United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
LeRod Butler brought suit under 42 U.S.C. § 1983 against
the City of Detroit as well as three named Detroit police
officers-Radames Benitez, Joi Gaines, and David Meadows-and
certain unknown officers. The case arose from a search that
occurred at Butler's home on December 30, 2015, during
which he claims that the Individual Defendants violated
several of his clearly established constitutional rights
under the First, Fourth, Fifth, and Fourteenth Amendments.
Defendants filed a motion for summary judgment and Butler
filed a response. The Court has reviewed briefs and finds
that a hearing is unnecessary. E.D. Mich. LR 7.1(f). For the
following reasons, the Court will grant the motion in part
and deny it in part.
events of the case arise from Defendant Benitez's sworn
affidavit. According to the affidavit, surveillance and
intelligence collected in October and November 2015 revealed
that, for months, a man ("Subject #1") had been
selling cocaine and heroin out of his home at 9542 Burnette.
ECF 21-3, PgID 162. Benitez explained that Subject #1 stashed
drugs and money at a neighboring house, 9561 Burnette, and
would meet buyers down the street from the addresses, on the
corner. Id. In some cases, a deal would occur at the
9542 Burnette address. Id.
November 9, 2015, Benitez investigated things for himself.
For 30 minutes, he sat "in an undercover capacity"
near 9542 Burnette. In the affidavit, Benitez detailed the
complex comings and goings of Subjects 1 and 2 and others at
the time. The driver of a white van gave a bag to Subject #2,
who then deposited it at the 9542 address. Subject #2 then
drove a brown van to Butler''s house, 12011
Bramell-about eight miles away- and entered the dwelling.
Id.; ECF 22, PgID 206. Subject #2 reemerged minutes
later and drove off in the brown van. Benitez tried to follow
him, but failed. ECF 21-3, PgID 163.
address is never again mentioned in the affidavit. Benitez
swore that on December 27, 2015, he sat "near the target
location" and observed another suspected drug deal.
Although the affidavit had earlier defined the "Target
Location" as 12011 Bramell, the term does not seem to
refer to the Bramell address when discussing the December 27
surveillance. The paragraph describing the surveillance on
that date discusses events at the Burnette addresses which
would be impossible to observe from Bramell Street.
Id. And Benitez admitted in his deposition that
references to the target location were not actually referring
to 12011 Bramell, but rather, "when I say target
location, it means I was near 9542 Burnette." ECF 22-3,
on December 30, 2015, on the basis of the affidavit, a Wayne
County magistrate signed a search warrant for Butler's
house on Bramell Street. The Individual Defendants were
assigned to the Major Violators crew 2909 that day and they
executed the warrant. ECF 21, PgID 130; ECF 22, PgID 207.
They claim they announced their presence and their purpose
but received no response. Thus, Defendant Meadows ordered
forced entry through the front door. ECF 21, PgID 132.
Butler's alarm company then called to inform him of an
intrusion, so he returned from a nearby car wash and found
several police vehicles and officers outside his home with a
search already underway. Id.; ECF 22-1, PgID 235,
parties dispute what happened next. Defendants contend that
Butler "approached the crew and stated that he resides
at the location and identified the weapons, ammo, bullet
proof vest, C.P.L., as his property along with an unmarked
orange pill bottle containing 81 white pills with 'IBU
800' stamped on it and $3, 702.00 in U.S. Currency from
the residence." ECF 21, PgID 132. Meadows confiscated
$1, 640 found on Butler's person. Id. Butler,
however, swore in his affidavit that when he arrived, he
informed the officers that he was the homeowner, showed them
his ID, told them about the weapon he was carrying and that
he had a C.P.L. ECF 22-1, PgID 235, ¶ 22. According to
Butler, the officers proceeded to confiscate his pistol and
wallet. Then, despite his full cooperation, the police
handcuffed him and slammed him against a wall, which
re-injured preexisting neck and back conditions.
Id., ¶¶ 23-26.
search continued in the house and in the surrounding area.
Butler contends that his garage door and alarm system were
damaged, id., ¶¶ 29-30, and he also claims
that the trunk to his car, parked nearby, "had obviously
been searched, " id., ¶ 32. Benitez was
specifically asked in his deposition whether he searched the
vehicle, and he demurred, "[n]o, not me personally,
" but he conceded that such a search was
"procedure" though "[a]s to who exactly, I
don't know[.]" ECF 22-3, PgID 256. According to
Butler's affidavit, the officers "demanded to
know" where in his home he kept his "money and
guns, "-and he told them. ECF 22-1, PgID 236,
¶¶ 33-34. Meadows counted the money in front of
Butler and a "Notice of Seizure and Intent to
Forfeit" listed the amount confiscated at $3, 702.
