Chancellor v. City of Detroit , 454 F. Supp. 2d 645 ( 2006 )

454 F. Supp. 2d 645 (2006)

Darell Deon CHANCELLOR, Plaintiff,
v.
CITY OF DETROIT, a municipal corporation, P.O. William "Robo Cop" Melendez, P.O. Troy Bradley, and P.O. Jeffrey Weiss, individually and in their official capacity, Defendants.

Civil Case No. 03-40344.

United States District Court, E.D. Michigan, Southern Division.

September 29, 2006.

Robert F. Kinney, III, Detroit, MI, Ronnie E. Cromer, Jr., Lathrup Village, MI, for Plaintiff.

Jane K. Mills, John P. Quinn, Detroit City Law Department, Eula J. Johnson, Grier & Copeland, Scott L. Gorland, James D. Vandewyngearde, Pepper Hamilton, Detroit, MI, for Defendants.

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION

GADOLA, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and Michigan law. In his complaint, Plaintiff alleges that he was arrested by Defendant police officers Melendez, Bradley, and Weiss on April 22, 2002, and that Defendant officers fabricated a firearms violation against Plaintiff by planting evidence and lying on their police reports. Before the Court are Defendants' motions for summary judgment, and the Report and Recommendation of United States Magistrate Judge R. Steven Whalen. The Magistrate Judge issued his Report and Recommendation on August 29, 2006, recommending that Defendants' motions be granted in part and denied in part. Defendants Melendez and Weiss filed objections to the Report and Recommendation on September 8, 2006; Defendant City of Detroit filed objections on September 12, 2006; and Defendant Bradley filed objections on September 13, 2006. On September 15, 2006, Magistrate Judge Whalen issued a "Supplemental Report and Recommendation" that in no way modified the earlier Report and Recommendation, but instead addressed some of the concerns raised by Defendant Bradley in his objections. For the reasons below, the Court will accept and adopt the Magistrate Judge's Report and Recommendation.

I. Legal Standard

The Court's standard of review for a Magistrate Judge's Report and Recommendation depends upon whether a party files objections. If a party does not object to the Report and Recommendation, the Court does not need to conduct a review by any standard. See Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D.Mich.2002) (Gadola, J.). If a party does object to portions of the Report and Recommendation, the Court reviews those portions de novo. Lardie, 221 F.Supp.2d at 807. The Federal Rules of Civil Procedure dictate this standard of review in Rule 72(b), which states, in relevant part:

The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, or any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Fed.R.Civ.P. 72(b). Here, because Defendant filed objections, this Court reviews de novo those portions to which an objection has been made. See Lardie, 221 F.Supp.2d. at 807.

De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge; the Court may not act solely on the basis of a Magistrate Judge's Report and Recommendation. See 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997);. see also Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). The Court may supplement the record by entertaining additional evidence, but is not required to do so. 12 Wright, Federal Practice § 3070.2. After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie, 221 F.Supp.2d at 807. If the Court accepts a Report and Recommendation, the Court is not required to state with specificity what it reviewed; it is sufficient for the Court to state that it engaged in a de novo review of the record and adopts the Report and Recommendation. See id.; 12 Wright, Federal Practice § 3070.2.

II. Analysis

The Magistrate Judge first recommended that summary judgment be granted in Defendants' favors with regard to Plaintiffs claim that Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment. No objections have been filed concerning this portion of the Report and Recommendation. Accordingly, the Court will accept and adopt the Magistrate Judge's recommendation with regard to this issue.

The Magistrate Judge recommended that summary judgment be denied for Plaintiffs remaining claims. Defendants objected to this portion of the Report and Recommendation, and thus, the Court will consider the objections.

A. Objections of Defendant police officers

The objections to the Report and Recommendation of Defendants Melendez, Weiss, and Bradley, the police officers, primarily rest on the argument that there is no factual dispute that there was probable cause to arrest Plaintiff. Defendants argue that it is undisputed that a weapon was found in the car in which Plaintiff was riding, and that this establishes the probable cause necessary to justify Plaintiffs arrest, which forms the foundation for all of Plaintiffs claims against Defendants.

This Court disagrees with the Defendant officers. In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences in a light most favorable to the nonmoving party. See 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (8th Cir.1987). Taking the facts in the light most favorable to Plaintiff in this case, there is a genuine issue of material fact as to where the gun allegedly found in Plaintiffs car was actually found. First, the facts of, what occurred on the day in question differ significantly between Plaintiffs account and the account of the police officers; for example, Defendant Melendez claims that he saw Plaintiff throw a gun, whereas Plaintiff denies that he had a gun. More importantly, in his deposition, Defendant Bradley admitted that he had lied on his police report and that many of the facts of what occurred as recorded on the police reports were false. Furthermore, Plaintiff testified in deposition that during his arrest, he argued to Defendant Melendez that it was not his gun, and that Melendez responded that he was going to say it was Plaintiffs gun and if Plaintiff didn't shut up, Melendez would also plant some dope on Plaintiff. Looking at the circumstances of Plaintiffs April 22, 2002 arrest, a grand jury found sufficient evidence to indict Defendant officers for conspiracy to violate civil rights, by finding that Defendants had lied in their reports about Plaintiffs arrest and on numerous other occasions. Therefore, there is evidence in the record that supports Plaintiffs position that Defendant officers lied about the gun, and planted it in order to fabricate probable cause to arrest Plaintiff. For these reasons, the Court finds that the conclusion of the Magistrate Judge is sound, and that there is a genuine issue of material fact as to where the gun was found and, consequently, whether Defendant police officers had probable cause to arrest Plaintiff on April 22, 2002.

In their objections, Defendant police officers also rely heavily on the argument that a grand jury indicted Plaintiff and that "it has been long settled that the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer'" Barnes v. Wright, 449 F.3d 709, 716 (6th Cir.2006) (quoting Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002)). Defendants argue that since Plaintiff was indicted by a grand jury on this issue of unlawful possession of a gun, there is probable cause for the arrest and Plaintiff has no basis for his claim against Defendants. The ruling in Barnes is easily distinguishable from the instant case. Unlike the plaintiff in Barnes who was found guilty at trial, the charges against Plaintiff were dropped by the government before trial. More importantly, Plaintiff has provided evidence tending to show that his grand jury indictment was not "fair upon its face" but that the evidence presented to the grand jury was false and fabricated. Therefore, the Court finds that the Magistrate Judge correctly recommended that summary judgment in favor of Defendant police officers was improper. Accordingly, taking the facts in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether Defendant police officers violated Plaintiffs civil rights by fabricating probable cause against Plaintiff. In addition, because there is a genuine issue of material fact as to whether Defendants violated Plaintiffs civil rights, the Court finds that Defendants are not entitled to prevail on their argument of qualified immunity.

Defendant police officers also argue that summary judgment with regard to the state law claims should be granted. Defendants acknowledge in their objections that summary judgment on the state law claims rests on the presence of probable cause to arrest Plaintiff. Because this Court finds, as outlined above, that there is a genuine issue of material fact as to whether Defendant officers fabricated probable cause in order to arrest Plaintiff, summary judgment is improper for the remaining state law claims.

Defendant Bradley, in his objections, argues separately that summary judgment is proper because of an alleged agreement to dismiss the case and because of Plaintiffs apparent failure to timely answer Bradley's Requests to Admit. The Magistrate Judge addressed Bradley's arguments in his Supplemental Report and Recommendation, issued on September 15, 2006. After a review of the Supplemental Report and Recommendation and other relevant portions of the record, this Court finds that the Magistrate Judge's reasoning and conclusions are sound and correct, and that summary judgment in favor of Bradley on these arguments is improper. Therefore, for the above reasons, the Court overrules the objections of Defendants Melendez, Weiss, and Bradley.

