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Richards v. City of Detroit

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

May 11, 2017

MEKKEL RICHARDS and ADAM MALINOWSKI, Plaintiffs,
v.
CITY OF DETROIT, DETROIT ASSISTANT POLICE CHIEF STEVE DOLUNT, DETROIT POLICE OFFICER GADWELL, DETROIT POLICE OFFICER REIZIN, DETROIT POLICE OFFICER PETROFF, and DETROIT POLICE SGT. BRANNOCK, Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         This lawsuit arises from Plaintiffs' arrest on June 23, 2014, following the City of Detroit's annual fireworks display. In an Amended Complaint filed September 15, 2015, Plaintiffs assert the following civil rights claims against Defendants pursuant to 42 U.S.C. § 1983:

(I) Violation of Plaintiffs' First Amendment rights;
(II) Retaliation against Plaintiffs in violation of the First Amendment;
(III) Deprivation and destruction of Plaintiffs' personal property in violation of their Fifth and Fourteenth Amendment rights;
(IV) Excessive force and unreasonable seizure of Plaintiffs in violation of their Fourth Amendment rights;
(V) False arrest of Plaintiff Mekkel Richards (“Mr. Richards”) in violation of his Fourth Amendment rights;
(VI) Malicious prosecution of Mr. Richards in violation of his Fourth and Fourteenth Amendment rights;
(VII) Civil conspiracy to violate Plaintiffs' rights; and
(VIII) Municipal liability.[1]

(ECF No. 5.) Plaintiffs also assert the following claims against Defendants under Michigan law: (IX) assault and battery; (XI)[2] false imprisonment; (XII) common law and statutory malicious prosecution under Michigan Compiled Laws § 600.2907; and (XIII) intentional infliction of emotional distress.

         Presently before the Court is Defendants' October 11, 2016 motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56, in which they seek dismissal of all but Plaintiffs' excessive force and Plaintiff Adam Malinowski's destruction of personal property claims against Defendant Police Officer Robert Gadwell (“Officer Gadwell”). (ECF No. 39.) Plaintiffs filed a response to the motion on November 8, 2016. (ECF No. 45.) Defendants filed a reply brief on November 10, 2016. (ECF No. 47.) With the Court's permission, Plaintiffs also filed a sur-reply brief, Defendants filed a supplemental brief to their motion, and Plaintiffs responded to the supplemental brief. (ECF Nos. 56, 58, 60.) The Court held a motion hearing on April 25, 2017.

         At the motion hearing, Plaintiffs' counsel indicated that Plaintiffs are abandoning their conspiracy claim (Count VII) and intentional infliction of emotional distress claim (Count XIII). Counsel further stated that Plaintiffs agree to dismiss Detroit Police Officer Petroff as a defendant. For the reasons that follow, the Court is granting in part and denying in part Defendants' motion for partial summary judgment with respect to Plaintiffs' remaining claims and the remaining defendants.

         I. Summary Judgment Standard

         Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “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). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252.

         “A party asserting that a fact cannot be or is genuinely disputed” must designate specifically the materials in the record supporting the assertion, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). The court must accept as true the non-movant's evidence and draw “all justifiable inferences” in the non-movant's favor. See Liberty Lobby, 477 U.S. at 255.

         II. Factual Background

         On the evening of June 23, 2014, the City of Detroit conducted its annual fireworks display over the Detroit River. Mr. Richards and his friend, Plaintiff Adam Malinowski (“Mr. Malinowski”), watched the fireworks from a location on Woodward Avenue between Jefferson Avenue and Campus Martius Park. When the fireworks display ended, Plaintiffs began walking north on Woodward Avenue with a crowd of people. Because of the crowd, Plaintiffs walked the bikes they had brought with them.

         The City of Detroit Police Department was in full force the evening of the fireworks to control the crowd. This included Defendants: Assistant Police Chief Steve Dolunt (“Assistant Chief Dolunt”), Sargent Edward Brannock (“Sargent Brannock”), and Police Officers Gadwell, Michael Reizin (“Officer Reizin”), and Stephen Petroff (“Officer Petroff”). Defendants were tasked with clearing pedestrians from the closed portions of Woodward Avenue and encouraging those in attendance at the fireworks display to return to their cars and go home.

