RICHARDS et al v. Detroit, City of, et al

Filing 62

OPINION and ORDER Granting In Part and Denying In Part Defendants' 39 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MEKKEL RICHARDS and
ADAM MALINOWSKI,
Plaintiffs,
Civil Case No. 15-12211
Honorable Linda V. Parker

v.
CITY OF DETROIT, DETROIT ASSISTANT
POLICE CHIEF STEVE DOLUNT,
DETROIT POLICE OFFICER GADWELL,
DETROIT POLICE OFFICER REIZIN,
DETROIT POLICE OFFICER PETROFF, and
DETROIT POLICE SGT. BRANNOCK,

Defendants.
__________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
This lawsuit arises from Plaintiffs’ arrest on June 23, 2014, following the
City of Detroit’s annual fireworks display. In an Amended Complaint filed
September 15, 2015, Plaintiffs assert the following civil rights claims against
Defendants pursuant to 42 U.S.C. § 1983:
(I) Violation of Plaintiffs’ First Amendment rights;
(II) Retaliation against Plaintiffs in violation of the First
Amendment;
(III) Deprivation and destruction of Plaintiffs’ personal
property in violation of their Fifth and Fourteenth
Amendment rights;

(IV) Excessive force and unreasonable seizure of
Plaintiffs in violation of their Fourth Amendment rights;
(V) False arrest of Plaintiff Mekkel Richards (“Mr.
Richards”) in violation of his Fourth Amendment rights;
(VI) Malicious prosecution of Mr. Richards in violation
of his Fourth and Fourteenth Amendment rights;
(VII) Civil conspiracy to violate Plaintiffs’ rights; and
(VIII) Municipal liability.1
(ECF No. 5.) Plaintiffs also assert the following claims against Defendants under
Michigan law: (IX) assault and battery; (XI)2 false imprisonment; (XII) common
law and statutory malicious prosecution under Michigan Compiled Laws
§ 600.2907; and (XIII) intentional infliction of emotional distress.
Presently before the Court is Defendants’ October 11, 2016 motion for
partial summary judgment pursuant to Federal Rule of Civil Procedure 56, in
which they seek dismissal of all but Plaintiffs’ excessive force and Plaintiff Adam
Malinowski’s destruction of personal property claims against Defendant Police
Officer Robert Gadwell (“Officer Gadwell”). (ECF No. 39.) Plaintiffs filed a
response to the motion on November 8, 2016. (ECF No. 45.) Defendants filed a

Plaintiffs stipulated to the dismissal with prejudice of the City of Detroit as a
defendant. (See ECF No. 52.) Thus, Count VIII of their Amended Complaint is
moot.
2
There is no Count X in the Amended Complaint.
1

2

reply brief on November 10, 2016. (ECF No. 47.) With the Court’s permission,
Plaintiffs also filed a sur-reply brief, Defendants filed a supplemental brief to their
motion, and Plaintiffs responded to the supplemental brief. (ECF Nos. 56, 58, 60.)
The Court held a motion hearing on April 25, 2017.
At the motion hearing, Plaintiffs’ counsel indicated that Plaintiffs are
abandoning their conspiracy claim (Count VII) and intentional infliction of
emotional distress claim (Count XIII). Counsel further stated that Plaintiffs agree
to dismiss Detroit Police Officer Petroff as a defendant. For the reasons that
follow, the Court is granting in part and denying in part Defendants’ motion for
partial summary judgment with respect to Plaintiffs’ remaining claims and the
remaining defendants.
I.

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
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
3

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.”
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.
II.

Factual Background
On the evening of June 23, 2014, the City of Detroit conducted its annual

fireworks display over the Detroit River. Mr. Richards and his friend, Plaintiff
4

Adam Malinowski (“Mr. Malinowski”), watched the fireworks from a location on
Woodward Avenue between Jefferson Avenue and Campus Martius Park. When
the fireworks display ended, Plaintiffs began walking north on Woodward Avenue
with a crowd of people. Because of the crowd, Plaintiffs walked the bikes they had
brought with them.
The City of Detroit Police Department was in full force the evening of the
fireworks to control the crowd. This included Defendants: Assistant Police Chief
Steve Dolunt (“Assistant Chief Dolunt”), Sargent Edward Brannock (“Sargent
Brannock”), and Police Officers Gadwell, Michael Reizin (“Officer Reizin”), and
Stephen Petroff (“Officer Petroff”). Defendants were tasked with clearing
pedestrians from the closed portions of Woodward Avenue and encouraging those
in attendance at the fireworks display to return to their cars and go home.
A large male with long hair, wearing a Viking hat, and swinging what
appeared to be a plastic sword was among the crowd walking with Plaintiffs
northbound on Woodward Avenue. The parties refer to this individual as “the
Viking” and, for ease of reference, the Court will do so here. During their
depositions in this lawsuit, some of the defendants described the Viking as
intoxicated, belligerent, using vulgarity, and inciting the crowd by chanting such
things as “f--- the police”, “we’re not moving” and “you can’t f---ing stop us.”
(Pls.’ Resp., Ex. 3 at 12; Ex. 6 at 20, Ex. 15 at 30-31.) Other individuals in the
5

crowd were swinging on street signs, kicking over garbage cans, jumping off
flowerpots, and acting “in a semi disruptive manner”. (Id., Ex. 6 at 15.)
Assistant Chief Dolunt approached the Viking’s girlfriend and encouraged
her to calm him down, but she was unsuccessful in doing so. (Id. at 16.) He
decided to place the Viking under arrest as they reached Grand Circus Park. By
that time, Officer Petroff and other police officers had joined Assistant Chief
Dolunt. The officers’ attempt to place the Viking under arrest resulted in a scuffle
at the southern perimeter of the park (at the corner of Woodward Avenue and
Witherell Street), which drew the attention of individuals within the crowd,
including Plaintiffs. According to Plaintiffs, the officers were smashing the
Viking’s face into the ground and the Viking was asking for help and for someone
to videotape the incident. (Id., Ex. 2 at 35, 38.) Several other officers stood a
couple of feet away to create “a shield” and “block the rest of the crowd” from
getting too close. (Id., Ex. 6 at 25.) Other officers walked northbound on
Woodward Avenue to “push” the crowd in that direction. Some officers drew
pepper spray and light wands and threatened to pepper spray people if they did not
keep moving. (Id., Ex. 2 at 36-38.) The officers told the crowd to “go home” and
“get out of here. Keep moving north. You can’t be here.” (Id. at 35.)
Plaintiffs passed the police officers’ scuffle with the Viking and initially
stopped to observe some fifteen feet away. (Id. at 35.) Plaintiffs then proceeded
6

