LAWRENCE P. ZATKOFF, District Judge.
This matter is before the Court on the following motions, each of which has been fully briefed:
The Court finds that the facts and legal arguments are adequately presented in the parties' papers such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motions be resolved on the briefs submitted. For the following reasons, both Motions are GRANTED insofar as they relate to the 42 U.S.C. § 1983 claims at issue therein.
In deciding a motion for summary judgment, the Court must view all facts in a light most favorable to the non-moving party. In this case, that means viewing all facts in favor of Plaintiff.
On Sunday morning, January 30, 2011, shortly after midnight, sixteen year old D'Margio Phipps (hereinafter, "Plaintiff"), together with his friend, broke into an elementary school located in Mt. Morris Township ("Township"). While doing so, they tripped an alarm and the Township police officers responded. After Township police officer Scott Goecker ("Goecker") arrived at the school, Plaintiff and his friend ran out of the school. Goecker initially pursued the suspects, but he then returned to the school where he met City of Swartz Creek (the "City") police officer Nick Paul ("Paul"). Paul was there in response to a call for back-up and a canine unit. Paul brought Ike, a police dog, with him.
Goecker, Paul and Ike then tracked and searched for Plaintiff and his friend, following two sets of footprints in the foot-high, mostly new-fallen snow. The tracks of the suspects eventually separated, signifying that Plaintiff and his friend split up. Goecker, Paul and Ike followed the tracks of Plaintiff's friend until they were alerted that Plaintiff's friend had been apprehended. After doubling back to where the two sets of footprints diverged, Goecker, Paul and Ike tracked the footprints created by Plaintiff. At some point during this period, Plaintiff elected to lay down in the snow because he knew he was going to be caught by the police. As Plaintiff heard Goecker, Paul and Ike approach, Plaintiff continued to lay face down in the snow, with his hands underneath him.
Plaintiff states that he saw the police dog (Ike) running and barking at him, with the officers (Goecker and Paul) "way behind." As Plaintiff continued to lay face down with his hands underneath him, Ike apprehended Plaintiff by grabbing Plaintiff's left shoulder with his teeth. After Plaintiff moved his hands to push Ike away, Ike bit Plaintiff in the left ear. According to Plaintiff, neither officer said anything to Plaintiff or Ike before Ike attacked Plaintiff. Plaintiff also states that, while Ike was biting Plaintiff, Goecker was kneeling on the ground next to Plaintiff. Plaintiff states that, as he was lying submissively in the snow and saying that he surrendered, Goecker punched Plaintiff at least 3 times in the body and left eye and side of his face. Plaintiff states that Paul was standing at the scene as Gocker was hitting Plaintiff, but Paul did not say or do anything to stop Goecker.
After Paul called Ike off of Plaintiff, Goecker handcuffed Plaintiff, pulled Plaintiff to his feet and escorted Plaintiff to the Township police department. There, Plaintiff received medical treatment for his wounds before he was released into his parents' custody. Plaintiff's parents took Plaintiff to the emergency room at Hurley Hospital, and Plaintiff was treated for his injuries to his left shoulder and face, including stitches for a laceration below his left eye, and released.
Plaintiff filed an eight count Complaint, including: (a) a separate 42 U.S.C. § 1983 excessive force claim against each of the four defendants, (b) state law battery claims against each of Paul and Goecker, (c) a state law intentional infliction of emotional distress claim, and (d) a state law gross negligence claim. The Court declined to exercise supplemental jurisdiction over Plaintiff's state law claims and dismissed those claims, without prejudice. In addition, the Court has entered an order pursuant to a stipulation between Plaintiff and Goecker, wherein the parties agreed to dismiss Plaintiff's § 1983 excessive force claim against Goecker to the extent that claim is based on allegations that Goecker could be held liable for the actions of Paul or Ike.
"The 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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[T]he plain language of Rule 56[] mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). A party must support its assertions by:
Fed. R. Civ. P. 56(c)(1). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
The moving party bears the initial burden of demonstrating the absence of any genuine dispute as to a material fact, and all inferences should be made in favor of the nonmoving party. Celotex, 477 U.S. at 323. The moving party discharges its burden by "`showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at 325)).
