Ghassan Khaled v. Dearborn Heights Police Dep't

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0553n.06
No. 17-1041
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 04, 2017
GHASSAN KHALED and SONIA KHALED, ) DEBORAH S. HUNT, Clerk
individually and on behalf of S.K. and F.K., minors, )
)
Plaintiffs-Appellants, )
)
v. )
)
DEARBORN HEIGHTS POLICE DEPARTMENT, )
ON APPEAL FROM THE
CITY OF DEARBORN HEIGHTS, )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
Defendants-Appellees, )
DISTRICT OF MICHIGAN
)
and )
)
UNNAMED DEARBORN HEIGHTS POLICE )
OFFICERS, )
)
Defendants. )
BEFORE: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiffs appeal the district court’s order granting summary judgment in favor of
defendants on plaintiffs’ claims of racial and religious discrimination in violation of 42 U.S.C.
§ 1983. Plaintiffs argue summary judgment was improper because they presented sufficient
evidence of discrimination by the police officer and municipal defendants to create a genuine
issue of material fact for a jury to resolve. For the reasons set forth below, we disagree and
affirm.
No. 17-1041, Khaled, et al. v. Dearborn Heights Police Dep’t, et al.
I.
This case arises out of a series of disagreements between neighbors that culminated in
shouting matches, numerous calls to the local police, and, ultimately, this lawsuit. Plaintiff
Ghassan Khaled lived with his wife, plaintiff Sonia Khaled, and Ghassan’s children from a prior
marriage, including minor daughters S.K. and F.K., who are also plaintiffs in this suit. The
family rented a house next to Walter Solovey in Dearborn Heights, Michigan. The Khaleds and
Solovey initially had a good relationship, with Ghassan’s children referring to Solovey as
“Uncle” and helping him with yardwork, and Solovey sometimes driving the children to school.
But these peaceful times would not last. In December 2014, one of Ghassan’s daughters
called him crying. She said that Solovey had grabbed two of her sisters by their arms, pulled
them onto his property, told them to pick up a piece of trash that had flown onto his property
from the Khaleds’ yard, and then removed the girls’ headscarves. Plaintiffs later alleged that
Solovey also called the girls “f***ing Arab scarfies.” Eventually, one of Ghassan’s daughters
called the police to report the incident.
Dearborn Heights police dispatch told Officer Michael Bacher that there was “neighbor
trouble” at the Khaleds’ residence and, upon arrival, Ghassan was waiting outside to meet him.
Officer Bacher testified that Ghassan told him there had long been tension between his family
and Solovey over trash that the Khaleds left between the two homes. Ghassan also told Officer
Bacher that Solovey had complained about Ghassan’s children being on Solovey’s lawn. Officer
Bacher testified that no one at the Khaleds’ residence ever reported to him that Solovey had
assaulted Ghassan’s daughters or called them names. After speaking with the Khaleds, Officer
Bacher attempted to speak with Solovey but no one answered when he knocked on Solovey’s
door. Ghassan claims that Officer Bacher told him that he would investigate the incident, said he
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was sorry that the incident occurred, and promised to obtain a search warrant for Solovey’s
home.
Later that same afternoon, officers returned to the Khaleds’ home in response to another
verbal altercation between Ghassan and Solovey. At approximately 5:00 or 6:00 p.m., Ghassan
saw Solovey outside in his yard. Ghassan testified that he asked Solovey if he had touched
Ghassan’s children, to which Solovey replied “eff this, you Arab,” and called someone on his
cellular phone. Shortly after that phone call, seven or eight police cars arrived at the Khaleds’
home. According to Ghassan, one of the officers called him over, took down his information,
and told Ghassan that he would be receiving a ticket for putting his trash out to the curb too early
in the week. Ghassan protested that he was being ticketed for trash when his neighbor assaulted
his daughters; according to Ghassan, the officer was uninterested in his version of events. The
officer gave him the ticket and allegedly said, “[T]hat’s how it is, you are Arab, you can learn
how the law works.” When Ghassan responded that this was “a racist issue,” the officer
allegedly responded, “[L]ook at this Arab, I don’t want to hear your s***,” before walking over
to Solovey’s property and laughing with the other officers and Solovey. Additionally, Ghassan
claimed that he heard Solovey tell the officers that “[w]e need to kill all the Arabs here,” at
which the officers laughed. Plaintiffs never identified any of the officers allegedly present for
these events.
Defendants give a very different version of events. A police report ascribed to Officer
Christopher Suggs notes that at 5:40 p.m. on December 6, 2014, officers were dispatched to
Solovey’s address for “[n]eighborhood [t]rouble.”1 According to the report, Solovey told the
1
Defendants attached a number of police reports to their motion for summary judgment.