north on Woodward Avenue for about thirty feet, where they locked their bicycles
to a tree in Grand Circus Park. (Id. at 37.) Concerned about what was happening
to the Viking, they decided to videotape the incident with their cellular phones.
(Id. at 38, 39; Ex. 1 at 24-25.) Plaintiffs therefore walked on a footpath inside
Grand Circus Park back towards the location of the altercation. (Id., Ex. 2 at 42,
97.) Most of the crowd had dispersed at this point, although a “few stragglers”
were standing by and observing the incident. (Id., Ex. 6 at 35, 63.)
Mr. Malinowski testified during his deposition in this matter that as he began
approaching the scene, officers told him to back away. (Id., Ex. 1 at 32-33.) Mr.
Malinowski backed away and stopped approximately twenty to twenty five feet
from the scene: “to the point where they stopped telling [him] to back away.” (Id.
at 33-34.) According to Mr. Malinowski, Mr. Richards was closer to the scene.
(Id. at 34.)
Mr. Richards testified that he was on a path leading from Witherell and
Woodward into Grand Circus Park recording the incident when an officer
approached him, put his hand in front of the camera, and told Mr. Richards to back
up and that he could not be there. (Id., Ex. 2 at 49-50, 97.) Mr. Richards told the
officer that he had a right to be there and record, and he tried to stand his ground,
but the officer walked into him. (Id. at 49-50.) Mr. Richards began walking
backwards, away from the location of the Viking’s arrest, and started to record the
7

scene again. (Id. at 97-98; Ex. 1 at 34.) According to Mr. Malinowski, several
additional officers confronted Mr. Richards as he was backing up. (Id., Ex. 1 at
38.) At this point, Mr. Malinowski began recording Mr. Richards’ confrontation
with the officers. (Id. at 41.) Mr. Malinowski was at the grass or tree line of
Grand Circus Park and Mr. Richards was near the patio chairs, approximately ten
to eighteen feet away from Mr. Malinowski. (Id. at 35, 43; Ex. 2 at 70.)
As Mr. Richards continued recording, one of the officers pushed Mr.
Richards, which caused him to trip backwards over a chair and fall down. (Id., Ex.
2 at 63-64.) Mr. Richards put his phone in his pocket after he fell. (Id. at 65.)
Plaintiffs testified that after Mr. Richards stood up, Officer Gadwell approached
Mr. Richards and punched him in the face, knocking Mr. Richards to the ground
again. (Id.; Ex. 1 at 41.)
Mr. Richards called to Mr. Malinowski, asking, “did you get that on video?”
(Id., Ex. 2 at 68.) Officer Gadwell then charged Mr. Malinowski, who put his
phone in his pocket and started to walk away. (Id., Ex. 1 at 44, 45.) Officer
Gadwell grabbed Mr. Malinowski from behind and placed him in a headlock. (Id.)
Officer Gadwell then reached into Mr. Malinowski’s pocket, took his phone, and
slammed it against a tree. (Id.) He then pushed or shoved Mr. Malinowski against
the tree, forced him to his knees, and placed him in handcuffs. (Id. at 44, 48-49.)

8

In the meantime, an unidentified officer handcuffed Mr. Richards. (Id., Ex. 2 at
68-69.)
Officers then sat Plaintiffs on a curb at the northeast corner of Woodward
and Witherell. Mr. Malinowski’s cellular phone was left behind in the park.
According to Plaintiffs, Assistant Chief Dolunt came over and talked to them,
telling them they were “f---ing idiots,” “wasting their time,” and taking “this right
shit too seriously.” (Id., Ex. 2 at 73.) Plaintiffs had no interaction with Assistant
Chief Dolunt prior to this point. (Id., Ex. 2 at 76-77.) An unidentified officer
allegedly called Plaintiffs “faggot tree huggers.” (Id.) The officers then discussed
whether to book Plaintiffs or let them go. (Id., Ex. 1 at 52.) Mr. Richards testified
that Assistant Chief Dolunt instructed the officers to “teach these kids a lesson”
and book them. (Id. at 76-77.) Mr. Malinowski recalled that another officer in
plainclothes said they needed to teach Plaintiffs a lesson and Assistant Chief
Dolunt “listened to that.” (Id., Ex. 1 at 54.)
Unidentified officers then took Plaintiffs to a police vehicle for transport to
the Detroit Detention Center. Mr. Malinowski asked the officer driving the vehicle
what they were being arrested for and he told them “interfering.” The officers then
drove Plaintiffs to the Detroit Detention Center for processing. At some point after
they arrived, Mr. Malinowski observed one of the Detroit Detention Center guards

9

holding Mr. Richards’ phone and swiping through it. (Pls.’ Resp., Ex. 1 at 58-59;
Ex. 2 at 82.)
The next day, Plaintiffs were released. When Mr. Richards’ phone was
returned to him, the last video he took the preceding evening had been deleted.
(Pls.’ Mot., Ex. 2 at 85.)
Plaintiffs were charged with misdemeanor interference with a police officer
and retained defense counsel (the same attorney representing them in this civil
matter). On August 19, 2014, Mr. Malinowski entered a guilty plea to the charge.
(Pls.’ Resp., Ex. 13.) The trial court sentenced Mr. Malinowski to a delayed
sentence to be dismissed after nine months of probation. (Id.) Mr. Malinowski
successfully complied with the terms of the delayed sentence and the disposition
was set aside on May 18, 2015. (Id.) Mr. Richards pleaded not guilty and the trial
court dismissed the charge against him when no Detroit Police Department officer
appeared at his trial on September 29, 2014. (Id., Ex. 12.)
Mr. Malinowski eventually recovered his cellular phone. A “hard re-set”
had been done on the phone, however, which deleted all of the videos he took the
evening of his arrest.

