United States District Court, E.D. Michigan, Southern Division
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
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,  as well as state law intentional tort
claims of malicious prosecution, false arrest, wrongful
imprisonment, and excessive force against Billingslea.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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 ...