Opinion
Case No. 02-10134-BC.
January 25, 2005
This case is before the Court on a report and recommendation from Magistrate Judge Charles E. Binder that motions for summary judgment filed by defendants City of Saginaw and Saginaw Police Department, and supplemental motions for summary judgment filed by defendants Allen, Bearss and Mallette be granted, and a motion for summary judgment filed by defendants Howe and Dutoi be denied. The parties each filed timely objections to the recommendation and the matter is before the Court for a de novo review pursuant to 28 U.S.C. § 636(b)(1). After reviewing the file materials, including the motions, exhibits and responses, the magistrate judge's report, and the parties' objections, the Court concludes that the magistrate judge was correct in finding that the plaintiffs have not brought forth sufficient evidence to create a genuine issue of material fact on the questions of municipal and supervisory liability. The Court disagrees, however, with the conclusion that defendants Howe and Dutoi are not entitled to qualified immunity. Therefore, the Court will adopt in part and reject in part the magistrate judge's report and recommendation and grant the motion for summary judgment and supplemental motion for summary judgment as to all defendants.
I.
The plaintiffs' claim is based primarily on 42 U.S.C. § 1983: they claim their rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments were violated by members of the Saginaw city police department on April 26, 2000 when they were arrested at a dwelling they formerly occupied. Both plaintiffs were charged with criminal trespass and felonious assault. A preliminary examination was held in state court, and much of the evidence considered by the magistrate judge came from that proceeding.
The record indicates that on April 26, 2000, officers Dennis Howe and Joseph Dutoi of the Saginaw Police Department were dispatched to 1009 Congress Street, a residence owned by Jerome Schmolitz, but rented at one time by the plaintiffs, Pamela Jordan and her daughter, Melony Lamar. At the plaintiffs' preliminary examination, Schmolitz testified that he had arrived at the property that day intending to check the inside of the house. Before he entered, he went around back and found a broken window. Schmolitz had been there the previous day and had not noticed the broken window. He testified that he and his wife called the police from a cell phone to report what he believed was a breaking and entering. The prior tenants, he explained, had not occupied the house for about three or four weeks. Initially, Schmolitz was unaware that plaintiffs had vacated the residence. He testified that he contacted the plaintiffs by phone about one and a half weeks prior to the April 26 incident to discuss delinquent rent. Schmolitz said that, in response to his phone call, plaintiff Jordan told him "I've already moved out." People v. Jordan, Case No. 00-2450-FY (70th Judicial Dist. Mich., June 28, 2000), Prelim. Hrg. at 7. Upon learning that the plaintiffs had moved, Schmolitz initiated legal eviction proceedings.
Officer Dutoi arrived at the Congress Street address at about 9:20 a.m. and met with Schmolitz. While he was speaking with Schmolitz, plaintiffs Melony Lamar and Pamela Jordan drove up. The plaintiffs showed officer Dutoi a handwritten piece of paper, apparently marked with the words "true copy," requesting that the court give them an additional forty-eight hours to remove their belongings from the property. By that time, officer Howe had arrived to assist Dutoi. Howe testified that when he arrived, everyone was standing at the back door of the house. Schmolitz showed Dutoi and Howe the broken window, and the plaintiffs told Howe that they had moved to an Emily Street residence weeks ago.
Schmolitz also produced a court document signed by a judge that both officers believed to be an eviction notice. The parties do not contest that the document constituted a judgment of possession in favor of the landlord, Schmolitz, and that Schmolitz had not obtained a writ of restitution that would have been required to dispossess the tenants of the premises if they still had been living there. Dutoi testified that the court signed document reading "possession judgement" was "signed on [April] 13th for the 23rd. So I believe that three days had expired on the eviction notice, or the judgement notice." Id. at 23. Howe testified that the "way the paperwork read" led him to believe the document was an eviction notice. Id. at 46. The notice had "Jerome Schmolitz's name on it, who is the property owner, as the plaintiff. The defendant is listed as Pamela Jordan and occupants. . . . Under the defendant's section . . . it says `An order evicting you will be issued on/or after 4/23, unless you move.'" Ibid.