These reports show that Solovey and Ghassan had been at odds since at least July 12, 2014,
resulting in the police being called on numerous occasions. These reports document grievances
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officers that Ghassan yelled “Screw you, you f*****” at Solovey while he was standing in his
yard. Solovey claimed he did not goad Ghassan in any way, but Ghassan continued to yell
obscenities until Solovey went back inside his home. When the officers approached Ghassan to
get his side of the story, he told them that Solovey had called his daughter a “b****,” and that
the two men have had an ongoing dispute. During these discussions, the officers “observed
garb[a]ge and furniture that was covering the whole lower half of [Ghassan’s] boulevard,” so
they issued him an ordinance violation. The police report from the incident and the deposition
testimony of Officer Suggs reveal that he issued Ghassan the ordinance violation. Officer Suggs
denied ever calling Ghassan an “Arab,” or hearing any officers use the word or laughing at
Ghassan’s expense. Because the police had responded to a number of calls between Ghassan and
Solovey, their homes were also placed on the “periodic” check list, which required police cars to
occasionally drive by and keep watch on the neighbors.
Early the next day, Ghassan’s brother brought Ghassan’s daughters to the Dearborn
Heights police station and asked to file a report regarding the daughters’ alleged mistreatment by
Solovey. The officer on duty, Sergeant Joanne Beedle Peer, declined to take this report, citing
the department’s general rule that officers were not allowed to take statements from minors
without their parent or guardian present. The daughters never returned with a parent.
Plaintiffs sued defendants the City of Dearborn Heights, the Dearborn Heights Police
Department, and unnamed Dearborn Heights police officers, alleging that plaintiffs were
unlawfully targeted on the basis of their race (Arab-American) and religion (Muslim), contrary to
42 U.S.C. § 1983 and the Fourteenth Amendment. Defendants moved for summary judgment.
In response, plaintiffs argued that genuine issues of material fact precluded summary judgment
from trespassing to abandoned vehicles to numerous instances of unspecified “neighborhood
trouble.”
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and sought leave to file a second amended complaint naming Officer Bacher and Sergeant
Beedle Peer as the previously unnamed officers.
The district court granted defendants’ motion for summary judgment. After noting that
plaintiffs conceded to the dismissal of their claims against the police department, the court held
that amending the complaint to name Officer Bacher and Sergeant Beedle Peer as defendants
would be futile because there was no evidence presented to support a § 1983 claim against either
officer. Second, the court held that plaintiffs could not identify any basis for imposing liability
on the city because plaintiffs had no evidentiary support for a constitutional violation by the
individual defendants and could not establish any unlawful municipal policy or custom.
Therefore, the district court granted defendants’ motion for summary judgment in its entirety.
Following the entry of a final judgment, plaintiffs now appeal here.
II.
We review a trial court’s grant of summary judgment de novo. Sumpter v. Wayne Cty.,
868 F.3d 473, 480 (6th Cir. 2017). A district court’s grant of summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “‘To prevail, the nonmovant must show
sufficient evidence to create a genuine issue of material fact,’ which is to say, ‘[t]here must be
evidence on which the jury could reasonably find for the [nonmovant].’” Sumpter, 868 F.3d at
480 (quoting Napier v. Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001)). All evidence and
inferences therefrom must be viewed in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
We ordinarily review denial of a motion for leave to amend a complaint for an abuse of
discretion. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003). But when a
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district court denies a plaintiff’s motion for leave to amend because it would have been futile,
this basis for denial is a purely legal conclusion, which we review de novo. Id.
III.
Plaintiffs raise procedural and substantive challenges on appeal. First, plaintiffs claim the
district court erred in granting summary judgment before they had an adequate opportunity to
conduct discovery. Second, that the court should have granted plaintiffs leave to amend their
complaint for a second time, and that summary judgment was inappropriate because plaintiffs
presented sufficient evidence to create a genuine issue of material fact as to whether defendants’
failure to provide police services was based on plaintiffs’ race or religion. We address each
argument in turn.
A.
Plaintiffs first claim that the trial court erred in granting summary judgment before they
had an adequate opportunity to conduct discovery. Federal Rule of Civil Procedure 56(d)
requires a nonmovant to show by affidavit or declaration that, “for specified reasons, it cannot
present facts essential to justify its opposition.” Then, “the court may: (1) defer considering the
motion or deny it; (2) allow time . . . to take discovery; or (3) issue any other appropriate order.”
