James v. City of Detroit et al
Filing
71
OPINION and ORDER Granting Defendants' 58 Motion for Summary Judgment, and 68 Supplemental Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FANESTER JAMES,
Plaintiff,
Civil Case No. 17-10506
Honorable Linda V. Parker
v.
CITY OF DETROIT, a municipal corporation,
SAMUEL PIONESSA, REGINALD BEASLEY,
NICO HURD, ALANNA MITCHELL,
JUAN DAVIS, JOHNNY FOX,
SAMUEL GALLOWAY, JASON CLARK,
AND LAMAR WILLIAMS,
in their individual and official capacities,
Defendants.
_____________________________________/
OPINION & ORDER GRANTING DEFENDANTS’ MOTION &
SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (ECF NOS. 58
& 68)
Police officers rammed Plaintiff Fanester James’s front door into her face
during a narcotics raid. Plaintiff filed this lawsuit against the City of Detroit and
City of Detroit Police Officers Samuel Pionessa, Reginald Beasley, Nico Hurd,
Alanna Mitchell, Juan Davis, Johnny Fox, Samuel Galloway, Jason Clark, and
Lamar Williams, alleging excessive force, unlawful search and seizure, as well as
various state law claims. Presently before the Court are Defendants’ motion and
supplemental motion for summary judgment. (ECF Nos. 58 & 68.) The motions
have been fully briefed. (ECF Nos. 58, 61, 63, 68, 69.) Finding the facts and legal
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arguments sufficiently presented in the parties’ briefs, the Court dispensed with
oral argument pursuant to Local Rule 7.1(f). For the reasons that follow, the Court
grants Defendants’ motions.
BACKGROUND
On September 5, 2016, Defendant Beasley observed a controlled narcotics
transaction at 7183 Mackenzie—Plaintiff’s home address. (ECF No. 58-4 at Pg.
ID 907.) The next day, Defendant Beasley obtained a search warrant for Plaintiff’s
home and its curtilage, (id.), and Defendants executed a narcotics raid, (ECF No.
58-13 at Pg. ID 1129.)
Outside of Plaintiff’s home, Defendants exited the van upon arriving at the
location, and shouted a combination of “Detroit,” “police,” and “warrant” while
running to Plaintiff’s front porch. (Id. at Pg. ID 1115.) After Defendants arrived at
the front porch, Defendant Pionessa ordered Defendant Hurd to ram open the front
door. (Id. at Pg. ID 1126; ECF No. 58-12 at Pg. ID 1090.) Defendant Hurd
complied. (ECF No. 58-6 at Pg. ID 926.)
Inside of Plaintiff’s home, Plaintiff’s dog became alert at some point during
Defendants’ approach. (ECF No. 58-7 at Pg. ID 960.) Plaintiff also heard “a
noise,” though she asserts she did not hear Defendants’ announce “Detroit,”
“police,” or “warrant.” (Id.; ECF No. 61 at Pg. ID 1342.) Plaintiff stated that she
moved towards the front door and, after placing her hand on the door knob, made
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“direct eye contact” with Defendant Pionessa through the front door window.
(ECF No. 58-10 at Pg. ID 1004, 1006; ECF No. 58-7 at Pg. ID 961.) Then, the
door forced open, striking Plaintiff in the face and knocking her into a wall. (ECF
No. 58-10 at Pg. ID 1007.)
Plaintiff testified during her deposition that after Defendants entered her
home, Defendant Pionessa first yelled, “I’m going to kill her,” then yelled, “[g]et
your dog out or I’m going to kill her.” (ECF No. 58-7 at Pg. ID 963 (internal
quotation marks omitted).) As Defendants searched the home, Plaintiff sat
unhandcuffed in a living room chair and held her dog. (Id. at Pg. ID 963, 965.)
Plaintiff testified that, at some point, Defendant Pionessa took her into a separate
room and said: “I just want to make sure we’re on the same page. . . . You fell and
hit your head before we got here, right? I just don’t want this to go any further . . .