At some point, an argument between Schmolitz and the plaintiffs erupted. Howe testified that there was "bickering back and forth, about clothing in the house, going into the house and getting some clothing." Id. at 43.
In an effort to keep the peace, officer Howe intervened and asked Schmolitz if the plaintiffs could have a short amount of time to enter the premises and remove their belongings. He testified that the landlord agreed, and that both officers would standby while the plaintiffs removed their belongings. Although he did not specify an exact amount of time, Howe testified that "we said a short time, a reasonable amount of time"; normally standbys last around fifteen minutes. Ibid. The plaintiffs entered the home, and officer Dutoi retired to his patrol car to complete abandoned vehicle reports; officer Howe remained at the back of the house for a short while, and then, like officer Dutoi, returned to his squad car to write up various reports. Officer Dutoi testified that abandoned vehicle reports are detailed and he had to run a computer program to assist him. A short time after he began running the computer program, Schmolitz approached him and indicated that the plaintiffs were not "doing anything." Ibid. At that point, officer Dutoi testified, he did not do much of anything to hurry them along.
However, after approximately fifteen minutes, officer Dutoi observed plaintiff Jordan on the porch. He testified that he told her "that they needed to hurry up." Ibid. Officer Dutoi finished the abandoned vehicle reports and informed officer Howe that "nothing was being moved out." Ibid. At this point, both officers testified that between twenty and twenty-five minutes elapsed since the plaintiffs entered the residence. Shortly thereafter, Dutoi testified, he and officer Howe decided that the plaintiffs had not removed their personal belongings, the ostensible reason that Schmolitz had allowed them to enter the house, and that both officers would enter the residence. Howe testified that he agreed with officer Dutoi's assessment that "it seemed to be taking an extra long time." Id. at 44. Schmolitz, however, had not specifically asked him or officer Howe to arrest or remove the plaintiffs. Id. at 34.
When they entered the home, plaintiff Jordan was in the kitchen, apparently "just standing there." Id. at 28. Officer Dutoi testified that officer Howe told plaintiff Jordan that her "time was up" and the officers needed to "get going." Ibid. Howe confirmed that he told Jordan that "her time was up, to gather whatever she needed and to leave the residence, that we weren't gonna wait." Id. at 45. Jordan, not pleased with the officers' presence, informed them that "she called the judge" and was not leaving. Ibid. If the officers wanted her to leave, they "needed to arrest her." Id. at 47-48. Dutoi testified that, at this point, Howe pleaded with her to simply "hurry up and leave" and that they did not want the situation to come to an arrest. Id. at 28. Officer Howe then asked plaintiff Jordan one more time to leave. Both officers testified that she again refused; officer Howe testified that he informed plaintiff Jordan that if she did not leave she would be arrested. According to officer Howe, Jordan informed them that "you're just gonna have to go ahead and arrest me." Id. at 48. At that point, officer Howe took Jordan by the left wrist and arm in an effort to escort her out of the kitchen door. In response, officer Howe testified, Jordan attempted to shove him into some cabinets.
Officer Dutoi then came to assist Howe in placing Jordan under arrest. According to officer Dutoi, he grabbed Jordan's other arm and "just tried to, you know, restrain her, and put her into custody at that time." Id. at 29. Both testified that Jordan then began resisting and yelling for her daughter, Melony Lamar, upstairs, proclaiming "they're killing me," and she refused to place her hands behind her back. Id. at 29, 48. Officer Howe further testified that plaintiff Lamar came downstairs brandishing a stick or "wooden table leg in her right hand . . . hands above her head in a striking position, as if to assault officer Dutoi." Id. at 49. Dutoi's back was facing toward the entrance and Howe was facing toward the entrance; Howe testified that he yelled to Dutoi that "she's got a stick." Ibid. Dutoi testified that he immediately let go of Jordan, grabbed Lamar, took her into the living room, and brought Lamar to the ground and handcuffed her. Howe testified that after struggling with Jordan, he was eventually able to handcuff her. The officers led the plaintiffs to the squad car, officer Dutoi placed plaintiff Lamar in his car; officer Howe placed plaintiff Jordan in his car.
