MARK A. GOLDSMITH, District Judge.
This is a civil rights case brought under 42 U.S.C. § 1983 with pendent state-law claims for gross negligence and wrongful death. Plaintiff Deborah Ryan, in her individual capacity and as the representative of the estate of her daughter, Patricia "Katie" Williams, alleges that Defendants City of Detroit, Detroit police officers Barabara Kozloff and Dwane Blackmon, City of Canton, and Canton police officers Mark Schultz and Adam Falk failed to response properly to domestic violence committed by Ed Williams upon his wife, Katie Williams. Plaintiff alleges that this failure enabled Ed, ultimately, to murder Katie. In her § 1983 claim premised on the equal
Before the Court is a motion for summary judgment (Dkt. 93) by Defendants Canton, Schultz and Falk (collectively "Defendants" or "the Canton Defendants"), which argues that the equal protection claim — the sole claim asserted against them — should be dismissed. For the reasons set forth below, the Court grants the motion in favor of Canton, but denies the motion with respect to Falk and Schultz.
Ed Williams, a Detroit Police Department ("DPD") homicide detective, was married to Katie Williams, a DPD academy instructor. By 2009, the couple had been married for approximately three years and owned a home on Wall Street in Canton, Michigan. 9/20/2009 Falk Report at 1 (Dkt. 107-5). Ed and Katie had marital difficulties, however, and, by September 2009, they had not been living together for two months. Id.
At about 9:45 p.m. on the evening of Saturday, September 19, 2009, Ed came to the Wall Street home and found Katie talking to her boyfriend, Clifford Lee, on the phone. Video Tr. at 6-7 (Dkt. 106-3). An argument ensued, which culminated in Ed pushing Katie to the ground; Katie sustained a cut on her right cheek. Id. Shortly after midnight, Katie and Lee arrived at the Canton Police Department ("CPD") headquarters and requested a police escort to accompany Katie back into the home. Falk Report at 1; Falk Dep. at 15-17 (Dkt. 106-2).
Officer Adam Falk was on duty at the CPD headquarters and interviewed Katie. Falk Dep. at 10. Katie described the domestic violence episode with her husband, but refused to provide her name or Ed's name. Id. at 14-17. Katie told Falk that she and her husband were both Detroit police officers and that she did not want Ed to lose his job. Video Tr. at 5, 8.
Falk informed Katie that all he could do was write a report and let the prosecutor make the determination whether Ed would be charged. Id. at 6. Falk said that he would write a report, but would not seek the arrest of Ed based on the information Katie gave him. Id. at 13. Falk also mentioned that the report was a "cover our ass thing," in case "something really serious happens." Id. at 9, 17. Katie then left the CPD headquarters with Lee. Falk Dep. at 17. Just before she left the police headquarters, Falk asked Katie "Do you still want anybody to go over to the house?" Katie responded "No." Video Tr. at 18.
Falk prepared a report of his interview with Katie. The report described the incident as a "civil matter" with a disposition of "closed, for documentation only at this time." Falk Report at 1-2. Falk's report recounts his encounter with Katie and Lee, including Katie's account of the events where Ed pushed her and she sustained a cut on her cheek. Id. The report also notes that Katie did not want to file a report, and that she wanted a police escort to her home to collect some things, known as a "civil standby," but then stated that she did not want any assistance and left the station. Id. According to the report, Falk communicated this encounter to his supervisors. Id. at 2.
Katie then returned home the morning of September 20, accompanied by Plaintiff, her mother. Deborah Ryan Dep. at 60-65 (Dkt. 107-3). Katie entered the home unaware
Shortly after Ed had fled, Schultz issued a notice through the Law Enforcement Information Network (LEIN) regarding Ed.
In deposition, Schultz testified that if DPD wanted to do an internal investigation, CPD would provide DPD with information. Id. at 59. Schultz also stated that he hoped that DPD could get a hold of Ed to assess his "mental state." Id.
CPD Officer Michael Steckel, an officer who assisted Schultz on September 20, 2009, also testified that CPD contacted DPD. Steckel Dep. at 9 (Dkt. 106-9). Steckel stated that Ed "could either come to the Canton Police Department or he could go to the supervisor's office at Detroit P.D. and we would make our decision based on what they had to say about if it was good enough to remove him from LEIN." Id. at 24.
