United States District Court, E.D. Michigan, Southern Division
Nelda Kellom, as Personal Representative of the Estate of Terrance Kellom, Deceased, et al., Plaintiffs,
Mitchell Quinn, et al., Defendants.
OPINION & ORDER ON DEFENDANTS' SUMMARY
F. Cox, United States District Court Judge.
Kellom was shot and killed when a United States Marshal
Detroit Fugitive Apprehension Team was attempting to arrest
him at a house in Detroit, Michigan on April 27, 2015.
Thereafter, his Estate and his relatives filed this action,
asserting multiple claims against several Defendants. A
number of claims have since been dismissed. Following the
close of discovery, Defendants filed summary judgment motions
as to the remaining claims. The parties have fully briefed
the issues and the Court heard oral argument on May 2, 2019.
explained below, the Court shall GRANT the City of Detroit
Defendants' summary judgment motion to the extent the
Court rules that: 1) Defendants Eaton and Fitzgerald are
entitled to qualified immunity as to the Bivens
excessive force claims asserted against them in Count I; 2)
the Steagald claims in Count VII are only cognizable
as Bivens claims, not § 1983 claims, because
the officers were acting under federal and not state law, and
they only remain as to the officers in their individual
capacities; 3) Defendants Eaton and Fitzgerald (and Quinn)
are entitled to qualified immunity as to the
Steagald claims asserted in Count VII; and 4) the
Monell liability count, Count VIII, fails as a
matter of law because there is no basis for imposing
municipal liability in this action that has no viable §
addition, the Court shall GRANT the summary judgment motion
filed by the United States because the Court concludes that
it lacks subject matter jurisdiction over the Estate's
Federal Tort Claims Act claims in this action.
the Court shall GRANT IN PART AND DENY IN PART the summary
judgment motion filed by Defendant Quinn. The Court grants
the motion to the extent that the Court rules that Defendant
Quinn is entitled to qualified immunity as to the
Steagald claims asserted by Kevin and Teria Kellom.
The motion is DENIED as to the Estate's excessive force
claim, asserted under Bivens, in Count I. As to that
claim, construing the evidence in the light most favorable to
Plaintiffs, there is a genuine issue of material fact as to
whether Defendant Quinn committed a constitutional violation
by virtue of having used excessive force. That claim shall
proceed to a jury trial.
April 6, 2017, Plaintiff Nelda Kellom, as Personal
Representative of the Estate of Terrance Kellom, Deceased
(“the Estate”), filed this action. The
Estate's original complaint named the following
Defendants: 1) Immigration and Customs Enforcement Agent
Mitchell Quinn; 2) Detroit Police Officer Darell Fitzgerald;
and 3) Detroit Police Officer Treva Eaton. Plaintiff's
original complaint included the following four counts: 1)
“Bivens Claim” (Count I); 2) “42
U.S.C. § 1983 - Excessive Force and/or Unlawful Use of
Deadly Force” (Count II); 3) “§ 1983
Conspiracy by Defendants” (Count III); and 4)
“Wrongful Death [under] Michigan Wrongful Death Act,
Mich. Comp. Laws § 600.2922 et seq, ”
April 16, 2018, Plaintiff's Counsel filed a motion
seeking leave to file an amended complaint. Thereafter,
Defendants filed responses indicating that, while they do not
concede that the claims asserted against them are valid and
that they may file motions challenging the claims asserted
against them, they do not oppose the motion to amend. Thus,
on May 3, 2018, the Court issued an order granting leave to
file a First Amended Complaint.