Fed. R. Civ. P. 56(d) (emphasis added). That said, “if the appellant has not filed either a Rule
56[] affidavit or a motion that gives the district court a chance to rule on the need for additional
discovery, this court will not normally address whether there was adequate time for discovery.”
Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir. 1995). And even if the issue is
properly raised in the lower court, “[a] district court generally does not abuse its discretion in
denying a Rule 56[] discovery request if granting the desired discovery would not have affected
its ruling.” Thornton v. Graphic Commc’ns Conference of Int’l Bhd. of Teamsters Supplemental
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No. 17-1041, Khaled, et al. v. Dearborn Heights Police Dep’t, et al.
Ret. & Disability Fund, 566 F.3d 597, 617 (6th Cir. 2009). Plaintiffs have never indicated—
beyond mere vague statements that other unnamed police officers could be deposed—what
additional discovery would uncover. On this basis alone, plaintiffs have failed to show that the
trial court erred in denying their request for additional discovery. La Quinta Corp. v. Heartland
Props. L.L.C., 603 F.3d 327, 334 (6th Cir. 2010) (“It is not an abuse of discretion for the district
court to deny the discovery request when the party makes only general and conclusory
statements [ ] regarding the need for more discovery . . . .”) (quoting Ball v. Union Carbide
Corp., 385 F.3d 713, 720 (6th Cir. 2006)).
Further, plaintiffs never requested additional time for discovery or any relief available
under Rule 56 for additional discovery. Because plaintiffs failed to file either an affidavit or
motion allowing the district court to address the issue, relief is precluded. Plott, 71 F.3d at 1196;
see also Scadden v. Werner, 677 F. App’x 996, 1000 (6th Cir. 2017) (holding that a plaintiff’s
discussion of the continuing need for discovery in a response to a motion for summary judgment
was insufficient because the “failure to comply with [Rule] 56(d) is reason enough to conclude
that the district court did not abuse its discretion in granting the initial summary judgment
motion”). We are thus left with the definite impression that “the desired discovery would not
have affected [the district court’s] ruling.” Thornton, 566 F.3d at 617.
B.
Turning to the district court’s ultimate determination granting defendants’ summary
judgment motion, plaintiffs claim that summary judgment was improper both to the individual
officers—specifically Officer Bacher and Sergeant Beedle Peer—and the municipal defendants.
We disagree.
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Police Officers. Plaintiffs contend that the district court erred in denying plaintiffs leave
to amend their complaint for a second time to add Officer Bacher and Sergeant Beedle Peer as
named defendants, and in granting summary judgment to defendants. “[A] party may amend its
pleading only with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). But leave to amend may be
denied when the amendment would be futile. Yuhasz, 341 F.3d at 569. The district court denied
plaintiffs’ motion to amend on futility grounds, ruling that plaintiffs had presented no evidence
supporting the proposed amended complaint’s § 1983 claims against either Officer Bacher or
Sergeant Beedle Peer. Because the amendment issue and the substantive issue underlying the
district court’s Rule 56 determination overlap, we address them together.
The sole allegation against Officer Bacher in the proposed second amended complaint
was that he failed to adequately investigate the Khaleds’ allegations that Solovey assaulted
Ghassan’s daughters because all he did was knock on Solovey’s door and leave when no one
answered. According to plaintiffs, this failure to investigate further violated the Fourteenth
Amendment’s equal protection clause. However, as aptly noted by both defendants and the
district court, there is no right to an adequate police investigation. Mitchell v. McNeil, 487 F.3d
374, 378 (6th Cir. 2007).
Plaintiffs seek to distinguish that principle, arguing that they are entitled to some
investigation, adequate or otherwise. But plaintiffs’ argument merely rewords that which this
court has already rejected—by saying that this case required more from the officers, plaintiffs
argue that the investigation as conducted was inadequate. For the claim against Officer Bacher
to survive summary judgment, plaintiffs must create a genuine issue regarding whether they were
targeted or intentionally treated differently on account of their race or religion. Loesel v. City of
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Frankenmuth, 692 F.3d 452, 461 (6th Cir. 2016). The record is wholly bereft of evidence that
Officer Bacher treated plaintiffs differently or worse than other residents, let alone intentionally.
In fact, Ghassan testified that Officer Bacher was polite to him, and even expressed sympathy for
Ghassan. Plaintiffs have presented no evidence that Officer Bacher discriminated against them
on the basis of their race or religion.
Turning to Sergeant Beedle Peer, plaintiffs have similarly failed to meet their burden.
