Gallup v. Vitale et al
OPINION; signed by Magistrate Judge Sally J. Berens (jln)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ROBERT MURRAY GALLUP, III,
Hon. Sally J. Berens
Case No. 1:22-cv-1076
UNKNOWN VITALE, et al.,
Plaintiff Robert Gallup, III filed a pro se complaint on November 17, 2022, pursuant to 42
U.S.C. § 1983 against numerous Defendants, alleging various claims arising out of separate
incidents. Gallup was a pretrial detainee at the Kent County Correctional Facility at the time he
filed this action but is now confined with the Michigan Department of Corrections following his
guilty pleas to various charges brought in several cases. (ECF No. 27-7.) After reviewing the
complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c), the Court
allowed Gallup’s Fourth Amendment excessive force claim against Defendant Elliot and his
Fourth Amendment unlawful entry claim against Defendant Bailey to proceed. (ECF Nos. 7 and
Presently before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 26.)
Gallup has failed to respond to the motion within the time permitted by Western District of
Michigan Local Civil Rule 7.2(c). Generally, where the non-moving party fails to respond to a
motion for summary judgment, “the district court must, at a minimum, examine the moving party’s
motion for summary judgment to ensure that it has discharged its initial burden.” Miller v. Shore
Fin. Servs., Inc., 141 F. App’x 417, 419 (6th Cir. 2005) (citing Stough v. Mayville Cmty. Sch., 138
F.3d 612, 614 (6th Cir. 1998)). Having reviewed Defendants’ motion and evidence in accordance
with the foregoing standard, the Court will GRANT the motion.1
The Court summarized Gallup’s complaint allegations in its February 22, 2023 Opinion as
Plaintiff alleges that, on or about September 9, 2022, Plaintiff was at home on his
back porch when he heard his roommate shout that someone was at the house. (Id.,
PageID.6.) Plaintiff then heard “some kind of havoc in the house,” and
“instinctively ran.” (Id.) When Plaintiff turned around, Plaintiff saw a man he did
not know shooting at him. (Id.) Plaintiff continued to run and was shot in the back
of his right arm/elbow. (Id., PageID.6–7.) Plaintiff later learned that the man who
had shot him was Defendant Elliot. (Id., PageID.7.) Prior to shooting Plaintiff,
Plaintiff alleges that Defendant Elliot did not announce himself as a police officer.
(Id.) Defendant Elliot was also not wearing a uniform or any other apparel that
would have indicated that he was a police officer. (Id.) Plaintiff also later learned
that Defendant Bailey had been the individual “ransacking and invading” Plaintiff’s
home. (Id.) Defendant Bailey did not announce himself or otherwise indicate that
he was a police officer. (Id.)
(ECF No. 7 at PageID.32.)
Defendants’ summary judgment evidence, which includes video footage, tells a much
different story. On September 9, 2022, Defendants Detective Shawn Bailey and Detective Bertrand
Elliott of the Walker Police Department went to 988 Cedar Run Court—a townhome located in
Walker, Michigan—to speak with two suspects, Gallup and Nickolas Schalk, in connection with
a stolen motorcycle complaint. Based on an inquiry through the Law Enforcement Information
Pursuant to 28 U.S.C. § 636(c), Gallup and Defendants have consented to the undersigned
conducting all proceedings in this case, including entry of a final judgment and all post-judgment
matters. (ECF Nos. 23 and 24.)
Network (LEIN), Defendants knew that Schalk had active outstanding warrants and believed that
he would likely flee upon contact. When they arrived at the townhome, Defendant Elliott went
behind the building to watch the back door, while Defendant Bailey went to the front door. (ECF
No. 27-1 at PageID.108; ECF No. 27-2 at PageID.111.) Bailey knocked on the front door and
Kathryn Pojeski, the resident, answered and stepped outside to speak with him. (Id.; ECF No. 279 at PageID.141.) Defendant Bailey’s bodycam video, submitted as Exhibit No. 3 (ECF No. 273), shows Bailey asking Pojeski about Schalk’s and Gallup’s whereabouts. At first, Pojeski was
evasive and denied that they were in the townhome. She also declined Bailey’s request to enter the
apartment to search for them. Bailey asked Pojeski whether there were any weapons inside the
townhome, and Pojeski confirmed that there were none. After several minutes, Pojeski changed
her mind and went inside to retrieve Schalk and Gallup. Video footage with audio from Pojeski’s
internal video system, submitted as Exhibit 4 (ECF No. 27-4), shows Gallup come down the stairs
and speak with Pojeski, pleading with her not to allow the police inside as she reaches for the door.