You don’t need an ambulance. You can take care of that little cut, can’t you?” (Id.
at Pg. ID 963 (internal quotation marks omitted).) Defendants departed and, later
in the day, Plaintiff called 911 and received stiches on her eye at Henry Ford
Hospital. (Id. at Pg. ID 959, 968, 972.) Defendant Pionessa denies having the
aforementioned conversation, as well as making eye contact with Plaintiff. (ECF
No. 58-13 at Pg. ID 1126-27.)
On February 16, 2017, Plaintiff filed this suit alleging (i) excessive force;
(ii) unlawful search and seizure; (iii) municipal liability; (iv) intentional infliction
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of emotional distress; (v) gross negligence, willful and wanton misconduct, and
assault and battery; and (vi) false imprisonment.1 (ECF No. 1.) Defendants were
served with Plaintiff’s complaint and a summons on March 28, 2017. (ECF Nos.
5, 6, 7, 8, 9, 10, 11, 12, 13.)
Shortly thereafter, on April 6, 2017, Officer Alexander Collrin—who is not
named in this suit—cited Plaintiff for driving without a valid license, driving an
unregistered vehicle, and possessing no insurance. (ECF No. 61-12.)
Approximately one year later, on March 26, 2018, Inspector Billy Jones—who also
is not named in this suit—issued a “blight violation warning” for issues related to
Plaintiff’s lawn care and placement of trash containers. (ECF No. 61-14.)
On August 20, 2019, Plaintiff filed an amended complaint, which included a
claim for First Amendment retaliation against all Defendants. (ECF No. 67.)
LEGAL 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
In her response to Defendants’ motion, Plaintiff waived the false imprisonment
claim under Count VI. (ECF No. 61 at Pg. ID 1376.)
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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 Elec. 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 reasonable jury could 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.
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APPLICABLE LAW & ANALYSIS
Count I: Excessive Force
A claim of excessive force requires that a plaintiff demonstrate that the force
used in effecting the seizure was “objectively unreasonable.” See Graham v.
Connor, 490 U.S. 386, 397 (1989). “Whether a constitutional violation based on
excessive force occurred depends on the facts and circumstances of each case
viewed from the perspective of a reasonable officer on the scene and not with
20/20 hindsight.” Bozung v. Rawson, 439 F. App’x 513, 519 (6th Cir. 2011)
(internal quotation marks and citations omitted). “The calculus of reasonableness
must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 396-97. Here, Plaintiff argues that excessive force was used
when Defendant Pionessa ordered Defendant Hurd to ram the door open after
Plaintiff made eye contact with Defendant Pionessa. (ECF No. 61 at Pg. ID 1360.)
But even accepting Plaintiff’s version of events as true, Plaintiff’s claim fails.
This is because Plaintiff would have the factfinder believe that the events
happened in the following order: (i) eye contact; (ii) Defendant Pionessa’s order to
ram; then (iii) forced entry. But, in her deposition testimony, Plaintiff stated only
that—from eye contact to forced entry—one second passed. (ECF No. 58-7 at Pg.
6
ID 962-63.) For the purposes of this analysis, the Court accepts this as fact. The
next question is: when did Defendant Pionessa give the order to ram? Plaintiff
points to no answer and provides no evidence upon which a jury can establish this
fact. To be clear, if the order was given before the alleged eye contact, the force
used cannot be said to be “objectively unreasonable.” If the order was given after
the alleged eye contact, Plaintiff’s allegation perhaps has legs.
Because Plaintiff provides no evidence regarding when Defendant Pionessa
even gave the order (e.g., Plaintiff hearing Defendant Pionessa yell the order after
the alleged eye contact), a more apt recitation of Plaintiff’s argument is as follows:
because the alleged eye contact was made and then the door forced open, the order
must have been given sometime after the alleged eye contact. This argument is
faulty. Without affirmative evidence of when the order was given, the probability
that the order was given before the alleged eye contact is equal to the probability
that the order was given after the alleged eye contact.
