residence so that Russell could conduct
surveillance. Russell had a clear view of Plaintiff and Jose Santiago as they stood in the
driveway. Approximately two minutes later, Russell was joined at his location near Plaintiff’s
residence by fellow officers Robert Elinski (“Elinski”), Kyle Hayes (“Hayes”), and Damon
Dorkins (collectively “Defendant Officers”).
The Defendant Officers devised a plan for approaching Plaintiff and Santiago who,
at the time, stood outside in the driveway of Plaintiff’s home. The plan called for Dorkins
and Harris to approach from the west while in a police vehicle, and Elinski and Harris were
to approach on foot from the east.
Plaintiff, at the time, was on a tether mandated by a work release program. Plaintiff
was prohibited from drinking alcohol while on the program. Plaintiff saw the police vehicle
that contained Dorkins and Harris approach him and Santiago where they stood in the
driveway. However, the parties disagree on the events that occurred after Plaintiff saw the
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police car approach.
Plaintiff contends that after he saw the police coming towards him, he ran up the
driveway toward the back of the house. Plaintiff maintains that he did not hear any verbal
commands as he “proceeded” up the driveway towards the back of the house.See Dkt. No.
59, pg. 12. Plaintiff states, after he turned the corner at the end of the driveway, he
observed Dorkins with his gun drawn and aimed in his direction. Plaintiff alleges he was
unarmed with his hands empty when he stopped – after he saw Dorkins with a gun drawn
– and he turned towards Dorkins, putting both of his hands up and stating, “Don’t shoot!”
Plaintiff argues that while his hands were raised, he saw a flash from Dorkins’s gun and
heard a pop as Dorkins pointed the gun at him. Plaintiff contends he ran away after Dorkins
shot at him because he was in fear for his life.
Defendants’ version of the events that happened after Plaintiff saw the police car
approach are quite different. Defendants contend that Dorkins and Harris shined a police
spotlight on Plaintiff and Santiago. Harris then got out of the police vehicle and allegedly
stated, “Police. Don’t move. Show your hands.” See Dkt. No. 45, pg. 10. Defendants
contend that Dorkins also gave Plaintiff and Santiago similar instructions upon exiting the
police vehicle. Defendants argue that Plaintiff ran up the driveway, toward the back of the
house. Officer Dorkins gave chase, while Harris remained behind with Santiago. Officers
Russell, Hayes, and Elinski also gave chase while running up a neighboring driveway.
Defendants maintain that while Dorkins chased Plaintiff, Dorkins ordered Plaintiff,
“Police! Stop!” Dorkins briefly lost site of Plaintiff when Plaintiff turned behind the home.
Dorkins contends that when he rounded the corner, Plaintiff had a dark-colored gun in his
hand. Defendants contend that Plaintiff fired the gun at Dorkins, and Dorkins heard the shot
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and saw the flash. Dorkins alleges he did not return fire because he heard an additional
gunshot, not realizing who made the second shot or where it was coming from, Dorkins
retreated behind a truck.
Contrarily to what Defendants allege in their brief, the transcript of the preliminary
exam notes that officer Dorkins did return fire, as evidenced by his statement, “I went to
comeback up again. At that point, returned fire and I heard another shot.” However,
Defendants contend that in Dorkins’s deposition testimony, after Dorkins listened to the
audio recording of the said testimony, he realized that his testimony was actually, “At that
point, I went to return fire.” Id. at pg. 12
Contemporaneously, as Dorkins pursued Plaintiff, Russell, Elinski, and Hayes, were
also pursuing Plaintiff as the officers ran up a neighboring driveway. Plaintiff contends that
Russell had his shotgun drawn with the safety off and Russell fired the gun immediately
upon seeing Plaintiff without any verbal commands uttered. Defendants, however, recall
Elinski yelling, “Police! Stop!” as Plaintiff looked over his shoulder and continued running.
Elinski contends he fired two shots at Plaintiff because he was in fear for his own safety
and the safety of the other officers.
