United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT IN PART AND GRANTING IN PART DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
ROBERT
H. CLELAND UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
Plaintiff
Sandra Whitledge alleges that Defendant Justin Smith, a
police officer employed by Defendant City of Dearborn (the
“City”), conducted an illegal traffic stop. She
also alleges that Smith reached into her car and groped her
breast during the stop. Based on these allegations, Plaintiff
brings claims under the Fourth and Fourteenth Amendments and
the Michigan Elliott-Larsen Civil Rights Act
(“ELCRA”) against Smith and a municipal liability
claim against the City. Plaintiff now moves for partial
summary judgment on her Fourth Amendment claims. Defendants
filed a joint motion for summary judgment on all claims.
These motions have been fully briefed, and the court held
argument on these motions on August 28, 2019. For the reasons
stated below, the court will deny Plaintiff's motion and
will grant Defendants' motion in part as to the
Fourteenth Amendment claim and municipal liability claims.
II.
BACKGROUND
Plaintiff
and Defendant Smith met while Plaintiff was working as a
waitress at her family's deli, which was frequented by
Smith and other Dearborn police officers. (ECF No. 40-2,
PageID 311.) Plaintiff and Smith were admittedly friendly
with each other; however, the exact nature of their
relationship is contested. Plaintiff frames their friendship
as a relationship necessary for the sake of her job. She knew
that the deli's profitability would be hurt without the
patronage of Dearborn officers, and she asserts that she
played along with the sexual banter of Smith and other
officers to help ensure their continued business and good
tips. (ECF No. 40, PageID 281.) Plaintiff admits to having a
close friendship with Smith, but she alleges that Smith's
comments and actions crossed the line on several occasions.
(ECF No. 53, PageID 1536-37.)
One of
these occasions occurred when Smith texted Plaintiff and
asked her if she would have sex with him for his birthday.
(ECF No. 40-12, PageID 511, ECF No. 40-6, PageID 424.) On
another occasion when Plaintiff was working, Smith leaned
over and whispered a sexual comment to Plaintiff while she
rang out his food order. (ECF No. 40-2, PageID 318.)
Plaintiff also alleges that Smith subjected her to unwanted
physical contact at the deli on two separate instances. The
first of these instances occurred in January 2012. Plaintiff
alleges Smith told her that a lightbulb in the men's
restroom was flickering. She alleges that when she went to
the restroom to investigate, Smith followed her in, rubbed
his groin against her, and tried to kiss her. (ECF No. 40-2,
PageID 312.) The second instance occurred around January
2016. Plaintiff alleges that when Smith came to pick up his
food, he walked behind the counter of the deli to the area
where Plaintiff was preparing his food and stood close enough
to Plaintiff that she could feel his groin pressed against
her side. (ECF No. 40-2, PageID 317-18.)
Plaintiff
claims that she told several coworkers about these incidents
as well as Dearborn police officers Chris Urbanik, Don
Edwards, and Marv Sanders. (ECF No. 40-2, PageID 312.)
Officer Urbanik confirmed that Plaintiff informed him and
Officer Edwards about both incidents in which Smith pushed
his groin against Plaintiff. (ECF No. 40-13, PageID 517.)
Urbanik also testified that he offered to report these
incidents to his superiors or arrange for Plaintiff to speak
with a female officer, but that Plaintiff asked him not to
because her boyfriend, Brian McCoy, who is also a Dearborn
police officer, was already reporting the incident.
(Id. at PageID 518; ECF No. 41-4, PageID 690-91.)
Defendant
admits to sending sexually explicit texts to Plaintiff but
denies the incidents of physical contact. (ECF No. 46-6,
PageID 424.) According to Smith, he and Plaintiff were
“best friends” and would routinely discuss sexual
matters and text each other outside of work. (ECF No. 46,
PageID 1045.)
On May
2, 2016, Smith stopped Plaintiff for an alleged traffic
violation. Smith claims that he observed Plaintiff using her
cellphone and stopped her for distracted driving. (ECF No.
46, PageID 1048.) Plaintiff asserts that Smith had no basis
for the stop and claims that her phone was in her purse on
the passenger seat. (ECF No. 40, PageID 284.) It is
undisputed that after Smith pulled Plaintiff over, he
switched off the sound recording on his dash camera-an action
prohibited by City policy-and approached Plaintiff's car.
