Seales v. Detroit, City of et al
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS CITY OF DETROIT'S AND THOMAS ZBERKOT'S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT 74 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-cv-11679
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
CITY OF DETROIT, et al.,
UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS
CITY OF DETROIT’S AND THOMAS ZBERKOT’S AMENDED MOTION FOR PARTIAL
SUMMARY JUDGMENT 
This is a wrongful arrest and detention case based on mistaken identity.
Plaintiff Marvin Seales (Seales or “Plaintiff”) was arrested by City of Detroit
police officers and transferred to the Wayne County Jail pursuant to an arrest
warrant for an individual named Rodrick Siner (Siner), who used Seales’s name as
an alias. Plaintiff claims that Defendants violated 42 U.S.C. § 1983 and state tort
laws including false arrest, gross negligence, and intentional infliction of emotional
distress. Defendants include individual defendant Thomas Zberkot (Zberkot) and
municipal defendant City of Detroit (Detroit) (collectively, “Defendants”). Wayne
County was previously dismissed from the case in a separate motion for summary
judgment. Dkt. No. 70, 82.
Before the Court are Defendants’ Motion for Partial Summary Judgment
 and Amended Motion for Partial Summary Judgment . Defendants’
original Motion for Partial Summary Judgment  appears to be mooted by
Defendants’ amended motion , so the Court confined its analysis to the
Upon review of the briefs, the Court finds that oral argument will not aid in
the disposition of this matter. Accordingly, the hearing is cancelled and the Court
will decide the matter on the submitted brief. See E.D. Mich. L.R. 7.1(f)(2). For the
reasons that follow, Defendants’ Amended Motion for Partial Summary Judgment
 will be GRANTED in part and DENIED in part.
II. FACTUAL BACKGROUND
On January 18, 2012, Defendant Thomas Zberkot was on assignment to the
Detroit Fugitive Apprehension Team (“the Team”). See Dkt. No. 80-4, p. 2 (Pg. ID
No. 658). The Team executed an arrest warrant for attempted murder for a suspect
named “Roderick Siner.” Id. Siner’s aliases included “Marvin Seals.” Id. The
Team arrested Plaintiff, Marvin Seales, at his workplace, Reinhart Food Service, in
Warren, Michigan. Dkt. No. 75, p. 9 (Pg. ID No. 520).1 Plaintiff was then taken to
Plaintiff relies on the statement of facts he filed in response to Wayne
County’s Motion for Summary Judgment, Dkt. No. 75. See Dkt. No. 80, p. 10 (Pg.
ID No. 627). However, the majority of Plaintiff’s stated facts do not cite to
evidence in support. Defendants City of Detroit and Zberkot also do not cite to a
the Detroit Police Department Northeast/3rd Precinct lockup. Dkt. No. 80-4, p. 2
(Pg. ID No. 658). At the precinct, Plaintiff was fingerprinted by the arresting
agency. Dkt. No. 75-4, p. 5 (Pg. ID No. 554).
Although Plaintiff’s name resembled one of Siner’s aliases, Plaintiff was not
the person wanted on felony charges. Dkt. No. 75, p. 9 (Pg. ID No. 520). Plaintiff
allegedly informed Defendant Zberkot and others that he was not Rodrick Siner
and that they had the wrong individual. Id. Plaintiff also alleges that he told
Defendant City of Detroit police personnel at lockup that he was not Roderick
Siner and that they had the wrong individual. Id. at 10.
Plaintiff was held in the City of Detroit Police Department facility until his
video arraignment with Magistrate Millicent D. Sherman of the 36th District Court
on January 20, 2012. Dkt. No. 75-5, p. 4 (Pg. ID No. 565). At Plaintiff’s video
arraignment, he stated his name was “Marvin Seals,” [sic] and acknowledged that
he heard the charges against him, understood the penalties that applied to those
charges, and understood his right to remain silent and retain counsel. Id. at 4–5. He
did not make any direct statements about mistaken identity during the arraignment.