10

III.

Defendants’ Arguments and Analysis
A.

Plaintiffs’ State Law Claims

Defendants first argue that the Court must dismiss Plaintiffs’ state law
claims pursuant to the Michigan Supreme Court’s decision in Jones v. Powell, 612
N.W.2d 423 (2000). In that case, the Court held that where other avenues of relief
are available, there is no “state law claim for damages against individuals or
municipalities based on alleged violations of Michigan’s constitution.” Id. at 426.
Plaintiffs do not allege violations of the Michigan Constitution, however. Thus,
the holding in Jones v. Powell is not a basis for dismissal of their state law claims.
B.

Whether the Existence of Probable Cause Defeats Plaintiffs’ First
Amendment Retaliation Claim and Claims Alleging False
Arrest, Imprisonment, and Malicious Prosecution

Defendants maintain that there was probable cause to arrest Mr. Richards
and Mr. Malinowski based on the following facts, which Defendants contend are
not in dispute:
i.

The Plaintiffs were arrested at approximately
11:15 p.m. on June 23, 2014 in Grand Circus Park.

ii.

It was unlawful for the Plaintiffs to remain in
Grand Circus Park after at [sic] 10:00 p.m. and
Grand Circus Park had been closed for
approximately one hour and fifteen minutes when
Plaintiffs were arrested. The Plaintiffs’ presence
in the park directly interfered with the officers’
duties to clear the closed park and create a safe
perimeter around the arrest of the Viking in Grand
Circus Park.
11

iii.

The Plaintiffs were arrested for [i]nterference with
city employees in the performance of their duties
pursuant to Detroit City Code Section 38-2-2.

(Defs.’ Br. in Supp. of Mot. at 15, ECF No. 39-1 at Pg ID 639.) Defendants rely
on City of Detroit Ordinance Section 40-1-10 to establish that Plaintiffs’ presence
in Grand Circus Park after 10:00 p.m. was unlawful.
As an initial matter, Mr. Malinowski pleaded guilty to interfering with a
government employee performing his duties even though the disposition
subsequently was set aside upon Mr. Malinowski’s successful completion of his
delayed sentence. At the motion hearing, Plaintiffs’ counsel acknowledged that
this guilty plea would bar any claim by Mr. Malinowski of Fourth Amendment
unlawful arrest or malicious prosecution or a First Amendment retaliation claim
asserting that his arrest was the retaliatory act. 3 See, e.g., Daubenmire v. City of
Columbus, 507 F.3d 383, 390 (6th Cir. 2007); Walker v. Schaeffer, 854 F.2d 138,
142 (6th Cir. 1988); Shelton v. City of Taylor, 92 F. App’x 178, 183 (6th Cir.
2004); Marmelshtein v. City of Southfield, No. 07-15063, 2009 WL 6468499, at
*2-3 (E.D. Mich. Mar. 11, 2009).

In their Amended Complaint, Plaintiffs assert that Defendants retaliated against
Mr. Malinowski in violation of his First Amendment rights when Officer Gadwell
smashed Mr. Malinowski’s phone against a tree and left it in the park. (See Am.
Compl. ¶ 77.) Probable cause to arrest Mr. Malinowski does not defeat this claim.

3

12

The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. A police officer’s warrantless arrest of an
individual is reasonable under the Fourth Amendment where there is probable
cause to believe a criminal offense has been or is being committed. See United
States v. Watson, 423 U.S. 411, 417-424 (1976); Brinegar v. United States, 338
U.S. 160, 175-176 (1949). Probable cause exists where the facts and circumstances
within the arresting officer’s knowledge and of which the officer has reasonably
trustworthy information are sufficient to warrant a man of reasonable caution in the
belief that an offense has been or is being committed. Brinegar, 338 U.S. at 175.
Whether probable cause exists depends upon the reasonable conclusion to be
drawn from the facts known to the arresting officer at the time of the arrest.
Maryland v. Pringle, 540 U.S. 366, 371 (2003). The officer’s subjective intentions
and motivations play no role in the probable-cause analysis. Arkansas v. Sullivan,
532 U.S. 769, 771-72 (2001); Whren v. United States, 517 U.S. 806, 812-13
(1996).
Furthermore, “[t]he validity of an arrest does not turn on the offense
announced by the officer at the time of the arrest.” Bailey v. Bd. of Cty. Comm’rs,
956 F.2d 1112, 1119 n.4 (11th Cir. 1992). The arresting officer’s “subjective
reason for making the arrest need not be the criminal offense as to which the
13

known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153
(2004). In other words, “ ‘when an officer makes an arrest, which is properly
supported by probable cause to arrest for a certain offense, neither his subjective
reliance on an offense for which no probable cause exists nor his verbal
announcement of the wrong offense vitiates the arrest.’ ” Lee v. Ferraro, 284 F.3d
1188, 1196 (11th Cir. 2002) (brackets removed) (quoting United States v.
Saunders, 476 F.2d 5, 7 (5th Cir. 1973)); see also United States v. Dunavan, 485
F.2d 201, 205 (6th Cir. 1973) (“validity of an arrest is to be judged by whether
officers actually had probable cause for the arrest rather than by whether the
officers gave the arrested person the right reason”).
Mr. Richards was arrested for violating Detroit City Ordinance Section 38-22, which reads: “It shall be unlawful for any person to knowingly and willfully
interfere with or obstruct any city employee in the performance of his duties as a
city employee.” (Pls.’ Resp., Ex. 14.) Defendants argue that there also was
probable cause to arrest Mr. Richards for violating Detroit City Ordinance Section
40-1-10, which reads:
No person shall loiter, picnic, party, congregate or remain
upon or within any private park, private playfield, or
private playground between the hours of 10:00 p.m. and
6:00 a.m. In order for this section to be enforceable, such
time shall be clearly and legibly posted upon permanent
signs prominently displayed on the site of such park,
playground or playfield.
14

