Sanders v. Oakland, County of et al

Filing 82

OPINION and ORDER Granting Defendant Ferguson's 46 Motion for Summary Judgment and/or Dismissal. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DURONE JAMAL SANDERS
Plaintiff,
Case No: 4:15-cv-10726
Honorable Linda V. Parker

v.

OAKLAND COUNTY,
SHERIFF MICHAEL J. BOUCHARD,
and DETECTIVE MARK FERGUSON,
Defendants.
__________________________________________________________________

OPINION AND ORDER GRANTING DEFENDANT FERGUSON’S
MOTION FOR SUMMARY JUDGMENT AND/OR DISMISSAL (ECF NO.
46)
This is a civil action under 42 U.S.C. § 1983 arising from incidents
involving Plaintiff Durone Jamal Sanders (“Plaintiff”) and Defendants Oakland
County, Sheriff Michael J. Bouchard (“Defendant Bouchard”), and Detective Mark
Ferguson (“Defendant Ferguson”) (collectively “Defendants”). Plaintiff is seeking
monetary damages based on violations of his Fourth, Fifth, and Fourteenth
Amendment rights under the United States Constitution and corresponding
provisions of the Michigan Constitution, including false arrest, imprisonment, and
malicious prosecution. (ECF No. 1.)

1

Presently before the Court is Defendant Ferguson’s motion for summary
judgment and/or dismissal, filed pursuant to Federal Rules of Civil Procedure 56
and 12(b)(6) on July 27, 2016. (ECF No. 46.) The motion has been fully briefed.
The Court finds the legal arguments adequately presented in the parties’ papers
such that the decision-making process would not be significantly aided by oral
argument. Therefore, the Court is dispensing with oral argument with respect to
the motions pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the
reasons that follow, the Court is granting Defendant Ferguson’s motion.
I.

Factual and Procedural Background
Defendant Ferguson was a detective and deputy sheriff for the Oakland

County Sheriff’s Department. (ECF No. 46 at Pg ID 267.) He was also a member
of the Oakland County Narcotics Enforcement Team (“NET”). (Id.). As an officer
of NET, Defendant Ferguson was responsible for drug investigations, which
included finding confidential informants and overseeing drug buys, arrests, or
executions of search warrants stemming from the work of the confidential
informant. (ECF No. 46-4 at Pg ID 402.) When an officer’s confidential
informant was involved in an investigation, the officer was deemed the “officer in
charge” and responsible for preparing the NET Case Report. (Id.)
A man with the street name “Flip” was the subject of one of Defendant
Ferguson’s investigations. (ECF No. 46 at Pg ID 268.) Through the use of two
2

confidential informants, Defendant Ferguson identified Plaintiff as “Flip”.1 (Id.)
The first interaction between a confidential informant and Flip occurred on March
6, 2012,2 when a controlled buy of cocaine occurred. (ECF No. 60 at Pg ID 896.)
Confidential Informant 1 (“CI 1”) notified Defendant Ferguson that he would be
driving Flip to Detroit to purchase drugs. (ECF No. 46 at Pg ID 269.) Defendant
Ferguson alleges that he followed the vehicle along with other officers, including
Officer Doty and Sgt. Jennings. (Id.)
On March 8, 2012—two days later—Defendant Ferguson and Officers
Richter, Bearer, Miles, Loken, and Pankey stopped a van driven by CI #1 on I-75.
(ECF No. 46-6 at Pg ID 419-21; see also ECF Nos. 46 at Pg ID 269-70; 60 at Pg
ID 898.) Plaintiff was a rear seat passenger in the van. (ECF No. 60 at Pg ID
898.) Defendant Ferguson alleges the reason for the stop stemmed from a
conversation with CI #1, who alerted Defendant that “he would be driving Flip to
Detroit to purchase more drugs[.]” (ECF No. 46 at Pg ID 269.) Defendant
Ferguson, along with his fellow officers, followed the van from Pontiac to Detroit
and back again. (Id.) CI #1’s van was equipped with a recording device that