B. Objections of Defendant City of Detroit

Defendant City of Detroit first objects to the Magistrate Judge's recommendation to deny summary judgment for City of Detroit as to Count II (false arrest and imprisonment) and Count IV (intentional infliction of emotional distress). City of Detroit argues that the Magistrate Judge inadvertently overlooked its claim of governmental immunity to Count II and Count IV. The Court agrees with the City of Detroit on this issue. Defendant City of Detroit and Defendant Barbieri, who was sued in his official capacity and not individually, enjoy governmental immunity from intentional torts. See M.C.L. § 691.1407. Counts II and IV describe intentional torts. Accordingly, summary judgment is appropriate on Counts II and IV for Defendants City of Detroit and Defendant Barbieri.

Defendant City of Detroit also objects to the Magistrate Judge's recommendation finding that summary judgment on Count I (deprivation of civil rights) is not proper. Defendant first argues that the police officers did not violate the constitutional rights of Plaintiff. This argument has no merit. As explained above, this Court finds that the Magistrate Judge was correct in finding that Plaintiff has provided evidence tending to show that there was a violation of his constitutional rights. Taking the facts in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether the police lied and fabricated probable cause in order to arrest Plaintiff.

Defendant City of Detroit further objects to the Magistrate Judge's recommendation, arguing that there is no evidence to support a finding that the City of Detroit had a custom or policy that violated Plaintiffs constitutional rights. The Court finds that this argument has no merit. Taking the facts in the light most favorable to Plaintiff, Plaintiff has provided sufficient evidence to defeat the City's motion for summary judgment.

A municipal custom or policy "may be established by proof of the knowledge of policy making officials and their acquiescence in the established practice." Memphis, Tenn. Area Local, Am. Postal Workers Union v. City of Memphis, 361 F.3d 898, 902 (6th Cir.2004). In this case, Plaintiff has given evidence tending to support the position that there was a practice among the police of violating civil rights of persons, and that the City of Detroit knew or should have known of this practice, and yet was deliberately indifferent to the violations. In particular, Plaintiff has given evidence that for several years before his April 22, 2002 arrest, the City of Detroit was aware of an unusually large number of police misconduct cases, and had the ability to monitor officers' performance and behavior with a computerized tracking system. Plaintiff has shown that independent reviews of Detroit police activity before Plaintiffs arrest noted problems with police conduct and falsification of police reports. There is also evidence that Defendants Melendez, Weiss, and Bradley had been involved on more than one occasion in police misconduct settlements. Finally, Bradley testified in his deposition that there was a practice of "articulating" information on police reports in order to create a stronger case against arrestees, and that this practice was tolerated or even encouraged by his supervisors in the police force. Consequently, taking the facts in the light most favorable to Plaintiff, Plaintiff has provided sufficient evidence for a reasonable juror to conclude that Defendant City of Detroit knew or should have known about the unlawful actions and police methods of certain officers, and that the City was deliberately indifferent to these actions. Therefore, summary judgment in favor of the City of Detroit is improper, and this Court overrules the City's objections.

III. Conclusion

Accordingly, after having reviewed the Report and Recommendation and Supplemental Report and Recommendation, Defendants' motions for summary judgment, and the applicable portions of the record, IT IS HEREBY ORDERED that Defendants Melendez and Weiss's objections [docket entry 139] and Defendant Bradley's objections [docket entry 141] are OVERRULED.

IT IS FURTHER ORDERED that Defendant City of Detroit's objections [docket entry 140] are OVERRULED IN PART and SUSTAINED EN PART. IT IS FURTHER ORDERED that the Report, and Recommendation [docket entry 138] and the Supplemental Report and Recommendation [docket entry 143] are ACCEPTED and ADOPTED as the opinions of this Court, in a manner not inconsistent with this Order:

1. Summary judgment is BRANDED in favor of all Defendants as to Plaintiffs claim of a violation of the Equal Protection Clause of the Fourteenth Amendment.

2. With regard to Defendants Melendez and Weiss's motion for summary judgment [docket entry 104] and Defendant Bradley's motion for summary judgment [docket entry 103], summary judgment is DENIED as to all remaining claims.

3. With regard to Defendant City of Detroit's motion for summary judgment [docket entry 102], summary judgment is GRANTED as to Count II (false arrest and imprisonment) and Count W (intentional infliction of emotional distress), and summary judgment is DENIED as to all remaining claims.

SO ORDERED.

WHALEN, United States Magistrate Judge.

REPORT AND RECOMMENDATION

This is a civil rights case brought pursuant to 42 U.S.C. § 1983 and a number of Michigan state law theories. Before the Court are the following three motions that have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B): (1) Renewed Motion for Summary Judgment by Defendant City of Detroit [Doc. # 102]; (2) Motion for Summary Judgment by Defendant Troy Bradley [Doc. # 103]; and (3) Motion to Dismiss and/or Summary Judgment by Defendants William Melendez and Jeffrey Weiss [Doc. # 104]. The Court has reviewed all of the pleadings and exhibits, and oral argument was conducted on August 24, 2006. For the reasons set forth below, I recommend that all three motions be GRANTED IN PART AND DENIED IN PART, as follows: that summary judgment be GRANTED as to Plaintiffs claim that the Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment; and that the motions for summary judgment be DENIED in all other respects.

I. FACTUAL BACKGROUND

This case arises out of the Plaintiff Darryl Chancellor's arrest on April 22, 2002 by Defendant Detroit Police Officers William Melendez (a/k/a RoboCop), Jeffrey Weiss and Troy Bradley. As a result of that arrest, the Plaintiff was charged, first in state court, with being a felon in possession of a firearm, and later by way of indictment in this Court with the analogous federal offense, 18 U.S.C. § 922(g). Subsequently, Melendez, Weiss and Bradley themselves were also indicted, along with 14 other Detroit Police Officers, for conspiring to violate the civil rights of citizens in Detroit's Fourth Precinct, in violation of 18 U.S.C. § 241. One of the overt acts in this conspiracy charge was the April 22, 2002 arrest of the Plaintiff. Specifically, Paragraph 17 of the Indictment reads:

"17. On April 22, 2002, on Clippert Street, WILLIAM MELENDEZ, TROY BRADLEY and JEFFREY WEISS subjected Darryl Chancellor and Robert Blackwell to unreasonable searches and seizures. MELENDEZ arrested Chancellor based on MELENDEZ's false claim that he saw Darryl Chancellor throw a firearm to the ground. MELENDEZ, BRADLEY and WEISS wrote false reports justifying the arrest of Chancellor."

The facts — or more precisely, the various competing versions of the facts — are reflected in the Complaint, depositions of the Plaintiff and the Defendants, police reports, affidavits, and documents related to the criminal prosecution of the Defendants.

The Complaint

Plaintiff alleges that on April 22, 2002, he was in a parked car with three other people when they saw Defendant police officers drive by in an unmarked vehicle. The Plaintiff, who was in the front passenger seat, got out of the car with the others, and walked away with Robert Blackwell. The other two men ran. Complaint, ¶¶9 14-16. Defendants Bradley and Weiss chased the other two, but they were never caught. Defendant Melendez arrested the Plaintiff and Blackwell. Id., ¶¶ 18, 20. Plaintiff alleges that one officer claimed to have produced a gun from the back seat of the car, and a second officer said that he found a gun between some houses on Clippert Street. Defendant Melendez said, "Now you both have guns," and laughed. Id., ¶¶ 26-28.