The only preserved allegation against the Sergeant was that plaintiffs “believed [her] to be” the
officer at the police station who refused to allow Ghassan’s daughters to file a police report when
they were accompanied by their uncle instead of a parent.2 They allege that the Sergeant’s
refusal to accept Ghassan’s daughters’ report “for no articulated reason” constituted unlawful
discrimination. But this is not so. Undisputed testimony confirms that Sergeant Beedle Peer told
Ghassan’s minor daughters, and their uncle, that they could not make a report without a parent or
guardian present. She elaborated that this was a blanket department policy applicable to all
minors.
Because plaintiffs could not meet their evidentiary burden, these claims must fail. While
plaintiffs also allege that an officer called Ghassan an “Arab” and joined other officers in joking
and laughing at anti-Arab-American sentiments, they have never named any of the officers
involved. Without identifying a defendant to attach to these allegations, plaintiffs have failed to
2
Plaintiffs also mention that “the same person” later came to their home and told them “in
[a] demeaning tone that she was there to make sure that Plaintiffs’ trash was taken out on the
appropriate day (Sunday).” Regarding this second allegation, plaintiffs never explain how this
encounter might support a § 1983 claim. The district court found this particular claim
abandoned, and we agree.
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oppose defendants’ motion for summary judgment regarding all individual defendants. We
therefore affirm the decision granting summary judgment in their favor.3
Municipality. Plaintiffs also raise claims against the city for violation of their
constitutional rights.4 While a plaintiff may seek damages against a municipality, those damages
cannot be premised upon vicarious or respondeat superior liability. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691–93 (1978). Instead, the plaintiff must create a genuine issue of
material fact whether a municipal custom, policy, or practice resulted in the deprivation of the
plaintiff’s constitutional rights. Id. at 690–91.
In support of their Monell claim against the City of Dearborn Heights, plaintiffs allege
that one can infer a discriminatory municipal policy or practice from the conduct of Officer
Bacher and Sergeant Beedle Peer, as well as the actions attributed to an unknown officer. The
ordinance violation they received for putting out their trash too early is their evidence of the
city’s discriminatory policies. But this is not enough.
First, as noted above, plaintiffs have failed to present any evidence supporting
discrimination claims against either Bacher or Beedle Peer, precluding liability against the
municipal defendants based on the officers’ conduct. Watkins v. City of Battle Creek, 273 F.3d
682, 687 (6th Cir. 2001) (“If no constitutional violation by the individual defendants is
established, the municipal defendants cannot be held liable under § 1983.”). The alleged racist
language and joking attributed to unnamed officers is also insufficient. Plaintiffs have never
3
Because plaintiffs have presented no evidence supporting their § 1983 claims against
Officer Bacher and Sergeant Beedle Peer, the district court also properly denied plaintiffs’
request to amend their complaint to add these named individual defendants as futile.
4
While the complaint names both the City of Dearborn Heights and the City of Dearborn
Heights Police Department as defendants, plaintiffs have conceded, properly, that the police
department is not a standalone entity, but rather an agent of the city and is therefore not a proper
separate defendant for § 1983 purposes. See Boykin v. Van Buren Twp., 479 F.3d 444, 450 (6th
Cir. 2007).
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identified these individuals beyond underscoring that they were definitely police officers. Even
assuming the joking and laughing at racially charged jokes was sufficient to violate plaintiffs’
constitutional rights, it is insufficient to hold the city liable for this conduct. The Supreme Court
has long held that “the wrongful conduct of a single officer without any policy-making authority
did not establish municipal policy,” and “decisions by subordinate employees did not necessarily
reflect official policy.” Collins v. City of Harker Heights, 503 U.S. 115, 121–22 (1992).
And the trash citation Ghassan received is also insufficient to support plaintiffs’ § 1983
claim. Essentially, plaintiffs argue that the citation shows a practice of selective enforcement
only against Arab-Americans, because officers testified that it was the only trash citation they
could recall ever being issued. But this is insufficient to create a genuine issue on whether
similarly situated persons outside of Ghassan’s race or religion were treated differently. See
Haraji v. Huron Twp., 365 F.3d 501, 508 (6th Cir. 2004). In selective enforcement cases, “a
plaintiff must demonstrate that a government actor had a bad reason for enforcing the law against
her and not against a similarly situated party,” or “that the action had no rational basis.” Boone
v. Spurgess, 385 F.3d 923, 932 (6th Cir. 2004). Plaintiffs have not produced evidence that non-
Arab-American or non-Muslim residents have similarly violated the city’s trash policy without
citation, or that defendants had no basis to issue the citation Ghassan received. Because they
have presented no evidence directly linking the municipal defendant to the alleged wrongful
conduct of the individual officers, named or otherwise, they cannot establish Monell liability.
IV.
We affirm the judgment of the district court.
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