1

Plaintiff has denied being Flip by testifying that “he did not sell drugs to anyone,
ever, and he certainly did not sell drugs to anyone in 2012.” (ECF No. 60 at Pg ID
915.)
2
Plaintiff’s opposition brief states the first controlled buy occurred on March 6,
2012 (ECF No. 60 at Pg ID 896), while Defendant Ferguson’s initial brief states
the controlled buy occurred on March 8, 2016 (ECF No. 46 at Pg ID 269.) The
disagreement over the dates is immaterial.
3

allowed the officers to remotely monitor the conversation. (Id.) During his
deposition, Defendant Ferguson testified that he called CI #1 on his cell phone
during this surveillance and also received confirmation that the drugs had been
obtained. (Id.) When the vehicle was stopped, Plaintiff and the remaining
occupants exited the vehicle where they were subjected to a pat down, handcuffed,
and detained for 40 minutes while the officers searched the vehicle. (Id. at Pg ID
270.) No drugs were found on Plaintiff. (Id.) This incident was summarized in
Defendant Ferguson’s case report. (ECF No. 46-6 at Pg ID 421-22.) Defendant
Ferguson’s recollection of events is corroborated by the deposition testimony of CI
#1.
A second controlled buy occurred on July 31, 2012. Confidential Informant
#2 (“CI #2”) was observed entering a home to meet with Flip to purchase 1.0
grams of heroin. (ECF No. 46 at Pg ID 270-71.) Defendant Ferguson, Officer
Richter, and CI #2 all recalled this controlled buy. (Id. at Pg ID 271.)
That same day, Defendant Ferguson returned to his office to prepare a search
warrant for the home that the second controlled buy occurred in, 18 Jefferson. (Id.
at Pg ID 272.) Defendant Ferguson took the search warrant and affidavit in
support of the warrant to the 50th District Court in Pontiac, Michigan, where it was
authorized by Judge Preston G. Thomas. (Id.) Plaintiff alleges he only received

4

one page of the warrant, and never received the affidavit in support of the warrant.3
(ECF No. 60 at Pg ID 901.) Defendant Ferguson alleges he has not seen the
affidavit since the date of the search, July 31, 2012. (ECF No. 46 at Pg ID 272.)
After obtaining authorization for the warrant, the following members of
NET executed the search warrant at Plaintiff’s home: Defendant Ferguson,
Officers Pankey, Bearer, Richter, and Sgt. Jennings. (Id. at Pg ID 273.) Officers
found a joint of marijuana, 1.4 grams, during the search along with $334 in cash.
(Id.; see also ECF No. 60 at Pg ID 901.) Both items were seized.4 (Id.) Plaintiff
alleges that officers were responsible for “considerable damage to the home,
damaging Plaintiff’s personal property as well as the front door of the home, which
required repairs.” (ECF No. 60 at Pg ID 901.)
On August 29, 2012, a third controlled buy occurred with CI #2. (ECF No.
46 at Pg ID 274.) Defendant Ferguson and Officer Pankey observed CI #2 enter
Plaintiff’s vehicle to purchase 0.2 grams of crack cocaine. (Id.) The officers
observed Plaintiff drive around with CI #2 in the car. (Id.)

Defendant Ferguson

prepared a case report and logged to the cocaine into the NET property room. (Id.)

3

Plaintiff alleges they have attempted numerous times to obtain the original
executed warrant through discovery requests and subpoenas without any results.
(ECF No. 60 at Pg ID 902.) Plaintiff has not filed a motion to compel with this
Court.
4
According to Defendant Ferguson, there is no evidence that Plaintiff attempted to
contest seizure. (ECF No. 46 at Pg ID 273.)
5

The next controlled buy occurred on September 5th, where CI #2 purchased
0.2 grams of heroin at the back door of Plaintiff’s home at 18 Jefferson. (Id.)
Defendant Ferguson, Officer Pankey, and Officer Richter observed this control buy.
(Id.)
Defendant Ferguson and CI #2 attempted to arrange another controlled buy
the next day. (ECF No. 46 at Pg ID 275.) According to Defendants, CI #2 called
Plaintiff while the informant was with Defendant Ferguson to arrange a meeting
location. (Id.) Plaintiff suggested another meeting location, and CI #2 met him
there shortly. (Id.) After getting into his truck, Plaintiff drove around for “at least
an hour without any drugs being delivered.” (Id.) Due to concern for the
informant’s safety, the officers decided to arrest Plaintiff based on his prior drug
sales. (Id.) During booking, Officer Bell found 2.2 grams of marijuana in
Plaintiff’s left sock. (Id.) Defendant Ferguson stated that he was not present for
the stop, arrest, or booking but recalls Officer Bell delivering the marijuana to him
afterward. (Id.)
Plaintiff disputes that he was meeting with an individual for a drug deal.
Rather, Plaintiff contends he was on his way home to pick up a grocery list and go
shopping when he was pulled over by the officers. (ECF No. 60 at Pg ID 903.)
Plaintiff testified during his deposition that he “did not sell drugs to anyone at any
time during the year 2012.” (Id. at Pg ID 904.)
6

