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Jacobs v. Alam

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

August 23, 2017

EDUARDO JACOBS, Plaintiff,
v.
RAYMON ALAM, DAMON KIMBROUGH, MICHAEL KNOX, DAVE WEINMAN, Defendants.

          ORDER REGARDING VARIOUS MOTIONS FOR SUMMARY JUDGMENT [#80; #83; #84; #86]

          HON. DENISE PAGE HOOD, JUDGE

         I. BACKGROUND

         On February 9, 2015, Plaintiff Eduardo Jacobs (“Jacobs”) filed this action against Defendants Ramon Alam (“Alam”), Damon Kimbrough (“Kimbrough”), Michael Knox (“Knox”), and David Weinman (“Weinman”). (Doc # 1) On July 27, 2015, Jacobs filed a First Amended Complaint alleging two counts: Bivens Claim (Count I); and Violation of Civil Rights pursuant to 42 U.S.C. § 1983 (Count II). (Doc # 25) On November 13, 2015, this Court entered an Order Granting Defendants' Motion for Summary Judgment on Count II, and dismissed Count II of the First Amended Complaint. (Doc # 37) This matter is presently before the Court on cross motions for summary judgment on the remaining Bivens Claim (Count I). (Doc # 80; Doc # 83; Doc # 84; Doc # 86) The four motions have been briefed.

         On January 3, 2014, Detroit Police Officers Kimbrough and Knox, along with Wayne County Deputy Sheriffs Alam and Weinman, were executing a federal immigration warrant for Reyes Vargas at a house located at 5837 Christiancy in Detroit, Michigan. They were doing so as part of the Detroit Fugitive Apprehension Team, a law enforcement agency comprised of federal, state, and local law enforcement agents from southeast Michigan. Present at the house were Javier Vargas, Sr. (“Vargas, Sr.”), Reyes Vargas's brother, as well as Javier Vargas, Jr. (“Vargas, Jr.”) and his friend Michelle Dotson (“Dotson”). Vargas, Sr. was the tenant of the main floor and second floor of the house. Plaintiff Jacobs was the tenant of the basement level of the house, and he was not at the house when Defendants arrived.

         Defendants all arrived at the house in separate, unmarked vehicles, and they all approached the door. They were in plain clothes, and the parties dispute whether Defendants were displaying their badges on their chests and/or their duty belts. It was nighttime and dark outside. Vargas, Sr. answered the door and consented to Defendants' entry and search of at least the main floor and second floor of the single house dwelling. The parties dispute whether Vargas, Sr. informed Defendants at that time that he could not consent to a search of the basement, as that was Jacobs's unit. However, it is undisputed that Kimbrough and Knox performed a sweep of the entire house, including the basement. Kimbrough testified that they were looking for Reyes Vargas and ensuring the house was free of any potential threat. The parties dispute whether Defendants “ransacked” the basement or moved any items.

         While Kimbrough and Knox swept the house, Alam began interviewing Vargas, Sr., Vargas, Jr., and Dotson in the dining room. Kimbrough and Knox joined Alam in the dining room after they cleared the house. After a while, Knox and Vargas, Sr. left the house. Vargas, Sr., Knox, and Weinman went to look for Reyes Vargas around the neighborhood. Kimbrough and Alam remained inside the house interviewing Vargas, Jr. and Dotson.

         Later that night, Jacobs arrived at the house. He had a concealed pistol license and a loaded weapon, a Glock 9-millimeter, on his person. At this time, Knox was outside the house, inside his vehicle. Weinman was outside the house, inside his own vehicle, interviewing Vargas, Sr. Weinman saw Jacobs pull up to the house in his truck. Vargas, Sr. told Weinman that Jacobs lived in the basement. (Doc # 83-7, Pg ID 755) Weinman alerted Kimbrough and Alam-who were still inside the house with Vargas, Jr. and Dotson-via radio that another person who lived in the basement, per Vargas, Sr., was possibly going to enter the house. Id. at 757. Kimbrough went to the front door of the house to wait for Jacobs. Jacobs, however, entered the house through a rear entry which went directly into the basement level.