Magistrate Sherman set bond in the amount of $500,000 dollars, “given the nature
of the charges and the seriousness of the allegations.” Id. at 5.
single piece of evidence in support of their statement of facts. Dkt. No. 74, p. 9
(Pg. ID No. 495). Accordingly, the Court was not able to provide appropriate
citations for all the facts alleged.
Plaintiff was then transferred to the Wayne County Jail until his preliminary
examination. Dkt. No. 75, p. 10 (Pg. ID No. 521). On February 1, 2012, Plaintiff
appeared at a scheduled preliminary examination before 36th District Court Judge
Deborah G. Bledsoe Ford on the charges of Assault with Intent to Murder, Felony
Assault, and Felony Firearm, as Rodrick Siner. Dkt. No. 75-3. Plaintiff was
represented by counsel, Earl Washington, at the hearing. Id. at 4. At the start of the
hearing, Wayne County Prosecutor Shannon Walker orally moved to dismiss the
matter because the victim of the crime informed her before the hearing that
Plaintiff was not the individual who shot at him. Id. That same day, Judge Deborah
Ford of the 36th Judicial District signed an order of Dismissal, which states that
Plaintiff was not the correct defendant and that he was wrongfully arrested. Dkt.
Plaintiff further alleges that at the time of Plaintiff’s arrest and incarceration,
a mug shot and further identification of Rodrick Siner and Marvin Seales was
available to Defendants. The photos Plaintiff attached as exhibits are undated, and
thus do not definitively establish that Defendants possessed photos of both Plaintiff
and Siner at the time of Plaintiff’s arrest. See Dkt. No. 75-2. Review of Michigan
Department of Corrections’ Offender Tracking Information System (OTIS)
indicates that Siner’s only offense in the system is a charge of delivering or
manufacturing a controlled substance, with an offense date of April 3, 3012, after
Plaintiff was released.2 OTIS lists Siner’s known aliases as “Chaun Hardin,” “John
Siner,” “Marvin Louis Seales,” “Robert Sutton,” “Robert Whitman,” “Robert S
Whitman,” “Rodrick K Hardin,” and “Rodrick Kareem Siner.”
Defendants state, without citing to evidence, that Plaintiff had outstanding
warrants independent of the crimes for which Siner was wanted. Dkt. No. 74, p. 9
(Pg. ID No. 495).
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if ‘there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’ ” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). The court must view the facts,
and draw reasonable inferences from those facts, in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No
genuine dispute of material fact exists where the record “taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the court
The Court obtained the information about Siner’s convictions from the
Michigan Department of Corrections’ Offender Tracking Information System
(OTIS), of which this Court is permitted to take judicial notice. See Ward v.
Wolfenbarger, 323 F. Supp. 2d 818, 821 n.3 (E.D. Mich. 2004). Siner’s profile is
evaluates “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.” Anderson, 477 U.S. at 251–52.
Plaintiff’s Amended Complaint brings six claims against Defendants,
including: (1) a Section 1983 claim for False Detention, Arrest, Imprisonment and
Confinement as to Defendant City of Detroit; (2) a False/Wrongful Arrest and
False Imprisonment claim against all Defendants; (3) a Willful and Wanton
Defendants; (4) an Intentional Infliction of Emotional Distress claim against
unspecified Defendants; (5) a Section 1983 claim for deprivation of rights under
the First, Fourth, Fifth, and Fourteenth Amendments and the Michigan
Constitution, Article I, §§ 5, 6, 11 and 17 against Defendant Zberkot; and (6) a
Monell claim against City of Detroit. Dkt. No. 28, pp. 6–19 (Pg. ID No. 126–139).
Defendants allege that Plaintiff has not demonstrated that his rights were
violated pursuant to an unconstitutional policy, as required for municipal liability.
Dkt. No. 74, p. 9 (Pg. ID No. 495).3 Defendants further argue that Defendant
Defendants’ Motion fails to comply with Eastern District of Michigan Local
Rule 5.1(a)(3), requiring that all papers submitted to the Court utilize 14 point type
Zberkot is entitled to qualified immunity from Plaintiff’s claims under Section
1983. Id. at 13. Defendants go on to argue that Defendant City of Detroit is
shielded from liability under the Governmental Immunity Act, id. at 17, and that
Defendant Zberkot is entitled to immunity under Michigan Compiled Laws
§ 691.1407 with respect to the gross negligence claim. Id. at 18.