On May 6, 2002, a federal criminal complaint and warrant charging felon in possession of a firearm (FIP) were signed, and on May 14, 2002, the Plaintiff was indicted on that charge. Id., ¶¶ 29-30, 32. The Plaintiff was ordered detained, and spent 213 days in jail before the government moved for dismissal of the complaint on November 26, 2002. Id., ¶¶ 34-35, 37.

Plaintiff alleges that there is a history of citizen complaints against Defendant officers, involving frivolous or fake criminal charges, and that these complaints were made to and known by Defendant City of Detroit, as well as the Detroit Police Department and supervisory personnel at the Fourth Precinct. Id. ¶¶ 38-39. In his Complaint, Plaintiff alleges a violation of his constitutional rights under the Fourth and Fourteenth Amendments, supporting a cause of action under 42 U.S.C. § 1983 (Count I)^[1]; False Arrest and Imprisonment (Count II); Civil Conspiracy (Count III); Intentional Infliction of Emotional Distress (Count IV); Malicious Prosecution (Count V); and Abuse of Process (Count VI).

The Police Reports^[2]

In his preliminary complaint report (PCR), written after the Plaintiffs arrest, Defendant Melendez stated that on the night in question, he saw a blue Oldsmobile make a left turn on Clippert Street without signaling, and conducted a traffic stop for that reason. He saw the Plaintiff jump out of the car and flee on foot, and he stated that he saw the Plaintiff reach into his waistband and toss a "BSR" (black steel revolver) onto the front lawn of 3628 Clippert. He then arrested the Plaintiff. Melendez also stated that Defendant Weiss searched Robert Blackwell, and found a gun in his right waistband.

Defendant Weiss's PCR contained virtually identical language concerning the traffic stop and the seizure of a gun from Blackwell.

Defendant Bradley's PCR also contains similar language, including the basis of the alleged traffic stop. Bradley stated that he himself recovered the gun from the front lawn of 3628 Clippert.

The police reports also include an Interrogation Record of both Plaintiff and Robert Blackwell, recounting statements those two individuals allegedly made to the police after their arrest.^[3] Plaintiff did not write his own statement; rather, it is handwritten in the third person, presumably by a police officer, and signed by the Plaintiff. The statement indicates that Plaintiff and his companions were parked on Clippert Street when the police drove by. It states that at that point, Plaintiff got out of the car and started walking away, when he was arrested. The statement indicates that the police took a gun from the car, and found a second gun from behind a house on Clippert, but it is not apparent that that part of the statement was based on personal observation or knowledge.

Blackwell's statement to the police also states that when the people in the car saw the police, they exited the vehicle and attempted to leave the scene. The statement indicates that the police found no weapons or contraband on his or Plaintiffs person, but "they got a gun from the back of Boo (sic) house and a gun out of my backseat where Terrance was sitting. They told us to tell Terrance thank you for the gun." Blackwell stated that he did not see Terrance Hall or anyone else with a weapon in the car that night, but that he knew the gun the police showed him was Terrance's because he had "seen the weapon in Terrance Halt (sic) hand before."

The Depositions^[4]

Melendez

Defendant Melendez testified unequivocally that on the night in question, he made a traffic stop of the Oldsmobile. He described the whole Fourth Precinct as a "high crime area." He said that he did not recognize any of the occupants of the car as having criminal backgrounds until after the arrests, nor did he see the Plaintiff well enough to recognize him until after he was arrested.

Bradley

Contrary to Defendant Melendez's testimony, Defendant Bradley testified at his deposition that there was no traffic stop. Bradley conceded that this portion of the police reports was a lie. He also testified that his statement in the PCR that he recovered the gun from the lawn was false. He said that he "believed" a gun was found on the lawn, but he did not know by whom. His "partner" told him that the Plaintiff had tossed a gun onto the lawn, but Bradley that he himself never saw the Plaintiff with a gun.

Bradley testified that the Oldsmobile was parked on Clippert Street, near a bar that had been the victim of an armed robbery, and that he recognized the Plaintiff as someone who had previously robbed people at gunpoint. He said that he observed the Plaintiff walking away from the car at a fast pace, and that after Plaintiff and Blackwell were arrested, he stayed at the car with them. Defendants Melendez and Weiss left, but he could not see what they were doing.

Plaintiff

The Plaintiff was deposed twice, first on March 1, 2005 and again on October 17, 2005.

At the March 1st deposition, Plaintiff testified that he was in the car with Terrance Hall, Robert Blackwell, and an individual known as "Boo." He and Blackwell were searched incident to their arrests, 'out no weapons or contraband were found. Melendez told Bradley that he was going to search the car, but Plaintiff could not see Melendez because his back was to him. He said that "Robo Cop" (Melendez) came back with a 9 mm pistol and told Blackwell it was his. Melendez came back again with another gun, threw it on the hood of the car, and told Plaintiff it was his.

At his October 17th deposition, Plaintiff testified that he and his companions were in the car parked when the Defendants drove by. Weiss was driving the police vehicle, with Melendez in the passenger seat and Bradley in the rear. He said that everyone got out of the car "because it was Hobo Cop."

After their arrest, Plaintiff and Blackwell were frisked by the back of the car. Plaintiff testified that Melendez said nothing about finding guns at that point. Plaintiff and Blackwell were handcuffed and placed on their knees. Melendez then went behind them and then returned, saying he had found a gun. He told Blackwell it was his gun, and that he found it in the car. Then, Melendez and Weiss walked off again, but Plaintiff could not see where they went. (Bradley was watching Plaintiff and Blackwell during this time). Melendez and Weiss returned 10 or 15 minutes later, and Melendez put another gun on top of the car, saying, "Chancellor, this is your gun." Plaintiff testified that he did not recognize the gun, and told Melendez that he did not own a gun, to which Melendez replied, "I'm going to say it's your gun."

Plaintiff testified that while being transported to the precinct, he argued with Melendez about the gun, and that Melendez said to "shut the F up before he put some dope on me too."

The Indictment^[5]

Defendants Melendez, Weiss and Bradley were all indicted by a federal grand jury on June 19, 2003. The conspiracy charge included allegations of falsifying police reports, committing perjury in court testimony, and covering up for other officers. The Indictment charged 11 specific overt acts against Melendez, seven against Weiss, and five against Bradley. Each overt act represented a separate incident and date of serious police misconduct, and, as noted above, ¶ 17 included the incident with Plaintiff Chancellor, charging that Melendez lied when he claimed he saw Plaintiff throw a gun to the ground, and that Weiss and Bradley "wrote false reports justifying the arrest of Chancellor."

Bradley's File ET, Plea Agreement^[6]

Defendant Bradley pled guilty to the Indictment, and specifically admitted that in Plaintiffs situation, he knowingly signed a false police report.

II. STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). To prevail on a motion for summary judgment, the non-moving party must show sufficient evidence to create a genuine issue of material fact. Klepper v. First American Bank, 916 F.2d 337, 341-42 (6th Cir.1990). Drawing all reasonable inferences in favor of the nonmoving party, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact, and summary judgment is appropriate. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir.2000).