Once the moving party has met its initial burden, the burden then shifts to the nonmoving party, who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[T]he mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient [to defeat a motion for summary judgment]; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Plaintiff has asserted a § 1983 excessive force claim against each of the four defendants. The Court addresses Plaintiff's claim against each Defendant separately.
Goecker acknowledges that, as all evidence must be construed in Plaintiff's favor for purposes of a Rule 56 motion, Plaintiff's § 1983 excessive force claim against Goecker for the three punches Goecker is alleged to have made against Plaintiff would survive a motion for summary judgment. Accordingly, there are no issues to address with respect to Goecker, and Plaintiff's § 1983 excessive force claim against Goecker with respect to those punches remains before this Court.
The Township argues that Plaintiff has failed to provide any evidence: (1) of an unconstitutional policy, procedure or custom of the Township, (2) that there was a lack of training or supervision of Goecker, or (3) any direct, causal link between such allegations and the alleged excessive force used by Goecker.
A municipal or governmental entity defendant can be found liable for the violation of a constitutionally protected right only if the plaintiff can establish that an officially executed policy, or the toleration of a custom of such municipality or governmental entity, leads to, causes or results in the deprivation of such rights. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). See also City of Canton v. Harris, 489 U.S. 378 (1989). Therefore, Plaintiff must not only identify a policy or custom, he must connect the policy or custom to the Township and show causation between the particular injury and the execution of that policy or custom. Garner v. Memphis Police Dept., on remand, 8 F.3d 358, 364 (6th Cir. 1993). See also Gregory v. Shelby County, Tenn., 220 F.3d 433, 442 (6th Cir. 2000).
Respondeat superior is not available as a theory of recovery in a Section 1983 action, as "[a] municipality may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). See also Monell, 436 U.S. at 690-91. Accordingly, in order to have a viable action against the Township, Plaintiff must demonstrate that the Township itself is the wrongdoer. Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992).
In this case, Plaintiff asserts that the Township is liable for failure to train Goecker. As set forth by the Sixth Circuit:
Plinton v. County of Summit, 540 F.3d 459, 464 (6th Cir. 2008) (quoting Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citing Harris, 489 U.S. at 389-91)).
Plinton, 540 F.3d at 464.
The entirety of Plaintiff's argument regarding the Township's liability is:
Thus, taking Plaintiff's conclusory arguments in a light most favorable to Plaintiff, the Court finds that the "evidence" upon which Plaintiff bases his claim against the Township consists of the following: (a) Goecker beat Plaintiff's body and face, and (b) the Township never trained Goecker regarding "citizen's constitutional rights or how to conduct a lawful arrest or what constitutes excessive force."
First, contrary to Plaintiff's assertion that the Township never trained Goecker regarding "citizen's constitutional rights or how to conduct a lawful arrest or what constitutes excessive force," Goecker testified that he had taken classes or received training from the Township and other entities or agencies. Specifically, Goecker testified that he had classes or training on what constitutes a lawful arrest at "Eastern Michigan [University] as well as at U of M [University of Michigan] and then continued on with both [police] academies" that he graduated from. Goecker also expressly testified that: (1) among other training he received through the Township, he had a "criminal law refresher course," (2) the Township had trained him on "force continuum based on Michigan's laws of arrest force continuum," and (3) he was familiar with force continuum, which means that "as police officers, [they are allowed] to use one step more, one step greater force than is being used against us in order to make a — to [e]ffect an arrest." Based on this evidence, the Court holds Plaintiff has not made a "showing that the [Township] failed to train its employees [specifically Goecker] to handle recurring situations presenting an obvious potential for such a violation," such that municipal liability could be triggered as a result of the beating of Plaintiff by Goecker.
Second, this Court concludes, as a matter of law, that such "evidence" does not rise to the level of deliberate indifference, even if there was inadequate training. Plaintiff has not alleged, or proffered evidence, that Goecker (or, for that matter, any Township police officer) has a history of physical abuse against citizens such that the Township should have been "clearly on notice that the training in this particular area was deficient and likely to cause injury." Plinton, 540 F.3d at 464 (citations omitted).
Accordingly, and for the reasons set forth above, the Court GRANTS the Motion for Partial Summary Judgment filed by the Township and dismisses Plaintiff's § 1983 excessive force claim against the Township.