4, 2018, Plaintiff filed a First Amended Complaint which
added named parties and claims. In addition to the Estate,
seven of the Decedent's family members asserted claims in
Plaintiffs' First Amended Complaint. Those
“Non-Estate Plaintiffs” included: 1) the
Decedent's mother in her individual capacity (Nelda
Kellom); 2) the Decedent's father, Kevin Kellom; 3) the
Decedent's two adult sisters (Teria Kellom and Lawanda
Kellom) and his adult brother (Terrell Kellom); and 4) the
Decedent's two minor children, joined in the lawsuit
through their mother and personal representative, Janay
First Amended Complaint included the following eight counts:
1) a Bivens excessive force claim (Count I); 2) a
§ 1983 excessive force claim (Count II); 3) a §
1985 conspiracy claim (Count III); 4) a Bivens
conspiracy claim (Count IV); 5) a wrong death claim under
Michigan law (Count V); 6) a claim for intentional infliction
of emotional distress under Michigan law (Count VI); 7) a
Steagald claim (Count VII); and 8) a § 1983
Monell liability claim (Count VIII).
parties later agreed that the United States would be
substituted for Defendants Eaton and Fitzgerald at to Counts
V and VI. (See ECF No. 41).
of 2018, Defendants filed motions to dismiss. In an Opinion
and Order issued on August 29, 2018, this Court: 1) dismissed
Count VII against the United States because the United States
has not waived sovereign immunity as to alleged violations of
the Constitution; 2) dismissed Counts V and VI without
prejudice, as to the “Non-Estate Plaintiffs”
because they failed to exhaust administrative remedies prior
to filing Federal Tort Claims Act claims against the United
States; 3) dismissed Count IV (the Bivens Conspiracy
claim) because that claim is not cognizable as to the Estate,
as the First Amended Complaint expressly alleges that the
conspiracy began after the Decedent's death; 4)
dismissed all “Non-Estate Plaintiffs” from all
remaining counts, except Count VII, because they lack
standing to assert those claims, because unlike the Estate
they cannot assert a claim based on a violation of the
Decedent's constitutional rights; 5) dismissed Counts II
and VIII as to Eaton and Fitzgerald as Plaintiffs agreed that
should be done; 6) dismissed Count III for failure to
identify a racial or other class-based invidious or
discriminatory animus underlying the alleged conspirators
actions; 7) dismissed any claims asserted against Chief Craig
in his individual capacity because the First Amended
Complaint includes no allegations as to his personal
involvement, and because Plaintiffs' Counsel stated
during oral argument that no claims are brought against Craig
in his individual capacity; and 8) dismissed Count VIII (the
municipal liability claim) against officers Eaton and
Fitzgerald because, as Plaintiffs' Counsel agreed during
oral argument, there is no basis for a municipal liability
claim against them. (ECF No. 52).
the close of discovery, Defendants filed summary judgment
motions as to the remaining claims in this action.
the City of Detroit Defendants, there are three counts that
remain as to them: 1) the Bivens excessive force
claim (Count I), asserted against Defendants Eaton and
Fitzgerald; 2) the Steagald claims asserted by Kevin
and Teria Kellom against Defendants Eaton and Fitzgerald
(Count VII); and the Monell liability count,
asserted against Chief Craig and the City of Detroit (Count
VIII). The pending motion seeks summary judgment as to all of
the United States, the following claims remain against it in
this action: 1) the Estate's Wrongful Death claim under
Michigan law (in place of Quinn, Eaton, and Fitzgerald); and
2) the Estate's Intentional Infliction of Emotional
Distress claim under Michigan law (in place of Quinn, Eaton,
and Fitzgerald). The United States seeks summary judgment in
its favor as to both counts.
as to Defendant Quinn, the following claims remain against
him: 1) the Bivens excessive force claim asserted in
Count I; and 2) Kevin and Teria Kellom's
Steagald claims in Count VII. Quinn filed his own
summary judgment motion, seeking summary judgment in his
favor as to both claims.
the motions were fully briefed by the parties, the Court heard
oral argument on all three of the summary judgment motions on
May 2, 2019.
following material facts are gleaned from the evidence
submitted by the parties, viewed in the light most
favorable to Plaintiffs, the non-moving party.