Plaintiff alleges that Defendants have conflicting stories of how the gun was found
near the fence. Officer Dorkins stated in the Officer’s reports, that he observed Plaintiff
jump over a six-foot fence while fleeing from the Defendant officers and that he witnessed
Plaintiff throw the gun over the fence. Dorkins then stated to the detectives investigating
the incident that he observed Plaintiff throwing the gun over the six-foot fence. Other
officers from the scene corroborated Dorkins’s statement that Plaintiff threw the gun over
the fence.
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Plaintiff states that his tether contained a Global Positioning Tracker (“GPS”) that
shows that he never went toward the fence, he never had a gun or shot a gun, and that
he was never in the vicinity of the fence. A gun, which Defendants later claim was
Plaintiff’s, was found near the six-foot fence.
Defendants now move to summarily dismiss Plaintiff’s claims pursuant to Fed. R.
Civ. P. 56(c). Defendants claim that Plaintiff’s Complaint does not allege genuine issues
of material facts that warrant jury review.
III. ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56(a) empowers the court to render summary
judgment “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 Distribs. Benefits
Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty
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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. 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 could reasonably find for the non-movant. McLean, 224 F.3d at
800 (citing Anderson, 477 U.S. at 252).
B. Motion for Summary Judgment
Count I: Excessive Force under 42 U.S.C. §1983
a. Has Plaintiff Established a Constitutional Violation?
Defendants claim that excessive force was not used against Plaintiff, and,
alternatively, if excessive force is found, they are entitled to qualified immunity. The United
States Supreme Court, in Saucier v Katz, 533 U. S. 194, 201-02 (2001), noted that for
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evaluations of claims for excessive force, the court must first decide whether – taking the
facts in the light most favorable to Plaintiff – Defendants’ conduct violated a constitutional
right. If the answer to the first threshold question is yes, the next step is to determine
whether the right was clearly established. Katz, 533 U.S. at 201-02. If the court finds that
there was no constitutional violation, then the need for the qualified immunity analysis is
no longer necessary. Id. at 201.
Plaintiff contends that his Fourth Amendment rights were violated by Defendants.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons
. . . against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const.
amend IV. In both Tennessee v. Garner, 471 U.S. 1 (1985) and Graham v. Connor, 490
U.S. 386 (1989), the Supreme Court established the governing constitutional rule regarding
excessive force. In Garner, the Court held that the reasonableness of using deadly force
to subdue a suspect turns on whether the “officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the officer or to others.” 471 U.S.
at 11. And Graham held that excessive-force claims generally “are properly analyzed
under the Fourth Amendment’s ‘objective reasonableness’ standard.” 490 U.S. at 388.
The relevant inquiry is whether the officers used more force than was reasonably
necessary to make the arrest. “The reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396. Factors to consider are (1) the severity of
the crime, (2) whether the suspect poses an immediate threat to the safety of the officers
or others, and (3) whether the suspect is actively resisting arrest or attempting to flee. Id.
These factors, focus primarily on analyzing the force used preceding physical
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custody; however, this list is not all inclusive when the ultimate question is “whether the
totality of the circumstances justifies a particular sort of seizure.” Id. The court conducts a
balancing test where it balances the nature of the intrusion on the arrestee’s Fourth
Amendment rights against the government’s countervailing interests that are at stake. Id.
The Sixth Circuit has stated that this standard “contains a built-in measure of deference to
the officer’s on-the-spot judgment about the level of force necessary in light of the
circumstances of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002).
Applying the above standard to the facts of this case results in questions of material
fact concerning the reasonableness of Defendants’ actions.
Viewing the facts in the light most favorable to Plaintiff and accepting his version of
the facts as he fled, and the way the shooting occurred, the Plaintiff has raised genuine
issues of material fact on his excessive force claim.
“Only in rare instances may an officer seize a suspect by use of deadly force.”
Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005). These rare circumstances arise when
the facts known to the officer at the time of the incident objectively give rise to probable
cause to believe that the suspect poses a threat of serious physical harm to the officer or
third persons. Garner, 471 U.S. at 11. Thus, while it is true that as a matter of law, an
unarmed and nondangerous suspect has a constitutional right to be free from deadly force
by police officers, whether a suspect is “nondangerous” is based on the facts known to the
officer at the time of the incident, not on hindsight. Floyd v. City of Detroit, 518 F.3d 398,
407 (6th Cir.).
In this case, it is undisputed that Plaintiff turned away and ran up the driveway when
he noticed the police approach. Officer Dorkins alleged he gave chase and after he
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rounded the corner after Plaintiff, he observed a dark-colored gun in Plaintiff’s hand.
Dorkins contends that Plaintiff fired a gun at him and Dorkins heard the shot and saw the
muzzle flash. Plaintiff, however, maintains that when he stopped running and turned to face
Dorkins, he observed Dorkins with a gun pointed in his direction. Plaintiff asserts that he
was clearly unarmed and raised his hands above his head and Dorkins fired the gun at him.
Plaintiff says he heard the shot and saw the muzzle flash and in response, stated “don’t
shoot.” Plaintiff contends Dorkins still held the gun directed at him and fearing for his life,
Plaintiff turned and ran away. Plaintiff also states that the gun found on the other side of
a six-foot fence did not contain his fingerprints and that his GPS tether shows that he never
went in the direction of the fence as he fled from police.
Whether Defendants had probable cause to believe that Defendant Officers were
in danger of serious harm turns, in large part, on the resolution of whether Plaintiff
possessed a gun and fired a shot at Dorkins as alleged by Dorkins. Because Plaintiff has
produced adequate evidentiary support for his version of events and because the Court
must accept his version of the facts as true for the purposes of a Fed. R. Civ. P. Rule 56
motion, the Court concludes that material questions of fact exist that should be presented
to a jury.
b. Qualified Immunity: Were Defendants’ Actions Unreasonable in Light of a
Clearly Established Constitutional Right?
The second Katz inquiry is whether the right was clearly established and whether
Defendants’ actions were objectively unreasonable in light of that clearly established right.
To put it another way, in light of the alleged facts and viewing any factual disputes in the
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light most favorable to Plaintiff, was Officer Dorkins’s decision to fire at Plaintiff as he stood
with his arms raised above his head objectively reasonable in light of a clearly established
right to be free from deadly force? Here, this turns on whether (a) Dorkins actually did see
Plaintiff possess and fire a gun and, (b) if so, whether that belief and the response
thereafter was reasonable. If the answer to those two questions is “yes” even under
Plaintiff’s version of events, then Officer Dorkins is entitled to qualified immunity regardless
of whether there was a constitutional violation. However, as in this case, absent an
unequivocal affirmative response, the questions of qualified immunity as to Officer Dorkins
must be left for a jury to decide.
As to the first question – whether Officer Dorkins actually saw Plaintiff with a
gun – the factual dispute over this issue has been discussed above. Although Officer
Dorkins states that he saw Plaintiff with a gun, heard the gunshot and saw the muzzle
flash, in light of evidence presented by Plaintiff, “the court may not simply accept what may
be a self-serving account by the police officer. It must look at the circumstantial evidence
that, if believed, would tend to discredit the police officer’s story . . . .” Scott v. Henrich, 39
F.3d 912, 915 (9th Cir. 1994). In this case, Plaintiff’s account and Officer Dorkins account
of the events are divergent, at best. At this stage, it is not the Court’s place to resolve these
factual disputes.
Plaintiff concedes in his brief that Russell, Elinski and Hayes did not know who fired
the first shot. Therefore, it was reasonable for them to fire shots at Plaintiff. It was
reasonable for them to use deadly force since they stated they feared for their safety as
well as the safety of others.
Therefore, on the excessive force claim alleged in Count I of the Complaint the Court
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will DENY Summary Judgment as to Officer Dorkin, but GRANT Summary Judgment as
to Officers Elinski, Russell and Hayes.
