United States District Court, Eastern District of Michigan, Southern Division
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANT URBAN’S MOTION FOR SUMMARY JUDGMENT (DOC. 94); AND (3) GRANTING IN PART AND DENYING IN PART DEFENDANT PILLSBURY’S MOTION FOR SUMMARY JUDGMENT. (DOC. 95)
Victoria A. Roberts United States District Judge
Defendants Todd Pillsbury and Don Urban filed motions for summary judgment pursuant to F.R.C.P. 56. Magistrate Judge Majzoub issued a report and recommendation (“R&R”) recommending that the Court grant summary judgment to Don Urban. She also recommended summary judgment on all counts except excessive force to Todd Pillsbury. Webb filed a document (Dkt. 102) which appears to be objections to the Magistrate Judge’s report granting summary judgment to Don Urban. However, he did not file anything in opposition to Urban’s motion for summary judgment until April 2, 2015. No objections have been filed to the Magistrate Judge’s report regarding Pillsbury.
The Court ADOPTS the report and recommendation; GRANTS Defendant Urban’s Motion for Summary Judgment; and GRANTS IN PART AND DENIES IN PART Defendant’s Pillsbury’s Motion for Summary Judgment.
II. FACTUAL BACKGROUND
On July 29, 2008 members of the F.A.N.G. (Flint Area Narcotics Group), received an anonymous tip that Plaintiff was growing marijuana in his backyard. F.A.N.G. officers arrived at Plaintiff’s home in unmarked cars. Plaintiff fled to the backyard; officers gave chase.
Plaintiff claims that Todd Pillsbury and three unnamed officers surrounded him with guns drawn and ordered him to the ground. As he did that, Webb claims that officers jumped on him and began hitting him; when he turned his head to tell the officers to stop, Pillsbury punched him in the mouth and on the back of the head. Webb admits that Urban did not witness this incident (Dkt. 94-5).
Webb asked to speak to the officer in charge; Urban introduced himself. Urban ordered Plaintiff to sit against a boat in the yard and not move. Urban left the backyard at some point, and an officer asked Webb to unlock a shed. When Urban returned to the yard, he shoved Webb to the ground, unaware that the other officer had asked him to move. Webb admits that he had no other interaction with Urban.
Plaintiff filed his initial complaint pro se on June 30, 2011 against the City of Flint, Todd Pillsbury, Don Urban, Anthony Mills (a city ombudsman) and Rodney Williams (an internal affairs officer). Plaintiff filed an amended complaint through counsel on January 25, 2013. Plaintiff alleged: gross negligence; assault and battery; false arrest and imprisonment; violation of 42 U.S.C. §1983 for excessive force and violation of Webb’s right to due process; supervisory liability against Urban, Mills and Williams; violation of 42 U.S.C. §1988 for conspiracy to deprive Plaintiff of his constitutional rights (the Magistrate Judge as Dated this to a typographical error, assuming the Plaintiff meant a violation of 42 U.S.C. §1985); and intentional infliction of emotional distress.
The parties stipulated to the removal of the City of Flint, Mills, and Williams as defendants, and to Plaintiff’s claims of assault and battery, and false imprisonment (Dkt. 71). Plaintiff’s third attorney withdrew on September 11, 2014 (Dkt. 92). Both remaining Defendants filed motions for summary judgment in September 2014 (Dkt. 94, 95). On March 23, 2015 Magistrate Judge Majzoub filed her report and recommendation on the motions, recommending that the case against Urban be dismissed in its entirety, and for the case to proceed against Pillsbury on the excessive force claim only (Dkt. 100).
Plaintiff filed objections on March 31, 2015 objecting to granting Urban summary judgment on the claims of supervisor liability and gross negligence. In addition to what the Court construes as objections, Plaintiff also filed a response to Urban’s motion for summary judgment on April 2, 2015 (Dkt. 103). Plaintiff’s response to Urban’s summary judgment motion was six months late; it was not considered by the Magistrate Judge, and it will not be considered by this Court.
III. STANDARD OF REVIEW
Filings by pro se litigants are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). Although the document filed by Plaintiff does not comply with the requirements for objections to the Magistrate Judge’s report, the Court construes it as objections for purposes of review. Objections to a Magistrate Judge’s report and recommendation are reviewed de novo.
Summary judgment under F.R.C.P. 56(c) is appropriate when there “is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” The moving party has the burden to show that there is no genuine issue of a material fact. Celotex Corp. v. Catrett, 477 U.S.317, 323 (1986). Once the moving party has established this, the burden shifts to the non-moving party ...