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Parnell v. Billingslea

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

June 29, 2018

TERRY PARNELL, Plaintiff,
v.
RICHARD BILLINGSLEA, et al., Defendants.

          ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND FINDING DEFENDANTS' MOTIONS FOR PROTECTIVE ORDER AND RECONSIDERATION [#41, #44] MOOT

          GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Terry Parnell commenced the instant action on July 12, 2017 in the Third Judicial Circuit Court of Michigan. Defendants removed this action on August 8, 2017. The remaining federal claims include Fourth Amendment claims for excessive force against Defendants Richard Billingslea and Hakeem Patterson, false arrest and wrongful detention against Billingslea, and malicious prosecution against Defendants Clinton Mack and Billingslea, [1] as well as state law intentional tort claims of malicious prosecution, false arrest, wrongful imprisonment, and excessive force against Billingslea.

         Presently before the Court is the Defendants' Motion for Summary Judgment, filed on April 24, 2018. Plaintiff filed a Response in Opposition on May 22, 2018, and Defendants filed their Reply in support of Summary Judgment on June 5, 2018. Also before the Court is the Defendants' Motions for Protective Order and for Reconsideration. A hearing was held on the Defendants' Motions for Summary Judgment and for Protective Order on June 25, 2018.

         For the reasons that follow, the Court will deny the Defendants' Motion for Summary Judgment and finds that the Motions for Protective Order and for Reconsideration are moot.

         II. FACTUAL BACKGROUND

         On the evening of January 14, 2017, Plaintiff was at his then fiancé Nicole Cann's home located at 10450 Greensboro in Detroit, Michigan. At that time, Plaintiff and Cann had been together for eight or nine years. They were watching television and celebrating Plaintiff's birthday, along with several of Cann's grandchildren. Plaintiff was wearing a dark shirt and Cann wore a multi-colored Hawaiian style shirt.

         A week before Plaintiff's birthday, someone had broken into Cann's home and she asked him to load her new Ruger since her carpal tunnel syndrome prevented her from doing so. Cann thereafter went out on her front porch and fired practice shots at an abandoned home located to the north. Plaintiff remained inside. One of Cann's neighbors called 911 and alerted police that shots had been fired in the neighborhood.

         Defendants Billingslea and Patterson, Detroit Police Officers from the 5th Precinct, were dispatched to respond to “a shots in progress” on Greensboro. Their vehicle was a semi-marked police car. They used their scout car's spotlight to scan the area. They passed Cann's house, but did not see anything. However, Billingslea claimed to witness Plaintiff on the front porch shooting a gun towards their patrol car while looking at his rearview mirror. He claims he saw Plaintiff run back inside the house.

         Billingslea called over the police radio that shots had been fired and the officers took cover. Several other units from the 5th, 7th and 9th Precincts arrived on the scene. Officers knocked on the door; however Plaintiff and Cann voluntarily came out of the house. Cann claims that as soon as they exited the home, she loudly yelled that she was the one who had been shooting. The Officers ordered them to the ground and they both quickly complied.

         Plaintiff claims that the officers then ordered him to stand up, with his arms in the air, and to walk backwards toward the house immediately south of Cann's home. Once Plaintiff walked to the point where the officers were standing, he was thrown to the ground and beaten. Plaintiff saw Billingslea kick him. Defendant Billingslea placed Plaintiff in handcuffs. While Plaintiff could not see Patterson, he knew that he was in the immediate vicinity. After he was beaten, Billingslea and Patterson dragged Plaintiff to the patrol car. Plaintiff suffered considerable bruising, lacerations, pain and suffering from the beating.

         Cann informed the officers that the gun was inside the house and she gave consent for them to go into the house. Officers recovered a 9E Ruger handgun on the bed with seven live rounds in it. Cann continued to yell that she had been the one shooting, but the officers ignored her. Cann became so frustrated that she called 911 and informed the operator that she had been the one shooting and that the officers were ignoring her and arrested her friend.

         The Chief Duty Officer, Officer Thornton, was the highest ranking officer in the City on January 14, 2017. He prepared a report of his investigation at the scene. In his report, he noted that he could not determine that shots had been fired at the officers as Defendant Billingslea claimed because he could not find any vehicle strikes upon inspection. Additionally, Sergeant Diaz, an evidence technician, thoroughly searched the area south of Cann's home where Defendant Billingslea claimed the shots were fired, but found no evidence of any bullets. Diaz spoke with Cann, who told him that she was firing shots at an abandoned home to the north. Diaz's team collected bullets and shell casings from the abandoned home consistent with Cann's story and inconsistent with Defendant Billingslea's claim that he witnessed Plaintiff shooting at his patrol vehicle.

         Plaintiff was transported to the Detroit Detention Center. Thereafter, Defendants Billingslea and Patterson went to the police station and prepared their reports. Defendant Clinton Mack was assigned as the officer in charge of the case. After reviewing all of the officers' reports concerning the incident and interviewing the Plaintiff, Mack generated an investigator's report. His report failed to include any of Officer Diaz's findings. Mack also submitted a warrant request to the prosecutor. Based on Mack's, Billingslea's and Patterson's report, as well as speaking with Defendant Billingslea, warrants prosecutor Pachia Young approved the warrant and Plaintiff was charged with weapons, carrying concealed, assault with a dangerous weapon and felony firearm. Cann was able to post bond on January 23, 2017, and Plaintiff was released from the Wayne County Jail.

         On January 30, 2017, Mack and Billingslea attended Plaintiff's preliminary examination. Billingslea was the only witness to testify. He testified that he saw Plaintiff on Cann's front porch, shooting at his patrol vehicle. Based on this testimony, Plaintiff was bound over for trial, which was scheduled for May 3, 2017.

         On the day set for trial, Prosecutor Barbara Lanning requested an adjournment because she was in the middle of another criminal trial. When Lanning was on a break, Diaz showed Lanning his report and explained the evidence his team had collected. Prior to this, Lanning had no knowledge of his team's findings or of the report, even though Defendant Mack had opportunities to reveal this evidence to her. Lanning concluded that Billingslea's preliminary examination testimony was impossible based on the physical evidence. She immediately decided to dismiss the case. Without any reference to the underlying reason for the dismissal, the trial judge dismissed ...


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