United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 35)
AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY
JUDGMENT (DOC. 36)
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
Kimberly Thames, a 57-year old pro-life advocate, brought
this 42 U.S.C. § 1983 suit arising out of her arrest and
weekend detention at a Westland police station holding cell,
after an abortion clinic's security guard accused her of
stating, “I prophesy bombs, I prophesy bombs. There is
going to be a bombing in the near future.” Thames
denies making any statement involving the word,
“bombs.” Thames brought suit against Defendants
the City of Westland, the Westland Chief of Police, four
Westland police officers involved in her arrest, the
Northland Family Planning Clinic, Inc.
(“Northland”) and its Chief Executive Officer,
Renee Chelian, its employee Mary Guilbernat, and John Doe,
the clinic's security guard. By prior order of the court,
Northland, Chelian, and Guilbernat have been dismissed. Now
before the court is a motion for summary judgment brought by
the remaining Defendants as to the federal claims, and a
cross-motion for partial summary judgment as to liability
brought by Thames for most of the same claims. Oral argument
was heard on March 15, 2018 and informs this court's
decision. Also, in rendering its decision here, the court has
reviewed the audiotape of the 9-1-1 call and various video
recordings of Thames' arrest.
reasons set forth below, summary judgment shall enter for the
City of Westland and Police Chief Jedrusik because there is
no basis for Monell or supervisory liability.
However, Defendants' motion for summary judgment for the
arresting Defendants on Plaintiff's Fourth Amendment
wrongful arrest claim shall be denied. Also, Defendants'
motion for summary judgment shall be denied as to
Plaintiff's First Amendment retaliatory arrest claim and
Fourteenth Amendment equal protection claim as to Defendants
Officer Gatti and Sergeant Brooks, but shall be granted as to
Officers Soulliere and Tardif. Plaintiff's motion for
partial summary judgment as to liability shall be denied.
Saturday, August 27, 2016, Thames, a Roman Catholic and
pro-life supporter, stood on a public sidewalk outside the
Northland abortion clinic holding a rosary and a sign in
defense of the unborn. Thames was known to the Northland
clinic as a frequent protestor. At the same time, a religious
sister was also peacefully protesting near Thames. Thames
engaged the security guard, Robert Parsley, standing outside
the clinic in conversation and informed him that she was
praying for him and hoped he could find a new position. She
alleges that he then informed her that there have been bomb
threats against abortion clinics, to which she claims she
responded that she was not aware of any bombings in Michigan.
After their conversation, Thames left in her car to use a
version of their conversation is quite different. In two
different accounts, he claims that Thames threatened that
bombs would fall. He reported these allegations to employees
of the clinic. One of the clinic's employees, defendant
Guilbernat, placed a 9-1-1 call to the police. In that call,
Guilbernat stated, “We have protestors outside and one
of them just made a statement that there's going to be a
bombing.” (Doc. 35, Ex. B at 00:04:09). The 9-1-1
operator asks her, “What exactly did they say?”
Id. at 00:09:12, and Guilbernat repeats,
“There's going to be a bombing.” Id.
at 00:12-14. The operator sought a second time to clarify the
threat, asking, “That's all they said is
there's going to be a bombing? That's what they said,
word for word?” Id. at 00:14-18. To which
Guilbernat, replied, “Yes.” Id. at
00:18-19. The operator then sought a third time to clarify
the threat, to which Guilbernat accused Thames of stating
“there's going to be a bombing.” Id.
then gave the operator a description of the woman in
question, describing her as dark complexioned, with dark hair
in a bun, wearing a light blue short-sleeved top, a long blue
skirt and flip-flops. Id. at 00:30-33, 1:01-11. In
response to the 9-1-1 call, four Westland police officers
responded to the clinic: Officers Jason Soulliere, John
Gatti, Adam Tardif, and Sergeant Norman Brooks. These
officers are named Defendants. Officer Halaas appeared later
on the scene, and he has not been named in the lawsuit.
returned to the location to continue protesting and saw
several police vehicles and officers speaking to Parsley.
Officer Gatti arrived on the scene first and interviewed
Parsley and Guilbernat. Both identified Thames to him as the
person who had made the statement. (Doc. 36, Ex. B at
8:50:19-25, 08:51:41-2, 08:52:01-03). Parsley told Officer
Gatti that Thames stated, “I prophesy bombs are going
to fall and they're going to fall in the near
future.” (Doc. 36, Ex. B at 8:51:31-8:52:53, Ex. K at
53:5-23). Parsley also accused Thames of stating, “I
prophesy bombs are going to fall and they're going to
fall on you people.” (Doc. 40, Ex. E at 08:52:46-52).
