Case Number 00-10241-BC
August 6, 2002
OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO AMEND AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On July 27, 1997, Gregory Michael Williams, Cassandra Barney and Brenda Williams suffered gunshot wounds at the hands of Robert Bryant Wilbert, who had served in the past as an informant for the Saginaw City Police Department and the Bay Area Narcotics Enforcement Team (BAYANET). Gregory Williams died, and Cassandra Barney and Brenda Williams were seriously injured. Shortly after he shot the three individuals, Wilbert shot and killed himself. Gregory Williams' estate, Cassandra Barney and Brenda Williams have filed actions against Wilbert's estate for wrongful death and personal injury damages. Although Wilbert is the obvious tortfeasor in this matter, his estate is, presumably, uncollectible, so the plaintiffs have also brought legal actions against the City of Saginaw and individual police officers, attempting to craft a theory of recovery that would expose these defendants to damages. Wilbert's estate has not answered the complaint, but the other defendants have answered and filed a motion for summary judgment. The plaintiffs have also filed a motion seeking permission to amend their complaint a second time to plead a conspiracy count. The Court heard the arguments of the parties through their respective counsel in open court on July 29, 2002 and took the motions under advisement. The Court now finds that the plaintiffs' proposed amendment to their complaint is untimely and futile and will not be allowed. The Court has viewed the facts in the light most favorable to the plaintiffs, but nonetheless concludes that there are no material facts in dispute and that the plaintiffs have failed to come forward with a case that will include the defendants, save Wilbert's estate, within those that can be found liable for damages resulting from Wilbert's assault on the plaintiffs. The Court therefore will grant the defendants' motion for summary judgment and dismiss the case against them.
The parties agree that Wilbert was a longtime informant for the Saginaw Police Department and BAYANET. This relationship apparently began in 1991 during a drug sting known as "Operation Snowjob," which resulted in several drug-related convictions. Wilbert was one of the individuals arrested, but charges were dropped in return for information leading to the convictions of others under investigation. David Andrews Dep. at 18. Although Wilbert testified against various individuals in 1991 and 1992, the Saginaw police continued to use him as an informant. Wilbert's primary contact through the early to mid nineties was defendant Officer John Todd, although he also reported to other officers on the Snowjob team, including defendant Andrews. Andrews Dep. at 12. Todd retired from the police force in January 1996 and has since passed away for reasons unconnected to this litigation. Advice of Change, Defs.' S.J. Ex. B. Andrews retired from the police force in 1998. Andrews Dep. at 5.
Wilbert was paid from a fund used to pay informants, and he typically received approximately $40 to $50 for each drug buy he facilitated. Id. at 15. The fund appears to have been primarily financed by confiscated drug monies. John Moten Dep. at 9. Wilbert also was paid for court appearances and occasionally awarded bonuses. Andrews Dep. at 17, 62-63. Over the course of his six-year tenure as an informant, Wilbert officially received approximately $19,000 from the Department with the last payment occurring on July 25, 1997, two days before the shooting in this case. Golden Memorandum, Pls.' S.J. Ex. E. Wilbert bragged to Cassandra Barney, however, that he received $60,000 for one job alone and was given three cars. Cassandra Barney Dep. at 71.
Prior to his death, Wilbert was being used as an informant by a DEA task force, which included Saginaw police detective Mark Walker. Walker Dep. at 7-9. Wilbert was introduced to Walker in May or June of 1997 during a meeting that also included members of the Saginaw County Sheriff's Department and Prosecutor's Office. Id. at 9-11. Ultimately, however, Wilbert was unable to be of much assistance to the task force because he was known to others as a past informant. Id. at 13-14. Walker also suggested that Wilbert be dropped from task force work entirely in June or July of 1997 when it was discovered that he had provided task force members fake cocaine. Id. at 28.
Wilbert appears to have received special treatment by members of the Saginaw Police Department as a result of his informant role. For example, the department apparently has a policy against using informants who continue to engage in personal criminal activity. Walker Dep. at 17; Russell Howell Dep. at 23. However, the department allegedly continued using Wilbert for Operation Snowjob even though he was arrested for a traffic offense and a weapons offense during his tenure as an informant. Several witnesses testified that the department intervened on various occasions to protect Wilbert from arrest and prosecution. Raychan Williams details multiple instances in which Wilbert was arrested, but "dad" — Officer Todd — would promptly get Wilbert out of jail. Williams Dep. at 35-36, 38, Pls.' S.J. Ex. J. Charles Windmon, another Saginaw police officer, stated that it was common knowledge that Wilbert was continuing to deal drugs on his own. Windmon Dep. at 12, Pls.' S.J. Ex. I. Plaintiffs have also enclosed an affidavit by Beverly Ramson, who in July of 1995 witnessed Wilbert pulled over by a police officer and saw money and drugs removed from Wilbert's vehicle. Beverly Ramson Aff. ¶ 2, Pls.' S.J. Ex. K. Ramson states that Wilbert was under arrest until Officer Todd arrived, at which point Wilbert was released with his drugs and cash but his female passenger was taken into custody. Id.
Williams also suggests that Todd and Andrews were criminals and that they robbed drug dealers together. Id. at 19-21. No foundation was laid in the deposition for these accusations other than Williams's conversations with Wilbert, and the plaintiff provides none in his brief. As the defendants point out, because such hearsay would likely not be admissible in court, it would not properly be before the Court on a summary judgment motion either. See Sperle v. Michigan Dept. of Corrections, ___ F.3d ___ No. 00-1468, 2002 WL 1676580, at *10 (6th Cir. July 25, 2002); Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994) (holding that inadmissible hearsay evidence cannot be used to create question of fact on summary judgment motion).