According to Schultz, he had a brief conversation with Ed a little after 6 p.m. on September 20, 2009. Schultz Dep. at 82, 86. Schultz told Ed that he knew Ed had left the note. Ed responded that the note did not mean anything. Id. at 83. Schultz also told Ed that he had entered the LEIN notice, listing him as a "missing person endangered." Id. Schultz said that he would not remove the notice until Ed came to see Schultz or went to his supervisor at DPD. Id. Ed said that he was closer to Detroit, so Schultz told Ed to have his supervisor call him when he got to DPD. Id.
Although it is not entirely clear from the record, apparently Schultz notified DPD that Ed was coming to check-in with them. Id. at 57, 59. At some point prior to Ed's arrival at DPD, DPD determined that Sergeant Barbara Kozloff of DPD would speak with Ed. Kozloff testified that, prior to meeting Ed, she had a phone call with Schultz. Schultz apprised Kozloff of the basic facts of the morning incident in Canton. Kozloff Dep. at 55 (Dkt. 107-11). Kozloff testified that she asked Schultz if
DPD Lieutenant Dwane Blackmon and Sergeant Martel also spoke with Kozloff prior to Ed's arrival and provided her with some information regarding the incident of Ed leaving the Canton home that morning. Kozloff Dep. at 40-41, 73.
Upon arriving at DPD, Ed met with Kozloff. Id. at 75. Ed told Kozloff of his marital strife, relating the argument with Katie that morning at the Canton home. Id. at 78. Kozloff also testified that Ed stated that when Ed heard police sirens, he left the home. Id. at 79. Kozloff did not inquire further because she had not been apprised of any other facts by Blackmon, Martel, or Schultz. Kozloff Dep. at 41, 45, 49, 61-62.
After meeting with Ed, Kozloff called Schultz at approximately 6:30 p.m. and told him that "all is well" with Ed. Schultz Dep. at 92. Relying on Kozloff's representation that "all is well," Schultz removed the LEIN notice. Id. The timing of the LEIN notice removal is unclear from the record.
Late in the evening the next day, Monday, September 21, 2009, Ed and Katie spoke on the phone and agreed to meet the next morning in the Canton public library parking lot. DPD Report at 3 (Dkt. 106-2). On September 22, 2009, Ed and Katie met as planned at approximately 8 a.m. and spent about an hour talking on a bench near the parking lot. Id. After about an hour, the couple got up from the bench, and Ed retrieved a personal handgun from his car. Id. Ed then shot and killed Katie with his personal handgun in the parking lot. Id. He then committed suicide by turning the gun on himself. Id.
Relevant to the case are CPD's policies and practices concerning domestic violence intervention operations. According to the Domestic Intervention Operations Policy ("DIO Policy") published by CPD, the department established "a uniform policy" to "eliminate indecision in the minds of officers and create confidence when exercising judgment in the performance of their duties." DIO Policy at 1 (Dkt. 106-7). The policy states that at an "on-scene investigation," an officer should "interview all parties," such as the "victim, suspect, and other witnesses." Id. at 5. When "responding to a domestic violence call, the officers shall ... arrest the assailant whenever possible when probable cause is established." Id. at 7.
The DIO Policy also maintains that officers "should not consider the wishes of either party concerning the arrest or prosecution" or "the occupation of either party." Id. at 9. The policy further provides that police officers "shall provide all victims of domestic violence with referral information" for a victim assistance program. Id. at 10-11.
Aside from the language of the DIO Policy, CPD officers testified to CPD's practices. CPD Sergeant Craig Wilshire testified that filing a report is not a prerequisite for receiving protective assistance in Canton, and a citizen's refusal to identify herself is not grounds to deny such assistance. Wilshire Dep. at 34-35 (Dkt. 107-4).
Falk testified that the decision to arrest a domestic violence perpetrator is based on the "reasonableness" of the situation, and there is no a requirement that an arrest be made "in a day or two or three." Falk Dep. at 35-36. In the case of Ed, Falk said that the Canton police could
Schultz stated that "our normal policy would have been in this situation to have it reviewed by a prosecutor once all the information was obtained and Mr. Williams could have been interviewed in reference to the domestic issue." Schultz Dep. at 66.