In order to hold an officer liable for excessive force, a plaintiff must prove that the officer: (1) actively participated in the use of the excessive force; (2) supervised the officer who used the excessive force; or (3) owed the victim a duty of protection against the use of excessive force. Turner v. Scott, 119 F.3d 425, 439 (6th Cir. 2006). Plaintiff alleges that Paul is liable for the use of excessive force as described in the first and third parts above because: (a) with respect to the use of the police dog (Ike), Paul "deploy[ed] the police dog under his control without warning," and (b) Paul failed to intervene and prevent or stop Goecker's use of excessive force.
Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir. 1994) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). "[T]he objective-reasonableness standard . . . depends on the facts and circumstances of each case viewed from the perspective of a reasonable officer on the scene and not with 20/20 hindsight." Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007) (citing Graham, 490 U.S. at 395-96). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97. "Relevant considerations include `the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Fox, 489 F.3d at 236 (quoting Graham, 490 U.S. at 396).
In support of his summary judgment motion, Paul relies on two cases where the Sixth Circuit affirmed summary judgment in favor of defendant police officers/police departments after a police dog severely injured or caused the death of a suspect in the course of apprehending the suspect. In Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988), a claim was brought on behalf of a deceased burglary suspect who was hiding from police officers and a police dog in the building that the suspect burglarized. The suspect was apprehended by the canine, which grabbed the suspect's neck and caused the suspect's death. The Sixth Circuit affirmed the district court's summary judgment ruling in favor of the defendant police officers and municipality, as described in Matthews v. Jones, 35 F.3d 1046, 1051 (6th Cir. 1994):
In Matthews, plaintiff brought an § 1983 excessive force action against a police officer and police department after being severely bitten by a police dog during the course of arrest. The following facts were critical to the Matthews court's ruling:
Id. at 1051. Thus, the Matthews court held that:
Id.
The Matthews court also stated:
Id. Accordingly, the Matthews court affirmed summary judgment in favor of the defendants:
We hold that it is clear from the evidence presented in support of and in opposition to the motion for summary judgment on the original complaint that there is no dispute as to the facts material to the issue of whether use of the police dog to apprehend Matthews constituted excessive force, and that no reasonable jury could conclude that the use of the police dog to apprehend Matthews was not objectively reasonable.
Id. at 1052.
In response to Paul's argument, Plaintiff extensively discussed a recent case from the Southern District of Ohio, Campbell v. City of Springboro, Ohio, 788 F.Supp.2d 637 (S.D. Ohio 2011), and cited a numerous cases from outside the Sixth Circuit. None of those case are binding on this Court, however, and the Court does not find any of them persuasive with respect to the facts of this case. Plaintiff briefly noted the existence of Robinette and Matthews in acknowledging, as the Campbell court did, that the Sixth Circuit has refused to label as unreasonable the general practice of using police dogs to aid in locating and apprehending suspects. Campbell, 788 F.Supp.2d at 668 (citing Robinette and Matthews).
Plaintiff then discussed a third police dog case, White v. Harmon, 1995 WL 518865 (6th Cir. 1995), wherein the Sixth Circuit concluded that, under the facts of that case, the use of a police dog could support a claim of unreasonable use of force. The facts of White included the following:
Id. at *1-2. Based on the foregoing facts, and in the words of Plaintiff in his response brief, the White court held that a "canine handler could be held liable for excessive force where[: (1)] the handler brought a little-trained dog to an arrest scene[,] and [2] failed to prevent the dog from biting the plaintiff [suspect], who had already been handcuffed." Id. at *3.
In this case, Plaintiff argues that the facts taken in a light most favorable to Plaintiff establish that a constitutional violation occurred. Plaintiff's argument is premised on the belief that the Court must assume that the "police dog was deployed without warning on a suspect already down on the ground in a submissive position and that the dog was provided plenty of time to bite Plaintiff's shoulder and maul Plaintiff's ear prior to being ordered to stop." The Court notes, however, that although some of Plaintiff's premised belief is accurate, there are critical parts of Plaintiff's premise that are inaccurate and other parts of Plaintiff's premise that ignore certain significant, undisputed facts in this matter.