Officer Howe testified that, while he escorted plaintiff Jordan to his squad car, she continued to yell and refused to get in the car, but finally acquiesced. Howe offered to loosen plaintiff Jordan's handcuffs after she had calmed down, but she said that Howe was not to touch her. Officer Howe also attempted to obtain Jordan's name and other information necessary for booking. He testified that she refused to provide any information. Eventually, department supervisors arrived at the scene. Officer Howe testified that Sergeant Allen and then Sergeant Bearss drove up. Sergeant Allen stated in his affidavit that he arrived at the scene and observed the plaintiffs in custody. Allen Aff. at ¶ 2. He further noted that although he had not authorized the arrest in this case, departmental policy did not require him to do so. Id. at ¶ 3.
When Sergeant Bearss arrived at the scene shortly after Sergeant Allen, the plaintiffs were seated in the back of a patrol call. He stated in his affidavit that plaintiff Jordan advised him that she and plaintiff Lamar no longer lived at the address; they had recently moved to 1528 Emily Court in Saginaw. Bearss Aff. at ¶ 2. Sergeant Bearss was apparently aware that the eviction order was procedurally infirm, but assumed the plaintiffs, by moving, had given up any legal right to be on the premises. Id. at ¶ 7. He further stated that he was concerned primarily about with the assault, and understood the assault to be the basis for the plaintiffs' arrest. Ibid.
After observing the plaintiffs in custody, Sergeant Bearss phoned Lieutenant Mallette. Lieutenant Mallette stated in his affidavit that he was informed that plaintiff Lamar assaulted officer Dutoi with a wooden stick and plaintiff Jordan was acting in an assaultive manner. Mallette Aff. at ¶ 4. Lieutenant Mallette was not advised of the status of the eviction proceedings, but believed the plaintiffs' behavior toward the officers supported probable cause to arrest them. Id. at ¶¶ 2, 5. The plaintiffs were subsequently transported to the Saginaw County Jail where they were charged with felonious assault, resisting and obstructing police officers, and trespassing.
A preliminary examination in the plaintiffs' criminal case was held on June 28, 2000. At the close of that hearing, the court dismissed all charges except the felonious assault charge against Melony Lamar. The plaintiffs initially filed this case pro se in Saginaw County Circuit Court alleging deprivation of constitutional liberties naming Saginaw City Police Department and officers Howe and Dutoi as defendants. On May 15, 2002, the defendants removed this case to this Court. The plaintiffs later retained counsel, and the defendants filed their motion for summary judgement. The plaintiffs then sought and received leave to file a first amended complaint, which named additional police officers as defendants: Sergeants Allen and Bearss, and Lieutenant Mallette. Defendants Allen, Bearss, and Mallette are alleged to be supervisory officers responsible for monitoring, training, and supervising defendants Howe and Dutoi. The magistrate judge issued his report and recommendation on December 30, 2003, and, as noted above, the parties timely filed their respective objections.
II.
The plaintiffs' objections focus on the part of the magistrate judge's report that finds no fact issue supporting the claim on municipal and supervisory liability. They point to several paragraphs of their amended complaint in which they allege that officers Howe and Dutoi were acting pursuant to "a de facto policy of excessive force." Pls.' Obj. to RR at 2-5. They make reference to standards governing motions to dismiss, although the motion before the Court is for summary judgment under Federal Rule of Civil Procedure 56. They also refer to their own affidavits and the preliminary examination transcript.A.