April 27, 2015, the United States Marshals Service's
Detroit Fugitive Apprehension Team (“DFAT”),
including Immigration and Customs Enforcement Agent Mitchell
Quinn (“Quinn”), and City of Detroit Police
Officers Darell Fitzgerald (“Fitzgerald”) and
Treva Eaton (“Eaton”) was conducting an
investigation as to the whereabouts of Terrance Kellom.
(Defs.' & Pls.' Stmts. at ¶ 6).
“Terrance Kellom was wanted on an arrest warrant for
armed robbery and for a weapons offense.” (Id.
at ¶ 7).
date of the incident, Terrance Kellom was 20 years old and
weighed 145 pounds. (Autopsy Report, Ex. B to Pls.' Br.).
on the DFAT conducted an investigation, in order to locate
Terrance Kellom. Fitzgerald's Report of Investigation
indicates that on April 27, 2015, he and other officers first
went to the Terry Street address in Detroit, Michigan that
was listed on Terrance Kellom's driver's license.
(ECF No. 79-12). There, they spoke with a woman who stated
that she was a new tenant at that address, and that she had
never seen or heard of Terrance Kellom.
based on contacts that Terrance Kellom had while at a
correctional facility, the officers learned the name and
address of Terrance's girlfriend, Janay Williams, who
lived on Princeton Street in Detroit. (Id.). While
Fitzgerald was en route to that address, another team member,
Brian Behrend, advised that there was a black male fitting
the description of Terrance Kellom walking out the front door
at the Princeton Street address, with an unknown black female
who was sweeping glass from around a green Impala. Once
officers arrived there, they spoke with Janay Williams and
Adrienne Williams. Adrienne told the officers that Terrance
Kellom had broken the window to her vehicle and that Terrance
might be staying with his father on Evergreen. Janay made
statements confirming that she was Terrance's girlfriend,
and told the officers that when Terrance left he was angry
and told her he was going to burn her house down. Janay, who
the officers spoke with separately, told them that Terrance
was staying with his father on Evergreen. Janay added that
Terrance drove a four door Ford Taurus with a green sticker
in the rear window. (Id.).
then established surveillance at the home on Evergreen and
advised the team that Terrance Kellom was seen entering and
exiting the house and that his car was parked in the
driveway. (Id.). Defendant Eaton continued
surveilling the house on Evergreen, and saw Terrance Kellom
enter the house again and remain inside. (Id.;
see also Eaton Dep. at 36-37).
decision was made to approach the house in an attempt to make
contact with Terrance Kellom. (Behrend Decl. at 1).
officers had an arrest warrant for Terrance Kellom but did
not have a search warrant for the home on Evergreen Street.
testified that she believed that Terrance Kellom lived at the
house on Evergreen and, therefore, the officers could enter
the house because they had an arrest warrant for Terrance,
who was inside the house:
Q. So for all intents and purposes when you went to the
Evergreen address, you thought that Mr. Kellom lived at that
Q. So if you're armed with an arrest warrant and you
believe that Mr. Kellom lived at that address, did you
believe that you don't need a search warrant?
MR. HELMS: Object to form.
MR. PADDISON: Foundation.
You can answer.
A. No. We had filed an arrest warrant. . . . .
Q. You first surveilled, surveilled Terrance Kellom, correct?
A. Yes I saw him come out of the house.
Q. Okay. And you saw him go back in the house; --
Q. - is that correct?
Is there any reason why you didn't just sit there and
wait until the judge or magistrate entered a search warrant?
MR. PADDISON: Objection, form, foundation. You can answer.
A. There is no reason.
Q. (Continuing by MR. AYAD): Okay. And there was no reason
because you believed he lived there?
(Eaton Dep. at 35-36).
father, Kevin Kellom, answered the door when the officers
approached the front door of the house on Evergreen.