Once the moving party in a summary judgment motion identifies portions of the record which demonstrate the absence of a genuine dispute over material facts, the opposing party may not then "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact," but must make an affirmative evidentiary showing to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The non-moving party must identify specific facts in affidavits, depositions or other factual material showing "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S. Ct. 2505 (emphasis added). If, after sufficient opportunity for discovery, the non-moving party cannot meet that burden, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. 2548.

III. ANALYSIS

A. The Section 1983 Count

It's about the gun. Specifically, it's about the gun alleged to have been found on the lawn on Clippert Street, the gun that formed the basis of the felon in possession charge against the Plaintiff, a charge that resulted in him spending 213 days in jail before the government dropped the case.

Common to all three summary judgment motions is the argument that whatever lies were told about the "traffic stop," and regardless of whether Bradley lied about recovering the gun from the lawn, it doesn't matter, because, after all, someone eventually found that gun, and therefore there was probable cause to arrest and charge the Plaintiff. However, this argument misses the point, because there is a clear question of fact as to whether a gun was really found on the lawn — or for that matter, in the blue Oldsmobile — or whether Melendez and his cohorts planted the gun as false evidence.

With that in mind, the three motions will be discussed separately.

Meiendez wad Weiss [Docket # 1041]

In their PCR's Melendez and Weiss both claimed that the blue Oldsmobile was stopped for the traffic offense of failing to signal a turn. They claim that other factors, including seeing known criminals flee the police in a high crime area, gave them reasonable suspicion to make an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and that the discovery of the guns gave them probable cause to arrest Chancellor and Blackwell.

Of course, there is an obvious question of fact as to whether there was really a traffic stop, with Melendez saying there was (both in his police report and at his deposition), and the Plaintiff and Defendant Bradley saying there was not. There is also a question of fact as to whether the Plaintiff ran from the scene (as Melendez claims) or walked at a fast pace (as Bradley said in his deposition). However, even if there was no traffic stop, case law does support the principle that unprovoked flight (either running or walking fast) in a high crime area where a recent armed robbery took place can give rise to reasonable suspicion to make a Terry stop. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). Walking or running, the Plaintiff concedes that he left the scene when he saw the police. Therefore, the Court will assume for purposes of this discussion that there was a valid Terry stop.^[7]

The more important question is whether Plaintiff was seen to toss a gun on the ground, or whether a gun was actually recovered from the lawn. If the gun was planted by the police, then "probable cause" was fabricated, and the Defendants' argument for summary judgment crumbles. The following portions of the record reveal a clear question of fact as to whether the Plaintiff ever had a gun.

(1) At his deposition, Plaintiff testified that he told Melendez that the gun allegedly found on the lawn was not his gun, and that he did not own a gun. This does not contradict Plaintiffs "statement" to the police, where he is reported to have said that the police found a gun behind a house on Clippert. As corroborated by subsequent testimony, discussed below, the Plaintiff was not speaking from personal knowledge — he did not see the gun being retrieved from the lawn, and said that he had never seen the gun before Melendez showed it to him — but rather was reporting what Melendez told him. Thus, there is a material evidentiary conflict between Melendez's and Plaintiffs testimony.

(2) The Plaintiff also testified at his deposition that Melendez all but admitted to planting the gun. He said that when he protested his lack of knowledge about the gun, Melendez said he was "going to say it was [Plaintiffs] gun," and told him to "shut the F up before the put some dope" on him too. This further shows a contested question of material fact between the Plaintiff and the officers.

(3) Furthermore, neither Bradley nor Weiss provide any credible support for Melendez's claim that the Plaintiff tossed a gun, or that a gun was even found on the Clippert Street lawn. Bradley, who stated in his PCR that he retrieved the gun from the lawn, admitted in his deposition and in his own plea agreement that this was a lie. Moreover, he has no personal knowledge of anyone retrieving the gun. He testified at his deposition that although he "believed" a gun was found, he was only relying on what his "partner" (presumably Melendez) told him. He conceded that he never saw the gun before Melendez produced it, and stated that while he was guarding the Plaintiff and Blackwell at the rear of the car (while Melendez and Weiss were purportedly looking for the gun), he could not see where his partners went^[8]

(4) In addition, the grand jury that indicted these Defendants necessarily found probable cause that in Plaintiffs case, as well as others, the officers violated numerous constitutional rights, lied in their police reports, and specifically that Melendez lied about seeing the Plaintiff toss a gun:

"MELENDEZ arrested Chancellor based on MELENDEZ's false claim that he saw Darryl Chancellor throw a firearm to the ground. MELENDEZ, BRADLEY and WEISS wrote false reports justifying the arrest of Chancellor." (Indictment, ¶ 17) (emphasis added).

Obviously, the grand jury's finding of probable cause was based on evidence. Without suggesting that the concepts of "probable cause" and "preponderance of the evidence" are necessarily coextensive, it is nevertheless apparent that the same evidence that supported the indictment creates a material question of fact as to the accuracy of the Defendants' version of events in the present case, particularly with regard to whether the Plaintiff ever had a gun^[9]

(5) The criminal indictment (again based on the grand jury's finding of probable cause) lists, in addition to the events related to Plaintiff Chancellor, 10 separate overt acts on the part of Melendez, six on the part of Weiss, and four on the part of Bradley. These acts involved the Defendants routinely falsifying police reports, planting evidence and committing perjury. Each of these other incidents would be admissible as substantive evidence under Fed.R.Ev. 404(b), as similar acts showing intent, plan, knowledge, scheme or motive. This Rule 404(b) evidence creates an issue of material fact.

These contested issues of fact on the critical issue in this case — whether the Defendants planted the gun and made up a story about how they found it — preclude summary judgment on the § 1983 claim as to Melendez and Weiss.^[10]

Bradley [Docket # 103]

The evidence does not show that Defendant Bradley was directly involved in procuring the gun that formed the basis of the felon in possession charge against the Plaintiff. Both at his deposition and his guilty plea, of course, Bradley recanted his false statement that he had recovered the gun from the lawn. In his summary judgment motion, Bradley essentially takes the position that his lies were inconsequential, in that they had no bearing on the ultimate probable cause determination that resulted in Plaintiff's arrest.

There is no merit in this position. Like his co-defendants, Bradley assumes incorrectly that a gun was in fact recovered from the lawn, and therefore that the probable cause finding was unaffected by his mendacity. However, as discussed above, there is a clear question of fact as to whether the gun was the Plaintiffs, or whether it was planted by Melendez and/or Weiss, with Bradley's tacit approval. The grand jury that indicted these Defendants found that Melendez lied about seeing the Plaintiff toss a gun. Bradley's admittedly false PCR, indicating that he recovered the gun from the lawn, corroborated Melendez's statement that he saw the Plaintiff throw the gun to the ground. Since Bradley did not personally observe anyone find the gun on the lawn, why would he lie about finding it himself, except to support what he knew to be his and his conspirators' scheme to concoct false charges?^[11]

In addition, the ATF report that recommended Plaintiffs federal prosecution^[12] specifically lists "Preliminary Complaint Report of Police Officer Troy Bradley, Detroit Police Department" under the heading "Documents Submitted in Support of Prosecution." This creates, at the least, an obvious question of fact as to whether Bradley's false police report materially and substantially resulted in Plaintiffs claimed injuries.

Because the probable cause finding was factually questionable, and because there was a direct causal link between Bradley's lies and the Plaintiffs prosecution and incarceration, those lies cannot be considered inconsequential. Like his codefendants Melendez and Weiss, Bradley is not entitled to summary judgment because there are questions of material fact as to his liability under § 1983.