In other words, to make out her argument of (i) eye contact; (ii) Defendant
Pionessa’s order to ram; then (iii) forced entry, Plaintiff provides only a mere basis
for speculation or conjecture—specifically, eye contact was made then the door
forced open—and asks that the factfinder guess to fill in the important detail of
when the order was given. Such a request is improper. Lewis v. Philip Morris
Inc., 355 F.3d 515, 533 (6th Cir. 2004) (“[T]o survive a motion for summary
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judgment, the non-moving party must . . . show sufficient probative evidence [that]
would permit a finding in [his] favor on more than mere speculation, conjecture, or
fantasy.” (citations omitted)); see also St. v. J.C. Bradford & Co., 886 F.2d 1472,
1479 (6th Cir. 1989) (explaining that respondents must “present affirmative
evidence in order to defeat a properly supported motion for summary judgment”
(citations omitted)); Pers. v. Wal-Mart Stores, Inc., 921 F.2d 276 (6th Cir. 1990)
(unpublished) (affirming summary judgment where jury could only speculate about
facts for which evidence was lacking).
Because Plaintiff fails to present evidence regarding when Defendant
Pionessa gave the order, there is insufficient evidence with which a jury can
reasonably conclude that Defendant Pionessa gave the order to ram after making
the alleged eye contact with Plaintiff. Thus, no genuine issues of material fact
remain and Defendants are entitled to summary judgment as to Count I.
Count II: Unlawful Search & Seizure
Plaintiff proffers four arguments to support her claim of unlawful search and
seizure: the first disputes the search warrant’s probable cause and the remaining
arguments relate to an allegedly improper knock and announce. The Court finds
each of these arguments unpersuasive.
First, Plaintiff argues that the warrant was invalid because Defendant
Beasley provided false information to obtain the warrant. Plaintiff states that
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Defendant Beasley, in his September 6, 2016 sworn affidavit, said that the
narcotics seller entered Plaintiff’s home “through the front door” but, during his
October 10, 2018 deposition, said that he only saw the seller enter Plaintiff’s
enclosed porch. (ECF No. 61 at Pg. ID 1361.) Plaintiff further argues that the
enclosed porch and Plaintiff’s home are separate and distinct. (Id. at Pg. ID 136162.) Therefore, “nothing connect[ed] Plaintiff’s home . . . to [the] sale” and the
search warrant lacked probable cause. (Id. at Pg. ID 1361.) The Court disagrees.
As an initial matter, the search warrant included the home’s curtilage, (ECF
No. 58-4 at Pg. ID 906), and a home’s curtilage includes the front porch. The
Supreme Court has explained that “the area immediately surrounding and
associated with the home—what [their] cases call the curtilage—[i]s part of the
home itself.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (internal quotation marks
and citation omitted). In Jardines, the Supreme Court observed that “[t]he front
porch is the classic exemplar” of curtilage. Id. at 7. (citation omitted); see also
Brennan v. Dawson, 752 F. App’x 276, 281 (6th Cir. 2018) (“[The defendant]
entered [the plaintiff’s] curtilage by setting foot on the front porch . . . . The front
porch is merely an extension of the home itself.”)
As it concerns Defendant Beasley’s alleged misrepresentation in the
affidavit supporting the search warrant, the Sixth Circuit has explained that courts
should consider whether an alleged misrepresentation is material to the issuance of
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the warrant. See Sinick v. Cty. of Summit, 76 F. App’x 675, 682-83 (6th Cir. 2003).
In Sinick, the Sixth Circuit found that even if the affidavit had been changed to
correct “the laundry list of alleged misrepresentations,” “probable cause still
existed for the issuance of the warrant.” Id. at 683. Here, because the curtilage of
Plaintiff’s home includes the front porch, Defendant Beasley’s alleged
misrepresentation is immaterial and probable cause still existed.