Count II: §1983 Unlawful Search and Seizure
In this case the Pontiac police dispatch received a call that a bald, black male
was standing in the driveway shooting a gun. When the police officers arrived they saw
Plaintiff who was in the driveway who fit that general description. At that point they had
adequate grounds to investigate Plaintiff. However, once Plaintiff took off and fled up
the driveway they had probable cause seize and arrest him.
Plaintiff alleges in his complaint that he was seized and searched without a
warrant, without probable cause and without any other legal justification, in violation of
the Fourth and Fourteenth Amendment to the United States Constitution.
To constitute an unreasonable seizure in violation of the 4th Amendment, an
arrest must be made without probable cause. Probable cause exist where there are
“facts and circumstances within the officers 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,”
Crockett v. Cumberland College, 3316 F.3d 571, 580-81 (6th Cir. 2003).
Plaintiff relies upon Floyd v. Detroit, 518 F.3d 398 (6th Cir. 2008) to argue that he
was seized. However, the Plaintiff in Floyd, was not a fleeing suspect, which is a
significant distinguishing feature from the present case. Plaintiff admits that when he
saw the police vehicle, he feared being arrested for drinking on a tether and took off
running, knowing the police were chasing him.
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In United States v. Jones, 673 F.3d 497, 502 (6th Cir. 2012), the Court held that
police pursuit is not a seizure until the suspects actually stops. Here, it is unrefuted that
Plaintiff continued to flee from the officers until they lost sight of him and he was
actually able to hide.
The court finds that there was probable cause to seize and arrest Plaintiff.
a. Failure to Intervene by Defendant Officers
Plaintiff also claims in Count II that Defendant Officers violated his Fourth
Amendment right to be free from excessive force when they failed to prevent other officers
from the use of excessive force against Plaintiff. “[A] police officer who fails to act to
prevent the use of excessive force may still be held 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 to prevent the harm from occurring.” Floyd, 518
F.2d at 406 (internal quotation marks omitted). However, officers cannot be held liable
under this theory if the officers did not have a “realistic opportunity to intervene.” Ontha v.
Rutherford Cnty., Tenn., 222 F. App’x 498, 507 (6th Cir. 2007).
The Court finds Defendants argument to have merit as to the claim of failure to
intervene on the part of Defendant Officers’ actions. Plaintiff contends that Defendant
Officers shot at him multiple times without ever seeing him with a gun. He further argues
that after the first shot was fired, other Defendant Officers arrived on the scene without
assessing the situation with a shotgun unholstered and fired shots at Plaintiff. The court
finds that based on the facts and circumstances in the case that the Defendants had
neither the opportunity nor the means to prevent any harm from occurring. Therefore, the
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court finds as a matter of law that there was probable cause to seize and arrest Plaintiff and
that the claim of a failure to intervene by other officers also fails as a matter of law.
Accordingly, the court will GRANT Summary Judgment on Count II.
Count IV: Due Process Claim
Withholding Material Exculpatory Evidence
Plaintiff also makes a claim that Defendants withheld material exculpatory evidence
in violation of the Fourth and Fourteenth Amendments. Plaintiff has not substantiated that
such a claim is cognizable under either amendment in this case. To the extent that Plaintiff
is attempting to allege a Brady violation, the United States Supreme Court has held to the
extent that Brady imposes an obligation on the state to disclose exculpatory evidence to
the defense, this duty falls on the prosecutor and not the police. See Giglio v. United
States, 405 U.S. 150, 154 (1972); Lindsey v. Bogle, 92 F.App’x 165, 170 (6th Cir. 2004)
(stating that “the Brady obligation applies only to prosecutors”); see also Brady v. Maryland,
373 U.S. 83 (1963).
In this case, Plaintiff is accusing Defendant Officers of withholding exculpatory
evidence, this claim fails as a noncognizable claim against Defendant Officers. The failure
to do particular tests on evidence does not by itself establish a due process violation.