Raychan Williams further testified that he spotted both cocaine and heroin in a back room at Officer Todd's jewelry store when Wilbert visited there, although he is unclear about whether this occurred before or after Todd's retirement from the police force. He also does not specify whether these drugs existed to facilitate legitimate drug buys or for Todd's own illegal use or distribution.
Retired Sergeant Ernest Bradley testified that Wilbert had "free reign [sic]" to walk through the police department, and had access to keys to the back door of the building which most police officers did not have. Bradley Dep. at 18-19. Bradley states he complained about this, but his complaints were rejected by supervisors. Id. Other police officers were also upset about this arrangement, but "they were afraid" to say anything. Id. at 89. Bradley also states that Detective Todd and Robert Wilbert had moved in together above Todd's jewelry store and that Wilbert was using Todd's personal vehicles. Id. at 26-27. Bradley testified that Wilbert had a "falling out" with Todd at some point before Wilbert's death in 1997. Id. at 28.
Wilbert's Relationship with Cassandra Barney
Plaintiff Cassandra Barney met Robert Wilbert in May 1996. Barney Dep. at 13, Pls.' S.J. Ex. N. She was introduced to him by a step-cousin, Raychan Williams, on Mother's Day and started seeing him socially thereafter. Id. at 13-14. Barney claims that Wilbert introduced her to Officer Todd, and that they often visited Todd at his jewelry store. Id. at 76. Barney states that she never met Officer Andrews, id. at 67, and Andrews, in turn, confirmed that he was not aware of the relationship between Barney and Wilbert. Andrews Dep. at 27, 32.
Wilbert first assaulted Barney at a Food Basket store in 1996. Barney Dep. at 14-15; 11/9/1996 Police Report, Defs.' S.J. Ex. D. A warrant was subsequently issued for Wilbert's arrest. See Warrant, Defs.' S.J. Ex. E. Wilbert was arrested on November 29, 1996 and charged with assault and battery and malicious destruction of personal property. Id.; Complaint, Defs.' S.J. Ex. F. These charges were dismissed by the prosecutor on April 2, 1997 "pursuant to victim's wishes." Order of Nolle Prosequi, Defs.' S.J. Ex. F.
Barney successfully sought an ex parte Personal Protection Order (PPO) on November 21, 1996 that prohibited Wilbert from having any contact with her for one year. Barney Dep. at 14; PPO, Defs.' S.J. Ex. G. After being served with the PPO, Wilbert then came to Barney's house, beat on her door, and proceeded to follow her around on several occasions. Barney Dep. at 19-20. Barney reported these activities to the police, but no action was taken because Wilbert always left before the police arrived. Id. at 20-22. Barney believes these reports were made in January and February of 1997, and estimates that she made over twenty calls of this nature. Id. at 44-45.
On January 22, 1997, Cassandra Barney reported an assault by Wilbert to the Saginaw Police Department. Id. at 24; Police Report, Defs.' S.J. Ex. I. Wilbert pleaded guilty to a charge of domestic violence and was placed on probation for six months and ordered not to have contact with Barney. Judgment of Sentence, Defs.' S.J. Ex. J.
On February 14, 1997, Saginaw police arrested Wilbert for a PPO violation and a felony warrant after he broke out a bathroom window in the house where Barney was staying. Barney Dep. at 25; Incident Report, Defs.' S.J. Ex. K. On March 12, 1997, Wilbert pleaded guilty to the PPO violation but was not given a jail sentence because of "an overcrowding at the jail right now." Statement of Judge Kaczmarek, 3/12/1997 Hearing Tr. at 4, Defs.' S.J. Ex. L. Saginaw County Judge Kaczmarek ordered Wilbert to stay away from Barney, and informed him that if he were arrested again, Wilbert would be "in deep doo-doo." Id.
In an unrelated incident, Wilbert was arrested by Saginaw police and charged with obtaining money by false pretenses over $100 when he collected rent for a house he did not own, and was also charged as an habitual offender. Information, Defs.' S.J. Ex. N. Wilbert pleaded guilty to both offenses on May 12, 1997, and was sentenced to three years probation, with the last year of probation to be spent in jail. Judgment of Sentence, Defs.' S.J. Ex. P.
Both Barney and Brenda Williams, Barney's mother, testified that Wilbert believed his relationship with the Saginaw Police Department permitted him to violate the law with impunity. During the February 14, 1997 incident, Wilbert threatened to kill Ms. Barney's grandfather in front of police officers, and claimed that the police would not stop him from doing so. Barney Dep. at 25-27. The officers allegedly just laughed in response. Id. An officer responded by taking $20 from Wilbert and giving it to Barney to pay for the broken window, and the officers then took Wilbert to jail. Id. According to Barney, Wilbert frequently "would brag and boast that they are not going to do anything to me." Id. at 50, 52. Wilbert also told Barney that Todd had let him go after Wilbert had robbed a woman at gunpoint. Id. at 74. The plaintiffs claim that "incident reports and booking records obtained through discovery" — which were not provided to the Court as part of the motion papers — indicate that eight complaints about Wilbert alleging "extreme violence" were filed between July 24, 1996 and July 27, 1997.