Qualified Immunity re: Melendez, Weiss and Bradley

All three individual Defendants assert that they are entitled to qualified immunity. Under these facts, they are not.

In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), the Supreme Court held that a state official is protected by qualified immunity unless the Plaintiff shows (1) that the Defendant violated a constitutional right, and (2) the right was clearly established to the extent that a reasonable person in the defendant's position would know that the conduct complained of was unlawful. The Court has also held that qualified immunity "``provides ample support to all but the plainly incompetent or those who knowingly violate the law.'" Burns v. Reed, 500 U.S. 478, 494-95, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).

In Higgason v. Stephens, 288 F.3d 868, 878-877 (6th Cir.2002), the Sixth Circuit set forth a three-part test to determine whether a government official is entitled to the defense of qualified immunity: (1) was there a violation of a constitutionally protected right; (2) was that right clearly established at the time; and (3) has the plaintiff alleged and shown by sufficient evidence that what the official allegedly did was objectively unreasonable?^[13]

Because the Defendants' qualified immunity claim is based on the false premise that their probable cause determination was unassailable, it rests on a foundation of sand. The Defendants make much of the validity of the Terry stop, but do not discuss the inherent factual discrepancies surrounding Melendez's claim that he saw the Plaintiff throw a gun to the ground. Since there is a patent issue of fact as to whether Defendants Melendez and Weiss planted the gun and fabricated the accusations about the Plaintiff out of whole cloth, with Bradley's encouragement and support, the defense of qualified immunity must necessarily fail as a basis for summary judgment.

Defendants argue that under the first prong of Saucier, the Plaintiffs constitutional rights were not violated. Again, their argument is erroneously focused on the validity of the Terry stop, rather than the concocting of a false gun charge. As to the latter, it hardly requires the citation of case law to posit that a police officer's planting evidence and committing perjury in order to "frame" a suspect is a violation of the Due Process Clause. Nevertheless, the Supreme Court did hold in Pyle v. Kansas, 317 U.S. 213, 216, 63 S. Ct. 177, 87 L.E d. 214 (1942), that "perjured testimony knowingly used by the state authorities to sustain [defendant's] conviction" and "deliberate suppression by these same authorities of evidence favorable to him" violates the Constitution. See also Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (suppression of exculpatory evidence — e.g., that the police witnesses lied — violates Due Process).

Nor can it be seriously argued that the right to not be deliberately and falsely accused by the police is not clearly established. Indeed, the underlying principle that "Thou shalt not bear false witness against thy neighbor" is part of the fabric of our culture, and considerably predates even the Supreme Court's decision in Pyle. See Exodus 20:13.

The alleged police misconduct in this case falls well outside even the most expansive definition of "objective reasonableness." The Defendants are not entitled to qualified immunity.

City of Detroit [Docket # 102]

Defendant City of Detroit seeks summary judgment on two general grounds. First, citing Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001), the City argues that the individual Defendants Melendez, Weiss and Bradley did not violate any of Plaintiffs constitutional rights, and therefore the sine qua non of municipal liability is absent. Secondly, the City argues that pursuant to Monell v. Department of Social Services of City of New York 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), it has no respondeat superior liability, even assuming that its officers acted improperly.

For the reasons discussed in the preceding sections, the Court must reject the argument that there was no underlying constitutional violation. The more pertinent issue is whether the City has liability under Monell.

In Monell, the Supreme Court held that under § 1983, municipal liability is not unlimited, and that a municipality could not be liable on a theory of respondeat superior: "A municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id., 436 U.S. at 691, 98 S. Ct. at 2036. (Emphasis in original). However, the Monell Court found that when the acts of individual employees represent the government's custom or policy, the municipality can be held liable. Id. at 638, 98 S. Ct. at 2037-2038.

In Johnson v. City of Detroit, 944 F. Supp. 586, 598 (E.D.Mich.1996), the Court explained, "The requirement of an official policy distinguishes the acts of the employee from those of the municipality, ensuring that the municipality is held responsible only for the latter."

Nevertheless, a municipal policy need not be formal or written to bring § 1983 into play. It can be found in "a widespread practice that, although not authorized by written law or express municipal policy, is ``so permanent and well settled as to constitute ``custom or usage' with the force of law.'" City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) (citations omitted). In addition, § 1983 liability can be based on a policy of inadequate training or supervision, but "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). Further, in Memphis, Tennessee Area Local, American Postal Workers Union, 361 F.3d 898, 902-903 (6th Cir.2004), the court found that "[a] municipal ``custom' may be established by proof of the knowledge of policymaking officials and their acquiescence in the established practice." See also Fletcher v. O'Donnell, 867 F.2d 791, 792-794 (3rd Cir. 1989). If it is shown that the City of Detroit "knew or reasonably should have known" that the actions of its police officers were unlawful, this would support a claim that the city was "deliberately indifferent" to the rights of Plaintiffs, which in turn "can be properly thought of as a city policy or custom that is actionable under § 1983." Memphis at 904.

Under the Memphis standard, the Plaintiff has shown sufficient facts to withstand summary judgment, that is, there is a question of material fact as to whether the City of Detroit knew or should have known that its police officers, including the Defendants, were acting unlawfully, and therefore that the City was deliberately indifferent to the Plaintiffs rights.

Context is important. Here, the individual Defendants' actions were part of an alleged pattern and practice of police misconduct that a federal grand jury found to have involved at least seventeen police officers from Detroit's Fourth Precinct.^[14] As early as 1997, the City commissioned the so-called "Bobb Report" (Plaintiff's Response to City of Detroit's Motion for Summary Judgment, Exhibit A), to examine and make recommendations to address its extremely high costs in settling police misconduct lawsuits.^[15] The lengthy and widespread nature of the alleged misconduct in the Fourth Precinct, coupled with the City's recognition as far back as 1997 that there was an abnormally high number of police misconduct lawsuit settlements, adds force to the theory that the City knew, or at least should have known, that police misconduct was pervasive, and therefore should be scrutinized and investigated with an exceptional degree of attention.

Within that context, the facts support a finding that the City should have known of, but was deliberately indifferent to, problems with the individual Defendants in this case. For example, Brian R. Stair, a Detroit Police Commander in charge of Internal Affairs (IA), states in his affidavit^[16] that in 2002, federal authorities contacted the Detroit Chief of Police regarding a number of officers, including Defendant Bradley, and as a result, a Joint Investigative Task Force (JITF) was formed, to which Commander (then Lieutenant) Stair was assigned. The JITF reviewed records of arrests out of the Fourth Precinct — records going back several years — and noted "patterns that seemed to indicate some officers in the Gang Squad and in Fourth Precinct Special Operations frequently falsified reports of arrests." Stair Affidavit, ¶¶ 2-3. The review of those records prompted further investigation, including interviews of arrestees, that led the JITF to the conclusion that there was a pattern of police misconduct, including falsification of police reports. Id., ¶ 7. Thus, while the federally-inspired task force's investigation may have commenced in 2002, the ultimate decision to proceed with the indictment of the Defendants was based on a collection of false police reports that stretched back for years. This was information that was available to the same high-ranking City officials who commissioned a report based on their concern about excessive police misconduct settlements. That the City had access to this information, but chose to not investigate until prodded to do so by federal authorities, creates at least a question of fact as to whether the City was deliberately indifferent.