Therefore, the court will GRANT Summary Judgment as to Count IV of Plaintiff’s Complaint.
Count V: §1983 Conspiracy
Plaintiff claims that Defendant Officers conspired to violate his constitutional rights.
Defendants argue that summary judgment is warranted because Plaintiff does not allege
sufficient facts to support his claim.
Plaintiff’s allegations in the complaint are not supported by evidence on the record
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which, when viewed in a light most favorable to Plaintiff, would allow a reasonable juror to
infer that Defendant Officers conspired to deprive Plaintiff of his constitutional rights by
falsifying reports and giving false testimony.
To sustain a §1983 conspiracy claim, Plaintiff must show that “an agreement
(existed) between two or more persons to injure another by unlawful action.” Revis v.
Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). More specifically, Plaintiff must prove that (1)
a “single plan” existed, (2) Defendant Officers “shared in the general conspirational
objective” to deprive Defendant of constitutional rights, and (3) “an overt act was committed
in furtherance of the conspiracy that caused injury” to Plaintiff. Hooks v. Hooks, 771 F.2d
935, 944 (6th Cir. 1985). “Express agreement among all the conspirators is not necessary
to find the existence of a civil conspiracy [and] [e]ach conspirator need not have known all
the details of the illegal plan or all of the participants involved.” Id.
Overall, Plaintiff has failed to met the evidentiary requirements for a
conspiracy claim and summary judgment is appropriate as to the Officers.
Additionally, Defendants assert that a §1983 conspiracy claim is barred by the intracorporate conspiracy doctrine, which holds that an entity cannot conspire with its own
agents or employees:
‘It is basic in the law of conspiracy that you must have two person or entities
to have a conspiracy. A corporation cannot conspire with itself nay more than
a private individual can, and it is the general rule that the acts of the agent
are the acts of the corporation.’
Saad v. City of Dearborn Heights, 876 F. Supp 2d 925, 941 (E.D. Mich. 2012) (quoting Hull
v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir.
1991).
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In this case, analogous to the officers employed by the city in Saad, it is undisputed
that Defendant Officers were employed by the city of Pontiac and acting in their capacity
as police officers. Because the city of Pontiac cannot conspire with its own agents, the
intra-corporate conspiracy doctrine shields Pontiac from a conspiracy claim. Therefore, the
intra-corporate conspiracy doctrine bars Plaintiff’s conspiracy claim against the city of
Pontiac.
Accordingly, as to the count V, the conspiracy claim, the will GRANT Summary
Judgment.
Count VI: §1983 Malicious Prosecution
Plaintiff’s claim of malicious prosecution will not be dismissed on summary judgment.
To succeed on a malicious prosecution claim under §1983 premised on a violation of the
Fourth Amendment, Plaintiff must prove:
First, . . . that a criminal prosecution was initiated against the plaintiff and that
the defendant ma[d]e, influence[d], or participate[d] in the decision to
prosecute. Second, because a §1983 claim is premised on the violation of a
constitutional right, the plaintiff must show that there was a lack of probable
cause for the criminal prosecution. Third, the plaintiff must show that, as a
consequence of a legal proceeding, the plaintiff suffered a deprivation of
liberty, as understood in our Fourth Amendment jurisprudence, apart from the
initial seizure. Fourth, the criminal proceeding must have been resolved in the
plaintiff’s favor.
Sykes v Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (internal quotation marks and
citations omitted).
“Sykes clarified that probable cause to arrest and probable cause to prosecute are
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two distinct issues, each of which requires separate analyses by the court.” Amine v. King,
No. Case No. 09-13454, 2011 U.S. Dist, LEXIS 107424, at *11 (E.D. Mich. Sept. 21, 2011)
(citations omitted). “[T]he malicious- prosecution tort remedies detention accompanied not
by absence of legal process, but by wrongful institution of legal process.” Sykes, 625 F.3d
at 308 (internal quotation marks and citation omitted) (emphasis omitted).