Plaintiff was incarcerated as a pretrial detainee while he awaited a hearing in
the 50th District Court to the Oakland County Circuit Court. (ECF No. 46 at Pg ID
276.) Plaintiff was charged with 3 violations of the Michigan Controlled
Substance Act, Mich. Comp. Laws § 333.7401(2)(a)(iv) for the delivery of cocaine
on August 29th, delivery of heroin on September 5th, and misdemeanor possession
of marijuana during his September 6th arrest.. (Id.) On September 8th, Plaintiff
was also charged with misdemeanor possession of marijuana in violation of Mich.
Comp. Laws § 333.7403(2)(d) for the marijuana found during the search of his
home on July 31, 2012.
Defendant Ferguson was terminated by the Oakland County Sheriff’s
Department in December 2012 for violating public policy. (Id.) In particular,
Defendant Ferguson was alleged to have given false testimony in a separate case.
(Id.) As a result, the prosecutor chose to discontinue prosecutions in 16 to 19 cases
where Defendant Ferguson was considered a necessary witness, including
Plaintiff’s pending cases in circuit court arising out of his August and September
controlled buys along with his marijuana possession at the time of his arrest. (Id.
at Pg ID 277.)
However, Plaintiff’s district court marijuana possession case for the
marijuana found during the search of his home was not dismissed. (Id.) Plaintiff
pled guilty to possession of marijuana for the July 31st search of his home. (Id.)
7

That conviction has not been challenged on appeal, reversed, expunged by
executive order, or called into question. (Id.)
Plaintiff filed this action alleging that Defendants have violated his civil
rights, seeking damages pursuant to 42 U.S.C. §§ 1983 and 1988. (ECF No. 1.) In
particular, Plaintiff alleges that Defendant Ferguson lacked probable cause to
search Plaintiff’s home on July 31, 2012 and to arrest Plaintiff on September 6,
2012. (ECF No. 60 at Pg ID 919.) Plaintiff also alleges that Defendant Ferguson
lacked the necessary reasonable suspicion before stopping his car on I-75 in March
2012. (Id.) Plaintiff alleges that based on Defendant Ferguson’s “established
history of submit[ing] perjured testimony” to courts, it is likely that he did so in
this matter as well. (Id. at Pg ID 892.)
Defendants contend that Plaintiff’s civil rights have not been violated.
Defendant Ferguson argues that he had probable cause and reasonable suspicion
for the vehicle stop, search warrant executed on July 31st, and September 6th arrest
based in part on the work of his confidential informants. Defendant Ferguson
seeks summary judgment and/or dismissal of all claims against him pursuant to
Federal Rules of Civil Procedure 56 and 12(b)(6). (ECF No. 46 at Pg ID 278.)
II.

Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is

appropriate “if the movant shows that there is no genuine dispute as to any material
8

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The central inquiry 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.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
9

Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255.
III.

Applicable Law and Analysis
A.

Qualified Immunity

“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that,
when construed favorably, 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.” Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013).
“Qualified immunity protects government officials performing discretionary
functions unless their conduct violates a clearly established statutory or
constitutional right of which a reasonable person in the official’s position would
have known.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). To
defeat the defense of qualified immunity, plaintiff must satisfy a two-pronged test.
See Pearson v. Callahan, 555 U.S. 223 (2009).
To satisfy the first prong at the summary-judgment stage, the plaintiff must
show that “based upon the applicable law, the facts viewed in the light most
favorable to the plaintiff[ ] show that a constitutional violation has occurred.”
Sample v. Bailey, 409 F.3d 689, 695 (6th Cir. 2005); see also Saucier v. Katz, 533
U.S. 194, 201 (2001). The second prong requires the plaintiff to show that “the
10

violation involved a clearly established constitutional right of which a reasonable
person would have known.” Sample, 409 F.3d at 696; see also Saucier, 533 U.S.
at 201. The court may address these prongs in any order, and if the plaintiff cannot
make both showings, the state actor is entitled to qualified immunity. Pearson,
555 U.S. at 236.
For a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Saucier, 533 U.S. at 202 (internal quotation marks omitted).
“This inquiry . . . must be undertaken in light of the specific context of the case,
not as a broad general proposition[.]” Id. at 201. The court “need not, of course,
find a case in which ‘the very action in question has previously been held
unlawful,’ but, ‘in the light of pre-existing law, the unlawfulness must be
apparent.’ ” Comstock v. McCrary, 273 F.3d 693, 711 (6th Cir. 2001) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alterations omitted). “ ‘[T]here
need not be a case with the exact same fact pattern or even ‘fundamentally similar’
or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair
warning’ that their actions were unconstitutional.’ ” Cummings v. City of Akron,
418 F.3d 676, 687 (6th Cir. 2005) (quoting Hope v. Pelzner, 536 U.S. 730, 741
(2002)). “In inquiring whether a constitutional right is clearly established, [the
court] must look first to decisions of the Supreme Court, then to decisions of th[e
11

Sixth Circuit] and other courts within our circuit, and finally to decisions of other
circuits.” Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002), cert. denied
sub nom. Dickhaus v. Champion, 544 U.S. 975 (2005).
“If the legal question of immunity is completely dependent on which view of
the facts the jury accepts, the district court should not grant summary judgment on
the issue.” Rodriguez v. Passinault, 637 F.3d 675 (6th Cir. 2011) (citing
Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. 1989)); see also Sova v.
City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998) (“[S]ummary judgment is
inappropriate where there are contentious factual disputes over the reasonableness
of the use of deadly force.”)).
B.

