Bailey v. Ann Arbor, City of et al

Filing 42

OPINION and ORDER (1) Adopting Magistrate Judge's 37 Report and Recommendation; and (2) Granting In Part and Denying In Part Defendants' 28 Motion to Dismiss. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH BAILEY,
Plaintiff,
Case No. 14-12002
Honorable Linda V. Parker

v.
CITY OF ANN ARBOR, et al.,
Defendants.
________________________________/

OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE’S
AUGUST 1, 2016 REPORT AND RECOMMENDATION [ECF NO. 37] AND
(2) GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS [ECF NO. 28]

On January 5, 2016, Plaintiff Joseph Bailey filed the first amended
complaint alleging that his civil rights had been violated under 42 U.S.C. § 1983
against Defendants City of Ann Arbor, Christopher Fitzpatrick, William Stanford,
and Michael Dortch, in their individual and official capacities (collectively
“Defendants”). (ECF No. 21.) Defendants filed an answer to the amended
complaint on January 19, 2016. (ECF No. 23.)
Defendants filed their motion to dismiss on February 25, 2016. (ECF No.
28.) This matter was then referred for all pretrial matters to Magistrate Judge
Stephanie Dawkins Davis. (ECF No. 29.)
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Plaintiff filed his response to the motion to dismiss on March 21, 2016 and
Defendants filed their reply on March 30, 2016. (ECF Nos. 32, 33.)
Magistrate Judge Davis’s Report & Recommendation
On August 1, 2016, Magistrate Judge Davis issued a Report &
Recommendation (“R&R”) in which she recommends that this Court grant
Defendants motion to dismiss in part as to Plaintiff’s excessive force claim and
related Monell claims and denied in part as to the remainder of Plaintiff’s claims in
the amended complaint. (ECF No. 37 at Pg ID 562.)
In her R&R, Magistrate Judge Davis first evaluates Plaintiff’s excessive
force claim. Plaintiff alleged in his amended complaint that Defendants engaged in
excessive force in violation of Plaintiff’s Fourth Amendment rights when
Defendants made threatening comments to Plaintiff and when Defendant Stanford
spit on Plaintiff. (ECF No. 22 at Pg ID 283-84.) Defendants argued that Plaintiff
failed to identify any physical act that would form the basis of the alleged
excessive force claim other than the allegation that Defendant Stanford spit on
Plaintiff. (ECF No. 28 at Pg ID 354-55.) Magistrate Judge Davis agreed with
Defendants, finding that Plaintiff’s excessive force claim based on verbal abuse
and spitting fails as a matter of law (ECF No. 37 at Pg ID 537-38, 542.)
Next, Magistrate Judge Davis responds to Plaintiff’s allegation that
Defendants engaged in an unlawful search and seizure under the Fourth
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Amendment and § 1983. Plaintiff argues that the officers obtained an invalid
search warrant by using false statements in their affidavit. Plaintiff alleges that the
victim provided Defendants a different physical description than what was
provided to the prosecutor in the affidavit. (ECF No. 22 at Pg ID 276.) Plaintiff
also alleged that Defendant Stanford failed to disclose that the “anonymous tip”
received was from a known informant, thereby making the affidavit misleading
and untruthful. (ECF No. 22 at Pg ID 272.) Defendants argue that the affidavit is
not defective because the victim’s description of the perpetrator is omitted from the
affidavit. (ECF No. 37 at Pg ID 548.) Defendants instead relied on their
description of the perpetrator based on the video of the crime. (Id.) However,
Magistrate Judge Davis reviewed the affidavit and found that the description of the
perpetrator appears to come from the victim. (Id. at Pg ID 550.) This discrepancy
in the description of the perpetrator raised concern that the affidavit supporting the
search warrant included false statements. Magistrate Judge Davis stated “[i]f the
physical description in the affidavit is false and misleading as alleged by plaintiff,
then the search is not, in fact, supported by probable cause.” (ECF No. 37 at Pg ID
550.) Therefore, Magistrate Judge Davis found that Plaintiff has stated a claim for
unlawful search and seizure under the Fourth Amendment and § 1983.
Magistrate Judge Davis then turned to Plaintiff’s claim alleging false