Kellom's Statement And Deposition Testimony Relating To
Officers Entering His House
interview with police officers on April 27, 2015, the date of
the incident, Kevin Kellom testified as follows regarding the
officers' entry into his house:
OFCR SANCHEZ: Can you tell me what happened today at your
KEVIN KELLOM: Me, my son, my fiancé, my daughter and
my son-in-law was upstairs and we was talking.
OFCR SANCHEZ: When you say your - your son and your
fiancé, can you name who, who they were?
KEVIN KELLOM: Okay. Me, Yvette Johnson, Terrance Kellom,
Teria Kellom, Anthony Coleman and Vonnie. I don't know
her last name.
And we was upstairs and we was talking. And I see a dri - a
car pull up in my driveway. I've got cameras on my house.
I see a car pull up in my - a truck pull up in my driveway
and almost hit my fence. . . .
So I come downstairs. I look, I see some guys looking in my
window. I saw the vest that said “Police.”
I'm thinking the police ain't got no business being
at my house, you know, so I opened the door.
He says, “Who all here with you?” And I started
naming who all was here with me. He break out and says,
“Open the door.”
I said, “Open the door for what?” I said,
“You got a search warrant?”
He said, “Open your door, sir.”
I opened the door.
. . . .
OFCR SANCHEZ: And how many did you see at that time?
KEVIN KELLOM: It was one, two - it was three on the porch, it
was two in front of the house and there was one right here on
the side of the house.
OFCR SANCHEZ: And you're saying all of them had police
KEVIN KELLOM: All of them had “Police” on, yes,
OFCR SANCHEZ: And at that time you said you answered the
KEVIN KELLOM: I opened the door, yes. I answered the door.
OFCR SANCHEZ: Is there two parts to your door or how many -
KEVIN KELLOM: No. There's two. It's - no, one part.
It's on the front door.
I open the first door.
OFCR SANCHEZ: Okay.
KEVIN KELLOM: And I still had the screen door closed.
OFCR SANCHEZ: All right.
KEVIN KELLOM: And he said, “Open your
I said, “Open my door for what?”
I said, “What's the problem? I said, “I
didn't call the police.”
And the other guy said, “Open the
motherfucking door or I'm going to tear it
I opened the door and I let them in. I ain't got nothing
to hide from the police. I let them in.
I mean my -
OFCR SANCHEZ: Do you remember what they looked like?
KEVIN KELLOM: It was - one of them was the guy who shot my
(Defs.' Ex. 6 at 1-3; 10-11) (emphasis added).
his September 14, 2018 deposition in this case, Kevin Kellom
testified that he did not give the officers consent to enter
Q. Before they entered the house did any of the officers ask
for consent to enter your house?
A. No. No.
Q. They didn't even ask you?
A. No. They kept asking me was Terrance there.
Q. Did you ever tell them they could come in?
A. No, of course not.
(Defs.' Ex. 7 at 25).
testified that he answered the door when the police arrived
at the house. (Kevin Kellom Dep. at 16-17). He testified that
the officers indicated they were looking for Terrance. Kevin
testified that he asked the officers if they had a warrant
and they responded that they had a warrant to enter the
house. Kevin testified that he asked to see it and then he
and the officers argued back and forth. Kevin testified that
an officer “snatched” the door open and the
officers entered and went up stairs. (Id. at 18-21).
Quinn's Deposition Testimony Regarding His Entry Into The
motion asserts that other officers entered the house before
he did and that he only entered the house after he heard a
call for backup. During his deposition in this case, Quinn
testified as follows:
Q. There came a time that you went in to the house; is that
A. Only after I was called in to the house, after the other
officers had already entered the home.
Q. What were you called? How were you called to enter the
A. Via radio, Mr. Kellom had been found hiding on the second
floor of the home in an attic, a crawl space.
Q. Okay. Well, who called you and what did they say on the
A. I cannot recall what was said on the radio. Assistance was
asked and the other officer was asked to come into the home,
because the subject was being noncompliant, making threats.