Analysis

Defendant Ferguson argues that he is entitled to qualified immunity here
because Plaintiff has failed to satisfy the first prong of the standard—that a
constitutional violation has occurred based on the facts. (ECF No. 46 at Pg ID
283.) Plaintiff disagrees, contending that Defendant Ferguson had no probable
cause for the July 31st search or for the September 6th arrest. (ECF No. 60 at Pg
ID 918.) Plaintiff also argues that Defendant Ferguson did not have reasonable
suspicion to stop the van in March 2012.
In response, Defendant Ferguson provides facts that demonstrate there was
reasonable suspicion or probable cause for all three events. When Plaintiff was
12

stopped on I-75, Defendant Ferguson stated he had reasonable suspicion based on
CI #1 telling him that Plaintiff had purchased drugs over the phone while officers
were conducting surveillance. (ECF No. 46 at Pg ID 269-70.) Plaintiff argues that
because this information is missing in Defendant Ferguson’s case report,
Defendant Ferguson had no basis for stopping the vehicle, and detaining and
searching Plaintiff. (ECF No. 60 at Pg ID 912.) In his opposition brief, Plaintiff
does not counter the facts as presented by Defendant. Rather, he casts doubt of the
accuracy of Defendant Ferguson’s evidence based on the omission in the case
report. (Id.)
Next, Plaintiff argues that Defendant Ferguson lacked the probable cause for
the July 31st search of his home because “there is a question of fact on whether
these controlled buys even occurred.” (Id. at Pg ID 915.) In support of this
assertion, Plaintiff provides his own testimony where he stated that “he did not sell
drugs to anyone, ever, and he certainly did not sell drugs to anyone in 2012.”
(ECF No. 60 at Pg ID 915.)
Plaintiff makes a similar argument in challenging Defendant Ferguson’s
probable cause for his September 6th arrest. Plaintiff argues there is a question of
fact as to whether Defendant Ferguson had probable cause to search Plaintiff’s
home because the basis for probable cause was the alleged controlled buys that

13

took place previously. (Id. at Pg ID 917.) “All of these alleged buys were
expressly denied by Plaintiff.” (Id.)
Defendant Ferguson’s assertion that reasonable suspicion existed for the I-75
stop and probable cause is supported by the deposition testimony of CI #1.
Support for Defendant Ferguson’s allegation that he had probable cause for the
July 31st and September 6th events are supported by the deposition testimony of
CI #1, CI #2, and Officer Ludd as well as case reports. (ECF No. 80; see also ECF
No. 46-22.) Other officers such as Officers Doty and Pankey do not recall the
specific events, but testified they have no reason to believe that Defendant
Ferguson was inaccurate in his case reports. (See ECF Nos. 46-17 at Pg ID 59091; 46-20 at Pg ID 656-57.)
Plaintiff fails to provide any evidence countering the testimonies of
Defendant Ferguson, the two confidential informants, and other officers who were
deposed in this matter other than Plaintiff’s own testimony. However, this Court is
“not required to accept unsupported, self-serving testimony as evidence sufficient
to create a jury question.” Brooks v. Am. Broadcasting Cos., Inc., 999 F.2d 167,
172 (6th Cir. 1993).
Thus Plaintiff does not present sufficient evidence to suggest that Defendant
Ferguson lacked reasonable suspicion for the March 2012 traffic stop, July 31st

14

search of Plaintiff’s home, and September 6th arrest. As such, the Court is
granting summary judgment to Defendant Ferguson.5
IV.

Conclusion
For the reasons stated, the Court concludes that Defendant Ferguson has

demonstrated there is no genuine issue of material fact precluding summary
judgment. Defendant Ferguson is entitled to qualified immunity because Plaintiff
failed to establish that a constitutional violation has occurred.
Accordingly,
IT IS ORDERED that Defendant Ferguson’s motion for summary
judgment (ECF No. 46) is GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: March 29, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, March 29, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

5

In light of the qualified immunity defense, the Court declines to opine on whether
Heck v. Humphrey, 512 U.S. 477 (1994) applies to Plaintiff’s guilty plea.
15