arrest/false imprisonment and malicious prosecution under the Fourth Amendment.
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The validity of this claim rests on the accuracy of the affidavit because the claim
turns on whether Defendants had probable cause to pursue Plaintiff. See Gregory
v. City of Louisville, 444 F.3d 725, 748-49 (6th Cir.). Because Magistrate Judge
Davis found that Plaintiff’s amended complaint states a claim that the arrest was
based on false and misleading information, she also found that Plaintiff has stated a
claim for false arrest/false imprisonment and malicious prosecution. (ECF No. 37
at Pg ID 552.)
Plaintiff’s last claim is that Defendant City of Ann Arbor maintained a
custom of failing to train/failure to supervise its officers regarding search and
seizure, use of force, prosecution of criminal cases, and protection of constitutional
rights. (ECF No. 22 at Pg ID 290-91.) Defendants responded by stating Plaintiff
failed to allege any terms of an official policy or custom, as required to pursue a
Monell claim under § 1983. Defendants further argue that Plaintiff did not
properly allege an underlying constitutional violation as required for a § 1983
claim against a municipality. (ECF No. 37 at Pg ID 557.) Magistrate Judge Davis
agreed with Defendants that the Monell claim related to the excessive force claim
should be dismissed. (Id. at Pg ID 562.) However, Magistrate Judge Davis found
that Plaintiff sufficiently pled facts that there is an underlying constitutional
violation for the remaining claims. (Id.) Therefore, Magistrate Judge Davis
recommended that Defendants’ motion to dismiss be granted in part as to
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Plaintiff’s excessive force claim and related Monell claims and denied in part as to
the remainder of Plaintiff’s claims in the amended complaint. (Id.)
At the conclusion of her R&R, Magistrate Judge Davis informs the parties
that they must file any objections to the R&R within fourteen days. (Id.)
Magistrate Judge Davis further advises that the “[f]ailure to file specific objections
constitutes a waiver of any further right of appeal.” (Id., citations omitted.)
Defendants filed their objections on August 11, 2016. (ECF No. 38.) Plaintiff
filed their objections on August 15, 2016. (ECF No. 39.) Defendant filed a reply
to Plaintiff’s objections on August 24, 2016. (ECF No. 40.) Plaintiff filed a reply
to Defendants’ objections on August 25, 2016 (ECF No. 41.)
Standard of Review
When objections are filed to a magistrate judge’s R&R on a dispositive
matter, the Court “make[s] a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). The Court, however, “is not required to articulate all of the
reasons it rejects a party’s objections.” Thomas v. Halter, 131 F. Supp. 2d 942,
944 (E.D. Mich. 2001) (citations omitted). A party’s failure to file objections to
certain conclusions to an R&R waives any further right to appeal on those issues.
See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987). Likewise, the failure to object to certain conclusions in the magistrate
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judge’s report releases the Court from its duty to independently review those
issues. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
Analysis
Plaintiffs’ Objections
Plaintiff makes two objections to Magistrate Judge Davis’s R&R.
Objection No. 1
First, Plaintiff argues that the R&R failed to adhere to the objective
reasonableness standard found in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015).
(ECF No. 39 at Pg ID 589.) In Kingsley, the Supreme Court held that the correct
standard for a pretrial detainee’s excessive force claim brought under the
Fourteenth Amendment’s Due Process claim is the same objective reasonableness
standard applied to excessive force claims brought under the Fourth Amendment.
Kingsley, 135 S.Ct. 2466, 2473, 2476; see also Celedonio Ayala-Rosales v. Teal,
No. 15-6196, 2016 WL 448799 (6th Cir. 2016); Clay v. Emmi, 797 F.3d 364, 369
(6th Cir. 2015) (“In light of Kingsley under either [the Fourth or Fourteenth]
[A]mendment, the court would employ the same objective test for excessive
force”); Hammond v. Lapeer County et al., 133 F.Supp.3d 899, 914-15 (E.D. Mich.
2015). This Court agrees with Plaintiff that the objective reasonableness standard