Assuming Plaintiff's testimony is true, Plaintiff's premise accurately notes that the police dog was deployed without warning and Plaintiff was laying on the ground. It is not clear, however, even from Plaintiff's testimony, that: (a) Plaintiff was in a "submissive position," or (b) the police dog was provided "plenty of time to bite Plaintiff's shoulder and maul Plaintiff's ear prior to being ordered to stop." Nonetheless, for purposes of this Opinion, the Court will assume that such statements are accurate. More importantly, Plaintiff's argument ignores the following
Based on the facts of this case, the Court finds this case is far more similar to Robinette and Matthews than it is to White. First, as in Robinette and Matthews, Paul had no idea whether Plaintiff was armed. Second, as in Matthews and Robinette, Paul was chasing after a fleeing felon (who, as far as he knew, was armed): (a) in an unfamiliar area, (b) in the dark of night "through the back streets" and over "six" fences and through people's gates and yards (Plaintiff's words), and (c) while Plaintiff was either hiding or otherwise moving in an area that provided Plaintiff with a strategic advantage over Paul and Goecker (by going over fences and through gates, and then, ultimately, hiding "behind an abandoned house"), such that Plaintiff could have easily ambushed them.
Third, this case differs significantly from White in that: (1) Plaintiff was not in handcuffs when the police dog apprehended Plaintiff, (2) there is no evidence that the police dog in this case had inadequate training, (3) there is no evidence that the canine handler in this case (Paul) had inadequate training, and (4) the police dog (Ike) had merely apprehended Plaintiff by the left shoulder-and did not bite Plaintiff in the face/ear-before Plaintiff struck the police dog. Thus, several key factors in White (i.e., the existence of a "little-trained" police dog, a "little-trained" canine handler, and a handcuffed suspect) were not present in this case.
It is true that, when accepting Plaintiff's version of the events that night, there are two minor, inter-related matters that differentiate this case from Robinette and Matthews. First, Plaintiff states that Paul did not call out any warnings to Plaintiff when the police dog alerted Paul to Plaintiff's presence. Second, Paul released the police dog without warning Plaintiff that the police dog would be released if Plaintiff did not surrender. As Plaintiff admits, however, he:
Based on those five facts, the Court finds that, even if Paul gave no warnings prior to releasing the police dog: (a) there is no evidence of an intent on the part of Paul to create a substantial risk of death or serious bodily harm, and (b) no evidence that the police dog (Ike) was not used in an "appropriate manner." See Matthews, 35 F.3d at 1051 (citing Robinette, 854 F.2d at 912-13).
Finally, the Court notes that the Sixth Circuit's "observations in Robinette, relative to [its] reluctance to label `unreasonable' the police practice of using police dogs, are equally [instructive and] applicable here":
Matthews, 35 F.3d at 1052 (quoting Robinette, 854 F.2d at 914).
For the foregoing reasons, this Court concludes "that there is no dispute as to the facts material to the issue of whether use of the police dog to apprehend [Plaintiff] constituted excessive force, and that no reasonable jury could conclude that the use of the police dog to apprehend [Plaintiff] was not objectively reasonable." Matthews, 35 F.3d at 1052.
Again, for purposes of this Opinion, the Court must accept as true Plaintiff's testimony that Goecker punched Plaintiff three times. Thus, the Court turns to Plaintiff's argument that "[a] question of fact exists as to whether Defendant Paul is also liable under the Fourth Amendment for failing to prevent or stop Defendant Goecker's use of excessive force against Plaintiff." As the Sixth Circuit has stated:
Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).
In support of his argument that Paul is liable for failing to prevent or stop Goecker's alleged use of excessive force against Plaintiff, Plaintiff offers exactly zero evidence. None. Rather, after Plaintiff cites a number of cases where a police officer was not entitled to summary judgment because he or she had a duty to intervene when the officer saw a citizen's constitutional rights being violated, Plaintiff offers only the following conclusory statements:
Such conclusory statements, however, are devoid of any facts upon which this Court (or a reasonable jury) could determine how Paul failed to intervene and prevent or stop any excessive force used by Goecker.
In addition, Paul has testified that he did not see Goecker punch Plaintiff at any time, and Plaintiff has not testified that Paul observed Goecker punching Plaintiff. Likewise, there is no evidence in the record that Paul had any reason to know that Goecker was going to punch Plaintiff. There also is no evidence of Paul's proximity to Goecker when the alleged punches were made. Finally, there is no evidence regarding the amount of time that elapsed between when the alleged battering by Goecker began and when such alleged battering ended.