A. Counts I, V, and VI: Section 1983 Claims
1. Section 1983 Claim Against An Individual Defendant
In order to make out a Section 1983 claim, a plaintiff must show (1) the
deprivation of a right secured by the Constitution or laws of the United States
(2) caused by the defendant while acting under color of state law (3) occurring
without due process of law. Neuens v. City of Columbus, 303 F.3d 667, 670 (6th
Cir. 2002). Here, Plaintiff claims that Defendants violated his rights under the First
Amendment, Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and
Article 1, Sections 5, 6, 11 and 17 of the Michigan Constitution.
As an initial matter on Count VI, the Court will not analyze Plaintiff’s claim
that his First Amendment rights were violated because Plaintiff makes no argument
and does not present any evidence related to any violation of his First Amendment
size for all text and footnotes. Future non-compliance will result in pleadings being
rights. The inclusion of this amendment appears to be a briefing error.
Additionally, although Section 1983 provides a mechanism for seeking redress for
an alleged deprivation of a litigant’s federal constitutional and federal statutory
rights, it does not protect Plaintiff’s rights under the Michigan Constitution. See
Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008) (“A prima facie case under
§ 1983 has two elements: “(1) the defendant must be acting under the color of state
law, and (2) the offending conduct must deprive the plaintiff of rights secured by
federal law.”) (emphasis added); Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.
1995) (stating Section 1983 does not provide redress for a violation of state law
more protective of individual rights than the United States Constitution). Thus, the
Court will not evaluate Plaintiff’s claim that his rights under Article 1, Sections 5,
6, 11, and 17 of the Michigan Constitution were violated, about which Plaintiff
similarly did not provide any argument.
Plaintiff’s claim that he was wrongfully arrested fails as a matter of law
because it is based solely on his argument that the arresting officers should have
known he was innocent. “Arrest warrants in the hands of a police officer, unless
facially invalid, are presumed valid,” Fettes v. Hendershot, 375 Fed. App’x. 528,
532 (6th Cir. 2010), and Plaintiff does not challenge the facial validity of the
warrant. Given that Plaintiff was held pursuant to a facially valid warrant4 and a
bond order issued after an arraignment and preliminary hearing, his detention, does
not appear to be a constitutional violation. See Baker v. McCollan, 443 U.S. 137,
144 (1979); Thurmond v. Cty. of Wayne, 447 F. App’x 643, 648–49 (6th Cir.
Plaintiff’s claim that his rights were violated is based on his continued
incarceration even after Defendant Zberkot and Detroit employees should have
known he was not the person named in the warrant. In general, holding a person
under a facially valid warrant does not constitute a constitutional violation, even if
it turns out that the person was wrongfully arrested. Baker, 443 U.S. at 144
(finding that a three-day detention did not amount to a violation of due process).
Nevertheless, “depending on what procedures the State affords defendants
following arrest and prior to actual trial,” “repeated protests of innocence will after
Although there has been no dispute that the warrant for Siner was valid, the
Court notes its concern no evidence was provided to establish that Plaintiff was
arrested for any reason other than the similarity of his name to that of Siner’s alias,
“Marvin Seals.” See Dkt. No. 80-4. Defendants have not provided any evidence
that there was probable cause to assume that Plaintiff was the individual for whom
the warrant was issued, outside of his name. They simply state that “there was
probable cause of the arrest of Rodrick Siner aka Marvin Seales.” Dkt. No. 74-1, p.
2 (Pg. ID No. 511). Neither party provided the Court with a copy of the warrant
providing probable cause for arrest. However, as Plaintiff has not alleged, similar
to Kentucky v. Young, 51 F. App’x 543 (6th Cir. 2002), that an officer randomly
chose him and then swore under oath to obtain the warrant, the Court has no
evidence that the warrant was invalid.
the lapse of a certain amount of time deprive the accused of ‘liberty . . . without
due process of law.’ ” Id.