         Shortly thereafter, it is undisputed that Jacobs rapidly ascended the stairs from the basement and into the kitchen while shouting (something to the effect of, “Who the fuck went into my house?!”) and forcefully opening the door into the kitchen on the main floor of the house. Kimbrough was sitting at the dining room table and was closest to the kitchen. Vargas, Jr. and Dotson were in the dining room. Alam was pacing back and forth between the dining room and living room area. Upon hearing the bang of the door, Kimbrough, Vargas, Jr., and Dotson all jumped up. Within seconds, shots were fired. Many of the details surrounding the shooting are disputed and testimony at the various criminal proceedings and depositions is at times conflicting.

         Jacobs testified at his deposition that he walked up the stairs with his gun at his side in its holster, but that he did not have his hand on his gun. (Doc # 84-6, Pg ID 1308-09) He testified consistently at the criminal trial. (Doc # 84-4, Pg ID 1171-72) Jacobs stated that he was excited, wanted to find out who went into his property, and went up the stairs shouting, “Who the fuck went into my house?!” Id. Jacobs testified that as he opened the door into the kitchen, he saw an “eight-foot black man” who “was not supposed to be there.” (Doc # 84-6, Pg ID 1309) Jacobs testified that he immediately turned around, reached for his weapon but was never able to unholster it, and fell down the steps. Id.; Doc # 84-4, Pg ID 1175, 1193-94, 1214, 1223. He never entered the dining room or kitchen. (Doc # 84-4, Pg ID 1174, 1177) Jacobs testified that someone started shooting him as soon as he turned his back, and that he slid down the stairs as he was being shot at. Id. at 1178; Doc # 84-6, 1310. Jacobs testified that no one ever identified themselves as Detroit Police or told him to drop his gun. (Doc # 84-4, Pg ID 1175) Jacobs testified that all he could see when he got to the top of the stairs was Kimbrough's face. Id. at 1194-95. He testified that he reached for his weapon to feel secure, but that Kimbrough had not threatened him-Jacobs just knew “he wasn't supposed to be there” because all of his neighbor's friends were Hispanic, not black. Id. at 1214-15.

         At the preliminary examination, Kimbrough testified that he had his back to the kitchen when he heard the banging door, and that when he turned around to face the kitchen, Jacobs was pointing a gun to his face. (Doc # 86-2, Pg ID 1727) Kimbrough testified that he screamed to him to put the gun down two or three times, and that he identified himself as a police officer. Id. Jacobs did not comply and fired his gun at Kimbrough first. Id. Kimbrough then fired back a few rounds from where he was standing. He saw Jacobs advancing towards him, and Kimbrough ran into a nearby bedroom for cover. Id. at 1729. Kimbrough also stated that he saw a live 9-millimeter round on the floor of the kitchen, in the area where Jacobs had been standing. Id. at 1743. Kimbrough testified consistently at the criminal trial and at his deposition. (Doc # 84-3, Pg ID 933-35; Doc # 80-2, Pg ID 603-08) Kimbrough testified that he fired at least three shots through the wall of the bedroom to the area at the top of the basement stairs where Jacobs had been standing, with the intention to kill Jacobs after Jacobs had shot at him two to three times and had ignored his commands to put the gun down. (Doc # 80-2, Pg ID 608)

         At the preliminary examination, Alam testified that Jacobs came from the basement, swung the door open, and had a gun raised at eye level. (Doc # 86-2, Pg ID 1701) Alam further testified that Kimbrough said, “police, drop the weapon” before he heard any shots being fired. Id. at 1702. Alam testified that he then returned fire because he was in fear for his life, his partner's life, and the lives of the two witnesses who were in the house. Id. at 1703. Alam testified consistently at the criminal trial and deposition. (Doc # 84-3, Pg ID 1059; Doc # 86-3, Pg ID 1790-91) He testified that he could not see who pulled the trigger, and that it was possible that Kimbrough shot at Jacobs and that Jacobs never shot at Kimbrough. (Doc # 86-3, Pg ID 1791)