Accordingly, the Court finds that there is no genuine dispute of material fact-or any evidence-from which the Court could conclude that Paul observed Goecker use, or that Paul had reason to know that Goecker would use, excessive force against Plaintiff, as required by the first element of Turner. More importantly, even if the Court assumes that Paul did observe Goecker punch Plaintiff, there is no evidence to create a genuine issue of material fact as to the second element of Turner, i.e., that Paul "had both the opportunity and the means to prevent the harm from occurring." Id. Therefore, the Court concludes that Plaintiff's excessive force claim against Paul, to the extent the claim is based on a failure to intervene and prevent or stop Goecker's alleged use of excessive force, must fail as a matter of law.
For the reasons set forth in this Section IV.C., the Court holds that: (a) Plaintiff's § 1983 excessive force claim against Paul is not sustainable, as a matter of law, and (b) Paul is entitled to summary judgment.
As discussed in Section IV.B. above, the City, as a municipal entity, cannot be held liable on a theory of respondeat superior. Rather, in order to have a viable action against the City, Plaintiff must demonstrate that the City itself is the wrongdoer. Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992). As with Plaintiff's excessive force claim against the Township, Plaintiff offers a very limited discussion why the City's motion for summary judgment should be denied. Plaintiff's argument, in its entirety, is:
As set forth in Section IV.B. above, there are three elements a plaintiff must prove in order to prevail on a § 1983 failure to train claim:
Plinton, 540 F.3d at 464 (citations omitted). The Court finds that Plaintiff cannot demonstrate a genuine dispute of material fact with respect to any of the three elements with respect to the City.
As to the alleged inadequacy of the training program, Paul testified that he was unfamiliar with protocols regarding police dogs as it pertained to juveniles, suspects lying face down or suspects who are surrendering to police. The Court finds such "facts" irrelevant to ascertaining the adequacy of the City's training program. First, Plaintiff proffers no language from any source that shows that there are protocols pertaining to any of those three situations. Second, the evidence in the record reveals that Paul was not aware that Plaintiff was a juvenile; in fact, Paul testified that he was told that the suspects he was tracking were in their late teens to early twenties. Third, as the Matthews case makes clear, it is constitutionally permissible to use a police dog to track and apprehend a suspect, including one who is lying face down with his hands concealed beneath his body. Matthews, 35 F.3d at 1051. Fourth, there is no evidence in the record that shows that Plaintiff surrendered to the police officers when the police dog tracked and apprehended Plaintiff; in fact, Plaintiff's testimony reveals that he: (1) did not bring his hands out from underneath his body until he struck the dog, and (2) did not say he gave up until after the police dog had grabbed Plaintiff by the shoulder.
In addition, the City has submitted undisputed and extensive deposition testimony from Paul, as well as documentation of training classes, as to: (a) Paul's initial canine officer training at an academy with his police dog, (b) weekly training and annual recertification of Paul through a weeklong course, and (c) numerous training courses offered by different organizations that Paul has been through. Therefore, the Court finds that there is no evidence to support a genuine dispute that the City's canine training program is inadequate.
The Court also finds that there is no evidence of deliberate indifference by the City. There is no evidence of Paul had ever improperly used a police dog, nor any evidence that the police dog at issue (Ike) had ever acted in an inappropriate manner. The evidence reveals that Paul has never been disciplined while employed by the City. The evidence also reveals that, prior to this case, Paul had never been: (1) the subject of a citizen complaint, (2) a defendant in a lawsuit, or (3) accused of using excessive force.
Finally, as Plaintiff cannot show that the City had an inadequate canine training program or that the City was deliberately indifferent, the cause of the injury could not have been caused by — nor could it be closely related to — the alleged inadequacy of the training program.
Therefore, for the reasons set forth in this Section IV.D., the Court: (a) finds that Plaintiff's § 1983 excessive force claim against the City fails as a matter of law, and (b) concludes that the City's motion for summary judgment must be granted.
Accordingly, and for the above reasons, IT IS HEREBY ORDERED that:
IT IS SO ORDERED.