(Id. at 1049.) Plaintiff alleges that when Smith
approached her vehicle, he called her “baby girl”
and told her that she needed to “check her
surroundings.” She further alleges that Smith reached
his arm into her car and groped her left breast. (ECF No. 40,
PageID 284-85.) Smith left without issuing a ticket to
Plaintiff and without running a search of her license plate.
(Id. at 284.) Smith admits that he reached into
Plaintiff's car but claims that he briefly touched
Plaintiff on her shoulder. (ECF No. 46, PageID 1049.) He
denies touching her breast.
According
to Plaintiff, she tried to brush off the stop as a joke,
similar to how she handled Smith's inappropriate behavior
in the past. (ECF No. 40, PageID 285.) She and Smith
exchanged text messages joking about the stop later that
night. (ECF No. 40-2, PageID 322.) Plaintiff also told her
boyfriend McCoy about the stop later that night, and McCoy
insisted on filing a report with his superior officers at the
Dearborn Police Department. (ECF No. 40-2, PageID 322-23.)
McCoy
reported the stop in May 2016. Thereafter, the Dearborn
Police Department began an internal investigation against
Smith. (Id. at 324; ECF No. 46, PageID 1051.) At the
conclusion of this investigation, Smith was found to have
violated two departmental polices, the first requiring
officers to use audio-visual recordings for the duration of a
stop and the second requiring officers conducting
non-emergency, self-initiated stops to report their status to
dispatch. (ECF No. 46, PageID 1056-57; ECF No. 46-17, PageID
1284.) Smith received a formal written reprimand and a 30-day
suspension for these violations. (ECF No. 46-17, PageID
1284.) The case was then referred for additional, criminal
investigation to the Wayne County Prosecutors Office.
The
Wayne County Prosecutor elected to pursue two charges against
Smith: one count of criminal sexual conduct and one count of
misconduct in office based on the traffic stop. A bench trial
was held on January 10, 2018, and the judge found Smith not
guilty on both charges. (ECF No. 46-18, PageID 1294.)
Plaintiff then filed this case.
III.
STANDARD
Summary
judgment is appropriate when there exists no dispute of
material fact and the moving party demonstrates entitlement
to judgment as a matter of law. Fed.R.Civ.P. 56(a). In
evaluating a motion for summary judgment, the court considers
all evidence, and all reasonable inferences flowing
therefrom, in the light most favorable to the nonmoving
party. Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th
Cir. 2015). The court may not make credibility determinations
or weigh the evidence presented in support or opposition to a
motion for summary judgment, only the finder of fact can make
such determinations. Laster v. City of Kalamazoo,
746 F.3d 714, 726 (6th Cir. 2014).
The
movant has the initial burden of showing-pointing out-the
absence of a genuine dispute as to any material fact; i.e.,
“an absence of evidence to support the nonmoving
party's case.” See Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 325 (1986). The burden then
shifts to the nonmoving party to set forth enough admissible
evidence to raise a genuine issue of material fact for trial.
Laster, 746 F.3d at 726 (citing Celotex
Corp., 477 U.S. at 324). A genuine issue exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Liberty
Lobby, 477 U.S. at 248; Williams v. AT&T
Mobility Servs. LLC, 847 F.3d 384, 391 (6th Cir. 2017).
Not all factual disputes are material. A fact is
“material” for purposes of summary judgment when
proof of that fact would establish or refute an essential
element of the claim “and would affect the application
of the governing law to the rights of the parties.”
Rachells v. Cingular Wireless Employee Servs., LLC,
732 F.3d 652, 660 (6th Cir. 2013).
IV.
DISCUSSION
A.
Fourth Amendment Claims
Both
Plaintiff and Defendants move for summary judgment on the
Fourth Amendment claims. Plaintiff alleges two separate
Fourth Amendment claims in Count I. First, she alleges that
Smith stopped her without probable cause, and second, that
Smith used excessive force when he reached into her car and
groped her breast. In response, Smith argues that he is
entitled to qualified immunity because he had probable cause
to make the stop. Additionally, although he denies
Plaintiff's allegations that he groped her breast, he
argues that he is entitled to qualified immunity because
being free from sexual assault is not a clearly established
right under the Fourth Amendment. (ECF No. 46, PageID
1063-64.)