         At the preliminary examination, Dotson testified that after she heard the bang of the door, the officers said, “Detroit Police, ” and she just started hearing gunshots. (Doc # 86-2, Pg ID 1761) She testified that the officers had their hands on their guns and said, “Detroit Police” before drawing their guns. Id. at 1767. She also testified that she could not actually see Jacobs holding or firing the gun. Id. at 1767-68, 1771. She testified consistently at the criminal trial. (Doc # 84-3, Pg ID 981) She also testified that she heard gunfire coming from the kitchen area, and that she heard the person who came up to the kitchen from the basement start automatically shooting. Id. at 983, 991. Dotson testified that everything happened very quickly. Id. at 994.

         At the preliminary examination, Vargas, Jr. testified that after he heard the bang of the door, he heard a shot that he thinks came from the kitchen. (Doc # 86-2, Pg ID 1777) He testified that he could not see Jacobs. Id. at 1779-80. He also testified that he thinks he heard two shots before he heard, “Detroit Police.” Id. at 1781. Vargas, Jr. testified consistently at the criminal trial. (Doc # 86-7, Pg ID 1882-83)

         At the preliminary examination, there was additional testimony from Sergeant Joe Abdella (“Abdella”), an officer who was dispatched to the house to investigate the shooting. Abdella has since passed away. Abdella testified that he spoke with Jacobs at the Detroit Detention Center on the night of the shooting. (Doc # 86-2, Pg ID 1746) Abdella attempted to explain to Jacobs his constitutional rights several times, but Jacobs kept making unsolicited statements. Id. at 1747. Abdella testified that Jacobs told him that he could have shot the officer, that he had the jump on him, that he had his gun right on the officer, but that he did not pull the trigger when he had the opportunity to because he thought he recognized one of the people in the room. Id. at 1748. Abdella testified consistently at the criminal trial. (Doc # 84-3, Pg ID 1081-82)

         While shots were being fired, Vargas, Jr. and Dotson ran toward the living room and the main door of the house. Alam pushed them toward the door and out of harm's way. After the shooting subsided, Kimbrough and Alam were on the main floor of the house, and Jacobs had gone back down to the basement. Kimbrough and Alam ordered Jacobs to place his gun on top of the washer/dryer in the basement and to come up the stairs with his hands up. Jacobs did as he was told, and Kimbrough handcuffed him while Alam provided cover. According to Kimbrough, Jacobs said, “You look like the motherfucker that robbed me last week.” (Doc # 84-3, Pg ID 940) Weinman and Knox heard the shots from outside and approached the house, but by the time they entered the house, the shooting was over, and Jacobs was being handcuffed.

         EMS subsequently transported Jacobs to Detroit Receiving Hospital. According to the medical records, Jacobs sustained a gunshot wound to the left arm “in the posterior superior aspect” with a retained bullet fragment. (Doc # 86-14, Pg ID 1988) He also sustained a small skin wound in his left lower abdomen that “appear[ed] to be another very superficial gunshot wound.” Id. According to Jacobs, he spent about four hours at the hospital. (Doc # 84-6, Pg ID 1315) The medical records indicate that he was then discharged and released into police custody in stable condition. (Doc # 86-14, Pg ID 1988) According to a forensic laboratory report, the bullet fragment removed from Jacobs's arm came from Kimbrough's weapon. (Doc # 83-6, Pg ID 743)

         Weinman testified at his deposition that, immediately after the shooting, he saw a live 9-millimeter round on the kitchen floor. (Doc # 83-3, Pg ID 728) He also went to the basement and cleared Jacobs's handgun for safety; there was a bullet in the chamber, and he placed the gun and the live round back on the washer/dryer. Id. at 728-29. At the criminal trial, Weinman had also testified that he went to the basement with another officer, took the weapon and removed the magazine from it, cleared the chamber, and placed the weapon back where it was on the washer/dryer. (Doc # 83-7, Pg ID 749) He testified that he did this for officer safety. Id. at 749-50.

