United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING CASE ON RES JUDICATA
HONORABLE GERALD E. ROSEN UNITED STATES DISTRICT CHIEF JUDGE.
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.
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
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.
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.
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,
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.
Police Reports detailed the ensuing police pursuit,
Fizer's stop and ultimate arrest:
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
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 ...