The Incident on July 27, 1997
Cassandra Barney's stormy relationship with Robert Wilbert came to a tragic end on July 27, 1997. On that date, Wilbert took Cassandra Barney by force from her grandmother's house and drove her to his residence located at 1403 Thurber Street. Barney Dep. at 82-86, Defs.' S.J. Ex. 2. The incident was reported via a 911 call at 3:30 p.m. by Tammy Davis, a cousin of Barney who witnessed Wilbert dragging Barney into a black automobile. Frederick Mata Dep. at 15. Defendant Officer Mata was promptly dispatched to the Davis residence at 527 So. 21st Street, Saginaw, Michigan. Mata Dep. at 12-14. Although the plaintiffs' counsel claims in his brief that "Ms. Davis warned [the police] that Wilbert had been threatening to kill Cassandra Barney all day," see Pls.' S.J. Resp. Br. at 10 n. 1, there is no citation to the record to support this statement and the Court has found none.
Wilbert took Barney to the Thurber residence, and asked his aunt, Mae Lee Wilbert, to retrieve a gun. Barney Dep. at 87. Wilbert also apparently claimed that he was going to kill himself. Id. at 90. After only a few minutes, Barney recognized the automobile of her mother and stepfather, Brenda Williams and Gregory Williams, out front. Id. at 88-89. She jumped into the automobile, and the three of them drove immediately to the police station to report the incident. Id. at 91.
After arriving at the police station, Barney and the Williamses spoke first to defendant Robert Tucker, a desk officer. Tucker Dep. at 11; Barney Dep. at 91-92. After typing Wilbert's name into his computer, Tucker apparently exclaimed "Oh my God!" but did not say anything further. Williams Dep. at 38. Upon learning that Barney was the victim of the previously reported abduction, and that she had been taken to 1403 Thurber by the suspect, Tucker sent officers to that location to search for Wilbert. Tucker Dep. at 15-16. Barney also informed Tucker about the PPO she had against Wilbert. Id. at 15.
Officer Mata was still interviewing Tammy Davis when a call came over the radio informing him that Cassandra Barney was now safe at the police station. Mata Dep. at 17. Mata was then instructed to go to 1403 Thurber and assist the other officers looking for Wilbert. Id. Mata searched the residence at 1403 Thurber but did not find Wilbert. Id. at 20. He claims he was informed by Mae Lee Wilbert, who was present when Robert Wilbert had arrived with Cassandra Barney, that Robert Wilbert had fled with a gun on foot. Id. A witness, Wanda Lee Atkins, contradicts this account. Atkins claimed that she was standing outside of the Thurber residence when two officers arrived. Atkins Dep. at 17-18. She states that Wilbert in fact answered the door, but that she herd officers telling Wilbert to stay in the house and not to cause any more trouble. Id. at 19-20. Atkins claims that she asked the officers why they were not taking Wilbert to jail, but that they ignored her. Id. at 22.
Mata then returned to the police station to interview Cassandra Barney. Mata Dep. at 22. Barney told Mata how the abduction occurred and how she was rescued by her parents and taken to the police station. Mata Dep. at 27-28. Barney apparently had a torn earlobe and other injuries. Id. at 42. Barney does not recall for sure whether she told Mata that Wilbert threatened to kill her, only that he threatened to kill himself Barney Dep. at 90, 105. Mata testified that Barney only said that Wilbert had threatened to kill himself, not her. Mata Dep. at 29, 66. Barney claims that both Tucker and Mata stated that they could not go all over the city looking for Wilbert. Barney Dep. at 97, 102. Tucker claims that officers already were looking for Wilbert. Tucker Dep. at 15-16. The interview at the station lasted about five minutes. Mata Dep. at 42-43. Before leaving the police station, Brenda Williams apparently stated that she was going to take Barney to the hospital. Barney Dep at 102-03; Mata Dep. at 36-37, 66. Neither Barney nor Williams requested a police escort, and none was provided to them. Barney Dep. at 104; Mata Dep. at 38. One of the last things Tucker heard Brenda Williams say before they left was her statement to Barney that "Wilbert was going to kill you." Tucker Dep. at 20. Tucker does not recall if he did a LEIN check on Wilbert to examine criminal history. Tucker Dep. at 15. Officer Mata states that he may have run a LEIN check. Mata Dep. at 40.
The plaintiffs' attorneys cite page 44 of Mata's deposition to support this contention, but noting on that page does so.
Instead of going directly to the hospital, the plaintiffs first turned back to Cassandra Barney's grandmother's house to retrieve an insurance card. Barney Dep. at 103. On their way home, Robert Wilbert found them and crashed his vehicle into theirs, causing it to overturn. Wilbert then exited the vehicle and shot all three occupants in their heads. Barney Dep. at 107-108. Gregory Williams was killed, and Barney and Brenda Williams were severely injured. Mata estimates that the shooting occurred within ten minutes of his interview of Barney at the station, because he was still at reviewing his notes when he learned of the incident. Mata Dep. at 43, 49-50. After he arrived at the scene, he learned that the incident involved the person he had just interviewed. Mata Dep. at 45-47. Mata eventually found Wilbert on the porch of a house near the scene of the shooting after Wilbert had committed suicide. Id. at 46.
The plaintiffs filed two lawsuits against the City of Saginaw, Officer David Andrews, John Van Benschoten as personal representative of the estate of Officer John Todd, Officer Frederick Mata, Officer Robert Tucker, John and Jane Doe, and Charles Rousseau, personal representative of the estate of Robert Bryant Wilbert. The first suit, Case No. 00-10241, was brought by Cheryl Williams, conservator of Damondrate L. Williams, a minor, Gregory Williams, Jr., and Joseph Scorsone, personal representative of the estate of Gregory Michael Williams. The second suit, Case No. 00-10244, was filed by Cassandra Barney and Brenda Williams, who were both shot by Wilbert and suffered serious injuries, but survived. The defendants are essentially identical under both cases, except Bay Area Narcotics Enforcement Team ("BAYANET"), a joint enterprise under Michigan law, is included as a defendant in the second suit. This Court's predecessor consolidated the cases under the 00-10241 case number.