CPD Deputy Chief Robert Kerr also testified about CPD's policies and practices, pursuant to Federal Rule of Civil Procedure 30(b)(6). With respect to the DIO Policy outlining "Arrest Policies and Procedures," Kerr affirmed that "officers responding to the scene of a domestic violence situation should arrest the assailant in all of the following circumstances ... [including] misdemeanor assault, assault and battery, or aggravated assault based on reasonable cause where a domestic relationship exists." Robert Kerr Dep. at 53-54 (Dkts. 93-2 and 106-8).
Rather, according to Kerr, when a CPD officer has probable cause to believe that domestic violence has been committed, the officer may (i) write a report, (ii) request a warrant, (iii) make an arrest, or (iv) initiate a criminal investigation. Id. at 43. In situations where an assailant cannot be located, officers should attempt to locate the assailant and obtain a statement. Id. at 52. When an assailant cannot be located, CPD's policy allows waiting only until the end of the officer's shift, at which time an arrest warrant must be sought. Id. at 44.
In most cases, CPD does not notify an employer that one of its employees may have engaged in domestic violence. Id. at 41. However, in the case of suspected domestic violence by a member of a law enforcement agency, CPD officers sometimes let the other agency know that one of its employees may have committed domestic violence so as to inform it that "a member of their agency ... has potentially engaged in criminal activity." Id. at 42.
With respect to Ed's conduct, CPD officers stated that there likely were sufficient grounds for probable cause to arrest Ed. Schultz testified that he thought Falk "would have had probable cause to believe a crime was committed" if Katie had been believable when she first came to CPD. Schultz Dep. at 122-123. After Ed fled the Williams' home and CPD knew his identity, Schultz added that CPD "would have held off" making an arrest "until we could talk to Ed." Id. at 123.
Kerr testified that there "could have been sufficient grounds" for reasonable cause to arrest Ed, but added that "without further investigation" and not having been there, he was "reluctant to put an absolute on that...." Kerr. Dep. at 20 (Dkt. 106-8). However, according to Kerr, there would have been sufficient grounds to pursue further investigation, such as interviewing Ed. Id. at 20, 52. This procedure of interviewing a suspected assailant is included in CPD's policies. Id. at 20-21. DIO Policy at 5.
On March 7, 2011, Plaintiff filed her original complaint (Dkt. 1). After some discovery, the Court granted Plaintiff's motion for leave to amend her complaint (Dkt. 57), so that she could name the Canton Defendants. The amended complaint (Dkt. 59) contains six claims for relief:
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When evaluating a summary judgment motion,
Biegas v. Quickway Carriers, 573 F.3d 365, 373 (6th Cir.2009) (quotation marks and brackets omitted).
When a defendant seeks summary judgment, the defendant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation marks omitted). "But there is `no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.'" Harvey v. Campbell Cnty., 453 Fed.Appx. 557, 560 (6th Cir.2011) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). "To withstand summary judgment, the nonmoving party must present sufficient evidence to create a genuine issue of material fact." Humenny v. Genex Corp., 390 F.3d 901, 904 (6th Cir.2004). A mere scintilla of evidence is insufficient; rather, "there must be evidence on which the jury could reasonably find for the nonmovant." Id. (quotation marks and brackets omitted).
Defendants argue that summary judgment should be granted in their favor on Plaintiff's claims against them. The claims against Canton and its two officers are related and yet distinct. While the claims against Canton and its officers are both grounded in an alleged deprivation of equal protection, the claim against Canton is only viable if the deprivation derives from a "custom or policy" of Canton. As elaborated below, the Court concludes that Plaintiff has failed to raise a triable issue of fact that Canton has adopted a custom or policy that deprives victims of domestic violence of the equal protection of the laws when their assailants are law enforcement personnel. Therefore, summary judgment
Plaintiff's equal protection claim is grounded in the theory that Katie was treated differently and adversely because her assailant was a police officer.