(Defs.’ Reply Br. at 2 n.1, ECF No. 51 at Pg ID 1091 n.1.) Under Michigan law, a
police officer, without a warrant, may arrest a person where “[a] felony,
misdemeanor, or ordinance violation is committed … in the officer’s presence.”
Mich. Comp. Laws § 764.15(a) (emphasis added). Because the Court concludes
that there was probable cause to arrest Mr. Richards for violating Section 40-1-10,
it finds it unnecessary to decide whether probable cause existed to arrest him for
interference.4
In response to Defendants’ summary judgment motion, Plaintiffs challenged
the applicability of Section 40-1-10 to Grand Circus Park. Specifically, Plaintiffs
disputed whether the closing time was posted on any sign in Grand Circus Park
and pointed out that the ordinance refers to private parks.5 (Pls.’ Resp. Br. at 14,
ECF No. 45 at Pg ID 772.) At the motion hearing, however, Plaintiffs’ counsel
conceded that Section 40-1-10 applies to Grand Circus Park. Counsel argued,
Moreover, as discussed further below, the Court finds genuine issues of material
fact relevant to whether a reasonable officer would believe Mr. Richards violated
the City’s interference ordinance.
5
Defendants presented proof of the necessary signage in their supplemental brief.
(See ECF No. 58, Ex. N.) At the motion hearing, Defendants’ counsel also
referred the Court to Detroit City Ordinance 40-1-1, which defines “parks, public
places or boulevards,” for purposes of Article 40 as: “all parks, parkways,
playfields, park lots, grass plots, golf courses, playgrounds, recreation centers,
athletic fields, open places, squares, lands under water and other areas which are
now owned by the city or under city control or may hereafter be acquired by
purchase, gift, devise, bequest, loan or lease.” See, e.g.,
https://www.municode.com/library/mi/detroit/codes/code_of_ordinances?nodeId=
DECO_CH40PARE (emphasis added).
4

15

however, that the officers did not arrest other citizens within the park even though
they too were there past closing and that Plaintiffs were in the park because the
officers had directed them in that direction while trying to clear the downtown area
following the fireworks.
With respect to counsel’s first argument, the fact that the officers arrested
Plaintiffs who were videotaping the scuffle with the Viking and therefore
exercising their First Amendment rights, as opposed to other violators of the park
closing ordinance, does not negate the existence of probable cause. As stated
earlier, the subjective intentions and motives of the arresting police officers are
immaterial to a proper analysis of Mr. Richard’s Fourth Amendment claim of false
arrest and malicious prosecution. See Whren v. United States, 517 U.S. 806, 813
(1996); Scott v. United States, 436 U.S. 128, 137-38 (1978); McCurdy v.
Montgomery Cty., Ohio, 240 F.3d 512, 517 (6th Cir. 2001); United States v.
Ferguson, 8 F.3d 385, 391-92 (6th Cir. 1993) (en banc). The Sixth Circuit “ha[s]
held that the possibility of a discriminatory motive does not affect the inquiry into
the objective reasonableness of an arrest for the purposes of the Fourth
Amendment.” Stempler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997)
(citing Ferguson, 8 F.3d at 391).
As to the second argument asserted by Plaintiffs’ counsel, even if police
officers were directing individuals within the crowd northbound on Woodward
16

Avenue and through Grand Circus Park, the evidence does not reflect that they
were conveying to the crowd permission to stop in the park, which is what
Plaintiffs had done. In this respect, this case is distinguishable from the scenario in
Garcia v. Does, 779 F.3d 84 (2d Cir. 2014), to which Plaintiffs’ counsel referred in
making this argument. In Garcia, participants in a demonstration were arrested for
disorderly conduct (i.e., blocking vehicular traffic on the Brooklyn Bridge). Id. at
89. The demonstrators had marched through Lower Manhattan and a bottleneck
developed when they reached the bridge and tried to funnel onto the pedestrian
walkway. Id. at 88. Initially police officers blocked the demonstrators from
entering the vehicular lanes of the bridge. Id. at 88. The officers, however,
eventually began walking onto the bridge roadway with their backs to the
protestors, leading the protestors to believe that the officers wanted them to follow
onto this section of the bridge. Id. at 89. Many protestors in fact followed the
officers and eventually blocked several of the bridge’s entrance ramps and traffic
lanes. Id. Midway across the bridge, the officers stopped and announced that
demonstrators on the roadway would be arrested, and they subsequently were. Id.
As it is undisputed that Detroit City Ordinance 40-1-10 applies to Grand
Circus Park and that Plaintiffs were within the park after ten o’clock, the Court
concludes that the officers had probable cause to arrest Mr. Richards. This
conclusion requires the dismissal of his unlawful arrest and imprisonment claims
17

(Counts V and XI). It is unclear, however, whether the Sixth Circuit has decided
that lack of probable cause is an element in retaliatory arrest claims under the First
Amendment. See Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 217 n.4 (6th
Cir. 2011) (“The Sixth Circuit has not decided whether lack of probable cause is an
element in wrongful-arrest claims after the Supreme Court’s ruling in Hartman v.
Moore, 547 U.S. 250 … (2006), which made lack of probable cause an element for
claims of malicious prosecution.”). While the Sixth Circuit upheld the dismissal of
a First Amendment retaliation claim based on the presence of probable cause in
Marcilis v. Twp. of Redford, 693 F.3d 589, 604-05 (2012), the court found the
claim to be “essentially a repackaged version of [the plaintiffs’] malicious
prosecution claim[.]” This court cannot conclude that Mr. Richards’ First
Amendment retaliation and malicious prosecution claims are the same.
A finding of probable cause to arrest Mr. Richards for violating the park
closing ordinance does not negate his malicious prosecution claim for interference
with a city employee. As noted earlier, the Court finds genuine issues of material
fact relevant to whether probable cause existed to arrest Mr. Richards for that
violation.
C.