But when Parsley gave his written statement to Defendant
Tardif a few minutes later, his story changed and he accused
Thames of stating, “bombs, bombs, on America, and bombs
will blow up this building.” (Doc. 36, Ex. E, Ex. M at
18:22-25 and 19:1-3).
Soulliere asked Thames if she had made a bomb threat, and she
denied it. (Doc. 36, Ex. J at 40:23-25-51:1-20; Ex. B at
8:51:21-8:15:36). But she never specifically answered Officer
Soulliere's questions about what exactly she did say to
the guard, merely reiterating that she did not make a bomb
threat, did not know what she had said to him that could have
been misconstrued, and mentioned that he was the one who
brought up alleged bombings at abortion clinics. Id.
at 08:51:41-2, 08:51:43-08:52:31; Doc 36-3, 57:24-25 to
58:1-17. She also relayed her conversation with Parsley in
which he told her about bombings for which she responded she
was unaware of that activity. (Doc. 36, Ex. J at
57:24-25-58:1-17, Ex. B at 8:53:47-8:55:07; Ex. I at
42:18-25; 51:1-4; Ex. 1 at ¶18).
senior officer on the scene, Sergeant Brooks, ordered
Thames' arrest for making a terrorist threat. (Doc. 35,
Ex. C at 30). Specifically, she was arrested for violating
Michigan's anti-terrorism statute, Mich. Comp. Laws
§ 750.543m. Thames has not challenged the
constitutionality of the statute. Officer Soulliere then
handcuffed Thames. (Doc. 35, Ex. D at 30). After her arrest,
Thames pleaded with the religious sister to come to her aid.
(Doc. 36, Ex. J at 68:14-15). The religious sister told
Officer Soulliere that she did not hear Thames make a bomb
threat, implored him to question Thames and Parsley together
so he could determine who was lying, and insisted that the
ones that should be arrested were the clinic's owner and
staff who were the ones “killing God's
children.” (Doc. 36, Ex. J at 69:12-71:22). Officer
Gatti told the religious sister that she was a
“disgrace.” (Doc. 36, Ex. K at 19:23-25-20:1-5).
The officers did not take a written statement from the sister
or from two other persons who were outside the clinic when
the alleged threat was made. (Doc. 36, Ex. J at
59:13-25-60:1-13; Ex. L at 23:24-25 - 24:1-5).
Thames' arrest, she was placed in the back of Officer
Halaas' patrol vehicle, but when he was called away to
respond to another incident, she was moved to Officer
Soulliere's patrol vehicle. (Doc. 35, Ex. E at
08:57:35-09:01:49; Ex. F at 75-5). At the time she was placed
in Officer Halaas' vehicle, Thames told him, “You
got the wrong person, ” to which he replied,
“Ma'am, I don't give a shit! I got to
go!” (Doc. 36, Ex. O at 46:18-25 to 47:1-10). After her
arrest, Officers Soulliere and Halaas searched her vehicle,
but did not find any explosives or any other contraband.
(Doc. 35, Ex. E at 08:57:36-09:02:50; Ex. F at 72-3.) The
officers did not search the clinic, the adjacent parking lot,
or nearby dumpster, nor did they use any bomb sniffing dogs.
In fact, the Westland police department does not have any
bomb sniffing dogs, but would have to call the state police
for such a search. The officers did not impound Thames'
Gatti and Soulliere testified at their depositions that the
City of Westland did not train them to distinguish between
true threats and protected speech. (Doc. 36, Ex. J at
36:16-19, Ex. K at 117:4-7). Sergeant Brooks testified:
I don't know the exact verbiage that - that he said to
Officer Gatti. My - there's only one word that concerns
me in this whole thing and that's bombs. Just like you
can't yell fire in a crowded theater, you can't say
anything about bombs near a facility that performs abortions.
(Doc. 36, Ex. at 29:20-25). At his deposition, Sergeant
Brooks was asked why the officers did not search the
surrounding vicinity of the abortion clinic for a bomb, and
At that - at that point we were not concerned about a bomb
being physically there at that particular time because of the
amount of protesters and employees and patients of the
clinic. The reason we were sent there was because of the
(Doc. 36, Ex. L at 28:9-13). Sergeant Brooks was then asked,
if the threat was credible, why did they not evacuate the
clinic, and he responded, the “threat doesn't have
to be credible according to the law.” Id. at
16-17. In addition, at the scene of the arrest, Sergeant
Brooks also said, “Anybody who has anything to do with
this whole thing, [they're] fanatics.” (Doc. 36,
Ex. C at PgID 597).
drove Thames to the Westland police station, booked and
placed her in a holding cell where she remained over the
weekend. (Doc. 36, Ex. O at 63:1-10). She was released Monday
morning at 10:14 a.m. Thus, she was in police custody for a
little over 49 hours. Thames did not eat or sleep during that
time, although she was offered food. (Doc. 36, Ex. 1 at
¶¶ 25-40). The holding cell had a cement slab for
sleeping and a toilet which was visible to all. (Doc. 36, Ex.