         A large male with long hair, wearing a Viking hat, and swinging what appeared to be a plastic sword was among the crowd walking with Plaintiffs northbound on Woodward Avenue. The parties refer to this individual as “the Viking” and, for ease of reference, the Court will do so here. During their depositions in this lawsuit, some of the defendants described the Viking as intoxicated, belligerent, using vulgarity, and inciting the crowd by chanting such things as “f--- the police”, “we're not moving” and “you can't f---ing stop us.” (Pls.' Resp., Ex. 3 at 12; Ex. 6 at 20, Ex. 15 at 30-31.) Other individuals in the crowd were swinging on street signs, kicking over garbage cans, jumping off flowerpots, and acting “in a semi disruptive manner”. (Id., Ex. 6 at 15.)

         Assistant Chief Dolunt approached the Viking's girlfriend and encouraged her to calm him down, but she was unsuccessful in doing so. (Id. at 16.) He decided to place the Viking under arrest as they reached Grand Circus Park. By that time, Officer Petroff and other police officers had joined Assistant Chief Dolunt. The officers' attempt to place the Viking under arrest resulted in a scuffle at the southern perimeter of the park (at the corner of Woodward Avenue and Witherell Street), which drew the attention of individuals within the crowd, including Plaintiffs. According to Plaintiffs, the officers were smashing the Viking's face into the ground and the Viking was asking for help and for someone to videotape the incident. (Id., Ex. 2 at 35, 38.) Several other officers stood a couple of feet away to create “a shield” and “block the rest of the crowd” from getting too close. (Id., Ex. 6 at 25.) Other officers walked northbound on Woodward Avenue to “push” the crowd in that direction. Some officers drew pepper spray and light wands and threatened to pepper spray people if they did not keep moving. (Id., Ex. 2 at 36-38.) The officers told the crowd to “go home” and “get out of here. Keep moving north. You can't be here.” (Id. at 35.)

         Plaintiffs passed the police officers' scuffle with the Viking and initially stopped to observe some fifteen feet away. (Id. at 35.) Plaintiffs then proceeded north on Woodward Avenue for about thirty feet, where they locked their bicycles to a tree in Grand Circus Park. (Id. at 37.) Concerned about what was happening to the Viking, they decided to videotape the incident with their cellular phones. (Id. at 38, 39; Ex. 1 at 24-25.) Plaintiffs therefore walked on a footpath inside Grand Circus Park back towards the location of the altercation. (Id., Ex. 2 at 42, 97.) Most of the crowd had dispersed at this point, although a “few stragglers” were standing by and observing the incident. (Id., Ex. 6 at 35, 63.)

         Mr. Malinowski testified during his deposition in this matter that as he began approaching the scene, officers told him to back away. (Id., Ex. 1 at 32-33.) Mr. Malinowski backed away and stopped approximately twenty to twenty five feet from the scene: “to the point where they stopped telling [him] to back away.” (Id. at 33-34.) According to Mr. Malinowski, Mr. Richards was closer to the scene. (Id. at 34.)

         Mr. Richards testified that he was on a path leading from Witherell and Woodward into Grand Circus Park recording the incident when an officer approached him, put his hand in front of the camera, and told Mr. Richards to back up and that he could not be there. (Id., Ex. 2 at 49-50, 97.) Mr. Richards told the officer that he had a right to be there and record, and he tried to stand his ground, but the officer walked into him. (Id. at 49-50.) Mr. Richards began walking backwards, away from the location of the Viking's arrest, and started to record the scene again. (Id. at 97-98; Ex. 1 at 34.) According to Mr. Malinowski, several additional officers confronted Mr. Richards as he was backing up. (Id., Ex. 1 at 38.) At this point, Mr. Malinowski began recording Mr. Richards' confrontation with the officers. (Id. at 41.) Mr. Malinowski was at the grass or tree line of Grand Circus Park and Mr. Richards was near the patio chairs, approximately ten to eighteen feet away from Mr. Malinowski. (Id. at 35, 43; Ex. 2 at 70.)