Moreover, concerning the other individual Defendants, the Sixth Circuit
“assess[es] probable cause from the perspective of a reasonable officer at the time
he acted.” Beckham v. City of Euclid, 689 F. App’x 409, 416 (6th Cir. 2017).
“Police officers are entitled to rely on a judicially secured warrant for immunity
from a § 1983 action . . . unless the warrant is so lacking in indicia of probable
cause, that official belief in the existence of probable cause is unreasonable.”
Yancey v. Carroll Cty., 876 F.2d 1238, 1243 (6th Cir. 1989) (citation omitted).
Here, the other individual Defendants relied on the search warrant obtained by
Defendant Beasley. And even if Defendant Beasley made the alleged
misrepresentation, “that alleged error was not apparent from the face[] of the
warrant[], so for . . . § 1983 liability, [the other individual Defendants] were
entitled to rely on them.” Beckham, 689 F. App’x at 417 (White, H., concurring).
Second, Plaintiff argues that she did not hear Defendants announce their
presence. (ECF No. 69 at Pg. ID 2009.) Indeed, “[t]he knock and announce rule
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forms a part of the reasonableness inquiry” required when analyzing claims of
unlawful search and seizure. United States v. Pinson, 321 F.3d 558, 566 (6th Cir.
2003) (internal quotation marks and citation omitted). “Law enforcement officers
must knock and announce their presence and authority before entering a residence
to execute a warrant.” Id. at 565 (citations omitted).
But Plaintiff does not address Defendants’ argument that “an occupant’s
inability to hear a knock does not create a fact question as to whether one
occurred.” (ECF No. 68-2 at Pg. ID 1981-82.) And Defendants are correct: a
plaintiff’s testimony that she “did not hear the police knock and announce does not
give rise to a reasonable inference that the police failed to do so and thus is
insufficient to defeat summary judgment.” Pierce v. Burkart, 2005 WL 1862416,
at *5 (E.D. Mich. Aug. 4, 2005).
Third, Plaintiff contends that Defendants did not knock on her door. (ECF
No. 69 at Pg. ID 2010-11.) But this does not matter. In United States v. Hardin,
where the plaintiff complained that the officers did not knock before entering the
residence, the Sixth Circuit explained that, “[d]espite its title,” “the knock-andannounce rule does not require a knock; rather, an announcement of the officer’s
identity and purpose suffices.” 106 F. App’x 442, 445 (6th Cir. 2004) (citing
United States v. Spikes, 158 F.3d 913, 925 (6th Cir. 1998)). Here, as in Hardin, the
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Defendants’ announcement—“Detroit,” “police,” and “warrant”—provided
adequate notice to Plaintiff. See id. at 446.
Finally, Plaintiff contends that Defendants did not wait a reasonable
amount of time between announcing their presence and forcing entry. See Pinson,
321 F.3d at 565 (observing that “police must wait a reasonable period of time
before physically forcing their way into a residence” (internal quotation marks and
citations omitted)). Even if a factual dispute exists as to the precise waiting period
and even if a reasonable jury could find that the waiting period was unreasonable,
the Court concludes that Defendants are entitled to qualified immunity.
“Qualified immunity shields an officer from suit when she makes a decision
that, even if constitutionally deficient, reasonably misapprehends the law
governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194,
198 (2004) (citation omitted). “If the law at that time did not clearly establish that
the officer’s conduct would violate the Constitution, the officer should not be
subject to liability. . . .” Id. “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Id. (citation
omitted); Baynes v. Cleland, 799 F.3d 600, 613 (6th Cir. 2015) (observing that the
Court must “determine whether the contours of the right at issue have been made
sufficiently clear to give a reasonable official fair warning”). Notably, the plaintiff
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bears the burden of convincing the Court that the law is clearly established.
Baynes, 799 F.3d at 610 (citation omitted). For two reasons, Plaintiff fails to hit
the mark.