Id., ¶ 35; ECF 21-3, PgID 175. Butler signed
the notice and agrees that the listed amount is indeed what
Meadows counted out, but he claims some of his money went
missing. ECF 22-1, PgID 236, ¶¶ 35-36. Butler also
asserts that he only signed the notice at Meadows's
insistence. Id., ¶ 37. Ultimately, Butler was
not detained beyond the time of the search.
went to Providence Hospital the next day. According to a
hospital report, he complained of back and neck pain and his
past medical history was "[s]ignificant for
hypertension, chronic back and neck pain." ECF 21-6,
PgID 183. The doctor told him that his blood pressure was
high and he received a final diagnosis of "[a]cute
exacerbation of chronic low back and neck pain."
Id. at 184. An additional Report dated nearly two
months later indicates that he was still complaining of high
blood pressure from increased stress at that time and also
that he has a history of hypertension. Id. at 185.
charges were ever filed against Butler; he filed his present
complaint later that year, on August 16, 2016, in Wayne
County Circuit Court. Defendants removed the case on December
7, 2016 and filed the instant motion after the close of
Court must grant a motion for 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 moving party
bears the initial burden of "identifying those portions
of 'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has met the initial burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to the material facts,
" and must "come forward with 'specific facts
showing that there is a genuine issue for trial.'"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Additionally, if the non-moving
party "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, " then "there can be no 'genuine
issue as to any material fact'" and the motion
should be granted. Celotex, 477 U.S. at 322-23.
genuine dispute exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact over which a genuine dispute
exists is material "'if proof of that fact would
have effect of establishing or refuting one of essential
elements of a cause of action or defense asserted by the
parties.'" Kendall v. Hoover Co., 751 F.2d
171, 174 (6th Cir. 1984) (quoting Johnson v. Soulis,
542 P.2d 867, 872 (Wyo. 1975)). In making those
determinations, "the court must view the facts and all
inferences to be drawn therefrom in the light most favorable
to the non-moving party." 60 Ivy St. Corp. v.
Alexander, 822 F.2d 1432, 1435 (1987).
Complaint lists three counts. Count One alleges that the
Individual Defendants violated Butler's rights under the
First, Fourth, Fifth, and Fourteenth Amendments. Count Two
specifically alleges that the Individual Defendants used
"excessive force" in violation of established
constitutional rights, though no amendment is specifically
identified in that section. Count Two, therefore, seems
entirely subsumed by the allegations in Count One, and the
Court will consider the two together. Count Three is lodged
against the City and alleges municipal liability for the
Claims Against Individual Defendants (Counts I and
sued the Individual Defendants under 42 U.S.C. § 1983
for violations of his clearly established constitutional
rights to be free from use of excessive force under the
Fourth Amendment to the United States Constitution; to
procedural and substantive due process and fair treatment
during search, seizure, arrest, and prosecution under the
Fourth, Fifth, and Fourteenth Amendments; to be free from
wrongful search and seizure under the Fourth Amendment; and
to be free from retaliation for protected speech under the
First Amendment. The Court will take each claim in turn.
U.S.C. § 1983 "is not itself a source of
substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United
States Constitution and federal statutes that it
describes." Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979). Accordingly, "[t]he first inquiry in any
§ 1983 suit . . . is whether the plaintiff has been
deprived of a right 'secured by the Constitution and
laws.'" Id. at 140. Here, the complaint
identifies the excessive force claim as explicitly arising
under the Fourth Amendment, and therefore the claim
"should be analyzed under the Fourth Amendment and its
'reasonableness' standard[.]" Graham v.
Connor, 490 U.S. 386, 395 (1989). Reasonableness
analysis "requires a careful balancing of the nature and
quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental
interests at stake." Id. at 396 (quotation
marks omitted). Factors to be considered in the analysis
"includ[e] the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight, " and
the determination "must be judged from the perspective
of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Id.
an individual officer liable for a § 1983 violation
based on a Fourth Amendment claim of excessive force, a
plaintiff must demonstrate that the officer "(1)
actively participated in the use of excessive force, (2)
supervised the officer who used excessive force, or (3) owed
the victim a duty of protection against the use of excessive
force." Turner v. Scott, 119 F.3d 425, 429 (6th
Cir. 1997) (citation omitted).
have moved for judgment on the excessive force count because,
they assert, "Plaintiff was never arrested, battered or
assaulted as testified by any of the Defendant
Officers." ECF 21, PgID 139. They conclude that their
testimony, paired with Butler's comments to medical staff
"that he was detained for an hour and a half" but
"never stated to the Doctors or the Police that there
was excessive force used against him, " id. at
139-40, defeats the excessive force claim. Defendants are
partly correct; Butler has failed to introduce evidence
supporting his excessive force claims ...