Both cases are grounded in 42 U.S.C. § 1983, alleging a violation of the plaintiffs' fights under the Fourth, Fifth, and Fourteenth Amendments. The complaints also include claims of gross negligence under Michigan law, felonious assault, and possibly claims under the Michigan constitution. At oral argument, the parties stipulated to dismiss their claims under the Michigan constitution. In addition, the parties have agreed that the claims by Gregory Williams' heirs, Cheryl Williams as conservator of the minor Damondrate L. Williams and Gregory Williams, Jr., are subsumed by the claim of the personal representative of Gregory Williams estate, and those heirs are dismissed as parties plaintiff. See Mich. Comp. Laws § 600.2922(2) ("Every action under this section shall be brought by, and in the name of, the personal representative of the estate of the deceased person."). Further, the plaintiffs have not mentioned either the Fourth or Fifth Amendments in their summary judgment briefs, and appear to have abandoned these claims. The Court observes that the Fifth Amendment is not applicable because the claims are not directed against the federal government, to which that amendment applies. Similarly, the Fourth Amendment plays no role because the plaintiffs do not complain of any search or seizure of their persons or properly by the police or any excessive force directed against them. The Court, then, will analyze the plaintiffs' constitutional claims under the Fourteenth Amendment.
Having amended their complaint once by stipulation, the plaintiffs have filed a motion to amend their complaint a second time to allege a civil conspiracy among Robert Wilbert and several police officers to violate the controlled substance laws. The plaintiffs contend that the defendants conspired to commit various crimes resulting in Wilbert becoming "emboldened" by his apparent immunity from arrest and prosecution. This attitude, the plaintiffs posit, led Wilbert to commit the assault on the plaintiffs. The proposed amendment, however, does not allege a conspiracy to injure Cassandra Barney, Gregory Williams or Brenda Williams or violate their civil rights. The defendants respond that the proposed amendment is untimely because the facts track those in the original complaint and the plaintiffs delayed until after the close of discovery to offer their new theory, and that it is futile because it does not state a valid claim.
"Leave to file an amended complaint `shall be freely given when justice so requires,' Fed.R.Civ.P. 15(a), and should not be denied unless there is evidence of undue delay, had faith, undue prejudice to the non-movant, or futility." Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 519 (6th Cir. 2001). Delay alone does not justify denial of the motion to amend. Security Ins. Co. of Hartford v. Kevin Tucker Assocs., Inc., 64 F.3d 1001, 1009 (6th Cir. 1995). "To deny motion to amend, a court must find at least some significant showing of prejudice to the opponent." Duggins v. Steak 'N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999). However, a plaintiff seeking leave to amend should "act with due diligence if it wants to take advantage of the Rule's liberality." Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir. 2000). Thus, where an "amendment is sought at a late stage in the litigation, there is an increased burden to show justification for failing to move earlier." Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6th Cir. 2001). The decision to grant or deny a motion to amend is entrusted to the court's discretion. Id.
The defendants contend that the plaintiffs' conspiracy claim is barred by the intracorporate conspiracy doctrine, citing Jackson v. City of Columbus, 194 F.3d 737, 753 (6th Cir. 1999), abrogated on other grounds by Swierkiewicz v. Sorema, N.A., 122 S.Ct. 992, 996 (2002), since police officers cannot conspire with themselves. The Court does not view that doctrine as an obstacle to the amendment in this case since Wilbert, a non-police officer, is also alleged to be a coconspirator. However, the Court agrees with the defendants that the proposed amendment would be futile. To plead an actionable civil conspiracy, the plaintiffs must allege facts with sufficient specificity to demonstrate an agreement to accomplish a common plan to cause in jury or damage to a person or group of persons. See Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996). Vague and conclusory allegations are not enough. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). The plaintiffs' proposed amendment describes a conspiracy to violate narcotics laws and to assist Wilbert in avoiding criminal responsibility, but nowhere do the plaintiffs allege that the object of the conspiracy was to cause the harm that the plaintiffs suffered. Rather, it is the plaintiffs' theory that they were injured as an unintended result of a coddled police informant run amok, certainly not an object of the conspiracy proposed. The proposed amendment, therefore, would not state an actionable claim in this case.
Moreover, the proposed amendment is prejudicially tardy. The plaintiffs did not file their motion until two weeks after the close of discovery, on October 16, 2001, despite having sufficient information beforehand. The plaintiffs took the deposition of Ernest Bradley in April, 2001 and had affidavits from both Wanda Adkins and Raychan Williams in June, 2001. There is no reason they could not have filed their motion to amend at that time. Even if the plaintiffs for some mason had to wait until after the depositions in August, 2001, they still could have moved immediately after the depositions to notify defense counsel of their intentions to file an amended complaint. Instead, they waited another six weeks and filed their motion to amend on the dispositive motion cutoff date. Duggins establishes that courts look unfavorably upon motions seeking to add new claims after opposing counsel has already conducted discovery and expended the costs of filing a summary judgment motion on the original theories. Although the claim the plaintiff seeks to add is not entirely unique, it nonetheless was not the focus of the previous two complaints filed in these cases. it is not reasonable to require the defendants to anticipate potential amendments during the discovery period so as to be on the lookout for overt acts and common schemes just in case the plaintiffs sought to add a conspiracy count. Some of those facts maybe encompassed by the allegation of a "policy or custom" of civil rights deprivation, but not all. The defendants would be prejudiced by the lost opportunity for discovery on the new claim, see Wade, 259 F.3d at 459, and would likewise be required to incur additional costs if discovery were reopened and witnesses redeposed.