With regard to the first element of a §1983 malicious prosecution claim that the
Defendants made, influences, or participated in the decision to prosecute,” the Sykes court
opined that “participated” should be viewed in the context of tort causation principles. Id.
“To be liable for ‘participating’ in the decision to prosecute, the officer must participate in
a way that aids in the decision, as opposed to passively or neutrally participating.” Id. at 309
n.5. The Sykes court further stated, “Whether an officer influenced or participated in the
decision to prosecute hinges on the degree of the officer’s involvement and the nature of
the officer’s actions . . . .” The totality of the circumstances informs this fact determination.”
Id. at 312 n.9.
In Sykes, an officer gave false testimony at the preliminary hearing. The court held
that the officer made misrepresentations, participated, or influenced the decision to
prosecute the plaintiffs. The plaintiffs brought a malicious-prosecution claim against the
officer who testified at the preliminary hearing predicated on two misrepresentations that
she made at the hearing that bound plaintiffs over for trial. The Sixth Circuit noted”
It is well established in this circuit that [p]olice officers cannot, in good faith,
rely on a judicial determination of probable cause [to absolve them of liability]
when that determination was premised on an officer's own material
misrepresentations to the court. This means that in order to establish that a
testifying officer was responsible for commencing a criminal proceeding for
purposes of a malicious-prosecution claim, the Plaintiffs were required to
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present evidence that [the officer] (1) stated a deliberate falsehood or
showed reckless disregard for the truth and (2) that the allegedly false or
omitted information was material to the [court's] finding of probable cause.
Id. at 312 (internal quotation marks and citations omitted).
The Sixth Circuit concluded that “a reasonable jury could have concluded that [the
officer] testified falsely at the preliminary hearing and that her statements were material to
the state court’s finding of probable cause.” Id.
Plaintiff argues that Defendant Officers participated and aided in the decision to
prosecute in several ways. Plaintiff contends that Officer Dorkins misrepresented to other
officers that Plaintiff had a gun, and that Plaintiff shot at Dorkins, and jumped a fence where
the gun was located. Plaintiff maintains that Dorkins also told detective officers investigating
the incident that Plaintiff threw the gun over the fence. Plaintiff states that Dorkins
memorialized his untruths in his police report, while wrongfully categorizing the charge to
Plaintiff as “assault with the intent to murder.” Finally, similar to the testifying officer in the
Sykes case, Plaintiff alleges that Dorkins lied at the preliminary examination by stating
Plaintiff had a gun and shot at him.
Defendants argue that Plaintiff’s claims that Defendants created false/inaccurate
reports without any evidence of how they were false is not enough to support his
contentions. Defendants further argue that even if there were false statements or material
omissions, the court in Sykes opined that it “set aside the [false] statements and include
the information omitted in order to determine whether the affidavit [in support of the arrest
warrant] is still sufficient to establish probable cause.” Dkt. # 45, pg. 24 (quoting Sykes, 625
F.3d at 306.)
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In this case, a genuine issue of material fact remains with respect to the first
element. During the preliminary hearing, Dorkins testified that Plaintiff had a gun and that
Plaintiff shot the gun at him. Dorkins testimony was pivotal to the finding of probable cause.
The judge stated that he found Officer Dorkins to be credible. Dkt. # 68-4, pg. 2. Plaintiff
combats Defendants’ argument by stating that Dorkins gave false testimony during the
hearing for the purpose of establishing probable cause, a charge that is challenged by
Defendants. Each party has presented sufficient evidence in the form of deposition and
preliminary exam testimony to create a genuine issue of material fact, and whether Dorkins
falsified his testimony is material to a determination of whether he participated in the
decision to prosecute.
Likewise, a genuine issue of material fact remains with respect to the second
element. It has already been established that Plaintiff was drinking alcohol, which, pursuant
to his tether work release orders, was a violation that provided probable cause for his
arrest. However, Plaintiff was prosecuted for assault with intent to murder, felonious
assault, and felon in possession of a firearm – not for drinking alcohol while on a tether.