Whether Valid Time, Place, and Manner Restrictions Require
Dismissal of Plaintiffs’ First Amendment Claims

Defendants argue that because Detroit City Ordinance Section 40-1-10
precluded Plaintiffs from remaining in Grand Circus Park after 10:00 p.m. (which
18

Defendants maintain is a content-neutral provision), the restriction on Plaintiffs’
exercise of their First Amendment rights within the park was lawful as a valid
time, place, and manner restriction. (See Defs.’ Br. in Supp. of Mot. at 22-23, ECF
No. 39-1 at Pg ID 646-47.) As stated earlier, while Plaintiffs initially disputed the
applicability of the ordinance to Grand Circus Park, Plaintiffs’ counsel conceded at
the motion hearing that the ordinance does apply to the park.
Plaintiffs allege that Defendants violated their First Amendment right to
video tape the officers’ interactions with the Viking and retaliated against Plaintiffs
for exercising that right by arresting Mr. Richards and slamming Mr. Malinowski’s
cellular phone against a tree and then abandoning it in the park. The Sixth Circuit
has held that a § 1983 claim can be predicated upon a state official’s retaliation
against an individual for exercising his or her First Amendment rights. Thaddeus-X
v. Blatter, 175 F.3d 378, 394–95 (6th Cir. 1999) (en banc). To establish a First
Amendment retaliation claim, the plaintiff must establish the following elements:
(1) the plaintiff engaged in protected conduct; (2) an
adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) there is a causal
connection between elements one and two—that is, the
adverse action was motivated at least in part by the
plaintiff’s protected conduct.
Id. at 394. Defendants’ argument raises the question of whether Plaintiffs engaged
in protected conduct.
19

Many courts have held that there is First Amendment protection for creating
audio and visual recordings of law enforcement officers in public places. See, e.g.,
ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78,
82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.
2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995). Defendants do
not contest that this right exists. Nevertheless, free speech “whether oral or written
or symbolized by conduct, is subject to reasonable time, place, or manner
restrictions.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
Such restrictions “are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative
channels for communication of the information.” Id. Thus, “an individual's
exercise of her First Amendment right to film police activity carried out in public,
including a traffic stop, necessarily remains unfettered unless and until a
reasonable restriction is imposed or in place.” Gericke v. Begin, 753 F.3d 1, 8 (1st
Cir. 2014); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.), cert.
denied, 531 U.S. 978 (2000) (holding that there exists “a First Amendment right,
subject to reasonable time, manner and place restrictions, to photograph or
videotape police conduct”); see also Herndon v. Lowry, 301 U.S. 242, 259 (1937)
(“The appellant had a constitutional right to address meetings and organize parties
20

unless in so doing he violated some prohibition of a valid statute.”); Dean v.
Byerley, 354 F.3d 540, 551 (6th Cir. 2004) (“Although the government may restrict
the [First Amendment] right [to use streets for assembly and communication]
through appropriate regulations, that right remains unfettered unless and until the
government passes such regulations.”). As the First Circuit explained in Gericke,
“[s]uch a restriction could take the form of a reasonable, contemporaneous order
from a police officer, or a preexisting statute, ordinance, regulation, or other
published restriction with a legitimate governmental purpose.” 753 F.3d at 8.
Here, pursuant to Detroit City Ordinance Section 40-1-10, the City of
Detroit has elected to close its private parks between 10:00 p.m. and 6:00 a.m. As
such, Plaintiffs lacked a First Amendment right to videotape the police officers
while in the park after 10:00 p.m. Therefore, they cannot demonstrate the
necessary elements of their First Amendment or First Amendment Retaliation
claims (Counts I and II).
D.

Whether Plaintiffs’ Claims Against All Defendants But Officer
Gadwell Should Be Dismissed for Lack of Personal Involvement

Defendants argue that the evidence fails to demonstrate personal
involvement by any defendant aside from Officer Gadwell in any of the alleged
violations of federal or state law.
Officials “sued in their individual capacities under § 1983 can be held liable
based only on their own unconstitutional behavior.” Heyerman v. Cty. of Calhoun,
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680 F.3d 642, 647 (6th Cir. 2012) (citations omitted); see also Gibson v. Matthews,
926 F.2d 532, 535 (6th Cir. 1991) (noting that personal liability “must be based on
the actions of that defendant in the situation that the defendant faced, and not based
on any problems caused by the errors of others”). Moreover, “[g]overnment
officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S.
662, 675-76 (2009) (citations omitted); see also Hays v. Jefferson Cty., Ky., 668
F.2d 869, 874 (6th Cir. 1982). As the Sixth Circuit has explained:
[A] supervisory official’s failure to supervise, control or
train the offending individual is not actionable unless the
supervisor “either encouraged the specific incident of
misconduct or in some other way directly participated in
it. At a minimum a plaintiff must show that the official at
least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the
offending officers.”
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (quoting Hays, 668 F.2d at
874). Therefore, to prevail on a § 1983 claim, “a plaintiff must plead that each
government-official defendant, through the official’s own individual actions, has
violated the Constitution. Iqbal, 556 U.S. at 676.
To establish each defendants’ liability for the alleged violations, Plaintiffs
assert that Defendants engaged in a civil conspiracy. The Sixth Circuit has
described a civil conspiracy as:

22

an agreement between two or more persons to injure
another by unlawful action. Express agreement among all
the conspirators is not necessary to find the existence of a
civil conspiracy. Each conspirator need not have known
all of the details of the illegal plan or all of the
participants involved. All that must be shown is that there
was a single plan, that the alleged coconspirator shared in
the general conspiratorial objective, and that an overt act
was committed in furtherance of the conspiracy that
caused injury to the complainant.
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). Federal law prohibits
conspiracies to violate civil rights. See 42 U.S.C. § 1985(3). Civil conspiracy
claims “must be pled with some specificity: vague and conclusory allegations that
are unsupported by material facts are not sufficient to state a § 1983 claim.”
Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004) (citing Gutierrez v. Lynch, 826
F.2d 1534, 1538 (6th Cir. 1987)); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
In their motion, Defendants contend that Plaintiffs present no evidence that a
conspiracy existed. They also argue in their reply brief that the intra-corporate
conspiracy doctrine bars Plaintiffs’ conspiracy claim because the officers, in their
official capacities, act as the city itself and the city cannot conspire with itself.
(Defs.’ Reply Br. at 5, ECF No. 47 at Pg ID 1020). As Plaintiffs also are suing
Defendants in their individual capacities, however, Defendants’ intra-corporate
conspiracy argument does not negate Plaintiffs’ assertion of a civil conspiracy.
Nevertheless, Defendants are correct that Plaintiffs present neither facts nor
23

inferences suggesting that there was a civil conspiracy to violate their rights. Thus,
Defendants liability depends on their personal involvement in the alleged wrongful
conduct.
According to Plaintiffs, Officer Gadwell was the officer who allegedly
punched Mr. Richards, slammed Mr. Malinowski’s phone against a tree, and put
Mr. Malinowski in a headlock, pushed him against a tree and arrested him.
Plaintiffs have not identified the officer who handcuffed Mr. Richards. Plaintiffs
assert in response to Defendants’ motion that Assistant Chief Dolunt and Sargent
Brannock “are also liable for the seizure and imprisonment because they
instructed, advised and approved of [Officer] Gadwell sending [Mr.] Richards to
the Detroit Detention Center.” (Pls.’ Resp. Br. at 23, ECF No. 45 at Pg ID 781.)
Plaintiffs appear to base Officer Reizin’s liability on his preparation of the police
report, which they claim was false and led to their prosecution.
As an initial matter, the evidence reflects that Plaintiffs already were seized
and the alleged excessive force against them already had been deployed by the
time Sargent Brannock or Assistant Chief Dolunt became personally involved with
their situation. Plaintiffs in fact identify no facts establishing any personal
wrongdoing by Sargent Brannock. It is undisputed that Plaintiffs did not interact
with Assistant Chief Dolunt before they were handcuffed and placed on the curb.
(Pls.’ Resp., Ex. 1 at 52; Ex. 2 at 76-77.) The evidence reflects that Assistant
24

Chief Dolunt was preoccupied with arresting the Viking throughout Plaintiffs’
interaction with other officers.
Thus, at most, Assistant Chief Dolunt may be liable for Mr. Richards’ claim
based on the deletion of his cellular phone video and Plaintiffs’ claims alleging
malicious prosecution. As to the former, the evidence reflects that an unidentified
officer at the Detroit Detention Center rather than any defendant named in this
lawsuit deleted the video on Mr. Richards’ phone. As to the latter, Plaintiffs fail to
identify how Assistant Chief Dolunt made, influenced, or participated in the
decision to prosecute Plaintiffs.6 See Sykes v. Anderson, 625 F.3d 294, 308 (6th
Cir. 2010).
Plaintiffs attempt to establish Officer Reizin’s liability because he authored
the incident report concerning Plaintiffs’ arrest, which Plaintiffs contend contains
false information. Defendants argue that “the uncontroverted facts in this matter
make clear that as to [Mr. Richards], Det[ective] Reizin’s report was based entirely
upon the representations made to him by Det[ective] Gadwell.” (Defs.’ Br. in
Even if Assistant Chief Dolunt made the decision to charge Plaintiffs and this
decision could support a malicious prosecution claim, his decision was based on
information establishing probable cause supplied by other officers. Under these
circumstances, he is not liable for Plaintiffs’ prosecution. See Ahlers v. Schebil,
188 F.3d 365, 373 (6th Cir. 1999) (citing Lippay v. Christos, 996 F.2d 1490, 1501
(3d Cir.1993)) (“Existing case law establishes that a police officer can only be held
liable for requesting a warrant which allegedly led to a false arrest if he “stated a
deliberate falsehood or acted with a reckless disregard for the truth. Proof of
negligence or innocent mistake is insufficient.”).

6

25

Supp. of Mot. at 21, ECF No. 39-1 at Pg ID 645, capitalization removed.) A
review of the transcript from Officer Reizin’s deposition in this matter suggests
that this is not accurate, however.
During his deposition, Officer Reizin testified that he witnessed Officer
Gadwell telling Plaintiffs to leave the vicinity of the Viking’s arrest and then saw
Plaintiffs turn around and walk away. (Pls.’ Resp., Ex. 8 at 9.) Officer Reizin
further testified that when Officer Gadwell turned his back on Plaintiffs and started
walking to the location of the Viking’s arrest, Plaintiffs likewise turned around and
began returning to that area. (Id. at 9-10.) According to Officer Reizin, Plaintiffs
were approximately eighteen to twenty feet away from the location of the Viking’s
arrest. (Id. at 9.) Officer Reizin claims he then approached Plaintiffs, told them
they had been asked to leave and needed to leave, they continued to argue, and so
he went to arrest them. (Id. at 17-18.) Officer Reizin testified that he handcuffed
Mr. Malinowski, who he denied ever seeing with a phone. (Id. at 18-19.) As
Plaintiffs assert, Officer Reizin also prepared the incident report that led to
Plaintiffs’ prosecution for interference.
These facts establish Officer Reizin’s personal actions in connection with
Plaintiffs’ arrest and prosecution. For the reasons already discussed, however,
Plaintiffs’ false arrest claims are subject to dismissal. The viability of Plaintiffs’
malicious prosecution claim is discussed infra.
26

Nevertheless, Plaintiffs do not present sufficient evidence to establish
Assistant Chief Dolunt’s or Officer Brannock’s personal involvement in the
alleged misconduct supporting their claims. These defendants, therefore, are
entitled to summary judgment.
E.