The Supreme Court has not definitively resolved the question of how long
such a mistaken-identity detention must be for it to implicate a constitutional due
process right. See Flemister v. City of Detroit, 358 F. App’x 616, 620 (6th Cir.
2009). In the Sixth Circuit, such analysis appears to turn on the length of time an
individual is detained, whether the detainee protested his or her innocence, and
whether potentially exculpatory evidence was available at the time of arrest and
detention. See Thurmond v. Cty. of Wayne, 447 F. App’x 643, 649 (6th Cir. 2011)
(finding that a 35-day detention did not violate a plaintiff’s constitutional rights
where he never protested his innocence and deputies did not possess potentially
exculpatory evidence); Flemister, 358 F. App’x at 617–18 (finding that a six-day
detention did not violate a plaintiff’s constitutional rights where he repeatedly
protested and provided evidence of mistaken identity); Gray v. Cuyahoga County
Sheriff’s Dept., 150 F.3d 579, 582–83 (6th Cir. 1998) (concluding that a 41-day
detention was sufficient to assert a claim where the plaintiff repeatedly protested
and deputies possessed a photograph showing no resemblance to the suspect). In
reaching its conclusion in Gray, the Sixth Circuit relied on two district court
decisions involving detentions of 12 days and 30 days, respectively, which were
found to be sufficient to state a claim upon which relief may be granted. 150 F.3d
a. Qualified Immunity
A qualified-immunity defense bars individual liability where “a reasonable
official in the defendant's position would not have understood his or her actions to
violate a person’s constitutional rights.” Gregory v. City of Louisville, 444 F.3d
725, 738 (6th Cir. 2006). Qualified immunity “ ‘gives ample room for mistaken
judgments’ by protecting ‘all but the plainly incompetent or those who knowingly
violate the law.’ ” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)
(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
To determine whether an officer is entitled to qualified immunity, a court
must determine “(1) whether the facts, when taken in the light most favorable to
the party asserting the injury, show the officer’s conduct violated a constitutional
right; and (2) whether the right violated was clearly established such ‘that a
reasonable official would understand that what he is doing violates that right.’ ”
Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Saucier v. Katz,
533 U.S. 194, 201–02 (2001)). The Court may address these two prongs in any
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). “Plaintiffs bear the burden
of showing that a clearly established right has been violated and that the official’s
conduct caused that violation.” Trakhtenberg v. Cty. of Oakland, No. 15-2495,
2016 WL 6803725, at *5 (6th Cir. Nov. 17, 2016) (citing Chappell, 585 F.3d at
907). Subjective factors and surrounding circumstances generally are not relevant
to the determination. Davis v. Scherer, 468 U.S. 183, 191 (1984).
b. Plaintiff’s Section 1983 Claim Against Defendant Zberkot
Plaintiff has named a single individual defendant: City of Detroit police
officer Thomas Zberkot. Zberkot was assigned to assist in the apprehension of
Rodrick Siner on January 18, 2012. Dkt. No. 74, p. 9 (Pg. ID No. 495).5 Plaintiff
has alleged that Zberkot “and other members of [Detroit Fugitive Task Force]”
arrested him, placed him in handcuffs in front of his employer, and transported him
to the Detroit Police Department Northeast/3rd Precinct lockup. Dkt. No. 28, pp.
3–5 (Pg. ID No. 123–5). All of this was allegedly done while Plaintiff repeatedly
protested that the officers had the wrong individual and while the officers had
additional information that Plaintiff was not the actual person sought under the
Based on the Sixth Circuit’s reasoning in Gray, it is possible for a
reasonable jury to find that Plaintiff’s rights were violated. 150 F.3d at 582–83
(noting that a 12-day detention was found to be sufficient to state a claim). Here,
Plaintiff was held for fifteen days at City of Detroit and Wayne County jail
No officers from Defendant City of Detroit have been deposed, including
Defendant Zberkot. Accordingly, the Court cites to Defendants’ pleading itself,
supported by Defendant Zberkot’s affidavit.
facilities based on the arrest performed by Defendant Zberkot. The Court cannot
say at this stage in the proceedings, based on existing precedent, that this time
period was too short to constitute a constitutional violation.