For reasons of futility and untimeliness, the motion to amend will be denied.
The defendants have also moved for summary judgment. A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
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 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. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). 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 Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). 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" Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991).
The plaintiffs' federal cause of action is based on 42 U.S.C. § 1983, under which the plaintiffs must establish that a person acting under color of state law deprived the plaintiffs of a right secured by the Constitution or laws of the United States. Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001). The right the plaintiffs assert is that of personal security, which is protected by the substantive component of the Due Process Clause since "it goes without saying that an individual's interest in preserving her life is one of constitutional dimension." Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998). However, the plaintiffs do not allege that Robert Wilbert was engaged in an undercover operation or otherwise was acting in an official capacity when he committed the assaults. Therefore, in responding to the motion for summary judgment, the plaintiffs must establish the liability of the other defendants, who without question were state actors, under 42 U.S.C. § 1983 based on their own actions or inactions.
As a general rule, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 196 (1989). In that case, the plaintiffs sued on behalf of Joshua DeShaney, a boy who was so severely beaten by his father that he is now permanently retarded. The plaintiffs alleged that county officials knew Joshua was being abused and likely to be killed, but still failed to remove him from his father's custody. County welfare workers not only ultimately failed to remove Joshua, but actually returned him to his father's custody after a brief spell in a hospital. The Supreme Court rejected the plaintiff's attempt to hold Winnebago County liable under the doctrine of substantive due process. Although the Due Process Clause of the Fourteenth Amendment does protect citizens from arbitrary government action, the Court found no basis to conclude that it conferred an affirmative obligation to protect private citizens from one another. The Court reasoned:
Petitioners concede that the harms Joshua suffered occurred not while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor. While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.Id. at 201 (emphasis added).
Many circuits, including the Sixth Circuit, have recognized that an exception to this general rule exists "where (1) the plaintiff and the state actors had a sufficiently direct relationship such that the defendants owed her a duty not to subject her to danger, and (2) the officers were sufficiently culpable under a substantive due process theory." Sperle v. Michigan Department of Corrections, F.3d ___ No. 00-1468, 2002 WL 1676580, at *5 (6th Cir. July 25, 2002) (quoting Stemler v. City Florence, 126 F.3d 856, 867 (6th Cir. 1997)). Although a well-recognized example of a "sufficiently direct relationship" occurs when the state takes a person into custody against his will or otherwise restrains him (in which case "the Constitution imposes on it a corresponding duty to assume some responsibility for his safety and general well-being," DeShaney, 489 U.S. at 199-200), see Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 910-11 (6th Cir. 1995), other courts have crafted from the Supreme Court's dicta in DeShaney, emphasized above, a rule which establishes a "direct relationship" when the state creates a danger which exposes a private citizen to harm at the hands of a private actor, or renders a person more vulnerable to such danger. For example, in Kallstrom, the court found actionable the city's release of undercover police officers' personal information, including the names and addresses of family members, to a defense attorney for members of a dangerous drug gang. The court held that to violate substantive due process, (1) the state must commit affirmative acts that either create or increase the risk "that an individual will be exposed to private acts of violence," (2) the victim must demonstrate either a "special relationship" between the state and the victim or the private tortfeasor, or a "special danger" to the victim, (3) the "special danger" must "place the victim specifically at risk, as distinguished from a risk that affects the public at large," and (4) the state actor "must have known or clearly should have known that its actions specifically endangered an individual." 136 F.3d at 1066.
The plaintiffs in this case have placed considerable reliance on Nishiyama v. Dickson County, Tennessee, 814 F.2d 277 (6th Cir. 1987). There, the sheriff's department had a practice of letting inmates on "trusty" status perform duties for the department while driving fully-equipped patrol cars. While returning from one such errand, an inmate used his flashing lights to pull over Cathy Nishiyama, beat her to death, and then returned to the jail. The Court of Appeals found the actions complained of to be the result of "gross negligence," and that the safety of citizens was placed in general "peril" as a result of the "outrageous conduct." Id. at 281-83.
The Court finds that the continuing validity of this decision is in doubt. That case was decided two years before Deshaney, and while not explicitly overruled, its legal premises have been undermined in this Circuit with respect to its holding that (1) a special relationship existed between victim and the sheriff's department and (2) gross negligence is sufficient. See Foy v. City of Berea, 58 F.3d 227, 230 (6th Cir. 1995). The case is also factually distinguishable here, and thus the Court finds the decision neither persuasive nor controlling authority.
The plaintiffs contend that a special relationship existed between the state and Cassandra Barney by virtue of the personal protection order she had obtained against Robert Wilbert requiring the police to arrest him when they had reasonable cause to believe he had violated the order. However, the Court of Appeals has recently rejected that argument in Jones v. Union County, Tennessee,___ F.3d ___, No. 01-5149, 2002 WL 1533574, at *10-11 (6th Cir. July 16, 2002) ("[W]hatever duty Union County owed to Plaintiff as a matter of Tennessee tort law does not give rise to a constitutional duty in this case. . . . While the Sheriff's Department was well aware of the seriousness of the domestic problems involving Plaintiff and her ex-husband, its failure to serve the ex parte order of protection did not create or increase the danger posed to Plaintiff by her ex-husband or place her specifically at risk."). The court held that the order of protection did not give rise to a special relationship, nor did the failure to arrest the plaintiff's ex-husband constitute a state-created danger.