In the instant motion, Canton argues that Plaintiff has failed to offer any proof that it treated Katie differently because her alleged domestic violence assailant was a police officer. Defs.' Mot. at 9. Canton further argues that it did not have a custom or policy of treating differently victims of domestic violence whose assailants are police officers. Id. at 13. Even if it had such a policy, Canton maintains that a rational basis supports it and that any such policy was not the "moving force" that caused Katie's death. See id. at 16-19.
The Court agrees with Canton that Plaintiff has failed to establish a triable issue of fact that Canton had a custom or policy of treating differently victims of domestic violence whose assailants are police officers. As explained below, there is no evidence that any Canton official with policy-making authority established any such discriminatory policy, nor is there any evidence that domestic violence victims, as a class, were treated adversely. The Court also agrees that, to the extent there is a practice of notifying other law enforcement agencies that their personnel were under investigation, there is a rational basis for
The principal deficiency in Plaintiff's claim against Canton derives from her inability to satisfy the "custom or policy" requirement of 42 U.S.C. § 1983 — the statute upon which she relies for her equal protection claim.
A local government may be liable as a "person" under 42 U.S.C. § 1983 only if an "official policy is responsible for a deprivation of rights protected by the Constitution." Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690-691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The policy need not be formal; an informal policy or "custom" can exist, "even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 691, 98 S.Ct. 2018; Cellini v. City of Sterling Heights, 856 F.Supp. 1215, 1220 (E.D.Mich.1994). As the U.S. Supreme Court explained, "Congress included customs and usages in § 1983 because of the persistent and widespread discriminatory practices of state officials." Monell, 436 U.S. at 691, 98 S.Ct. 2018 (brackets omitted). "Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law." Id.
However, municipal liability for the actions of employees may not be based on a theory of respondeat superior; the local government, through its policy, must be the "moving force" behind the injury. Fox v. Van Oosterum, 176 F.3d 342, 345 (6th Cir.1999). The liability of a local government under § 1983 "depends solely on whether the plaintiff's constitutional rights have been violated as a result of a `policy' or `custom' attributable to the local government." Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000). A plaintiff "has the burden of proof for establishing the existence of an unconstitutional policy and demonstrating the link between the policy and the alleged injuries at issue." Bennett v. City of Eastpointe, 410 F.3d 810, 819 (6th Cir.2005).
For a local government to be held liable for a policy decision of an individual, rather than the enactment of an officially designated legislative organ, the Supreme Court has explained that the individual must hold final and unreviewable policy-making power:
Pembaur v. City of Cincinnati, 475 U.S. 469, 482-483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (footnotes and citations omitted).
Thus, the policy-making authority of an individual should not be confused with the authority to exercise discretion. The Sixth Circuit has explained that the "authority to exercise discretion while performing particular functions does not make a municipal employee a final policymaker unless the official's decisions are final and unreviewable and are not constrained by the official policies of superior officials." Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.1993). The ability of an official to make final policy comes from "customs or legislative enactments, or such authority can be delegated to them by other officials who have final policymaking authority." Id. To determine whether an official has final policymaking authority, courts look to state law, such as "statutes, ordinances, and regulations, and less formal sources of law such as local practice and custom." Id.
Generally, courts have held that the failure by the plaintiff to introduce evidence of the policy-making power of a decision maker is fatal to a claim for municipal liability. See, e.g., Wooten v. Logan, 92 Fed.Appx. 143, 146-147 (6th Cir. 2004) (holding, in part, that county was not liable for police chief's rape of plaintiff because plaintiff had failed to demonstrate that the police chief "was acting in a policymaking capacity"); Miller v. Calhoun Cnty., 408 F.3d 803, 814-815 (6th Cir.2005) (holding that plaintiff had failed to introduce evidence that a prison employee had been delegated policymaking authority regarding the medical care of plaintiff's decedent). However, evidence showing a delegation by a policymaker to a lower official, such as a police investigator, can render a policy decision by that lower-ranking official final, if those decisions are unreviewable. Monistere v. City of Memphis, 115 Fed.Appx. 845, 852-853 (6th Cir.2004) (holding that police investigator had been delegated unreviewable authority that amounted to custom or policy where "Executive Commander" testified that investigators were delegated authority on how to run investigations).