Furthermore, in the present case, unlike Thurmond, the defendant officer has
not carried his burden in proving that Plaintiff never protested his innocence. See
id. at 649–50 (noting that there was uncontested evidence that the plaintiff neither
protested his innocence to the deputies, nor were any of the deputies in possession
of any potentially exculpatory evidence). Plaintiff has alleged, without rebuttal by
Defendants, that he protested his innocence to Zberkot and his fellow deputies
numerous times, and that Defendants had in their possession a photograph of Siner
that bore little resemblance to Plaintiff.
Where officers were responsible for ensuring that a suspect was actually the
individual named in the warrant and those same officers were aware of evidence
that could exculpate a suspect arrested based on mistaken identity, past cases in
this Court have found summary judgment inappropriate. See Cleveland v. City of
Detroit, 275 F. Supp. 2d 832, 840 (E.D. Mich. 2003). It is for a jury to decide
whether Defendant Zberkot acted with something akin to deliberate indifference in
failing to ascertain that Plaintiff was not the person wanted by authorities on
Siner’s outstanding assault with intent to murder warrant. See Gray, 150 F.3d at
Viewing the facts in the light most favorable to the non-moving party, the
Court finds that Defendant Zberkot is not entitled to qualified immunity because
his actions may have violated a clearly established constitutional right of which a
reasonable person would have known. The Sixth Circuit’s decision in Gray took
place in 1998. More than a decade elapsed between Gray and Plaintiff’s 2012
arrest and detention. Fourteen years is more than enough time to clearly establish
to a reasonable officer that detaining the wrong individual for several weeks in the
face of repeated protests of mistaken identity and while possessing exculpatory
evidence may be violative of the detainee’s constitutional rights. See Gray, 150
F.3d at 582–83.
The Court DENIES Defendants’ Amended Motion for Partial Summary
Judgment with regard to Count V, the Section 1983 claim against Defendant
2. Section 1983 Claims Against Defendant City of Detroit
In Count I, Plaintiff argues that Defendant City of Detroit is liable for
Plaintiff’s unlawful detention and confinement because it: inadequately trained
officers in the proper identification of a suspected criminal; failed to “hire
individuals whose character and personality would not pose a potential danger” to
citizens; failed to discipline officers involved in Plaintiff’s wrongful detention;
failure to train officers about the proper amount of force to be utilized for citizens,
arrestees and/or detainees; and “[k]nowingly and recklessly hiring and training
as police officers and detention officers individuals who were not able to
distinguish between accused criminals and innocent citizens.” Dkt. No. 28, pp. 7–8
(Pg. ID No. 127–28). In Count VI, Plaintiff’s Monell claim alleges violations under
the First Amendment, Fourth Amendment, Fifth Amendment, and Fourteenth
Amendment of the United States Constitution and Article 1, Sections 5, 6, 11, and
17 of the Michigan Constitution.7 Id. at 16–19 (Pg. ID No. 136–39).
As both Counts I and VI assert Section 1983 claims against a municipal
entity and seek only monetary damages as a remedy, the Court interprets both
these claims to be Monell claims. Defendant City of Detroit appears to move for
summary judgment on both claims. Dkt. No. 74, p. 9 (Pg. ID No. 495).
a. Requirements for a Monell Claim
A local government cannot be held liable merely because it employs a
tortfeasor. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978).
A municipality may be held liable for violation of an individual’s constitutional
rights only when the agency, acting through the execution of its policies or
customs, directly inflicts the injury. Id. at 694. To establish a municipality’s
The inclusion of this claim appears to be another briefing error, as Plaintiff at
no point alleges that excessive or improper force was used against him.