         As Mr. Richards continued recording, one of the officers pushed Mr. Richards, which caused him to trip backwards over a chair and fall down. (Id., Ex. 2 at 63-64.) Mr. Richards put his phone in his pocket after he fell. (Id. at 65.) Plaintiffs testified that after Mr. Richards stood up, Officer Gadwell approached Mr. Richards and punched him in the face, knocking Mr. Richards to the ground again. (Id.; Ex. 1 at 41.)

         Mr. Richards called to Mr. Malinowski, asking, “did you get that on video?” (Id., Ex. 2 at 68.) Officer Gadwell then charged Mr. Malinowski, who put his phone in his pocket and started to walk away. (Id., Ex. 1 at 44, 45.) Officer Gadwell grabbed Mr. Malinowski from behind and placed him in a headlock. (Id.) Officer Gadwell then reached into Mr. Malinowski's pocket, took his phone, and slammed it against a tree. (Id.) He then pushed or shoved Mr. Malinowski against the tree, forced him to his knees, and placed him in handcuffs. (Id. at 44, 48-49.) In the meantime, an unidentified officer handcuffed Mr. Richards. (Id., Ex. 2 at 68-69.)

         Officers then sat Plaintiffs on a curb at the northeast corner of Woodward and Witherell. Mr. Malinowski's cellular phone was left behind in the park. According to Plaintiffs, Assistant Chief Dolunt came over and talked to them, telling them they were “f---ing idiots, ” “wasting their time, ” and taking “this right shit too seriously.” (Id., Ex. 2 at 73.) Plaintiffs had no interaction with Assistant Chief Dolunt prior to this point. (Id., Ex. 2 at 76-77.) An unidentified officer allegedly called Plaintiffs “faggot tree huggers.” (Id.) The officers then discussed whether to book Plaintiffs or let them go. (Id., Ex. 1 at 52.) Mr. Richards testified that Assistant Chief Dolunt instructed the officers to “teach these kids a lesson” and book them. (Id. at 76-77.) Mr. Malinowski recalled that another officer in plainclothes said they needed to teach Plaintiffs a lesson and Assistant Chief Dolunt “listened to that.” (Id., Ex. 1 at 54.)

         Unidentified officers then took Plaintiffs to a police vehicle for transport to the Detroit Detention Center. Mr. Malinowski asked the officer driving the vehicle what they were being arrested for and he told them “interfering.” The officers then drove Plaintiffs to the Detroit Detention Center for processing. At some point after they arrived, Mr. Malinowski observed one of the Detroit Detention Center guards holding Mr. Richards' phone and swiping through it. (Pls.' Resp., Ex. 1 at 58-59; Ex. 2 at 82.)

         The next day, Plaintiffs were released. When Mr. Richards' phone was returned to him, the last video he took the preceding evening had been deleted. (Pls.' Mot., Ex. 2 at 85.)

         Plaintiffs were charged with misdemeanor interference with a police officer and retained defense counsel (the same attorney representing them in this civil matter). On August 19, 2014, Mr. Malinowski entered a guilty plea to the charge. (Pls.' Resp., Ex. 13.) The trial court sentenced Mr. Malinowski to a delayed sentence to be dismissed after nine months of probation. (Id.) Mr. Malinowski successfully complied with the terms of the delayed sentence and the disposition was set aside on May 18, 2015. (Id.) Mr. Richards pleaded not guilty and the trial court dismissed the charge against him when no Detroit Police Department officer appeared at his trial on September 29, 2014. (Id., Ex. 12.)

         Mr. Malinowski eventually recovered his cellular phone. A “hard re-set” had been done on the phone, however, which deleted all of the videos he took the evening of his arrest.

         III. Defendants' Arguments and Analysis

         A. Plaintiffs' State Law Claims

         Defendants first argue that the Court must dismiss Plaintiffs' state law claims pursuant to the Michigan Supreme Court's decision in Jones v. Powell, 612 N.W.2d 423 (2000). In that case, the Court held that where other avenues of relief are available, there is no “state law claim for damages against individuals or municipalities based on alleged violations of Michigan's constitution.” Id. at 426. Plaintiffs do not allege violations of ...


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