Q. You don't know who called, though?
A. If I had to assume, I want to say, it was Officer Baron.
I'm not for certain.
Q. Okay. And you were called to provide assistance?
Q. What - you know, in your law enforcement wordage, what
does “assistance” mean?
A. Assistance could mean anything. You could provide
medical assistance. You could provide support for someone
that's hostile. Assistance is anything. . .
Q. Okay. That's what I wanted to get to. Thank you.
So, you heard over the radio that you needed - that someone
needed assistance, correct, sir?
A. No. What I heard over the radio was somebody requesting an
additional body. They asked for another person.
Q. Well, then please tell me exactly what you heard, because
I thought, you said, you heard that they needed assistance.
A. Sir, exactly what I told you was that I can't recall
what was said over the radio.
What was asked for - what our - what I remember is they
asked for another person. They asked for another
body. Asking for another body, another person, you
are requesting assistance in asking for an additional
body or another person.
Q. I want to know exactly how you heard it; now how
transcribed (sic) -
What exactly did you hear over the radio?
MR. TOOMEY: Objection, asked and answered.
THE WITNESS: I cannot tell you what was exactly said over the
radio. What I can tell you is they asked for an additional
person for assistance. . . . .
Q. So, your answer is you don't know exactly what was
said, but you understood it that you needed another person or
assistance in that situation; is that a correct statement?
Q. Okay. Thank you.
What did you do then, Agent Quinn, right immediately after
A. Proceeded in to the house.
Q. When you proceeded in to the house, did you think that
this was a situation that could be hostile?
A. Any situation that you dealing with in law enforcement has
the potential to be hostile. You have to take every situation
(Quinn Dep. at 87-93). Later, while examined by his own
counsel, Quinn testified as follows:
Q. At some point, there was a request for backup while you
were still outside?
Q. And I can't remember - Can you recall who made that
A. Not offhand. I know Deputy Baron was the one that was
engaging with Mr. Kellom. Adam, it may have been him.
Q. I think, you said, you can't recall whether you heard
it over the radio?
A. Everything is broadcast over the radio. Going back to his
objection, when the floors are being cleared in a home,
it's broadcast over the radio. The level three is clear.
Level two is clear. Moving to his level, going here, all that
information is broadcast over the radio, so, we know where
people's relative location is inside of the home. Once
they got up to the second floor of the house, it was called
out that he was found in the attic.
Q. “He” being Mr. Kellom?
A. Mr. Kellom.
Q. When the request for backup was made, what tone of voice
was the person using?
A. It was an excited voice. I mean, “We need somebody
else in here!” And later on, I discovered, I do not
recall if it was going into the house or once I got in the
house that Mr. Kellom was claiming he had a weapon.
(Quinn Dep. at 145-46) (emphasis added).
Kellom's April 27, 2015 Interview Regarding The
date of the incident, Kevin Kellom was interviewed.
(Defs.' Ex. 6). During that interview, Kevin Kellom
stated that a few officers initially entered the house and
went upstairs looking for Terrance, while Kevin remained on
the main floor. He said the events leading to the shooting
unfolded very quickly. (Id. at 54-55). He said that
he heard commotion coming from upstairs, hearing things like
“show me your hands motherfucker, ” “freeze
mother fucker, ” etc. More officers then entered the
house, including the officer who ultimately shot his son, who
quickly ran upstairs. Kevin heard what he thought was
officers coming down the stairs with his son. (Id.
at 40, “I just heard them coming down the stairs”
and 42; Id. at 39 “All I know is that somehow
they got from upstairs, downstairs . . . ”). Then
Terrance and some officers were in the hallway on the main
floor, while Kevin was in the dining room with an officer.
Terrance called out for his father and reached for him. Kevin
heard a pop, pop, pop, as shots were fired. Kevin saw the
shots strike Terrance, and saw his body jerk. Terrance backed
up as he was shot. Terrance fell to his knees. ...