As stated above, the Court will not analyze Plaintiff’s claims that his First
Amendment rights and rights granted by the Michigan Constitution were violated,
as he has provided no argument or evidence related to these claims.
liability under a failure-to-train theory, a plaintiff must prove: (1) the training
program and supervision were inadequate; (2) the inadequacy of training resulted
from the municipality’s deliberate indifference; and (3) the inadequacy in training
actually caused, or is closely related to, the plaintiff’s injury. Shadrick v. Hopkins
Cty., Ky., 805 F.3d 724, 740–43 (6th Cir. 2015).
b. Whether Plaintiff’s Constitutional Rights Were Violated
As noted in the prior section, when the Court views the evidence in the light
most favorable to the non-moving party, this evidence is enough to create a
question of material fact as to whether Defendant City of Detroit employees and
Defendant Zberkot violated Plaintiff’s constitutional rights.
Here, Plaintiff was incarcerated for a period of fifteen days based on
Defendants’ arrest of the wrong man. There is no evidence that Defendants
confirmed that Plaintiff’s fingerprints, photographs, or biographical information8
matched those of Siner, for whom the arrest warrant was issued, even though
Plaintiff allegedly protested the mistaken identity on numerous occasions.
For instance, there is no evidence that Plaintiff and Siner had the same birth
date, were the same height and weight, or shared any other characteristics other
than they were both black men with using a similar name. See Flemister v. City of
Detroit, 358 F. App’x 616, 617 (6th Cir. 2009) (involving mistaken identity where
the suspect gave his cousin’s name and birth date as his own); Fletcher v.
Cleveland, No. 1:09 CV 1925, 2010 WL 2572874, at *1 (N.D. Ohio June 23, 2010)
(involving mistaken identity where an individual used the plaintiff’s name, social
security number, and date of birth in connection with his criminal endeavors).
c. Whether Plaintiff Provided Evidence of a Policy, Custom,
or Failure to Train
It is not sufficient for Plaintiff to show that a single employee was
unsatisfactorily trained; that an otherwise sound training program was administered
negligently; or that better or more training could have equipped the offending
official to avoid his particular injury-causing conduct, thereby sparing Plaintiff his
injury. Shadrick, 805 F.3d at 738 (citing City of Canton v. Harris, 489 U.S. 378,
390–91 (1989)). Rather, Plaintiff must show that (1) Defendant City of Detroit
adhered to its training even though it knew or should have known that the training
failed to prevent a pattern of similar constitutional violations, or that (2) Defendant
City of Detroit failed to train its officers to handle a narrow class of recurring
situations that present an obvious potential for constitutional violations. Id. at 738–
39 (citing Connick v. Thompson, 563 U.S. 51 (2011); Board of County Com’rs of
Bryan County, Okl. v. Brown, 520 U.S. 397, 409 (1997)).
Defendant City of Detroit is entitled to summary judgment on this claim.
Plaintiff does not cite to evidence of a pattern of similar violations. Furthermore,
Plaintiff’s arrest and detention may lie within a “narrow class of recurring
situations that present an obvious potential for constitutional violation,” id.,
Plaintiff does not present any evidence—direct or otherwise—concerning the
content, duration, or frequency of the City of Detroit’s training on the subject.
Plaintiff’s evidence of inadequacy rests solely on the fact that his arrest and
detention occurred. Plaintiff did not depose a single officer or official from
Defendant City of Detroit, including Defendant Zberkot, to testify about the
training officers receive. Plaintiff has presented no more than a scintilla of
evidence in support of his failure-to-train claim. See, e.g., Wilcox v. City of Detroit,
163 F. Supp. 3d 474, 481 (E.D. Mich. 2016) (granting summary judgment to city
where no evidence regarding training or a pattern of violations was presented).
Accordingly, the Court GRANTS Defendants’ Amended Motion for Partial
Summary Judgment  with respect to Counts I and VI.
B. Counts II, III, and IV: State Tort Claims
Plaintiff’s amended complaint also sets forth two intentional tort claims: a
false imprisonment claim against all defendants and intentional infliction of
emotional distress against unspecified defendants. Dkt. No. 28, pp. 9–11, 13–14
(Pg. ID No. 129–31, 133–34). Additionally, the complaint states a claim for gross
negligence as to all defendants. Id. at 11–13 (Pg. ID No. 131–133).