First, and most importantly, Plaintiff does not cite a single decision
analyzing how many seconds must pass before a waiting period becomes
reasonable. Thus, she does not even attempt to carry her burden of showing that
the law is clearly established. Ruffin v. Cuyahoga Cty., 708 F. App’x 276, 278 (6th
Cir. 2018) (affirming summary judgment where plaintiff “does not even attempt”
to “cite[] a single case”).
Second, the Sixth Circuit has refused to adopt a “bright-line rule for every
case” in which an officer’s waiting period is allegedly unreasonable. Spikes, 158
F.3d at 926. After examining cases similar to the situation Defendants confronted,
it is clear to the Court that the application of the “flexible requirement of
reasonableness” against these “fact-sensitive” situations does not make this area of
the law so clearly established that it is “beyond debate.” Id. (citation omitted);
Morgan v. Fairfield Cty., 903 F.3d 553, 564 (6th Cir. 2018) (citation omitted); see
also United States v. Johnson, 215 F.3d 1328 (unpublished) (6th Cir. 2000) (5
seconds sufficient); Pinson, 321 F.3d at 569 (5 to 10 seconds sufficient); United
States v. Banks, 540 U.S. 31, 38 n.5 (2003) (citing United States v. Markling, 7
F.3d 1309, 1318-19 (7th Cir. 1993) (7 seconds sufficient)); Spikes, 158 F.3d at 927
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(15 to 30 seconds sufficient); United States v. Pennington, 328 F.3d 215, 222 (6th
Cir. 2003) (citing United States v. Jones, 208 F.3d 603, 610 (7th Cir. 2000) (5 to
13 seconds sufficient)) (8 to 10 seconds sufficient); United States v. Gatewood, 60
F.3d 248 (6th Cir. 1995) (10 seconds sufficient); but see Spikes, 158 F.3d at 927
(citing Griffin v. United States, 618 A.2d 114, 121 (D.C. App. 1992) (30 seconds
unreasonable)). Accordingly, Defendants are entitled to qualified immunity as it
concerns this theory of Count II.
Count III: Municipal Liability
Plaintiff asserts a Monell claim against the City of Detroit, alleging a failure
to hire, train, supervise, and discipline its police officers, in addition to a claim that
the City’s inadequate policies resulted in the unconstitutional actions alleged in
Counts I and II. (ECF No. 61 at Pg. ID 1365-72.)
Local governments may not be sued for § 1983 constitutional violations
inflicted solely by its employees or agents under a respondeat superior theory of
liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Instead,
when a § 1983 claim is made against a municipality, a court must analyze two
distinct issues: “(1) whether the plaintiff’s harm was caused by a constitutional
violation; and (2) if so, whether the city is responsible for that violation” via a
municipal policy or custom. Collins v. City of Harker Heights, 503 U.S. 115, 120
(1992). Here, however, the Court has determined that either no constitutional
14
violation occurred or the individual Defendants are entitled to qualified immunity.
Regarding the latter, as the Sixth Circuit has observed, “[t]he absence of a clearly
established right spells the end of [a] Monell claim.” Arrington-Bey v. City of
Bedford Heights, 858 F.3d 988, 995 (6th Cir. 2017), cert. denied, 138 S. Ct. 738
(2018). Therefore, the Court grants summary judgment as to Count III.
Count IV: Intentional Infliction of Emotional Distress
To establish a claim of intentional infliction of emotional distress (“IIED”),
a Plaintiff must show “(1) extreme and outrageous conduct, (2) intent or
recklessness, (3) causation, and (4) severe emotional distress.” Haverbush v.
Powelson, 551 N.W.2d 206, 209 (Mich. Ct. App. 1996) (citations omitted). The
emotional distress must be “so severe that no reasonable man could be expected to
endure it.” Id. (quoting Restatement (Second) of Torts § 46 cmt. j (Am. Law. Inst.
1965)). Conduct is considered “extreme and outrageous” only if it is “so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency and to be regarded as atrocious and utterly intolerable in a
civilized community.” Id. (citation omitted).