The plaintiffs have failed to come forward with evidence showing that their constitutional rights were violated by an official policy or custom of the City of Saginaw. Under Rule 56, a fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. Nat'l Aeronautics and Space Admin., 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 534 (6th Cir. 2002). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). However, once that showing has been made, the non-movant "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue of material fact for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Id. at 252. To establish a claim under 42 U.S.C. § 1983, the plaintiff must satisfy two elements: (1) that there was a deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a person acting under color of state law. Wittstock v. Mark A. Van Sile, Inc. 330 F.3d 899, 902 (6th Cir. 2003). Municipalities are considered "persons" within the meaning of Section 1983; however, a city "cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Rather, municipal liability will be found only when the alleged unconstitutional act "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body's officers." Id. at 689. The plaintiff "must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Garner v. Memphis Police Dep't, 8 F.3d 358, 363-64 (6th Cir. 1993). Proof of a single incident of unconstitutional activity may be sufficient to impose liability, but not unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
The plaintiff has not identified any such policy that guided the officers' actions in this case. There is no evidence of city ordinances, departmental regulations, internal policy memoranda, or other directives promulgated or directed by city government or the police command staff. The magistrate judge was correct in concluding that the plaintiffs' proofs were lacking on this point.
B.
As an alternative to a showing of policy, the plaintiffs can attempt to show that the unconstitutional behavior was motivated by an unwritten custom widely followed by the Saginaw police. That standard, however, is also quite rigorous. As the Sixth Circuit explained:
A "custom" for purposes of Monell liability must "be so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (internal quotation marks and citation omitted); see also Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, 510 U.S. 826 (1993). In turn, the notion of "law" must include "[d]eeply embedded traditional ways of carrying out state policy." Nashville, Chattanooga St. Louis Ry. Co. v. Browning, 310 U.S. 362, 369 (1940). It must reflect a course of action deliberately chosen from among various alternatives. City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985). In short, a "custom" is a "legal institution" not memorialized by written law. Feliciano, 988 F.2d at 655.Doe v. Claiborne County, Tenn., 103 F.3d 495, 507-08 (6th Cir. 1996). Thus, in Doe, the plaintiff's attempts to hold the Claiborne County School Board liable for the sexual misconduct of a teacher were unsuccessful. The School Board obviously did not have a policy of affirmatively condoning sexual abuse, and the plaintiff was unable to demonstrate that the Board had long been aware of the misconduct but was deliberately indifferent to it. Accordingly, no municipal liability would lie.
Likewise, in this case there is no evidence that the Saginaw police department has a custom of using excessive force to effectuate arrests or to assist landlords in evicting tenants. The plaintiffs have come forward with no evidence that such practices that are so firmly entrenched in the operating procedures of the police department so as to constitute the functional equivalent of a policy.
The plaintiffs also alleged in their complaint that the City was liable for its failure to train police officers properly in their official encounters with citizens. They have not offered any evidence to support those allegations, however. As the Supreme Court recognized in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989), a city can be held liable under Section 1983 for failure to train its employees. However, in order to prevail on a Section 1983 "failure to train" claim, the plaintiff must show that the "training program is inadequate to the tasks that officers must perform; that the inadequacy is the result of the city's deliberate indifference; and that the inadequacy is closely related to or actually caused the plaintiff's injury." Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989). A municipality can be held liable for inadequate police training under Section 1983 "only where [the] failure to train amounts to deliberate indifference to rights of persons with whom police come into contact." City of Canton, 489 U.S. at 388. The mere fact that a few officers may be inadequately trained is not sufficient to demonstrate liability, as the shortcomings could be caused by officer inattention or poor administration. Id. at 391. Allegations that the officers in question could have been better trained are also insufficient. Ibid. Rather, the "failure to train [must] reflect a deliberate or conscious choice by a municipality." Id. at 389.
In City of Canton, the Supreme Court recognized two fact patterns in which a citizen could state a claim for failure to train. First, the nature of the officers' duties could be such that "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need" in not providing training. Id. at 390. The Court isolated the need to apprehend fleeing felons and the possession of firearms by officers as indicating to a "moral certainty" that proper training would be required. Id. n. 10. Second, the police may have so often violated constitutional rights that the need for further training must have been "plainly obvious to the city policymakers, who, nevertheless, are `deliberately indifferent' to the need." Id.; see also id. at 397 (O'Connor, J., concurring) (finding that such behavior constitutes "tacit authorization" of the officers' conduct).