This question of fact is made more apparent by the Defendant City's Supplemental Response to Plaintiffs First Set of Request to Admit (Exhibit 3 to Defendant's Reply Brief Docket # 121). In those Requests, Defendant City admitted that Officers Melendez, Weiss and Bradley all qualified as "repeat offenders" in a study utilized by the Detroit City Council's Research and Analysis Division, and that such "repeaters" accounted for more than 111 million dollars of the 188 million dollars payed out in police misconduct settlements since 1987. More specifically, the City admitted in Request for Admission No. 19 "that the Detroit Police Department and/or its members, representatives, appointees, agents or employees, either collectively or independently and during the years 1987-2004, knew and/or should have known that the Detroit Fourth Precinct had more than three (3) ``repeaters' (or officer(s) who have been named in more than one (1) case, at any given time, during said period)." This Defendant also admits, in Requests Nos. 26 to 36, that from at least prior to 1990 through the filing of this lawsuit, the City had "a computerized tracking system that would monitor officers' performance and flag potentially dangerous and/or constitutionally [sic] behavior and/or misconduct of police officers."

These facts show that for years before Plaintiff Chancellor's arrest, the data and information necessary to ferret out the pervasive misconduct in the Fourth Precinct was available to the City, and City had the technical means to gather and analyze this information, much as the Detroit-Federal JITF did. Again, that it did not do so creates a question of fact at to its deliberate indifference.^[17]

The point is not that the Plaintiff has shown beyond peradventure that the City of Detroit has liability under Monell, or that the City has no viable defense. Were that the case, summary judgment would be available to the Plaintiff.^[18] Rather, the Plaintiff has done all that is required to defeat a Rule 56 motion — he has shown a question of material fact. Accordingly, summary judgment is inappropriate.

B. The State Law Counts

In addition to his federal claim under 42 U.S.C. § 1983, Plaintiff has pled five Michigan state law claims, naming the three individual Defendants Melendez, Weiss and Bradley: false arrest and imprisonment; civil conspiracy; intentional infliction of emotional distress; malicious prosecution; and abuse of process.

The Defendants seek dismissal of the state law counts on the ground of immunity under Michigan's Government Tort Liability Act (GTLA), M.C.L. 691.1407. This statute provides that state or local governmental agents or employees (including police officers) are "immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service. . . ." However, § 1407(2)(c) excludes from immunity protection acts which amount to "gross negligence." In addition, § 1407(3) specifically states that any grant of immunity contained in the statute "does not alter the law of intentional torts as it existed before July 7, 1986." Thus, if a plaintiff alleges an intentional tort for which an individual police officer would have been liable before July 7, 1986, that officer is not entitled to governmental immunity under the statute. Lucas v. Monroe County, 203 F.3d 964, 979, fn. 8 (6th Cir.2000); Koehler v. Smith, 1997 WL 595085 (6th Cir.1997) ("Michigan does not immunize its governmental employees, including police officers, from their intentional torts"); Sudul v. City of Hamtramck, 221 Mich.App. 455, 562 N.W.2d 478, 479 (1997) ("[a]n individual employee's intentional torts are not shielded by our governmental immunity statute").

As with their qualified immunity argument, the Defendants' claim of immunity proceeds from the erroneous premise that there is no question of fact as to whether Plaintiff actually possessed the gun claimed to have been found on the Clippert Street lawn. As discussed in the preceding sections, however, the record is replete with evidence that could support a finding that the Defendants intentionally planted the evidence with the intent to falsely accuse the Plaintiff. This makes the state law claims intentional torts, which are excluded from the GTLA. Hence, the Defendants are not protected by governmental immunity.

Furthermore, the facts that support the § 1983 count also support each of the state law counts.

1. False Arrest and Imprisonment

To make out a claim of false arrest or false imprisonment, "the plaintiff must show that the arrest was not legal, i.e., that it was made without probable cause." Tope v. Howe, 179 Mich.App. 91, 105, 445 N.W.2d 452 (1989). If the Plaintiff's facts are accepted, there was no probable cause other than that which was falsely concocted by the Defendants.

2. Civil Conspiracy

The elements of a civil conspiracy are: (1) a concerted action (2) by a combination of two or more persons (3) to accomplish an unlawful purpose (4) or a lawful purpose by unlawful means. Admiral Insurance Co. v. Columbia Casualty Insurance Co., 194 Mich.App. 300, 313, 486 N.W.2d 351 (1992). In this case, there are facts that show that three Defendants worked together to construct a false gun charge against the Plaintiff by planting evidence, an unlawful purpose committed by unlawful means.

3. International Infliction of Emotional Distress

To establish a Michigan common law claim of intentional infliction of emotional distress, a plaintiff must show "(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress." Graham v. Ford, 237 Mich.App. 670, 674, 604 N.W.2d 713 (1999). See also Roberts v. Auto-Owners Insurance Co., 422 Mich. 594, 374 N.W.2d 905 (1985). Liability under this theory requires that the conduct complained of "has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Graham, 237 Mich.App. at 674, 604 N.W.2d 713. This is a demanding standard: It is not sufficient to show that the defendant acted tortiously, intentionally, or even criminally. Id. The test has been described as whether "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ``Outrageous!' " Roberts, 422 Mich. at 603, 374 N.W.2d 905.

The Plaintiff in this case has stated and factually supported a claim that Detroit Police Officers intentionally planted evidence and lied in their police reports, resulting in his being indicted and incarcerated for a lengthy period before the charges were dismissed. The officers themselves were indicted, based in part on their actions in Plaintiff's case. It is fair to say that the average citizen would characterize the Defendants' conduct as outrageous.

4. Malicious Prosecution

In Matthews v. Blue Cross Blue Shield of Michigan, 456 Mich. 365, 378, 572 N.W.2d 603 (1998), the Michigan Supreme Court described the following elements of malicious prosecution: (1) that the defendant initiated a criminal prosecution against the plaintiff, (2) that the criminal proceedings terminated in the plaintiffs favor, (3) that the person who initiated the prosecution lacked probable cause to do so, and (4) that the action was taken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice. In the present case, the factually supportable allegations against the Defendant police officers establish a classic case of malicious prosecution under this standard.

5. Abuse of Process

In Friedman v. Dozorc, 412 Mich. 1, 30, 312 N.W.2d 585 (1981), the court set forth the following elements of the tort of abuse of process:

"To recover upon a theory of abuse of process, a plaintiff must plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding."

In Vallance v. Brewbaker, 161 Mich.App. 642, 646, 411 N.W.2d 808 (1987), the court explained that "[a] meritorious claim of abuse of process contemplates a situation where the defendant has availed himself of a proper legal procedure for a purpose collateral to the intended use of that procedure. . . ." In the present case, the Plaintiffs facts support a finding that the Defendants committed an improper act in the use of process (knowingly filing a false police report), and that they had an ulterior purpose (causing the Plaintiff to be prosecuted and jailed even where there was no legitimate probable cause to charge him with a crime).

In summary, the Plaintiff has demonstrated questions of material fact as to each element of each state law claim. Since the Defendants are not entitled to governmental immunity for these intentional torts, summary judgment must be denied.

IV. CONCLUSION

For these reasons, I recommend that all three motions for summary judgment [Docket Nos. 102, 103 and 104] be DENIED as to all claims except the Fourteenth Amendment Equal Protection claim brought under 42 U.S.C. § 1983, and that the motions be GRANTED as the Equal Protection claim only.

