Whitledge v. City of Dearborn

          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 ...