See Dkt. No. 45-10, Exhibit I-Trial Transcript. The Court must determine whether probable
cause existed to prosecute Plaintiff for the offenses with which he was charged. Carter v.
Porter, Case No.5:08-CV-246, 2011 U.S. Dist. LEXIS 20911, at *25 n.13 (E.D. Ky. Mar. 1,
2011) (distinguishing between “‘a simultaneous arrest on multiple charges where, in a
sense the significance of the charges for which there was not probable cause for arrest is
limited as the plaintiff in the ensuing civil action could have been lawfully arrested and thus
seized on at least one charge and, on the other hand, prosecution for multiple charges
where the additional charges for which probable cause is absent almost surely will place
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an additional burden on the defendant.’” (quoting Johnson v Knorr, 477 F.3d 75, 84 (3d Cir.
2007))).
Although a judicial finding of probable cause ordinarily shields a law enforcement
officer from a malicious prosecution claim, he “cannot, in good faith, rely on a judicial
determination of probable cause [to absolve him of liability] when that determination was
premised on an officer’s own misrepresentations to the court.” Sykes, 625 F.3d at 312.
Here, as noted above, there remains a genuine issue of material fact regarding whether
Defendant Officer Dorkins provided false testimony during the preliminary examination.
Thus, neither party has succeeded in establishing this factor in their favor as a matter of
law.
The third element has been met because, absent the initial seizure, Plaintiff suffered
a “deprivation of liberty” as understood by the Fourth Amendment due to his subsequent
arrest and 125 days spent in jail. Confinement imposed on an individual pursuant to the
legal process is a deprivation of liberty. Heck v. Humphrey, 512 U.S. 477, 484 (1994).
Finally, the fourth element is met here because Plaintiff was acquitted of all charges
by a jury. This decision was rendered on the merits and resolved the criminal proceeding
in his favor. See Heck, 512 U.S. at 484 (“One element that must be alleged and proved in
malicious prosecution action is termination of the prior criminal proceeding in favor of the
accused.”).
Therefore, because genuine issues of material fact exist as to the first two elements
of the malicious prosecution claim as to Officer Dorkins, summary judgment cannot be
granted as to him. Accordingly, the court will DENY Summary Judgment as to Officer
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Dorkins and GRANT it as to the other Defendants.
Count VII: Malicious Prosecution (state claim)
Because the elements of malicious prosecution under state law are virtually identical
to the elements under §1983 the court finds that the resolution of this issue is the same.
Therefore, the court will DENY Summary judgment as to Officer Dorkins and GRANT it as
to the other Defendants.
Count VIII: Assault and Battery (state claim)
The claim in Count VIII of assault and battery requires proof of both components:
that being an assault and a separate battery. In this case the Plaintiff has failed to prove
that a battery occurred. A battery is the unlawful touching of the person of the Plaintiff or
putting in motion something that unlawfully touches the Plaintiff.
In this case none of the bullets that were fired at the Plaintiff took effect or touched
the Plaintiff and Plaintiff was not physically injured as a result of the shooting. Therefore,
no battery occurred and the court will GRANT Defendants Summary Judgment as to all
Defendants.
Count IX: False Arrest/False Imprisonment (state claim)
In it’s discussions about Count II which claimed that there was a lack of probable
cause to arrest, the court found that in fact there was probable cause to arrest the Plaintiff.
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Because there was probable cause to arrest there can be no false arrest and consequently
no false imprisonment. Therefore, the court will accordingly GRANT Summary Judgment
to all Defendants on Count IX the claim of false arrest/false imprisonment.
Count X: Intentional Infliction of Emotional Distress (state claim)
Intentional infliction of emotional distress requires proof that the officers conduct was
extreme and outrageous. The evidence in this case does not rise to that level. Moreover,
the Michigan Supreme Court has not recognized this claim as a valid one under Michigan
law. Therefore, the court will GRANT summary judgment on Count X as to all Defendants.