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should apply.1 However, this Court finds that under either the objective
reasonableness standard or “shock the conscious” test, Plaintiff’s excessive force
claim fails.
Plaintiff alleges that verbal abuse and spitting constitutes excessive force.
We disagree. As Magistrate Judge Davis noted, “[v]erbal abuse alone does not rise
to the level of a constitutional violation.” Brooks v. Pitchford, 2015 WL 3466240,
at *3 (W.D. Ky. June 1, 2015) (quoting Schrader v. Patrick, 1999 WL 266252, at
*3 (6th Cir. 1999) (citation omitted)). Neither does spitting, as Magistrate Judge
Davis lays out in detail in her R&R. (ECF No. 37 at Pg ID 537-38).
Objection No. 2
Second, Plaintiff argues that because the incorrect standard was applied in
evaluating the excessive force claim in light of Kingsley, the Monell claim related
to the excessive force should survive the motion to dismiss. We disagree. As
discussed above, Plaintiff’s excessive force claim fails as a matter of law.
Therefore, Plaintiff’s Monell claim based on excessive force also fails.
Defendants’ Objections
Defendants make three objections to Magistrate Judge Davis’s R&R.
Objection No. 1

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This Court agrees with Magistrate Judge Davis that Plaintiff’s excessive force
analysis falls under the Fourteenth Amendment because the underlying incidents
occurred during a post-arrest interrogation. (ECF No. 37 at Pg ID 541.)
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First, Defendants argue that the R&R failed to hold Plaintiff to the pleading
standards set forth in Twombly and Iqbal, and as a result accepted the “conclusory
allegations” by Plaintiff in his Monell claim against Defendant City of Ann Arbor.
(ECF No. 38 at Pg ID 575.); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). In particular, Defendant argues
that Plaintiff failed to provide sufficient facts to demonstrate Defendant City of
Ann Arbor acted with deliberate indifference. (ECF No. 38 at Pg ID 573.)
This Court disagrees for the reasons it discussed at length in Estate of
Romain v. City of Grosse Pointe Farms, No. 14-12289, 2015 WL 1276278, at *1617 (E.D. Mich. Mar. 18, 2015) (citing Petty v. Cnty. of Franklin, 478 F.3d 341,
347-48 (6th Cir. 2007)); see also Stack v. Karnes, 750 F.Supp.2d 892, 899 (S.D.
Ohio 2010); Medley v. City of Detroit, No. 07–15046, 2008 WL 4279360, at *7–8
(E.D. Mich. Sept. 6, 2008) (relying on Petty and indicating that “[a]ny suspicion
about the type of policy or custom, if any, which resulted in the actions at issue
here may be examined during discovery. Its existence may be challenged during
summary judgment.”). As this Court stated in Romain, “…Petty suggests that
Plaintiffs should have the benefit of discovery before the claim should be
dismissed.”2 Romain, No. 14-12289, 2015 WL 1276278 at *17.

Defendants attempt to categorize any discovery into their policies and customs as
a fishing expedition. This fear can be alleviated with tailored discovery requests
targeted at what is alleged against the officers in the relevant counts.
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2

Objection No. 2
Defendants’ second objection alleges that Magistrate Judge Davis
improperly excluded evidence outside of the pleadings. (ECF No. 38 at Pg ID
578.) Defendants urge the court to review the preliminary examination transcript
to demonstrate the basis of a finding of probable cause. (Id. at Pg ID 579.)
However, Federal Rule of Civil Procedure 12(d) makes clear that this Court has the
discretion to exclude evidence presented outside the pleadings. Fed. R. Civ. P.
12(d) (“If, on a motion under 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court…”) (emphasis added). Magistrate
Judge Davis chose to exclude the preliminary examination transcript and possessed
the authority to do so under the Federal Rules of Civil Procedure. (ECF No. 37 at
Pg ID 553.) Therefore, Defendants’ second objection is without merit.
Objection No. 3
Defendants’ last objection argues that the R&R improperly maintains
Plaintiff’s malicious prosecution claim. (ECF No. 38 at Pg ID 583.) Defendants
base their argument on the underlying assumption that if admitted, the preliminary
examination transcript would establish a finding of probable cause for the search
warrant against Plaintiff. (ECF No. 38 at Pg ID 583.)
Because this Court agrees with Magistrate Judge Davis authority to exclude
the preliminary examination transcript, this argument also fails.
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Summary
For these reasons, the Court adopts the recommendations in Magistrate
Judge Davis’s R&R.
Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss (ECF No. 28) is
GRANTED in part as to Plaintiff’s excessive force claim and related Monell
claims and DENIED in part as to the remainder of Plaintiff’s claims in the
amended complaint.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 26, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 26, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager

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