While waiting outside, Bailey heard arguing inside and warned Pojeski that her door would be
“knocked down” if she did not open it. (ECF No. 27-3.) At that point, Gallup ran to the rear exit
and onto the back porch. (ECF No. 27-9 at PageID.142.) As Pojeski opened the door, she told
Bailey that Gallup was heading out the back. Bailey asked Pojeski if he could pursue Gallup
through the apartment, and she stood back from the doorway to allow him inside. (ECF No. 27-2
at PageID.112; ECF No. 27-9 at PageID.142.)
Defendant Elliott saw Gallup go onto the deck and jump over the rear deck railing while
attempting to flee. He announced himself as a police officer and attempted to stop Gallup in order
to detain him as he got up from his fall off the elevated deck, but Gallup quickly got back on his
feet and began to run. (ECF No. 27-1 at PageID.108–09.) As Defendant Elliott pursued Gallup,
Gallup turned and yelled, “I’ll shoot you,” and pointed a black handgun toward Elliott from a
distance of about 10-15 feet. Because Elliott determined that Gallup posed a clear risk of death or
great bodily harm to him, he drew his service weapon and discharged it three times while Gallup
was pointing his gun at Elliott. (Id. at PageID.109.) One of the bullets hit Gallup in his right arm
or elbow. (ECF No. 1 at PageID.7.) Elliott continued to pursue Gallup, but Gallup positioned
himself behind a vehicle and pointed his weapon at Elliott over its trunk. Given the distance and
residential nature of the area, Elliott decided not to engage Gallup, who eventually fled the scene
in his vehicle. (ECF No. 27-1 at PageID.109.) Video footage from Defendant Elliott’s bodycam,
submitted as Exhibit 5 (ECF no. 27-5), confirms Elliott’s version of events.
Gallup was eventually apprehended and taken into custody after a high-speed pursuit. He
ultimately pled guilty to several charges, including felonious assault for pointing and attempting
to fire his gun at Defendant Elliott. (ECF No. 27-7 at PageID.132.)
II. Motion Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact, and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Material facts
are facts that are defined by substantive law and are necessary to apply the law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could return
judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but
may grant summary judgment when “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th
Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
As noted above, Plaintiff claims that Defendant Elliott’s use of deadly force and that
Defendant Bailey’s entry into the townhome without a warrant violated the Fourth Amendment.
Heck v. Humphrey
Defendant Elliott contends that Gallup’s excessive force claim is barred by the doctrine of
Heck v. Humphrey, 512 U.S. 477 (1994), based on his guilty plea to felonious assault. The Heck
doctrine provides that “in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
[overturned].” See Edwards v. Balisok, 520 U.S. 641, 646 (1997) (emphasis in original). In Heck,
the Court held that a state prisoner cannot make a cognizable claim under Section 1983 for an
allegedly unconstitutional conviction or for “harm caused by actions whose unlawfulness would
render a conviction or sentence invalid,” unless he shows that the conviction or sentence has been
“reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Heck, 512 U.S. at 486-87 (footnote omitted).
In light of the evidence discussed below, Gallup could not prevail on his excessive force
claim even if it is not Heck-barred. Because the Heck doctrine is not jurisdictional, the Court may
bypass the Heck analysis and consider the merits of the claim. See Garshott v. St. Clair Cnty.
Sheriff’s Deputy O’Donnell, No. 13-15085, 2016 WL 892801, at *6 (E.D. Mich. Mar. 9, 2016)
(bypassing the Heck analysis and proceeding to consider the merits of the plaintiff’s excessive
force claim) (citing Polzin v. Gage, 636 F.3d 834, 837–38 (7th Cir. 2011) (stating that “[t]he Heck
doctrine is not a jurisdictional bar” and holding that “district courts may bypass the impediment of
the Heck doctrine and address the merits of the case”)); see also Kitchen v. Snyder, No. 18-11430,
2019 WL 3859887, at *1 (E.D. Mich. Aug. 16, 2019) (collecting cases holding that a Heck
challenge does not implicate a federal court’s subject matter jurisdiction).
Defendant Elliott contends that he is entitled to qualified immunity on Gallup’s excessive
force claim. “Under the doctrine of qualified immunity, ‘government officials performing
discretionary functions generally 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.’” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Once a defendant raises the qualified immunity
defense, the burden shifts to the plaintiff to demonstrate that the defendant officer violated a right
so clearly established “that every ‘reasonable official would have understood that what he [was]
doing violate[d] that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). The analysis entails a two-step inquiry. Martin v. City of
Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013). First, the court must “determine if the facts
alleged make out a violation of a constitutional right.” Id. (citing Pearson v. Callahan, 555 U.S.
223, 232 (2009). Second, the court asks if the right at issue was “‘clearly established’ when the
event occurred such that a reasonable officer would have known that his conduct violated it.” Id.