The Sixth Circuit applied this standard in Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994). There, the plaintiff estate brought suit for the fatal shooting of its decedent by a police officer, alleging two failure-to-train theories: inadequate training per se and failure to discipline officers who had previously committed constitutional violations. Id. at 1344. The Sixth Circuit gave plaintiff's first theory short shrift. Undisputed testimony established that candidates at the Detroit Police Academy underwent over 600 hours of training, including sixty hours of firearms training. Id. at 1437. The Academy's training on use of fatal force exceeded state minimum requirements, and candidates were required to score 100 percent on the written fatal force policy examination. Ibid. The officers also had annual refresher training concerning the use of deadly force, received frequent bulletins on the issue, and had to requalify themselves each year in firearms usage. Ibid. The officer in question had completed all of these programs. The plaintiff's expert himself admitted that he had no problem with the department's training programs. Ibid. As such, the plaintiff's claim that the City of Detroit's policymakers were deliberately indifferent to the need for training was rejected.
In this case, the plaintiff has offered no evidence of the training programs implemented by the City, shown how they might be inadequate, or produced information from which the city's deliberate indifference could be shown. The plaintiffs' argument appears to be that the incident itself shows a lack of training, but "deliberate indifference" in this context exists only upon "a showing of a history of widespread abuse that has been ignored by the City." Id. at 1354 (citing City of Canton, 489 U.S. at 397). Similarly, the mere fact that these officers could have been better trained, or more prepared for this particular incident, does not establish deliberate indifference toward training by Bay City. As the Supreme Court held in City of Canton,
Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal.City of Canton, 489 U.S. at 391. Even if the officers made a mistake in this instance, that too is insufficient to hold the city liable. See id. The plaintiffs' claim against the municipality must fail.
C.
The plaintiffs' claim based on supervisory liability likewise is defective. Liability arising under Section 1983 generally does not reach supervisors merely because they hold supervisory positions over those who have committed constitutional violations. In rejecting Section 1983 claims premised on the doctrine of respondeat superior, the Sixth Circuit has noted:
In Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982), we held that the § 1983 liability of supervisory personnel must be based on more than the right to control employees. Section 1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate. Hays, 668 F.2d at 872-74.Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Further, supervisory liability cannot result from a failure to act. Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (1998). "Instead the liability must be based upon active unconstitutional behavior." Ibid.
Here, the plaintiffs contend that Sergeant Bearss recognized that the eviction proceeding was incomplete, attempted to call the court to verify the status of the eviction order, and only after determining that trespass was not a valid basis for arrest did he permit the plaintiffs' arrest based on charges of assault and resisting. Sergeant Bearss contacted his supervisor, Lieutenant Mallette, for guidance, and Mallette ultimately decided that officers should proceed despite the unlawful arrest. Defendants Lieutenant Mallette, Sergeant Bearss, and Sergeant Allen did not testify at the preliminary hearing, and were added in the plaintiffs' amended complaint. Thus, the only evidence of their participation are affidavits they signed, and which the plainitffs have not countered with affidavits, depositions, or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; see also Rule 56(c).
The defendants' affidavits, however, paint a different picture. When Sergeant Bearss arrived on the scene, he was concerned mostly with the assault on officers Dutoi and Howe. In his affidavit, Sergeant Bearss stated:
When I arrived at the scene, I was advised by Pamela Jordan that she had not lived at the Congress Street Residence for well-over two weeks, but rather resided at 1528 Emily Court in the City of Saginaw.
That when I arrived at the scene both Jordan and Lamar were seated in the back of a patrol car.
That I was aware that there was no valid "eviction order," however, I had turned my focus to the assault on the two police officers.
It was my understanding that the Plaintiff had assaulted Officers Howe and Dutoi and that this was the reason for being in the vehicles.
That in light of Jordan's statements that she no longer lived at the Congress street address, I assumed she had abandoned any right to be in the premises.
Bearss Aff. at ¶¶ 1-7. Sergeant Allen's participation was minimal at best. In his affidavit, Sergeant Allen stated that he arrived at the scene and observed officers Howe and Dutoi with the plaintiffs. Allen Aff. at ¶ 2. At the time he arrived, however, both the plaintiffs were in custody. Id. at ¶ 3. Sergeant Allen neither arrested nor authorized the arrest of the plaintiffs. Further, departmental policy does not require him to authorize requests. Ibid.