“[G]overnment
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). In analyzing a party's entitlement to
qualified immunity, the Supreme Court has noted: “If no
constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity. On the other hand,
if a violation could be made out on a favorable view of the
parties' submissions, the next, sequential step is to ask
whether the right was clearly established.” Saucier
v. Katz, 533 U.S. 194, 201 (2001). Several years later,
the Supreme Court further honed its qualified immunity
analysis, providing that “judges . . . should be
permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in
the particular case at hand.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
1.
Unreasonable Seizure
There
is no dispute that Smith initiated a traffic stop against
Plaintiff on May 2, 2016. What is disputed, however, is
whether Smith had probable cause to conduct the
stop.[1] Smith asserts that he observed Plaintiff
using her phone while driving. Plaintiff denies these
allegations and claims that her phone was in her purse on the
passenger seat while she was driving home. (ECF No. 40,
PageID 284.)
The
right to be free from unreasonable seizures by law
enforcement is clearly established by the Fourth Amendment.
See California v. Hodari D., 499 U.S. 621, 624
(1991). “[A]n officer must have probable cause to make
a stop for a civil infraction, and reasonable suspicion of an
ongoing crime to make a stop for a criminal violation.”
United States v. Collazo, 818 F.3d 247, 253-54 (6th
Cir. 2016) (quoting United States v. Blair, 524 F.3d
740, 748 (6th Cir. 2008)). A traffic stop constitutes a
seizure within the meaning of the Fourth Amendment.
Brendlin v. California, 551 U.S. 249, 255 (2007)
(quoting Delaware v. Prouse, 440 U.S. 648, 653
(1979)).
Smith
would be entitled to qualified immunity if he had probable
cause to make the traffic stop, but whether probable cause
existed rests on a factual dispute for a jury to resolve. If
the jury believes Smith's testimony that he observed
Plaintiff apparently “using” her phone, Smith
would have probable cause to make the stop and will be
entitled to qualified immunity.[2] But if the jury believes
Plaintiff's contrary testimony on this point-or, at
minimum, is convinced that Plaintiff has disproved
Smith's explanation (Plaintiff bearing the burden of
proof of her allegation of the absence of probable
cause)-then Smith conducted an illegal stop and will not be
entitled to qualified immunity because he violated
Plaintiff's right to be free from unreasonable seizures.
See Brandenburg v. Cureton, 882 F.2d 211,
215-16 (6th Cir. 1989) (“In this case . . . the jury
becomes the final arbiter of appellant Sharp's claim of
immunity, since the legal question of immunity is completely
dependent upon which view of the facts is accepted by the
jury.”). This same factual dispute also precludes
Plaintiff's motion for partial summary judgment on the
illegal stop claim. See Liberty Lobby, 477 U.S. at
248.
2.
Excessive Force
Another
dispute of material fact exists regarding the degree of force
used by Smith during the stop. The constitutional right to be
free from the use of excessive force by law enforcement
officers flows from the Fourth Amendment “right of the
people to be secure in their persons . . . against
unreasonable searches and seizures.” U.S. Const. amend.
IV; Graham v. O'Connor, 490 U.S. 386, 388
(1989). Accordingly, excessive force claims are analyzed
under the Fourth Amendment's “reasonableness”
standard. Graham, 490 U.S. at 395. This standard
calls for an objective analysis of the officers' actions,
made “in light of the facts and circumstances
confronting them, ” and “judged from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Id. at
396-97 (citing Terry v. Ohio, 392 U.S. 1, 20-22
(1968)); see also Scott v. United States, 436 U.S.
128, 137-39 (1978). The reasonableness standard focuses on
the specific moment in time the officer made his decision to
use force and the information he had at that time.
Bouggess v. Mattingly, 482 F.3d 886, 889 (6th Cir.
2007). It does not consider “whether it was reasonable
for the officer ‘to create the
circumstances'” and “it does not require them
to perceive a situation accurately.” Thomas v. City
of Columbus, 854 F.3d 361, 365 (6th Cir. 2017) (citing
Chappell v. City of Cleveland, 585 F.3d 901, 915-16
(6th Cir. 2009)).
Smith
first argues that he did not use the force alleged by
Plaintiff and that he simply gave her “a tap on the
should while reminding her to drive safely.” (ECF No.
41, PageID 590.) His version of events directly contradicts
Plaintiff's sworn testimony that Smith intentionally
groped her left breast. (ECF No. 53, PageID 1570.) Neither
party is entitled to summary judgment because of this factual
dispute. See Kain v. Nesbitt, 156 F.3d 669, 673 (6th
Cir. 1998) (“If plaintiff's version as ...