Defendants assert they are entitled to governmental immunity on all tort
claims against Defendant City of Detroit, Dkt. No. 74, pp. 17–18 (Pg. ID No. 503–
04), and that Defendant Zberkot is entitled to governmental immunity with regard
to Plaintiff’s gross negligence claim, id. at 18–20. Defendants have not argued that
Zberkot should be shielded by immunity with respect to Plaintiff’s false arrest
and/or false imprisonment claim.
1. The Government Tort Liability Act as to Defendant City of Detroit
The Government Tort Liability Act provides: “Except as otherwise provided
in this act, a governmental agency is immune from tort liability if the governmental
agency is engaged in the exercise or discharge of a governmental function.” MICH.
COMP. LAWS § 691.1407(1). A “governmental function” is defined as “an activity
that is expressly or impliedly mandated or authorized by constitution, statute, local
charter or ordinance, or other law.” MICH. COMP. LAWS 691.1401(f). This includes
“[t]he authority of the city’s police officers to ‘pursue, arrest and detain’ those
suspected of violating the laws of Michigan.” Payton v. City of Detroit, 211 Mich.
App. 375, 392, 536 N.W.2d 233 (1995). “There is no ‘intentional tort’ exception to
governmental immunity.” Smith v. Dep't of Pub. Health, 428 Mich. 540, 544, 410
N.W.2d 749, 751 (1987).
To maintain an action against a government agency, a plaintiff must plead
facts in avoidance of immunity. McCann v. Michigan, 398 Mich. 65, 77, 247
N.W.2d 521 (1976). Generally, a plaintiff pleads facts in avoidance of
governmental immunity by stating a claim that fits within a statutory exception or
by pleading facts that demonstrate the alleged tort occurred during the exercise or
discharge of a nongovernmental or proprietary function.
This applies to claims based on vicarious liability as well: “A governmental
agency can be held vicariously liable only when its officer, employee, or agent,
acting during the course of employment and within the scope of authority, commits
a tort while engaged in an activity which is nongovernmental or proprietary, or
which falls within a statutory exception.” Ross v. Consumers Power Co., 420
Mich. 567, 625, 363 N.W.2d 641 (1984).
Here, Plaintiff claims that “Defendants’ [sic] were not performing a
‘governmental function’ due to the fact that wrongfully incarcerating a person is
not performing a ‘governmental function.’ ” Dkt. No. 80, p. 21 (Pg. ID No. 638).
Plaintiff cites no case law in support of his argument.
Conversely, Defendants have cited to state case law specifying that “[t]he
operation of a police department is a governmental function.” Isabella Cty. v.
Michigan, 181 Mich. App. 99, 105, 449 N.W.2d 111, 113 (1989). Provided an
agency is exercising a governmental function, even an intentional tort does not
provide an exception to governmental immunity. Dep’t of Pub. Health, 428 Mich.
at 544, 410 N.W.2d at 751.
Plaintiff has not pointed to any conduct by the City of Detroit in which it
acted beyond its governmental function of operating a police department and has
not argued that any exception to the City’s immunity applies. Accordingly, any
state-law tort claims asserted against Defendant City of Detroit shall be dismissed
because the City has immunity as to those claims. See Trakhtenberg v. Oakland
Cty., No. 14-13854, 2015 WL 6449327, at *25 (E.D. Mich. Oct. 26, 2015), aff’d
sub nom. Trakhtenberg v. Cty. of Oakland, No. 15-2495, 2016 WL 6803725 (6th
Cir. Nov. 17, 2016) (citing Jones v. Muskegon Cty., 625 F.3d 935, 947 (6th Cir.
Accordingly, the Court GRANTS Defendants’ Amended Motion for
Summary Judgment as to Defendant City of Detroit on Counts II, III, and IV.
2. Count III: Gross Negligence Claim Against Defendant Zberkot
Defendants also seek dismissal of Plaintiff’s gross negligence claim against
Defendant Zberkot. Dkt. No. 74, pp. 18–20 (Pg. ID No. 504–06).