Lieutenant Mallette was not at the scene and spoke to Sergeant Bearss by phone. In his affidavit, Lieutenant Mallette stated that he received a call from Sergeant Bearss at the crime scene. Mallette Aff. at ¶ 2. However, Lieutenant Mallette was not "advised of any conversation with the court concerning eviction proceeding, but was informed of the assault with a stick by Lamar on Officer Dutoi and of the assaultive behavior of Jordan toward Officer Howe." Id. at ¶ 4. The assault and behavior supported probable cause for arrest in the lieutenant's view. Ibid.
As the magistrate judge correctly notes, even if one were to assume that the arrests were unconstitutional either for lack of a proper eviction order or revocation of consent to remain on the property, there is little evidence of direct, active participation in the arrest by Bearss, Allen, or Mallette. The supervisory defendants either arrived on the scene subsequent to the arrest or were not present at all. Sergeant Allen was not required to authorize arrests, and he arrived after the plaintiffs were in custody. Even if he had knowledge that the eviction notice was defective or the landlord failed to revoke his consent, Allen's actions amount to, at most, a failure to act. Likewise, Mallette knew only of plaintiff Lamar's alleged attempt to assault the officers with a table leg and plaintiff Jordan's assaultive behavior. He was unaware of the status of the eviction proceedings and was not present at the scene. Based on his knowledge and remote location, it is difficult to argue that his actions even rise to the level of a failure to act.
Finally, Sergeant Bearss did not authorize the arrest of the plaintiffs. Like Allen, he arrived on the scene after the plaintiffs were in custody. He knew of the status of the eviction proceedings, but he also knew that the plaintiffs had not lived at the residence for some time and he believed they had given up any right to remain on the property. As he states, he was more concerned with the assault that took place and believed that to be the reason for arrest. He did not participate in the arrest and, at most, failed to act even assuming that officers Dutoi and Howe unreasonably relied on a defective eviction notice. The magistrate judge correctly recommended that summary judgment be granted as to these defendants.
III.
In the objections filed by Howe and Dutoi, these defendants insist that they are entitled to qualified immunity because any constitutional right they allegedly violated was not clearly established at the time. The magistrate judge rejected this claim and relied heavily on the Sixth Circuit's decision in Thomas v. Cohen, 304 F.3d 563 (6th Cir. 2002).
Qualified immunity is an affirmative defense that protects government actors performing discretionary functions from liability for civil damages when 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). The purpose of this defense is to strike a balance that "accommodates the tension between permitting litigants to recover damages, which is often the only realistic avenue for vindication of constitutional guarantees, and the social costs of such suits, including the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004) (internal quotes and citation omitted).
The Supreme Court has held that a claim of qualified immunity must be examined in two stages, see Saucier v. Katz, 533 U.S. 194, 200 (2001): "[f]irst, a court must consider whether the facts, viewed in the light most favorable to the plaintiff, `show the officer's conduct violated a constitutional right,'" and then "the court must then decide `whether the right was clearly established.'" Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 172 (6th Cir. 2004) (quoting Saucier, 533 U.S. at 201-02). The Sixth Circuit has expanded that inquiry into a three-step sequential analysis when the qualified immunity defense is raised in a summary judgment motion brought after discovery has been conducted, as here. "The first inquiry is whether the plaintiff has shown a violation of a constitutionally protected right; the second inquiry is whether that right was clearly established at the time such that a reasonable official would have understood that his behavior violated that right; and the third inquiry is `whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.'" Tucker v. City of Richmond, Ky., 388 F.3d 216, 220 (6th Cir. 2004) (quoting Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002); Champion, 380 F.3d at 901 (citing Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003)).
Once the defense is raised, the plaintiff has the burden of demonstrating a violation of a constitutional right and showing that the right was clearly established. Barrett v. Steubenville City Schools, 388 F.3d 967, 970 (6th Cir. 2004). Ordinarily, these questions can be answered by the court as a matter of law. See Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996).