Applying these authorities to Plaintiff's Monell claim against Canton, the record developed fails to disclose any unconstitutional policy attributable to Canton for several reasons.
Plaintiff's most glaring deficiency is that there is no evidence regarding how CPD treated other victims of police assaults. The only evidence presented by Plaintiff of an improperly treated victim pertained to Katie herself. There was no evidence of any other case in which a victim of a police assailant was allegedly subjected to adverse or different treatment.
The critical nature of such evidence is illustrated in Hakken v. Washtenaw County, 901 F.Supp. 1245 (E.D.Mich. 1995), where the plaintiff alleged that a county sheriff's department had a policy of treating domestic assault cases less seriously than nondomestic assault cases. The district court held that "Plaintiff's version of events regarding her own situation would not be sufficient to evidence different treatment." Id. at 1254. And the court denied summary judgment to the defendant only on the plaintiff's promise to present, at a later date, "statistical data and a comparative study" to demonstrate a policy of differential treatment. Id.; see also Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir.1988) ("Normally, a plaintiff must point to facts outside the plaintiff's own case to support the allegation of an unconstitutional municipal policy.").
In our case, there is neither anecdotal evidence nor statistical data beyond Katie's case to establish a triable issue that Canton has a policy of differential treatment based on the assailant's affiliation with law enforcement. Thus, Plaintiff has failed to establish a policy, as required under § 1983.
Kerr Dep. at 47-48 (Dkt. 106-8).
A "custom" or "policy" must represent a regularly occurring event. Gregory v. Shelby Cnty., 220 F.3d 433, 442 (6th Cir.2000) (holding that deviations from policy "on more than one occasion" did not "establish that the practice was so widespread as to have the force of law"); Adickes v. S.H. Kress & Co., 398 U.S. 144, 167, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (stating that a custom or usage "must have the force of law by virtue of the persistent practices of state officials") (emphasis added). The regularity of the policy or custom, as adopted by its officials, must be "so permanent and well settled" as to have "the force of law." Monell, 436 U.S. at 691, 98 S.Ct. 2018 (quotation marks omitted).
When practices are not well-settled as to have the force of law, courts have rejected Monell claims. An instructive case is Gregory v. Shelby County. In Gregory, the plaintiff alleged that prison guards failed to close cell doors regularly, contrary to a written prison policy. Gregory, 220 F.3d at 442. Because the cell doors were not closed on a particular day, the plaintiff's decedent, a prisoner, was beaten by other prisoners who were able to come into his cell. Id. at 438. The plaintiff asserted a Monell claim, arguing that the deviations from the written policy established a custom or usage sufficient for municipal liability. The Sixth Circuit rejected this argument. Although the record indicated that the prison guards deviated from the written policy on occasion, the court held that
Id. at 442.
In this case, like in Gregory, Plaintiff claims that there is an unwritten policy to depart from an unobjectionable written policy. Here, the claim is that CPD notifies another law enforcement agency when that agency's personnel is under investigation, even though the written policy forbids taking into account the assailant's occupation. But the evidence of the alleged unwritten policy of notification rests on the slim reed of Kerr's testimony that notification "does happen." This is hardly sufficient to merit characterization as a policy. Like the plaintiff in Gregory, Plaintiff "has wholly failed to point to evidence in the record suggesting that this lapse of compliance with the written policy was so well settled as to constitute a custom...." Id.
In any event, the notification practice, even if it amounted to a policy, would satisfy the "rational-basis" test. "In a case such as this, where no suspect class or fundamental right is implicated," courts apply "the rational-basis test and sustain the government action in question unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government's actions were irrational." Sadie v. City of Cleveland, 718 F.3d 596, 601 (6th Cir.2013).
The Court agrees with Canton that the notification of other law enforcement agencies that an officer of that agency is under investigation in Canton is rationally related to the purpose of determining whether that particular officer is fit to serve. Defs.' Mot. at 16-17. And the Court rejects Plaintiff's argument that the notification practice was too attenuated for its goal of public safety. Pl.'s Resp. at 29-31. Calling another law enforcement agency was done with the expectation that the other law enforcement agency would intervene in some way. Kerr Dep. at 48. In this case, for example, CPD contacted DPD so as to (i) ascertain Ed's whereabouts, (ii) determine Ed's mental state, and (iii) inform DPD that it had a potential workplace issue involving three of its officers. These reasons cogently supply a rational basis for notification. Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) ("[T]he Equal Protection Clause is satisfied as long as there is a plausible policy reason for the classification... and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.").