(citing Pearson, 555 U.S. at 232). A court may address these steps in any order. Id. (citing Pearson,
555 U.S. at 236). A government official is entitled to qualified immunity if either step of the
analysis is not satisfied. See Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir. 2016).
In this case, the Court need only address the first step of the analysis.
An excessive force claim must be analyzed under the Fourth Amendment’s standard of
objective reasonableness. Graham v. Connor, 490 U.S. 386, 395–96 (1989). This standard must
be applied in light of the reality that “police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 397. Thus,
“[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. In
determining whether an officer’s actions were reasonable, the court must examine the specific
facts of the case. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001). Factors that bear
on the issue are: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate
threat to the safety of the officers or others; and (3) whether the suspect is cooperating or is actively
resisting arrest or attempting to flee. Id. The test is “fact specific, not mechanical[.]” Wysong v.
City of Heath, 260 F. App’x 848, 854 (6th Cir. 2008). When as here, a police officer employs
deadly force, “the critical factor is whether the suspect presented an immediate danger to the
officers or others.” Hicks v. Scott, 958 F.3d 421, 435 (6th Cir. 2020) (citing Mullins v. Cyranek,
805 F.3d 760, 766 (6th Cir. 2015)). “To that end, an officer's use of deadly force is only reasonable
if she had ‘probable cause to believe that the suspect pose[d] [such] a threat.’” Id. (quoting Untalan
v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005)).
Here, the evidence is unequivocal. Defendant Elliott has demonstrated through his
declaration and the video evidence that Gallup not only possessed a gun, but pointed it at Elliott.
As noted in Boyd v. Baeppler. 215 F.3d 594 (6th Cir. 2000), the issue material to the use of deadly
force analysis is whether the suspect “pointed his weapon at the officers and thus posed an
immediate threat to them.” Id. at 599. In a situation such as this, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). The evidence supporting
Defendant Elliott’s version compels the conclusion that his use of deadly force was objectively
As noted above, because Gallup cannot demonstrate the violation of a constitutional right,
there is no need to address the second step of the qualified immunity analysis. Therefore, summary
judgment is proper on this claim.
Gallup alleges that Defendant Bailey’s warrantless entry into the townhome violated
Gallup’s Fourth Amendment rights. The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. Am. IV. “Reasonableness is the key, the existence of a warrant
often its measure. A warrantless search of a home or business is presumptively unreasonable.”
Benjamin as Tr. of Rebekah C. Benjamin Tr. v. Stemple, 915 F.3d 1066, 1069 (6th Cir. 2019)
(citing Kentucky v. King, 563 U.S. 452, 459 (2011)). However, there are several well-known
exceptions to the warrant requirement, one of which is consent. Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973). A person may freely and voluntarily waive his or her Fourth Amendment
rights by consenting to a search. See Davis v. United States, 328 U.S. 582, 593–94 (1946). Consent
must be freely and voluntarily given, and it “‘may be in the form of words, gesture, or conduct.’”
United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (quoting United States v. Griffin, 530
F.2d 739, 742 (7th Cir. 1976)).
Here, it is undisputed that Pojeski was the sole leaseholder of 988 Cedar Run Ct. (ECF No.
27-9 at PageID.141.) Although Defendant Bailey argues that Gallup was not a tenant of the
residence, he concedes that, as Pojeski’s alleged guest, Gallup had a legitimate expectation of
privacy protected by the Fourth Amendment. (ECF No. 27 at PageID.102 (citing Minnesota v.
Olson, 495 U.S. 91, 96–100 (1990)). Still, Gallup’s privacy interest would not preclude Pojeski—
the sole lessee and/or co-resident—from giving Bailey consent to enter the premises. United States
v. Matlock, 415 U.S. 164, 169–72 (1974); see also United States v. Johnson, 22 F.3d 674, 678 (6th
Cir. 1994) (noting that a third party who possesses common authority over the premises may
validly consent to a search) (citing Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)). As the
leaseholder, Pojeski clearly had common authority over the townhome. In addition, she confirms
in her affidavit that she voluntarily gave consent to Bailey to enter the townhome (ECF No. 27-9
at PageID.142), and her act of stepping aside to let Bailey enter, as depicted in the video, confirms
at least implicit consent.
Accordingly, Gallup fails to establish that Bailey violated his Fourth Amendment rights.
Because there was no constitutional violation, the Court need not address the second step of
Bailey’s qualified immunity defense.
For the reasons set forth above, the Court will grant Defendants’ Motion for Summary
Judgment (ECF No. 26) and dismiss Gallup’s complaint with prejudice.
A separate Order consistent with this Opinion will be entered.
Dated: November 14, 2023
/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
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