The plaintiffs' main claim is that their Fourth Amendment rights were violated. The Supreme Court has recognized that police officers who participate in dispossessing tenants before proper process has issued engage in an unconstitutional seizure prohibited by the Fourth Amendment. See Sodal v. Cook County, Illinois, 506 U.S. 56 (1992). Following Sodal, the Sixth Circuit held in Thomas v. Cohen, 304 F.3d 563 (6th Cir. 2002), that a police officer's arrest of tenants in the absence of a valid eviction order violates the tenant's Fourth Amendment rights enforceable through Section 1983. Thomas, 304 F.3d at 571. In Thomas, the plaintiffs were women residing in a women's shelter. They each paid a monthly fee to the shelter, retained keys, and had full rights of entry to the premises. After some time, a dispute arose between the plaintiffs and the shelter's director about alleged violations of the shelter's policies. The director called the police but was initially told to obtain a valid eviction pursuant to state law. Not satisfied with this answer, the director phoned the authorities the next morning. This time, police came to the shelter to assist the director. The director explained that the plaintiffs were in possession of alcohol and drugs in violation of shelter policy. She further explained that it was standard procedure to request police assistance under the circumstances in removing shelter residents. The director neither produced documentation from a court nor a court order authorizing removal. Although there was no physical confrontation between the police and the plaintiffs and none of their personal property was destroyed, the plaintiffs were not able to collect their personal belongings before eviction.
The Sixth Circuit concluded that Sodal extended to situations not involving seizure and destruction of personal property; peacefully escorting individuals from their residence absent a valid eviction order implicated the Fourth Amendment. The standard under the Fourth Amendment, the court concluded, is not whether physical seizure occurs but whether there has been a meaningful interference with a tenant's possesory interest:
[t]he question before us is whether the Supreme Court . . . established that a seizure of property within the meaning of the Fourth Amendment occurs when governmental agents enforce an illegal eviction by forcing a tenant to vacate his . . . residence, but otherwise do not assist in physically taking over or moving the premises? When a governmental agent carries out an eviction without a court order and in the absence of any colorable legal authority, this answer must be answered in the affirmative. As the Court stated in Jacobsen, there is "some meaningful interference" with a tenants interest in his . . . property, "however brief," when a governmental agent removes a tenant from his . . . residence. . . . Simply put, Sodal does not require that the "meaningful interference" . . . actually involve the physical seizure of property . . . it is enough is enough that the governmental agent's action amounted . . . to "meaningful interference" with an individual's possesory interests in that property. Escorting tenants from their residences in the course of effectuating an eviction, as in this case, satisfies the requirement of "meaningful interference" with their leasehold interests so as to amount to a seizure of their property. In this regard, the lack of physical force is not terribly germane inasmuch as the police effectuated the eviction by the very apparent ant not too subtle threat of physical force and the dire consequences should the tenants not comply with officers' instructions to vacate the property.Thomas, 304 F.3d at 572 (internal citations omitted). Under the facts of that case, the court held, "plaintiffs therefore had a clearly established right to be free from such unconstitutional seizures." Ibid.
Here, as in Thomas, the landlord had not obtained a valid eviction order. Unlike the plaintiffs in Thomas, the plaintiffs here were forcibly removed by the police. Thomas stands for the proposition that tenants have a right under the Fourth Amendment to be free from dispossession absent legal process. However, the plaintiffs must also prove that the right was clearly established. The critical inquiry is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Solomon, 389 F.3d at 173 (quoting Saucier, 533 U.S. at 202) (internal quotations omitted). The plaintiff need not prove that "the very action in question has previously been held unlawful," but rather "in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Ibid.
In this case, the right to be free from unreasonable seizures is clearly established. But the qualified immunity defense requires the Court to look beyond the right in the abstract. The Supreme Court has acknowledged that "[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts." Saucier, 533 U.S. at 205. Qualified immunity protects police personnel who must operate along the "hazy borders" that divide acceptable from unreasonable conduct. Id. at 206.