Similarly, in Hiser v. City of Bowling Green, 42 F.3d 382 (6th Cir. 1994), the court rejected an attempt to hold a police department liable for the criminal acts of a third party. There, the plaintiffs brought suit against the City of Bowling Green and individual officers after a family member was murdered by a police informant with whom she lived. The plaintiffs alleged that the informant was acting under color of state law and that a special relationship resulted between the defendants and the decedent because the officers permitted her to live with a known felon without informing her of the informant's violent tendencies. The court of appeals rejected both arguments. First, it found no evidence that the informant was acting at the behest of the city when he began arguing with the decedent. Second, even ifhis actions had been under color of law, the police had never placed any affirmative restrictions on the decedent's ability to protect herself, such as placing her under arrest. Thus, no special relationship could arise under DeShaney.
Once a duty arises because of a "sufficiently direct relationship" between the plaintiffs and the state, the plaintiffs must establish culpable conduct on the part of state actors. Sperle, 2002 WL 1676580 at *6 ("[W]here such a duty exists, state actors are liable for breaching their obligation to the plaintiff only if they engaged in conduct that was so egregious that it can be said to be arbitrary in the constitutional sense.") (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002)). Arbitrary conduct is that which rises to the level of deliberate indifference. Id.
"Deliberate indifference has been equated with subjective recklessness, and requires the § 1983 plaintiff to show that the state `official knows of and disregards an excessive risk to [the victim's] health or safety.'" Ewolski, 287 F.3d at 513 (footnote omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Pursuant to this definition, "the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Once the state actor draws the necessary inference, "the official must act or fail to act in a manner demonstrating recklessness or callous indifference toward the individual's rights." Ewolski, 287 F.3d at 513.Id. at *8.
In this case, the Court is unable to find any affirmative conduct on the part of the defendants which establishes a direct or special relationship between the defendants and the plaintiffs. Officer David Andrews never created a "special danger" that placed the victim "specifically at risk," as required by Kallstrom, 136 F.3d at 1066. The testimony of both Barney and Andrews establishes that they not only never met, but did not know of each others' existence. Likewise, there is no evidence that Andrews had ever known of the Williamses, much less of any particular danger to them from Wilbert's activities. Andrews's conduct thus does not meet the required threshold for "state-created-danger" even if he had taken affirmative acts that placed the plaintiffs' safety in jeopardy. Id.
The case against Officers Tucker and Mata is likewise insufficient. Although any actions they took on the day of the shooting would obviously have been under color of law, as they were on duty, there is no evidence that they took any affirmative actions that increased the risk of danger to the plaintiffs. The plaintiffs complain that Mata and Tucker (1) should have offered them a police escort to the hospital or (2) should have called an ambulance. However, these complaints describe omissions, not affirmative acts. The plaintiffs were not in custody, so there was no special relationship formed. Nor is there an unique "state-created danger," because the plaintiff's complaint is only that Mata and Tucker failed to prevent a private party — Wilbert — from inflicting injuries other private parties — the plaintiffs. Even if Mata and Tucker had created an unique danger, the plaintiffs will still have to establish that their rights were denied "without due process of law" — in other words, with the requisite level of culpability. There is evidence from Wanda Lee Atkins that police officers failed to arrest Wilbert on July 27, 1997, but nothing in the record suggests that either of these officers was Mata, and Tucker's contact with the case occurred only at the police department.
Officer Todd's involvement with Wilbert was more extensive and, according to the plaintiffs' allegations, it was Todd who intervened on Wilbert's behalf time and again to cause his release from arrest. However, Todd retired from the Saginaw Police Department in January 1996, and Wilbert did not even meet Barney until May of 1996. Nonetheless, viewing the evidence in the light most favorable to the plaintiffs, the deposition testimony of Raychan Williams does suggest that Todd was still serving as a conduit for information and getting Wilbert out of jail in early 1997 (according to the "Saginaw County Jail Records" that the plaintiffs cite but do not provide to the Court, Wilbert's last arrest was on February 14, 1997 after he broke out one of Barney's windows), and Barney testified that she saw Todd at his jewelry store on multiple occasions. However, even if one concludes that Todd was responsible for facilitating the release of a dangerous criminal, conduct of that nature has been determined not to constitute a constitutional tort. In Martinez v. State of California, 444 U.S. 277 (1980), the Supreme Court rejected an attempt to hold parole board members liable for a murder committed by a convicted sex offender five months after he was paroled from prison. Even assuming that the parole board knowingly released a sex offender who they knew was dangerous to the public, the Court found the relationship between the offender's release and the crime to be too attenuated to find that the state had deprived the petitioners' decedent of life contrary to the Fourteenth Amendment. Martinez, 444 U.S. at 284-85.