Whether Any Defendant Engaged in Conduct to Support
Mr. Richards’ Malicious Prosecution Claims7

Defendants argue that the undisputed facts cannot supported Mr. Richards’
malicious prosecution claims.
Malicious prosecution under the Fourth Amendment “encompasses wrongful
investigation, prosecution, conviction, and incarceration.” Barnes v. Wright, 449
F.3d 709, 716 (6th Cir. 2006) (citation omitted). “The ‘tort of malicious
prosecution’ is ‘entirely distinct’ from that of false arrest, as the maliciousprosecution tort ‘remedies detention accompanied not by absence of legal process,
but by multiple institution of legal process.’ ” Sykes v. Anderson, 625 F.3d 294,
308 (6th Cir. 2010) (emphasis removed) (quoting Wallace v. Kato, 549 U.S. 384,
390 (2007)). A plaintiff asserting a malicious prosecution claim under § 1983
must show:
First, … that a criminal prosecution was initiated against
the plaintiff and that the defendant made, influenced, or
As stated earlier, the Amended Complaint refers to Mr. Richards, only, with
respect to the malicious prosecution claims. To the extent Plaintiffs intended to
include Mr. Malinowski in those claims, they fail due to his guilty plea.

7

27

participated 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.
Id. (internal quotation marks, citations, and brackets omitted). A claim of
malicious prosecution under Michigan law requires proof that (1) the defendant
initiated a criminal prosecution against the plaintiff, (2) the criminal proceedings
terminated in the plaintiff’s favor, (3) probable cause was lacking for the
prosecution, and (4) “the action was undertaken with malice or a purpose in
instituting the criminal claim other than bringing the offender to justice.”
Matthews v. Blue Cross & Blue Shield of Mich., 572 N.W.2d 603, 609-10 (Mich.
1998) (citations omitted). There are genuine issues of material fact precluding
summary judgment with respect to Mr. Richards’ malicious prosecution claims
against Officers Gadwell and Reizin.
As to the first element under § 1983 and Michigan law, Mr. Richards was
charged with interference with a city employee in the performance of the
employee’s duties and the officers influenced or participated in the decision to
prosecute by preparing an incident report stating:

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While at the fireworks detail on the [above] date and
time, crew was assisting other officers with a large fight
disturbance at Woodward and Witherall [sic]. Crew
attempted to clear the crowd surrounding the officers
involved. Crew asked the listed perps several times to
step back away from the scene but they refused,
attempting to video tape the officers and continue to
insight [sic] the crowd. At that point, after being warned
several times and not complying, the listed perps were
adv[ised] and arr[ested] for interfering.
(Pls.’ Resp., Ex. 9, ECF No. 45-10.) As to the second element, there are issues of
material fact relevant to whether the officers’ report contains deliberately false and
misleading material information that the prosecutor would have relied on in
deciding to pursue Mr. Richards’ prosecution. Most notably, viewed in a light
most favorable to Plaintiffs, the crowd had dispersed by the time Plaintiffs
approached the scene a second time and were arrested. Further, aside from
videotaping, Plaintiffs were not saying or doing anything to incite anyone. In fact,
Officer Reizin testified that by the time he arrived to the area of Woodward and
Witherell, the Viking already was handcuffed “and was sitting on his butt” and
only six or eight people (including Plaintiffs) remained in the park. (Id. at 7-8.)
As stated earlier, the Court also finds issues of fact precluding a finding that
there was probable cause supporting the interference charge. For one, the Viking
had been handcuffed and subdued and the crowd in the area had dispersed by the
time Mr. Malinowski and Mr. Richards were arrested. Further, according to
Plaintiffs, the officers never instructed them to leave the park; rather, they were
29

instructed only to “back up” and “get out of here.” Although it is unclear from the
testimony how far back Mr. Malinowski and Mr. Richards were from the officers
forming a barricade around the location of the Viking’s arrest, they had moved
away and were continuing to step back when they were arrested.
Defendants’ counsel suggested at the motion hearing that police officers
have unfettered discretion to decide how far back bystanders may stand so as not to
interfere with the officers’ duties. This is not an opinion this Court is willing to
accept, however. This would enable the police to screen their conduct from public
view even when unnecessary to exercise their duties safely.
Finally, aside from Mr. Richards asserting his right to record and witness the
incident, neither he nor Mr. Malinowski were saying anything to the officers or
bystanders and Mr. Richards disputes Officer Gadwell’s assertion that he touched
or pushed any of the officers forming the perimeter around the Viking’s arrest.
The criminal proceeding was dismissed and thereby resolved in Mr.
Richards’ favor. Finally, for purposes of § 1983, as a result of the pending
criminal charges, Plaintiffs allege Mr. Richards “was subjected to supervision and
restrictions on his movements while on bond….” (Am. Compl. ¶ 94, ECF No. 32.)
Although the Sixth Circuit does not appear to have ruled on the issue, see Johnson
v. City of Cincinnati, 310 F.3d 484, 492 (6th Cir. 2002), several Circuits hold that
pretrial conditions of release constitute seizures for purposes of the Fourth
30

Amendment. See Gallo v. City of Philadelphia, 161 F.3d 217, 225 (3d Cir. 1998);
Evans v. Ball, 168 F.3d 856, 861 (5th Cir. 1999); Murphy v. Lynn, 118 F.3d 938,
946 (2d Cir. 1997); see also Albright v. Oliver, 510 U.S. 266, 279 (1994)
(Ginsburg, J., concurring) (stating that a defendant is still seized when release from
pretrial confinement because of the conditions of his or her release).
This leaves the element of malice for purposes of supporting Mr. Richards’
state law claim for malicious prosecution. Malice “requires evidence that the
officer ‘knowingly swore to false facts … without which there is no probable
cause[.]’ ” Newman v. Twp. of Hamburg, 773 F.3d 769, 773 (6th Cir. 2014)
(quoting Payton v. City of Detroit, 536 N.W.2d 233, 242 (Mich. Ct. App. 1995)).
In other words, “[i]n Michigan, ‘when a party is sued for malicious prosecution, a
jury may infer malice from an absence of probable cause.’ ” Miller v. Sanilac Cty.,
606 F.3d 240, 250 (6th Cir. 2010) (quoting Friedman v. Dozorc, 312 N.W.2d 585,
617 (Mich. 1981). Thus, the questions of fact regarding probable cause extend to
malice for purposes of deciding whether Officers Gadwell and Reizin are entitled
to summary judgment.8
F.