Michigan law defines “gross negligence” as “conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” MICH.
COMP. LAWS § 691.1407(7)(a). Courts are to analyze gross negligence claims by
(a) the individual was acting or reasonably believed that he was acting
within the scope of his authority,
(b) the governmental agency was engaged in the exercise or discharge of a
governmental function, and
(c) the individual’s conduct amounted to gross negligence that was the
proximate cause of the injury or damage.
Odom v. Wayne Cty., 482 Mich. 459, 480, 760 N.W.2d 217, 228 (2008).
“ ‘Gross negligence’ is ‘conduct so reckless as to demonstrate a substantial
lack of concern for whether an injury results.’ ” Bennett v. Krakowski, 671 F.3d
553, 563 (6th Cir. 2011). “It has been characterized as a willful disregard of safety
measures and a singular disregard for substantial risks.” Oliver v. Smith, 290 Mich.
App. 678, 685, 810 N.W.2d 57, 62 (2010). “It is as though, if an objective observer
watched the actor, he could conclude, reasonably, that the actor simply did not care
about the safety or welfare of those in his charge.” Tarlea v. Crabtree, 263 Mich.
App. 80, 687 N.W.2d 333, 339–40 (2004). “Summary disposition is precluded
where reasonable jurors honestly could have reached different conclusions with
respect to whether a defendant’s conduct amounted to gross negligence.” Stanton
v. City of Battle Creek, 237 Mich. App. 366, 375, 603 N.W.2d 285, 289 (1999),
aff’d, 466 Mich. 611, 647 N.W.2d 508 (2002).
Defendants cite to a Michigan Supreme Court case, Maiden v Rozwood, 461
Mich 109 (1999), in support of their argument. In Maiden, plaintiff’s decedent
filed a wrongful death action alleging gross negligence on the part of the resident
aides in restraining plaintiff’s decedent, who died of asphyxia. 461 Mich. at 124–
28, 597 N.W.2d at 825–27. However, in Kendricks v. Rehfield, 270 Mich. App.
679 (2006), the Michigan Court of Appeals has addressed the issue of gross
negligence in a situation far more comparable to the present case. In Kendricks, the
plaintiff was held in jail for seven months when the arresting officers ignored his
claim of mistaken identity and exculpatory photographic evidence. 270 Mich. App.
at 682–83, 716 N.W.2d at 625. The Court of Appeals of Michigan held that the
defendant officers’ failure to investigate the plaintiff’s claim of mistaken identity
caused an egregious injury, the plaintiff’s lengthy wrongful detention. Id.
Kendricks held that the question of whether the officers’ conduct demonstrated a
sufficient lack of concern to constitute gross negligence is a question for a trier of
fact, and that defendants were not immune from liability at the summary judgment
Accordingly, the Court finds that it is not appropriate to grant Defendant
Zberkot immunity at the summary judgment stage, when reasonable jurors could
find that Zberkot’s conduct amounted to gross negligence. See Cleveland v. City of
Detroit, 275 F. Supp. 2d 832, 842 (E.D. Mich. 2003) (denying defendants
summary judgment on a gross negligence claim in a case involving detention based
on mistaken identity). Defendants’ motion is DENIED as to Count III against
3. Count IV: Intentional Infliction of Emotional Distress Claim Against
Count IV, asserting a claim of intentional infliction of emotional distress
claim against unspecified defendants, will be dismissed because Plaintiff stated in
his response brief that he does not oppose dismissal of this claim. Dkt. No. 80, p.
22 (Pg. ID No. 639).
Accordingly, the Court GRANTS summary judgment on Count IV against
IT IS HEREBY ORDERED that summary judgement is GRANTED as to
Counts I, II, III, IV, and VI against Defendant City of Detroit and Count IV against
IT IS FURTHER ORDERED that all claims against Defendant City of
Detroit are DISMISSED.
IT IS FURTHER ORDERED that summary judgment is DENIED as to
Counts II, III, and V against Defendant Zberkot.
IT IS SO ORDERED.
January 3, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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