Count XI: Gross Negligence (state claim)
The evidence in this case supports some intentional actions on the part of the
Officers involved. However, the conduct and the evidence in the case when viewed in it’s
entirety does not support a gross negligence theory, therefore, the court will GRANT
Summary Judgment on Count XI, the gross negligence claim.
Count XII: §1983 Municipal/Supervisory Liability
In Plaintiff’s §1983 claim against Pontiac, brought pursuant to Monell v. Dept. of
Social Servs. of the City of New York, 436 U.S. 658 (1978), Plaintiff alleges Pontiac failed
to train its officers consistent with the constitutional rights of citizens and failed to supervise
and/or discipline officers that they knew or should have known to have violated a citizens’
rights.
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A Plaintiff who seeks to impose liability on a local government under §1983 must
prove that action pursuant to official municipal “policy or custom” caused his injury. Monell,
436 U.S. at 691. Official municipal "policy or custom" includes the decisions of a
government's lawmakers, the acts of its policymaking officials, and practices so persistent
and widespread as to practically have the force of law. Id. The alleged policy or custom
must be the "moving force of the constitutional violation." Id. at 694. This requires that the
plaintiff (1) identify the policy or custom, (2) connect it to the municipality and (3) show that
the execution of that policy or custom caused the plaintiff's injury. Garner v. Memphis
Police Dept., 8 F.3d 358, 364 (6th Cir. 1993).
“Failure to investigate complaints or discipline officers can give rise to §1983
liability.” Dyer v. Casey, 72 F.3d 129; [Reported in Full-text format at: 1995 U.S. App.
LEXIS 37042] *2 (6th Cir. 1995). To succeed on a claim for failure to supervise or
discipline, the plaintiff must prove that: (1) the supervision or discipline was inadequate for
the tasks the officer were performing; (2) the inadequacy resulted from the municipality’s
“deliberate indifference”; and (3) the inadequacy caused the injury. Ellis v. Cleveland
Municipal Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006). “Deliberate indifference is a
stringent standard of fault, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Bd. Of County Comm’rs v. Brown, 520 U.S. 397, 410
(1997). Additionally, in the failure to discipline context, a plaintiff must show a “history of
widespread abuse that has been ignored by the [municipality].” Berry v. City of Detroit, 25
F.3d 1342, 1354 (6th Cir. 1994).
Here, the Plaintiff relies on broad, sweeping propositions that all the misconduct
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alleged in the complaint are widespread practices of Pontiac. Plaintiff does not identify or
specify the conduct, establish the connection with Pontiac, or show how Pontiac’s
execution of the policy harmed Plaintiff. See Garner, 8 F.3d at 364. The Plaintiff’s asserted
generalities do not establish a causal link between Pontiac’s customs or polices that
caused Plaintiff to be deprived of a constitutionally protected right. Oklahoma City v. Tuttle,
471 U.S. 808, 824 (1985). Plaintiff does not demonstrate that Pontiac failed to or had a
history of not supervising or disciplining the officers during the time frame that this incident
occurred or any time before that. The proofs Plaintiff offers to support this claim are
insufficient to present to the jury and city of Pontiac is entitled to summary judgment on
Count XII, the Monell claim.
IV. Conclusion
For the reasons stated above, IT IS HEREBY ORDERED that Defendants’ motion
for summary judgment [#45] is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Summary Judgment is GRANTED as to Counts II,
IV, V, VIII, IX, X, XI, XII. (The Complaint did not contain a Count III)
IT IS FURTHER ORDERED that Summary Judgment is DENIED as to Officer
Dorkins as to Count I, GRANTED as to the other Defendants.
IT IS FURTHER ORDERED that Summary Judgment is DENIED as to Count VI and
Count VII as to Officer Dorkins, but GRANTED as to the other Officers.
SO ORDERED.
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Dated: September 25, 2013
/s/Gershwin A Drain
GERSHWIN A. DRAIN
United States District Court Judge
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