Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fizer v. City of Burton

United States District Court, E.D. Michigan, Southern Division

November 18, 2016

KENNETH FIZER, Plaintiff,
v.
CITY OF BURTON, et al, Defendants.

          OPINION AND ORDER DISMISSING CASE ON RES JUDICATA GROUNDS

          HONORABLE GERALD E. ROSEN UNITED STATES DISTRICT CHIEF JUDGE.

         On September 18, 2015, Plaintiff Kenneth Fizer, through counsel, filed the instant Section 1983 police excessive force action against the City of Burton, Michigan, Mt. Morris Township, Michigan, and several individual Burton and Mt. Morris police officers, and Michigan State Troopers arising out of Plaintiff s stop, arrest and flight from arresting officers on December 23, 2012. This is the third such Complaint filed by Plaintiff arising out of these same events.

         I. PROCEDURAL BACKGROUND

         On December 3, 2013, Plaintiff Kenneth Fizer, acting pro se, filed a Complaint in this Court against the Burton Police Department, the Mt. Morris Police Department, two individual Burton and Mt. Morris police officers - Jim Broughton and Jeff Iski - and a Michigan State Trooper, Jason Sack (all of whom are also named as defendants in the instant action), alleging that his constitutional rights were violated when he was arrested and taken into custody on December 23, 2012. See Fizer v. Broughton, et ah, E.D. Mich. No. 13-14928 ("Fizer T). On May 15, 2014, the Court dismissed that complaint, without prejudice, for failure to pay the requisite filing fee or establish indigency so as to entitle Plaintiff to proceed in forma pauperis.

         Meanwhile, on January 3, 2014, Fizer filed another pro se Complaint, this time in State Court, against the Burton Police Department and against a non-governmental defendant, Smitty's Towing. Defendants removed the case to this Court on February 20, 2014. See Fizer v. Burton Police Department, et ah, E.D. Mich. No. 14-10786 ("Fizer IF). This second Complaint, challenging the seizure of Plaintiff s automobile, also arose out of Plaintiff's stop, arrest, and flight from arresting officers on December 23, 2012. Plaintiff alleged in this second Complaint that in seizing his automobile after he was arrested, the Burton Police violated his constitutional rights to Due Process.

         In lieu of answering the Complaint, Defendant moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) and/or 56(c). On June 16, 2014, the Court granted Defendant's motion and dismissed the case against the Burton Police Department, with prejudice. (Smitty's Towing was dismissed without prejudice for lack of prosecution.) Significantly, the police record of the events of December 23, 2012, filed with the Court as part of the State Court records with Defendant Burton Police Department's Notice of Removal and later appended to Defendant's motion to dismiss or for summary judgment, were relied upon by the Court in dismissing the case. See id., Dkt. # 2, 7.

         Citing the police record, the Court summarized some of the pertinent facts in its Opinion and Order of June 16, 2014:

Plaintiff Kenneth Alan Fizer, a felony parolee, [1] was arrested on December 23, 2012 on charges of flight to evade prosecution - fleeing/eluding and resisting an officer arising out of a larceny at a Walmart store on East Court Street in Burton, Michigan, allegedly committed by Fizer's companion, Terry Clements. According to the police report of the arrest, Clements stole several bottles of liquor from the Walmart store then fled the business without paying in a black 2002 Buick Regal driven by Fizer. The Burton Police were alerted. . . .

[Fizer v. Burton Police Department, et ah, E.D. Mich. No. 14-10786, 6/16/14 Opinion and Order, Dkt. # 7, Pg. ID 73.]

         The Police Reports detailed the ensuing police pursuit, Fizer's stop and ultimate arrest:

TRAFFIC PURSUIT
At the time [Burton Police] Officer Broughton was traveling east hound on Court St. east of Genesee Rd. and observed a black Buick Regal occupied by a black male driver and black male passenger traveling west bound matching the description given by dispatch. Officer Broughton positioned the] patrol vehicle behind the Buick Regal in an attempt to initiate[] a traffic stop. Officer Broughton in a fully marked police cruiser activated overhead lights and siren at which time the vehicle disregarded to stop. Dispatch was notified of the vehicle bearing Michigan] Registration] CMK2425 failing to stop.
Officer Broughton continued to pursue the vehicle w[est] b[ound] on Court St. which time the vehicle disregarded a solid red light at Center Rd. and continued n[orth]b[ound] on Center. The vehicle continued w[est] b[ound] on Richfield Rd. disregarding [a] solid red light at Western Rd. onto N[orth] b[ound] Dort Hwy.
As the vehicle continued w[est] b[ound] on Boluvard, north on James P Cole to w[est] b[ound] Stewart Ave., State Police Trooper Mercier was able to place stop sticks in the path of the suspect's vehicle on Stewart Ave. eventually deflating both driver side tires. The vehicle continued to flee approximately lA mile more onto Maines St. when Trooper[s] Carberry and Saks ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.