The court in Thomas found the constitutional right clearly established and the officers' conduct unreasonable. The court found critical the facts that the officers failed to "undertake any effort to determine whether Plaintiffs were indeed residents who paid rent and had a right to be on the premises," and they never attempted to ascertain whether the director "had any legal authority to evict Plaintiffs," and the officers "knew she did not have a court order." Thomas, 304 F.3d at 575. There are several facts in the present case, however, that distinguish it from Thomas. First, unlike Thomas, Schmolitz, the landlord, presented documentation suggesting that eviction proceedings had been undertaken: a notice indicating that the plaintiffs had until April 23 — three days earlier — to vacate. The officers thus did not rely solely on the landlord's representations as in Thomas; they were presented with objective, court-generated evidence of eviction. Second, unlike Thomas, the officers considered the representations of the plaintiffs that they had additional time to remain on the premises. That handwritten note, however, was objectively unverifiable and obviously not signed by a judge. Although, at a minimum, the landlord knew the plaintiffs had filed the document with the court that morning, no evidence suggests that any court even considered the plaintiffs' request for additional time. Absent evidence that a court had acted on the request, the plaintiffs' documentation amounted to a handwritten notice bearing the mark, true copy. Officer Howe examined the document and determined that no judge had signed it.
Third, evidence that an eviction notice had issued distinguishes this case from Thomas. In Thomas, no evidence existed that eviction proceedings had begun. Here, the landlord actually had obtained a judgment. The wording of the judgment, as read verbatim by officer Howe into the preliminary examination record, stated that the plaintiffs had until April 23 to vacate or an eviction order would issue. The plaintiffs admitted to the officers, and the officers and the landlord believed, that the plaintiffs had moved. In fact, the argument that ensued at the scene was whether the plaintiffs could re-enter premises they previously had vacated to retrieve their belongings. Thus, the plaintiffs acknowledged at the scene that they had no legal right to be on the property. Unlike Thomas then, the existence or not of an eviction order was not a critical element.
To summarize, the officers were faced with the following objective information: a court signed eviction notice stating an eviction order would issue if the plaintiffs failed to vacate three days earlier, information from all parties that the plaintiffs had in fact moved, the knowledge that the landlord had changed the lock on the residence, and the need to broker an agreement to obtain the consent of the landlord for the plaintiffs to re-enter the premises, and the plaintiffs' refusal to leave after the passage of time during which the plaintiffs were to have moved out their personal property. Under these circumstances, the plaintiffs' right to remain on the premises was not clearly established. The Court believes that the officers' actions in attempting to escort Mr. Jordan from the premises and escalating their actions in response to Jordan's and Lamar's resistive conduct was objectively reasonable in the totality of the circumstances presented. Indeed, the officers may have transgressed upon the plaintiffs' constitutional rights under the laws of property and the procedural refinements that require a writ of restitution after a judgment awarding possession was issued. However, "[i]mplicit in the qualified immunity doctrine is a recognition that police officers, acting reasonably, may err. . . . The concept of immunity thus acknowledges that `it is better to risk some error and possible injury from such error than not to decide or act at all.'" Dunigan v. Noble, 390 F.3d 486, 491 (6th Cir 2004) (quoting Scheuer v. Rhodes, 416 U.S. 232, 242 (1974), abrogated on other grounds, Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
The Court, therefore, respectfully disagrees with the recommendation of the magistrate judge that summary judgment should not be granted to defendants Howe and Dutoi.
IV.
The Court concludes that the plaintiffs have not brought forth facts, which viewed in the light most favorable to them, establish a jury-submissible issue on their claims for municipal or supervisory liability. They also have failed to bring forth evidence establishing a claim that survives the individual officers' qualified immunity defense.
Accordingly, it is ORDERED that the report and recommendation of the magistrate judge is ACCEPTED IN PART AND REJECTED IN PART.
It is furthered ORDERED that the defendants' motion for summary judgment [dkt # 16] and supplemental motion for summary judgment [dkt # 32] are GRANTED.
It is furthered ORDERED that the amended complaint is DISMISSED WITH PREJUDICE.