The Sixth Circuit has subsequently applied Martinez in two particularly relevant cases. In Hayes v. Vessey, 777 F.2d 1149 (6th Cir. 1985), the court rejected a teacher's allegation that her substantive due process rights were violated by the failure of a staff member to ticket an inmate who was in a forbidden area. The plaintiff claimed that had the fellow staffer, Vessey, stopped the inmate from roaming earlier in the day, he would not have been able to rape her that same afternoon. Rejecting the claim, the court found that Vessey was no more likely the cause of the rape than the intervening lapse of time, the action of another teacher letting the rapist access the forbidden area, and the same staff member's authorized absence from the area later that day. Given that anyone of these factors also could have prevented the rape, no proximate cause was found. Id. at 1153-54. In Carlson v. Conklin, 813 F.2d 769 (6th Cir. 1987), the court rejected the claim of a plaintiff who sued the state director of the Department of Corrections for transferring a violent inmate to a halfway house who subsequently escaped and assaulted the plaintiff. The Sixth Circuit noted that " Martinez has been relied upon repeatedly to deny relief under § 1983 where plaintiffs were harmed by criminals formerly, or never, in the custody of state officials," Id. at 772 (citing cases). Citing the words of Judge Posner, the court found that because the State of Michigan has no constitutional ditty to protect the public from criminals, it had no duty to protect the plaintiff from harm either. Id. at 772 (citing Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) ("[T]here is no constitutional right to be protected by the state against being murdered by criminals or madmen.") (Posner, J.)).
Finally, there is no evidence in the record suggesting that Todd was aware of any specific danger to Barney or the Williamses at anytime. The plaintiffs do not allege any such awareness on Todd's part — instead, they complain that the Deparment should have been aware of the danger. There is no evidence creating a material fact issue on the necessary elements of a special relationship, or that the plaintiffs were exposed to a special danger — i.e. one different than the general risk to which the public was exposed by having Wilbert at large — or that Todd acted with deliberate indifference toward the safety of Barney or the Williamses.
The lawsuits against defendants Mata, Tucker and Todd (through his personal representative, John Van Benschoten) in their individual capacities therefore will be dismissed.
These defendants have also been sued in their official capacity. The Supreme Court has held that it is redundant to allege claims against both a municipality and against its officers in their official capacities, as the latter necessarily implicates the former. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999). Therefore, when a civil rights plaintiff also sues the municipality directly, district courts generally dismiss the official capacity suits against the municipal employees. See Vance v. County of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996); Carnell v. Grimm, 872 F. Supp. 746, 752 (D.Haw. 1994); Willis v. Bell, 726 F. Supp. 1118, 1124 (N.D.Ill. 1989). Accordingly, the Court will dismiss the case against these defendants in their official capacities as well.
Also named as defendants are the City of Saginaw and BAYANET. The Supreme Court has plainly held that respondeat superior alone is not a basis of municipal liability under 42 U.S.C. § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92 (1978). More directly in this case, the absence of any unconstitutional conduct by an officer generally removes the basis for any liability against his department as a matter of law. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). As demonstrated above, the conduct of the named officers in this suit is no basis for municipal liability under 42 U.S.C. § 1983. That does not resolve the issue outright, however, because the plaintiffs have raised questions of facts as to the behavior of officers on the day in question — July 27, 1997 — other than those sued in this case. Specifically, the plaintiffs allege through the testimony of Ms. Adkins that two City of Saginaw police officers, identities unknown, found Wilbert at his Thurber residence after the kidnaping in this case, and instead of arresting him, told him to stay quiet and remain in his house. The Heller rule quite logically does not apply when the individual defendants sued were not the only ones involved in the plaintiffs' injuries. Barrett v. Orange County Human Rights Comm'n, 194 F.3d 341, 350 (2d Cir. 1999).
Furthermore, although the proximate cause standard for municipal liability is extremely high, the gap of time between the unnamed officers' alleged warning to Wilbert and Wilbert's assault on the plaintiff was sufficiently short as to create a question of fact on the issue of proximate cause.
However, as previously noted, because the plaintiffs were not in custody, there was no special relationship here that creates an exception to the general rule that a police department is under no obligation to protect private citizens from one another. Nor do the plaintiffs portray a compelling scenario for a state-created danger. Even if the unnamed police officers in fact did see Wilbert at his Thurber residence after the kidnaping and fail to arrest him, that act did not necessarily "render [the plaintiffs] more vulnerable to danger." See Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994). By failing to arrest Wilbert, the officers may have been grossly negligent, but the plaintiffs do not allege that or explain how these officers' activities somehow increased the risk of harm from what it otherwise would have been. It would be a different case, of course, if the officers had furnished Wilbert with a firearm, given him instructions on how to find the plaintiffs, or had provided Wilbert the vehicle with which he rammed the plaintiffs' automobile. Were those the facts, the plaintiffs could establish a special danger specifically directed toward them, and deliberate indifference to their safety demonstrated by the unnamed police officers. But the plaintiffs here complain only of inaction, specifically the department's failure to prevent the commission of a crime by one private citizen upon another. DeShaney teaches that such allegations do not give rise to a federal cause of action.
The plaintiffs have also alleged a violation of the Equal Protection Clause based on a claim that the City of Saginaw discriminates against women, especially women seeking to enforce personal protection orders. To sustain such a claim under 42 U.S.C. § 1983, the plaintiff "must show that she is a member of a protected class and that she was intentionally and purposefully discriminated against because of her membership in that protected class." Jones, 2002 WL 1533574 at *7. In Jones, the court of appeals rejected a similar claim, adopting the reasoning of the Tenth Circuit in Watson v. City of Kansas City, Kan., 857 F.2d 690 (10th Cir. 1988). In Watson, the plaintiff alleged that the local police department had discriminated against her on the basis of sex and her status as a domestic violence victim in refusing to investigate claims she had made against her police officer husband. The court first considered the plaintiff's claim that a police custom existed that unfairly discriminated against victims of domestic violence. The court held that facts beyond those of the plaintiff's own situation are generally required to establish a true "custom." Id. at 695. The plaintiff met that burden, however, with statistical evidence demonstrating that while 31% of known non-domestic assault perpetrators were arrested in one particular year, only 16% of domestic however, with statistical evidence demonstrating that while 31% of known non-domestic assault perpetrators were arrested in one particular year, only 16% of domestic assault perpetrators were arrested. The plaintiff also demonstrated that police policy encouraged officers to "defuse" domestic assault situations and use arrest only as a last resort. Id. at 696. Because these facts supported a reasonable inference of a discriminatory motive, the court found that the plaintiff stated a claim for unlawful discrimination against her as a victim of domestic violence. Id. at 696.