1 at ¶¶ 25-40, Ex. G).
Soulliere's report regarding Thames' arrest would not
have come to the attention of the on-call detective that
weekend, Detective Jerry Farrar, until Sunday because the
report was not approved by a sergeant until after Detective
Farrar's shift ended on Saturday. (Doc. 45, Ex. J at
18-21). Detective Farrar was handling a homicide
investigation which began on Sunday morning, and thus, was
not able to address Thames' case until Monday morning.
(Doc. 45, Ex. I at 65:22-25-66:1-13; Ex. J at 19-21, 22-28,
39). Thames was unable to attend Mass. on Sunday or receive
the Eucharist. (Doc. 36, Ex. 1 at ¶ 34). Upon reviewing
the case, Detective Farrar made the decision to release
Thames finding that “though there was probable cause to
arrest Kimberley, I find at this time there is insufficient
evidence to charge her with a crime.” (Doc. 45, Ex. J
Farrar did not talk to the prosecutor before making his
decision. Id. at 25:9-12. In his incident report,
Detective Farrar wrote that he read Robert's written
statement accusing Thames of stating “bombs, bombs,
bombs on America. And bombs will blow up this building,
” and determined that “I do not see a direct
threat where Kimberly threatened to bomb the clinic.”
(Doc. 36-3 at PgID 611). After her release, the police denied
Thames' request that they take her to her car so she
walked about a mile to her vehicle. (Doc. 36, Ex. 1 at ¶
Thames' release, the City police department conducted an
internal investigation, and concluded that Thames' arrest
was reasonable and justified and was consistent with its
policies, practices, and procedures. (Doc. 36, Ex. O at
49:5-10, 91:5-22, Ex. C). However, Officer Gatti received a
verbal reprimand for telling the religious sister that she
was a disgrace. (Doc. 36, Ex. O at 47:17-48:2). The Chief of
Police, Jeff Jedrusik, reviewed the report of the internal
investigation and accepted its findings. (Doc. 36, Ex. O at
44:6-25-45:1-3). Deputy Chief Brian Miller, the witness
designated by the City pursuant to Federal Rule of Civil
Procedure 30(b)(6), testified Thames' arrest and
detention were consistent with the policies and practices of
the police department. (Doc. 36, Ex. O at 86:1-10). However,
Officers Gatti and Sergeant Brooks were cautioned to refrain
from “[e]ngaging in political or religious/morality
discussions with bystanders.” (Doc. 36, Ex. C at 18).
filed this 42 U.S.C. § 1983 lawsuit against the City of
Westland; Police Chief Jeff Jedrusik; Officers Soulliere,
Gatti, Tardif, and Brooks; Northland, Northland's CEO
Chelian, Northland's employee Guilbernat, and John Doe,
Northland's security guard. Northland, Chelian, and
Guilbernat have been dismissed by prior order of the court.
Thames' Complaint alleges violations of her Fourth,
First, and Fourteenth Amendment rights and two related state
Standard of Law
Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." See Redding v. St. Eward, 241 F.3d 530,
532 (6th Cir. 2001). The Supreme Court has affirmed the
court's use of summary judgment as an integral part of
the fair and efficient administration of justice. The
procedure is not a disfavored procedural shortcut.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dep't of Transp., 53
F.3d 146, 149 (6th Cir. 1995).
standard for determining whether summary judgment is
appropriate 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.'" Amway Distributors Benefits
Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th
Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)). The evidence and all reasonable
inferences must be construed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding, 241 F.3d at 532 (6th Cir. 2001).
"[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original); see also National Satellite
Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th
movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law, the
opposing party must come forward with "specific facts
showing that there is a genuine issue for trial."
First Nat'l Bank v. Cities Serv. Co., 391 U.S.
253, 270 (1968); see also McLean v. 988011 Ontario,
Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere
allegations or denials in the non-movant's pleadings will
not meet this burden, nor will a mere scintilla of evidence
supporting the non-moving party. Anderson, 477 U.S.
at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean,
224 F.3d at 800 (citing Anderson, 477 U.S. at 252).