To support her IIED claim, Plaintiff argues that Defendant Pionessa
committed two acts. First, Plaintiff contends that Defendant Pionessa “order[ed]
the door battered down despite having seen Plaintiff behind the door.” (ECF No.
61 at Pg. ID 1374.) This argument fails because, though “Plaintiff discusses her
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physical injuries in her response[,] [] she does not discuss any severe emotional
distress she purportedly suffered” when the door slammed in her face. Ostaszewski
v. Zelenocks, 2016 WL 11258760, at *12 (E.D. Mich. Dec. 8, 2016), report and
recommendation adopted, 2017 WL 405937 (E.D. Mich. Jan. 31, 2017); see also
Garretson v. City of Madison Heights, 407 F.3d 789, 799 (6th Cir. 2005) (stating
that IIED claims “require[] actual ‘emotional distress’” under Michigan law).
Moreover, Plaintiff makes no argument regarding whether Defendant Pionessa’s
action meets the “very high burden [of] extreme or outrageous conduct.” Schliewe
v. Toro, 138 F. App’x 715, 723 (6th Cir. 2005) (citation omitted).
In addition, under Michigan law, government actors are immune from tort
liability if, among other things, “the acts were undertaken in good faith, or were
not undertaken with malice.” Kreipke v. Wayne State Univ., 807 F.3d 768, 783-84
(6th Cir. 2015) (citing Odom v. Wayne Cnty., 760 N.W.2d 217, 228 (Mich. 2008)).
“The Michigan Supreme Court define[s] a lack of good faith . . . as malicious
intent, capricious action or corrupt conduct or willful and corrupt misconduct.” Id.
at 784 (internal quotation marks and citations omitted). For the reasons discussed
as to Count I, Plaintiff fails to show that Defendant Pionessa acted with malicious
intent when he gave the order to ram the door open. Thus, he is entitled to
qualified immunity as it concerns his order to force entry.
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Second, Plaintiff argues that Defendant Pionessa intentionally inflicted
emotional distress when he “[took] Plaintiff into the room alone and threaten[ed]
her.” (ECF No. 61 at Pg. ID 1374.) This argument also fails because “[l]iability
will not be found for mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Garretson, 407 F.3d at 799 (emphasis added)
(internal quotation marks and citations omitted). As Plaintiff concedes, Defendant
Pionessa’s statements—assuming he made them—amount to mere threats.
Because Plaintiff does not dispute Defendants’ contention that immunity
under the Government Tort Liability Act is warranted as to the City of Detroit, (see
ECF No. 58-2 at Pg. ID 896; ECF No. 61 at Pg. ID 1372-74), and Plaintiff argues
that only Defendant Pionessa committed acts that inflicted emotional distress, the
Court grants summary judgment as to Count IV against all Defendants.
Count V: Gross Negligence, Willful and Wanton Misconduct, & Assault and
Battery
Plaintiff argues that “striking [her] with the door constitutes a battery.”
(ECF No. 61 at Pg. ID 1375.) But, as discussed concerning Count IV, Plaintiff has
not shown that any Defendant acted with malicious intent during the execution of
the narcotics raid. Kreipke, 807 F.3d at 783-84 (citing Odom, 760 N.W.2d at 228)
(explaining that immunity applies if, among other things, “the acts were
undertaken in good faith, or were not undertaken with malice”). Plaintiff further
argues that yelling, “I’m going to kill her,” constitutes an assault because, “at the
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time[,] Plaintiff reasonably believed the [Defendant Pionessa] meant to kill
Plaintiff.” (ECF No. 61 at Pg. ID 1376.) But Plaintiff concedes in her response
brief that the first statement “appears to be in reference to Plaintiff’s dog” because
Defendant Pionessa immediately follows with, “[g]et your dog out or I’m going to
kill her.” (Id.; ECF No. 58-7 at Pg. ID 963.) Plaintiff does not argue and there is
no evidence that Defendant Pionessa acted with malice when he allegedly yelled
the first statement. Accordingly, Defendant Pionessa is entitled to immunity
regarding Plaintiff’s assault and battery claims.
