Kellom v. Quinn

          OPINION & ORDER ON DEFENDANTS' SUMMARY JUDGMENT MOTIONS

          Sean F. Cox, United States District Court Judge.

         Terrance 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.

         As 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 § 1983 claims.

         In 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.

         Finally, 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.

         BACKGROUND

         On 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, ” (Count IV).

         On 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.

         On May 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 Williams.

         The 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).

         The 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).

         In May 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).

         Following the close of discovery, Defendants filed summary judgment motions as to the remaining claims in this action.

         As to 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 those claims.

         As to 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.

         Finally, 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.

         After the motions were fully^[1] briefed by the parties, the Court heard oral argument on all three of the summary judgment motions on May 2, 2019.^[2]

         The following material facts are gleaned from the evidence submitted by the parties, viewed in the light most favorable to Plaintiffs, the non-moving party.

         On 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).

         On the date of the incident, Terrance Kellom was 20 years old and weighed 145 pounds. (Autopsy Report, Ex. B to Pls.' Br.).

         Officers 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.

         Then, 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.).

         Eaton 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).

         The decision was made to approach the house in an attempt to make contact with Terrance Kellom. (Behrend Decl. at 1).

         The officers had an arrest warrant for Terrance Kellom but did not have a search warrant for the home on Evergreen Street.

         Eaton 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 address?

A. Yes.

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; --

A. Yes.

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?

A. Correct.

(Eaton Dep. at 35-36).

         Terrance's father, Kevin Kellom, answered the door when the officers approached the front door of the house on Evergreen.

         Kevin Kellom's Statement And Deposition Testimony Relating To Officers Entering His House

         In an 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 house?

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 stuff, vests?

KEVIN KELLOM: All of them had “Police” on, yes, yes.

OFCR SANCHEZ: And at that time you said you answered the door?

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 door.”

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 down.”

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 son.

(Defs.' Ex. 6 at 1-3; 10-11) (emphasis added).

         During his September 14, 2018 deposition in this case, Kevin Kellom testified that he did not give the officers consent to enter his home:

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).

         Kevin 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).

         Agent Quinn's Deposition Testimony Regarding His Entry Into The House

         Quinn's 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 correct?

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 home?

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 radio?

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?

A. Yes.

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?

A. Yes.

Q. Okay. Thank you.

What did you do then, Agent Quinn, right immediately after that?

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 seriously.

(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?

A. Yes.

Q. And I can't remember - Can you recall who made that request?

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).

         Kevin Kellom's April 27, 2015 Interview Regarding The Shooting

         On 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. ...