Any objections to this Report and Recommendation must be filed within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filling of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

SUPPLEMENTAL REPORT AND RECOMMENDATION REGARDING DEFENDANT BRADDLEY'S MOTION FOR SUMMARY JUDGMENT [DOCKET # 103]

On August 29, 2006, the undersigned issued a Report and Recommendation (R & R) with regard to Defendant Bradley's Motion for Summary Judgment, recommending that the motion be denied in all respects except the claim that Plaintiff was deprived of his rights under the Equal Protection Clause of the Fourteenth Amendment. On September 14, 2006, Defendant Bradley filed objections, alleging that certain "dispositive" issues were unaddressed in the R & R.^[1] While these issues are devoid of merit, and do not substantively affect the August 29th recommendation, I will, in the interest of thoroughness, discuss those issues herein, with the proviso that neither the original R & R or any analyses or conclusion contained in the original R & R are changed. This Supplemental R & R pertains only to Defendant Bradley's Motion for Summary Judgment, not to the motions filed by the other Defendants. Either Defendant Bradley or the Plaintiff may file objections to this Supplemental R & R, restricted to its findings, conclusions and recommendations.

I. ANALYSIS

(The underlying facts of this case are set forth in the original R & R, and need not be repeated here).

A. The "Agreement" to Dismiss the Case

Defendant Bradley claims that before his deposition, Plaintiffs counsel offered him "the opportunity to be dismissed from this case, should you be willing to provide truthful and honest, and detailed testimony regarding your involvement with the said Defendant officers." Bradley pins his hopes on the theory that the Plaintiff is bound by what is in effect an enforceable settlement agreement. This argument is without merit.

First, it should be noted that Defendant Bradley did not raise this argument in his Motion for Summary judgment. Instead, he raised it for the first time in his reply brief, filed on February 13, 2006 [Docket # 130], in response to the Plaintiffs brief in opposition to summary judgment. In United States v. Jerkins, 871 F.2d 598, 601 (6th Cir.1989), the Sixth Circuit declined to address an issue not raised in the original brief, stating:

"``It is impermissible to mention an issue for the first time in a reply brief because the appellee then has no opportunity to respond.' Knighten v. Commissioner, 702 F.2d 59, 60 n. 1 (5th Cir.), cert. denied, 464 U.S. 897, 104 S. Ct. 249, 78 L. Ed. 2d 237 (1983). ``[C]ourt decisions have made it clear that the appellant cannot raise new issues in a reply brief; he can only respond to arguments raised for the first time in appellee's brief.' 16 C. Wright, A. Miller, E. Cooper, & E. Grossman, Federal Practice and Procedure § 3974 at 428 (1977). Accordingly, we will not address this issue."

The same reasoning applies to a motion for summary judgment. Thus, the issue is not properly before this Court.^[2]

Furthermore, the issue fails on its merits. While it is true that this Court has the equitable power to enforce a settlement agreement, Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir.1988), that remedy is restricted to cases where there is no dispute or ambiguity as to either the entry into, or the terms of the agreement. Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6th Cir.1973). Indeed, "summary proceedings may result in inequities when . . . such a dispute does exist." Id. Thus, "[b]efore enforcing settlement, the district court must conclude ``that agreement has been reached on all material terms." Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir.1988). See also Therma-Scan, Inc. v. Thermoscan, Inc., 217 F.3d 414, 419-420 (6th Cir.2000). Enforceability of an alleged settlement agreement is analyzed under principles of contract law, and "[p]art of [the] threshold interpretation is the question of whether the terms of the . . . contract are ambiguous." Morgan Stanley Group Inc. v. New England Ins. Co., 225 F.3d 270, 275 (2nd Cir.2000).

It is not even certain that there was an agreement in this case. While perhaps improvident, Plaintiffs counsel's statement appears also to have been gratuitous. Further, the statement is fraught with ambiguity. What does "the opportunity" to be dismissed from the case mean? "Truthful and honest" testimony seems clear enough,^[3] but what does "detailed testimony" mean, and who determines the level of "detail" necessary to invoke an agreement to dismiss? Even if counsel's statement is construed as somehow creating a settlement agreement, the material terms of that agreement are ambiguous, rendering it unenforceable.

B. The Requests for Admissions

Defendant Bradley also argues that Plaintiffs apparent failure to timely answer his Requests to Admit (the Plaintiffs answers were filed three days after the 30-day period set forth in Fed.R.Civ.P. 36) should result in the admissions being conclusively established.

Rule 36 permits a court, on motion, to withdraw an admission. However, a formal, written motion to withdraw is not necessary, and a withdrawal or request to withdraw may be made orally or may be imputed from a party's actions. In Kerry Steel, Inc. v. Paragon Industries, Inc., 106 F.3d 147, 154 (6th Cir.1997), the Sixth Circuit stated that "we are reluctant to assign talismanic significance to the attorney's failure to use the phrase ``I move.'" In Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1313 (8th Cir.1983), the court held that "a late response [is] equivalent to a withdrawal of an admission." See also White Consolidated Industries v. Waterhouse, 158 F.R.D. 429, 432 (D.Minn.1994). Here, the Plaintiff filed his denials to the Requests to Admit only three days late. Those denials may be deemed the functional equivalent of a request to withdraw.

Rule 36(b) provides that "the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits." The withdrawal of an admission is entrusted to the court's discretion, and the first prong of the Rule 36(b) test is met "when upholding the admission would practically eliminate any presentation on the merits of the case." Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir.1995) (holding that the district court abused its discretion in refusing to allow the withdrawal of two inadvertent admissions that went to the heart of the case). With respect to the second prong of Rule 36(b) — prejudice — the court in Hadley stated:

"The prejudice contemplated by Rule 36(b) is ``not simply that the party who obtained the admission will now have to convince the factfinder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence' with respect to the questions previously deemed admitted. Brook Village N. Assocs. v. General Elec. Co., 686 F.2d 66, 70 (1st Cir.1982). The party who obtained the admission has the burden of proving that withdrawal of the admission would prejudice the party's case. See FDIC v. Prusia, 18 F.3d 637, 640 (8th Cir.1994)." Id., at 1348.

Applying these standards to the present case, it would be manifestly unjust to deem the Defendant's requests admitted by the Plaintiff. Under the first prong of Rule 36(b), the admissions go to the very heart of the case. For example, Defendant asked Plaintiff to "admit that you have no evidence that Plaintiff was incarcerated as the result of any false or fraudulent allegation made by Bradley" (Request no. 3) and "to admit that you have no evidence that a federal criminal complaint was filed against Plaintiff arising out of any false or fraudulent allegation made by Bradley" (Request no. 2). The very basis of the complaint against Bradley is that Plaintiff was charged and incarcerated because of Bradley's and the other Defendants' lies. In fact, Bradley himself admitted that he lied in his police report, and he himself served a federal prison term because of his lies. It would be nothing short of a miscarriage of justice to reward a self-proclaimed and convicted liar for no other reason than the Plaintiffs denials were three days late.

Furthermore, the Defendant has not met his burden of showing prejudice. He knew very well when he received the denials on October 3, 2005 what the Plaintiffs position was. He was not misled, he was not surprised, and he did not forego any discovery. Indeed, he vigorously conducted extensive discovery on the very issues he now claims the Plaintiff has waived. He proceeded with his defense, and filed a summary judgment motion on the merits, citing depositions and other documents in direct response to the claim that he and the other Defendants violated the Plaintiffs Fourth and Fourteenth Amendment rights. Under these circumstances, to disallow the withdrawal of the claimed admissions and grant the Defendant summary judgment on that basis would be an abuse of discretion.