Plaintiff tries to characterize the notification practice as a subterfuge to refer cases to another police agency and close Canton's own investigation. That, indeed, may have occurred here, as Canton's own counsel appears to concede that the Canton investigation was closed without explanation.
What Plaintiff is left with to establish her case against Canton are the alleged misdeeds of individual officers in Katie's case. But there is no evidence
For all of the above reasons, the Court finds that Plaintiff has failed to raise a triable issue of fact that Canton had a policy or custom of treating domestic violence victims differently, in violation of the equal protection guaranty of the Fourteenth Amendment.
With regard to the equal protection claims brought under § 1983 against Falk and Schultz, First Am. Compl. ¶¶ 61-65, the officers maintain that they should enjoy qualified immunity "for the due process claims." Defs.' Mot. at 23-24. Falk and Schultz assert that, even if the Court finds a special relationship between them and Katie, the conduct of the officers does not shock the conscience to support a denial of her substantive due process rights and Plaintiff has not identified a "clearly established" constitutional right. Id. at 25. In response, Plaintiff argues that Falk and Schultz raise qualified immunity only with respect to due process claims, which are not in the complaint. Pl.'s Resp. at 37. Accordingly, Plaintiff requests that the Court deny the officers qualified immunity for her equal protection claims. Id.
Despite Falk and Schultz pleading qualified immunity in their answer, Defs.' Answer ¶ 6 (Dkt. 69), and arguing qualified immunity in the instant motion, the Court agrees with Plaintiff for the following reasons. In the instant motion, Falk and Schultz argue that they cannot be held liable for Plaintiff's "due process" claims. Defs.' Mot. at 23-25. As Plaintiff notes, the motion utterly fails to address the
When presented with a similar situation, the Sixth Circuit has stated that the failure to properly and timely present qualified immunity constitutes waiver of the defense:
Brown v. Crowley, 312 F.3d 782, 787-788 (6th Cir.2002). However, the failure to properly and timely present qualified immunity does not bar assertion of the defense for later stages of litigation, such as trial. English v. Dyke, 23 F.3d 1086, 1090 (6th Cir.1994) (A waiver of a qualified immunity "need not waive the defense for all purposes but would generally only waive the defense for the stage at which the defense should have been asserted.").
Falk and Schultz have "`not properly and timely presented'" the defense of qualified immunity with respect to the equal protection claims. Thus Falk and Schultz have waived the right to assert this defense at this stage of the proceedings. Brown, 312 F.3d at 788. Accordingly, the Court denies the motion without prejudice with respect to the equal protection claims asserted against Falk and Schultz.
For the reasons stated above, the Court grants in part and denies in part Defendants' motion. Summary judgment is awarded to Canton, but denied, without prejudice, to Falk and Schultz. The Court also denies Defendants' motion for judgment on the pleadings (Dkt. 81) as moot
SO ORDERED.
Plaintiff also contends that the "series of acts and omissions on the part of the defendant police officers and police department" in handling the investigation into Ed "can give rise to `a pattern that evidences deliberate indifference.'" Pl.'s Resp. at 26 (quoting Thurman v. Torrington, 595 F.Supp. 1521 (D.Conn. 1984)). This argument is also undeveloped and unpersuasive. First, Thurman addressed deliberate indifference by police to domestic violence complaints voiced by the same victim over eight months; in our case, there is only one complaint on a single day. Second, the Sixth Circuit has not adopted the Thurman holding, nor is the Court aware of any other court that has held that "deliberate indifference" by police to a single victim's complaints is sufficient to establish a policy of disparate treatment. See Watson v. City of Kansas City, 857 F.2d 690, 696 (10th Cir. 1988) ("We doubt whether evidence of deliberate indifference in the plaintiff's case alone would be sufficient evidence of different treatment.") (emphasis in original).