Whether Defendants are Entitled to Qualified Immunity Under
Michigan or Federal Law

As well as to whether the officers are immune from Mr. Richards’ claim under
Michigan’s governmental immunity from torts statute. See infra.

8

31

Defendants argue that they are entitled to qualified immunity under
Michigan Compiled Law Section 691.1407(3) and federal constitutional law.
Section 691.1407 provides immunity from tort liability to governmental agencies
and officials. With respect to intentional torts, governmental immunity applies
where:
(a) The acts were undertaken during the course of
employment and the employee was acting, or reasonably
believed that he was acting, within the scope of his
authority,
(b) The acts were undertaken in good faith, or were not
undertaken with malice, and
(c) The acts were discretionary, as opposed to ministerial.
Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008).
Under federal constitutional law, “[g]overnment officials performing
discretionary functions are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or Constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); see also Phillips v. Roane Cty., Tenn., 534 F.3d 531, 538-39 (6th
Cir. 2008). A court makes two inquiries when deciding whether a government
official is entitled to qualified immunity: “ ‘First, viewing the facts in the light
most favorable to the plaintiff, has the plaintiff shown that a constitutional
violation has occurred? Second, was the right clearly established at the time of the
32

violation?’ ” Miller v. Sanilac Cty., 606 F.3d 240, 247 (6th Cir. 2010) (quoting
Phillips, 534 F.3d at 538-39 (6th Cir. 2008)). “These prongs need not be
considered sequentially.” Id. If the court concludes that the answer is “no” to one
of the questions, it need not address the second question. See Jones v. Byrnes, 585
F.3d 971, 975 (6th Cir. 2009).
“A right is ‘clearly established’ if ‘the contours of the right are sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.’ ” Baynes v. Cleland, 799 F.3d 600, 610 (6th Cir. 2015) (brackets omitted)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The relevant inquiry
is “whether it would be clear to a reasonable officer that his conduct was unlawful
in the situation he confronted.” Saucier v. Katz, 533 U.S. 194 (2001). Stated
differently, “the salient question … is whether the state of the law [when the
alleged violation occurred] gave [the officials] fair warning that their alleged
treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730,
741 (2002). This is an objective inquiry. Baynes, 799 F.3d at 610-11 (citations
omitted).
While Defendants assert that they are entitled to qualified immunity, they
seem to be asserting the defense only with respect to Plaintiffs’ wrongful arrest and
imprisonment claims as these are the only claims for which they explain why
qualified immunity applies. (See Defs.’ Br. in Supp. of Mot. at 18-19, ECF No.
33

39-1 at Pg ID 642-43.) Specifically, Defendants identify the circumstances they
believe render their arrest of Plaintiffs reasonable. Plaintiffs’ wrongful arrest and
imprisonment claims are subject to dismissal for failure to establish a constitutional
violation, however. To the extent Defendants are asserting qualified immunity or
immunity under Michigan Compiled Laws § 691.1407(3) with respect to Mr.
Richards’ surviving § 1983 and state law malicious prosecution claims, the Court
believes there are issues of fact precluding a determination as to whether Officers
Gadwell or Reizin are entitled to immunity.9
IV.

Conclusion
To summarize, the Court concludes that the officers had probable cause to

arrest Mr. Richards for remaining within Grand Circus Park after 10:00 p.m.,
precluding his wrongful arrest and imprisonment claims (Counts V and XI).
Additionally, the ordinance constitutes a time, place, and manner restriction on
Plaintiffs’ free speech rights that precludes Mr. Richard’s First Amendment
Retaliation claim and Plaintiffs’ First Amendment claim (Counts I and II).
The evidence does not show that any named defendant deleted a video from
Mr. Richards’ cellular phone. Therefore, the Court is granting summary judgment
Defendants assert in a general manner that the facts fail to support a finding of
malice and therefore Michigan’s governmental immunity statute shields them from
liability. For the reasons discussed in the preceding section, however, the Court
finds genuine issues of material fact precluding the conclusion that Officers
Gadwell and Reizin lacked malice.

9

34

to Defendants with respect to Count III of the Amended Complaint, but only as it
pertains to Mr. Richards’ rights. Defendants do not seek summary judgment as to
Mr. Malinowski’s Fifth Amendment claim, to the extent it is asserted against
Officer Gadwell based on the alleged damage to Mr. Malinowski’s cellular phone.
Defendants also do not seek summary judgment as to Plaintiffs’ excessive
force claims (Counts IV and IX), to the extent they are asserted against Officer
Gadwell. There is no evidence that any other defendant used excessive against
Plaintiffs.
Issues of fact preclude the Court from granting summary judgment to
Officers Gadwell and Reizin on Mr. Richards’ malicious prosecution claims
(Counts VI and XII).
Plaintiffs are abandoning their civil conspiracy and intentional infliction of
emotional distress claims (Counts VII and XIII) and agreeing to dismiss Officer
Petroff. Because Plaintiffs fail to allege facts to establish Assistant Police Chief
Dolunt’s or Sargent Brannock’s personal involvement in the alleged violations of
federal and state law, the Court also concludes that they, too, are entitled to
summary judgment and these defendants are being dismissed as defendants.
Accordingly,
IT IS ORDERED that Defendants’ motion for partial summary judgment is
GRANTED IN PART AND DENIED IN PART;
35

IT IS FURTHER ORDERED that Counts I, II, V, VII, XI, and XIII of
Plaintiffs’ Amended Complaint are DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that Defendants Assistant Police Chief Steve
Dolunt, Sargent Edward Brannock, and Police Officer Petroff are DISMISSED
WITH PREJUDICE as parties to this lawsuit.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 11, 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, May 11, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

36