The plaintiff was less successful, however, with her attempt to claim that the evidence also demonstrated animus on the basis of gender. Because the policy the plaintiff attacked was on its face gender-neutral, the plaintiff was under an obligation to demonstrate that the policy had an adverse impact on women indicative of discriminatory animus. Unlike with her domestic violence claim, the plaintiff offered no evidence, statistical or anecdotal, that suggested any adverse impact of the policy upon women. Similarly, she provided no evidence of a discriminatory animus based on gender. Accordingly, the district court's grant of summary judgment to the defendants on this ground was affirmed. Id. at 697-98.
The plaintiffs in this case expend little argument and cite no evidence in the record to support their contentions that the City of Saginaw Police Department discriminates against women and domestic violence victims in its arrest and detention policies. Unlike the Watson plaintiff, the plaintiffs here have proffered no statistical evidence whatsoever, nor do they reference any comments or official policies from which a fact finder could infer that either women generally or domestic violence victims specifically are treated in a discriminatory maimer. If there is indeed some latent hostility or supporting evidence buried somewhere in this case, it is the duty of the parties, not the Court, to scour the record for supporting evidence. See In re Morris, 260 F.3d 654, 665 (6th Cir. 2001). Because the plaintiffs have failed to bring forth evidence to rebut the defendants' charge that insufficient existence exists to support a claim for a violation of the Equal Protection Clause of the Fourteenth Amendment, summary judgment will be granted on this claim.
Finally, the plaintiffs have also alleged state law claims against the defendants grounded in gross negligence. The defendants have interposed the defense of governmental immunity based on Mich. Comp. Laws § 691.1407(1), which provides municipalities and their employees broad immunity in the exercise or discharge of governmental functions.
The plaintiffs' claim must be resolved against them on the basis of Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), and its treatment of the issue of proximate cause. In that case, the Michigan Supreme Court overruled another one of its precedents in the context of a police chase case in which innocent bystanders were killed by a fleeing suspect. The court first noted that the employee provision of the governmental immunity act protects the employee from liability only if "[t]he . . . employee's . . . conduct does not amount to gross negligence that is the proximate cause of the injury or damage." Id. at 458, 613 N.W.2d at 317 (citing Mich. Comp. Laws § 691.1407(2)(c) (emphasis added). Although the court recognized that an earlier decision had construed "the proximate cause" to be synonymous with "a proximate cause," the court found that construction to be contrary to the plain language of the statute, and overruled it. Id. at 460-61, 613 N.W.2d at 318 overruling Dedes v. Asch, 446 Mich. 99, 107, 521 N.W.2d 488, 491 (1994). As a result, in order for governmental employees to be held liable for their torts, their actions must have constituted "gross negligence that is the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause." Robinson, 462 Mich. at 462, 613 N.W.2d at 319. Because the court found that "the" proximate cause of the plaintiffs' injuries was not the police pursuit, but rather the reckless driving of those piloting the fleeing vehicles, no liability could be imposed.
The same result must obtain here. It is obvious that if the Court were to pick the most "immediate, efficient, and direct cause" of the plaintiffs' injuries, the actions of Wilbert, not those of the officers, would be chosen. Given the nature of the conduct alleged against the police officers — inaction in failing to arrest Wilbert on the day of the incident, and procuring his release from custody months before — when compared to Wilbert's own conduct in perpetrating the assault, there is simply no question of fact on the proximate cause issue that remains for a fact finder to decide. The plaintiffs' state law claims, therefore, must be dismissed as well.
There is little question that police must occasionally turn to unsavory characters in their efforts to detect covert criminal activity. However, that circumstance does not justify turning an official blind eye toward the illegal and sometimes dangerous conduct in which police informants sometimes engage. When police fail to arrest a wrongdoer, or procure his release to enlist him in a different battle, they take the calculated risk of exposing the public to greater danger than if the wrongdoer were left in custody. However, taking that risk, even in an unwise or negligent manner, does not violate the constitution unless it creates a special danger directed toward a specific individual, and then only when officials are deliberately indifferent to the danger they may cause.
The plaintiffs in this case have not adequately demonstrated that their injuries were caused by the defendants' violation of their rights protected by the Constitution or laws of the United States, and they have not successfully avoided the governmental immunity which bars their state law claims.
Accordingly, it is ORDERED that the plaintiffs' Motion to Amend Complaint [dkt #75] is DENIED.
It is further ORDERED that the defendants' motion for summary judgment [dkt #71] is GRANTED.
It is further ORDERED that the defendants' motions in limine [dkt #s 80, 97] are DENIED AS MOOT.
Defendant Charles Rousseau, personal representative of the estate of Robert Bryant Wilbert, has not answered the first amended complaint or otherwise responded to the summons. Therefore, it is further ORDERED that the plaintiffs shall file an affidavit seeking the clerk's entry of a default against Wilbert's estate on or before August 21, 2002, and promptly move for entry of a default judgment thereafter. The failure to comply with this directive will result in a dismissal of the case against Wilbert's estate for lack of progress.