II. CONCLUSION

For these reasons, I reiterate my previous recommendation that Defendant Bradley's Motion for Summary Judgment [Docket # 103] be DENIED as to all claims except the Fourteenth Amendment Equal Protection claim brought under 42 U.S.C. § 1983, and that the motion be GRANTED as the Equal Protection claim only.

Any objections to this Supplemental Report and Recommendation must be filed within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Objections will be limited to facts, findings, analyses and conclusions contained in this Supplemental Report and Recommendation. Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). (Previously filed timely objections to the original Report and Recommendation are preserved). Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections.

Sept. 15, 2006

NOTES

[1] The Fourteenth Amendment claim includes allegations of both Due Process and Equal Protection violations.

[2] The police reports are attached to Defendant Bradley's summary judgment motion [Docket # 103] as Exhibits 10 (Bradley), 11 (Melendez) and 12 (Weiss).

[3] See Exhibits 8 and 9 to Bradley's summary judgment motion.

[4] See Bradley's summary judgment motion, Exhibits 3 (Melendez's deposition), 7 (Bradley's), 4 (Plaintiff's first deposition) and 14 (Plaintiff's second deposition).

[5] Id., Exhibit 13.

[6] Id., Exhibit 15.

[7] While the question of whether there was really a traffic violation is not determinative of the validity of the Terry stop, Bradley's admission that he, Melendez and Weiss lied about the stop in their PCR's has a significant impact on the Defendants' credibility as to other statements, such as whether a gun was found.

[8] There is a similar question of fact as to where the gun allegedly seized from Blackwell was actually found, or whether it too was planted by the police. Weiss and Melendez asserted in their PCR's that a gun was taken from Blackwell's waistband. In their statements to the police, Blackwell and the Plaintiff indicate that they were told the gun was taken from the back seat of the car. Although Blackwell told the police, when shown the gun, that it belonged to Terrance Hall, the veracity of that statement is suspect given the "recognized motivation to shift blame onto others." Bruton v. United States, 391 U.S. 123, 136, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Thus, a reasonable inference arises that Blackwell never saw the gun before Weiss produced it, and being led to believe it was found in the back seat of the car, shifted the blame to Hall (who had escaped from the police) in order to distance himself from the weapon.

[9] The Court recognizes that Defendants Melendez and Weiss were found not guilty at their criminal trial. However, because the standard in a criminal case is proof beyond a reasonable doubt, the highest evidentiary standard in law, the Defendants' acquittal carries no weight in the present civil case, where the standard is only preponderance of the evidence. Bradley, of course, pled guilty to Count One of the indictment (conspiracy to violate civil rights).

[10] In addition to claiming a Fourth Amendment violation, Plaintiff's § 1983 count also alleges violations of Fourteenth Amendment Due Process and Equal Protection. To establish an Equal Protection claim, a Plaintiff must allege and prove "that he was denied equal protection of the law based upon an unjustifiable standard such as race, religion, or other arbitrary classification. . . . [A] person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual." Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir.1999). As Plaintiff has made no allegation or showing that the officers' misconduct was class-based, the Equal Protection claim must be dismissed.

[11] This gives particular force to the Rule 404(b) evidence arising from the four other overt acts charged in Bradley's indictment. (As was the case with his co-Defendants, the substantive use of the overt acts as Rule 404(b) evidence may be considered in determining whether there is a question of material fact sufficient to withstand summary judgment). In addition, both in his motion and at oral argument, Bradley made much of the fact that although he signed the PCR, he did not write it himself. If anything, this fact supports an inference that Melendez wrote the false statement that Bradley recovered the gun, and that Bradley signed off on the report in complicity with Melendez, as part of their usual scheme or practice of constructing false charges.

[12] Attached to the Complaint as an exhibit, Bates No. 01597-01598.

[13] Since Saucier, the Supreme Court has continued to use the two-prong analysis. The Sixth Circuit's addition of the third "objective reasonableness" prong is not substantially different, but "may in some cases increase the clarity of the proper analysis." See Estate of Carter v. City of Detroit, 408 F.3d 305, 311, fn. 2 (6th Cir.2005). In cases where, as here, if the right is clearly established its violation would necessarily be objectively unreasonable, the Court has "collapse[d] the second and third prongs" in order to "avoid duplicative analysis." Caudill v. Hollan, 431 F.3d 900, 911, fn. 10 (6th Cir.2005); Miller v. Administrative Office of Courts, 448 F.3d 887, 894 (6th Cir.2006).

[14] At oral argument, counsel for the City indicated that 19 officers from the Fourth Precinct were implicated in the investigation.

[15] Defendant City of Detroit challenges the authenticity of the document submitted by Plaintiff. For purposes of this Report and Recommendation, the Court finds that the Plaintiff has demonstrated a question of material fact as to municipal liability without regard to the substance of the "Bobb Report," and therefore, the contents of Plaintiff's Exhibit A will not be considered. Rather, it is the existence of a City-commissioned report on police misconduct settlements that is one of several factors that play into the existence of factual disputes

[16] Attached to City of Detroit's motion for summary judgment as Exhibit G.

[17] . In Martini v. Russell, 582 F. Supp. 136, 142 (C.D.Cal.1984), the court held that even "a single unusually egregious incident can be sufficiently out of the ordinary to merit an inference that it was attributable to the inadequate training or supervision amounting to gross negligence on the part of the officials in charge" (citing Turpin v. Mallet, 619 F.2d 196, 202 (2d Cir.1980)). If that is so, then the sheer number and nature of egregious violations committed by rogue officers over this period of time would even more clearly support an inference of municipal liability.

[18] Plaintiff has not filed a summary judgment motion.

[1] Defendant claims that the R & R "failed to consider dismissing the pendent state law claims pursuant to 28 U.S.C. § 1367(c)." The R & R thoroughly discussed the elements of each state law claim, as well as the reasons that summary judgment would be inappropriate. Implicit in the recommendation that summary judgment be denied is a rejection of Defendant's argument under § 1367(c). Therefore, this Supplemental R & R will discuss only the other two issues — the Plaintiff's alleged agreement to dismiss the case and the untimely responses to Defendant's requests to admit.

[2] The Court is mindful of Lexicon, Inc. v. Safeco Insurance Co. Of America, 436 F.3d 662 (6th Cir.2006), where the majority opinion found that "any error by the district court in granting Safeco's summary judgment without giving Lexicon an opportunity to respond to Safeco's arguments is harmless." Id. At 670. Lexicon found it significant that the defendant (unlike the Plaintiff in the present case) had the opportunity to brief the issue in the district court in its motion to alter, amend or vacate the judgment, and again on appeal, noting that appellate review of a grant of summary judgment is de novo. However, Judge Griffin's partial dissent in Lexicon took the position that "the issue is not one of harmless error, but rather one of preservation. . . . A de novo standard of review does not excuse a party's obligation to fairly present each of its issues at every stage in the proceedings." Id. at 676, fn. 3 (partial dissent of Griffin, J.).

Nevertheless, out of an abundance of fairness, and in the interest of judicial economy, the Court will address the merits of this issue. Unfortunately for Defendant Bradley, the issue has no merit.

[3] Bradley was under a legal obligation to testify truthfully at his deposition quite independently of any "promises" from Plaintiff's lawyer. Unlike the situation where a criminal defendant agrees to waive the Fifth Amendment right in exchange for testimony, Bradley had no Fifth Amendment right in this case, having already waived it in the context of his own guilty plea.