Regarding Plaintiff’s gross negligence claim, the Sixth Circuit has observed
that “Michigan’s immunity statute does not [] provide an independent cause of
action for ‘gross negligence,’ and plaintiffs may not bypass the immunity statute
by ‘transforming intentional excessive force or battery claims into negligence
claims.’” Brent v. Wayne Cty. Dep’t of Human Servs., 901 F.3d 656, 701 (6th Cir.
2018), cert. denied, 139 S. Ct. 1551 (2019). Here, Plaintiff argues that “Defendant
Pionessa recklessly disregarded Plaintiff’s physical rights when he ordered the
door battered after making eye contact with her.” (ECF No. 61 at Pg. ID 1375.)
Because Plaintiff attempts to reframe her intentional excessive force claim as a
claim for gross negligence, summary judgment is granted as to this claim.
Finally, Plaintiff abandoned her willful and wanton misconduct claim, as she
does not mention or discuss it in her response to Defendants’ summary judgment
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motion. See Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013)
(“This Court’s jurisprudence on abandonment of claims is clear: a plaintiff is
deemed to have abandoned a claim when a plaintiff fails to address it in response
to a motion for summary judgment.”)).
Accordingly, Defendants are entitled to summary judgment as to Count V.
Count VII: First Amendment Retaliation
As an initial matter, Plaintiff does not dispute Defendants’ contention that
any claim of First Amendment retaliation fails as to the individual Defendants.
(See ECF No. 68-2 at Pg. ID 1973-74; ECF No. 69 at Pg. ID 2003 (“Defendants’
next erroneous claim is that Plaintiff has failed to show ‘personal involvement’ by
any of the Defendants. However, the City of Detroit can be a defendant for
purposes of Plaintiff’s retaliation claim.”).) Thus, the Court grants summary
judgment as to Count VII against all individual Defendants. Only the City of
Detroit remains.
As discussed above, when a § 1983 claim is made against a municipality, the
municipality “cannot be held responsible for a constitutional deprivation unless
there is a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” Littlejohn v. McCafferty, 83 F. App’x 705, 707 (6th
Cir. 2003). “The custom or policy must be the ‘moving force’ behind the
constitutional violation, so the plaintiff needs to ‘identify the policy, connect the
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policy to the city itself and show that the particular injury was incurred because of
the execution of that policy.’” Amerson v. Waterford Twp., 562 F. App’x 484, 490
(6th Cir. 2014) (internal quotation marks and citations omitted).
Plaintiff argues that the citations and “blight violation warning” were issued
by Officer Collrin and Inspector Jones, respectively, to retaliate against Plaintiff
for filing this suit. The Court need not analyze the first prong of the Monell
framework because Plaintiff does not satisfy the second prong.
Indeed, Plaintiff identifies no specific municipal policy or custom. Rather,
nearly all of Plaintiff’s Monell arguments relate to the constitutional deprivations
alleged in Counts I and II. (See ECF No. 61 at Pg. ID 1365-72.) To support her
argument for municipal liability as to Count VII, Plaintiff offers a single sentence:
“the City of Detroit utilize[s] intricate operational procedures that [] limit specific
individuals’ exposure by having safeguards in place.” (ECF No. 69 at Pg. ID
2003.) This sentence does not amount to the identification of a specific policy or
custom. Nor does it show how the unidentified policy led, caused, or directed
Officer Collrin and Inspector Jones to play a role in the alleged retaliation against
Plaintiff. As such, the Court grants summary judgment as to Count VII against the
City of Detroit.
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CONCLUSION
For the foregoing reasons, Defendants are entitled to summary judgment on
all counts.
Accordingly,
IT IS ORDERED that Defendants’ motion and supplemental motion for
summary judgment (ECF Nos. 58 & 68) are GRANTED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 20, 2019
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