         Following the shooting, Detroit Police Department Officer Mary Gross (“Gross”) investigated the scene. According to her report, lighting at the scene was poor. (Doc # 80-4, Pg ID 641) Gross recovered seven 45-caliber shell casings from the living room floor (later determined to have been fired from Alam's gun), five 40-caliber shell casings from the bedroom floor (later determined to have been fired from Kimbrough's gun), one 9-millimeter live round from the kitchen floor, a Glock 9-millimeter blue steel semiautomatic handgun from on top of the dryer in the basement, a loaded magazine and a single live round next to the handgun on the dryer, another 9-millimeter magazine with unknown number of live rounds in the living room of the basement unit, and two 30-caliber magazines loaded with unknown number of live rounds on top of the TV in the basement. Id. at 641-42.

         There are questions of fact surrounding the live round found on the kitchen floor. According to Defendants, the live round was likely expelled from Jacobs's gun. Weinman testified at his deposition that if Jacobs had his weapon out and pulled the slide back to charge the weapon, not realizing that there was already a live round in the chamber, then that round would have been expelled from the handgun, landing in the kitchen, near the spot where Jacobs had been standing. (Doc # 83-3, Pg ID 732) During the criminal trial, Weinman testified consistently on this point. (Doc # 83-7, Pg ID 752) According to a forensic laboratory report, the 9-millimeter live round was identified as having been chambered in Jacobs's Glock 9-millimeter handgun. (Doc # 83-6, Pg ID 743) According to Jacobs, he never touched or racked his gun during the incident. (Doc # 84-4, Pg ID 1179)

         It is undisputed that no physical evidence was found at the scene showing that Jacobs actually fired his weapon. Jacobs's weapon was recovered in the basement with what appeared to be ten rounds in the clip and a live round that had been cleared from the chamber. (Doc # 86-23, Pg ID 2092) At his deposition, Jacobs testified that his handgun had a ten-bullet magazine. (Doc # 84-6, Pg ID 1296) However, according to an Affidavit of Sergeant David L. Marshall, the photographs attached to the affidavit are of Jacobs's weapon. (Doc # 94-4) The photographs plainly show a magazine that can hold seventeen rounds. Id. at 2538.

         Following this incident, Jacobs was charged with four counts of Assault with Intent to Do Great Bodily Harm Less Than Murder, four counts of Assault with a Dangerous Weapon, two counts of Resisting and Obstructing a Police Officer, and one count of Felony Firearm. (Doc # 86-20, Pg ID 2082) On February 16, 2014, the 36th District Court in Detroit, Michigan held a preliminary examination at which Alam, Kimbrough, Abdella, Dotson, and Vargas, Jr. testified. (Doc # 86-2) The court found probable cause for Jacobs's arrest and prosecution and bound him over for trial. Id. at 1784-85. Jacobs was incarcerated at the Wayne County Jail from January 4, 2014 to February 20, 2014 when he was released pending the commencement of the criminal trial. (Doc # 86-21) Jacobs's trial took place October 20-23, 2014, and the jury returned a unanimous verdict of Not Guilty on each count. (Doc # 98-2; Doc # 98-3; Doc # 98-4; Doc # 98-5)

         II. ANALYSIS

         A. Standard of Review

         Rule 56(a) of the Federal Rules of Civil Procedures provides that 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). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view admissible evidence in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered 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. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248. The nonmoving party's version of the facts must be relied upon unless blatantly contradicted by record evidence. Scott v. Harris, 550 U.S. 372, 378, 380-81 (2007).

         B. Bivens Claims

         The Court reviews Bivens claims under the same legal principles as Section 1983 actions, except for the requirement of federal action under Bivens and state action under Section 1983. Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015). “A plaintiff must prove two elements to prevail on either type of claim: (1) that he was deprived of a right secured by the Constitution or laws of the United States; and (2) that the deprivation was caused by a person acting under color of law.” Id. At this stage, the parties do not dispute that Defendants in this ...


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