Summary
In Clark, despite a policy to investigate all complaints, the practice was that complaints were not properly investigated.
Summary of this case from Edwards v. City of Martins FerryOpinion
Case No. 1:99 CV 277
April 27, 2000.
ORDER
In accordance with the Court's Opinion of this date;
Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that the Muskegon Police Department be DISMISSED as a party to this action with prejudice and without costs.
IT IS FURTHER ORDERED that Defendant City of Muskegon's Motion for Summary Judgment (dkt. no. 26) is DENIED.
OPINION
This matter is before the Court on a Motion for Summary Judgment filed by Defendants City of Muskegon ("Muskegon") and City of Muskegon Police Department pursuant to Federal Rule of Civil Procedure 56(c).
Clark concedes that the Muskegon Police Department is not a legal entity separate from the City of Muskegon and stipulates to the dismissal of the Muskegon Police Department as a Defendant with prejudice and without costs. (Clark's Response at 13.) Therefore, this summary judgment motion pertains only to Clark's claim against the City of Muskegon.
OVERVIEW
In July 1997, Muskegon Police Officer Ramiro Pena used excessive force in the non-resistant arrest of Branden Clark, a 14-year old boy. A citizen witnessed this assault and reported it to a Sergeant who wrote a memo about the incident to a Captain. The police department did not investigate the Clark assault until almost a year later — waiting until after Officer Pena was accused of using excessive force against another person and a state agency investigated both that assault and the Clark assault.In this civil rights action brought pursuant to 42 U.S.C. § 1983, Clark alleges that Muskegon is responsible for the Clark assault because it had a custom of discouraging, ignoring, and not tracking citizen complaints lodged against police officers. Muskegon asserts that it is not liable for the acts of its employees.
Branden Clark is a minor; Branden's suit was brought by Florida Clark, his next friend and grandmother, who is also a plaintiff. See generally Fed.R.Civ.P. 17(c).
The Supreme Court allows municipal liability for the acts of employees where a municipality is deliberately indifferent to the risk of a constitutional deprivation and there is a direct causal link between that indifference and an actual constitutional deprivation. There is sufficient evidence here to create a genuine issue of fact as to whether a direct causal link exists between Muskegon's deliberate indifference to citizen complaints and Officer Pena's assault of Branden Clark. Muskegon's Motion for Summary Judgment is denied.
BACKGROUND
On March 17, 1997, during a non-resistant arrest of Branden Clark, who was then 14-years old, Officer Pena put a gun in Clark's mouth, pulled his hair and slammed his head into a fence, a police car and the cement on the ground while Clark was handcuffed. (Complaint at ¶ 5 and Clark's Exh. A). The assault was witnessed by Charles Robinson, a taxi driver, who spoke to at least two police officers about Pena's actions. In a memo dated the same day as the assault, Sergeant Carter related Robinson's allegations to Captain Hiles, the captain in charge of the uniformed division. (Clark's Ex. F.)
Because it had a custom of not investigating verbal complaints, Muskegon ignored Robinson's allegations for eight months. Sergeant Carter's memo stated, "I advised Mr. Robinson that I would give this information to the patrol captain and that if he wanted to make a formal complaint that he could come in and contact the captain." (Id.) Muskegon concedes that the investigation into Mr. Robinson's allegations was delayed "for several months" but blames this delay, at least in part, on the fact that both Clark and Mr. Robinson "chose not to make any complaint." (Muskegon's Reply at 4.)
The investigation into the Clark assault was "delayed" until Pena was accused of assaulting Scotty Walter eight months later. While investigating the Walter assault, the Muskegon County Prosecutor, an entity separate from the City of Muskegon, looked into the charges relating to Clark as well. This prompted an internal affairs investigation of the Clark assault by Muskegon. Almost 18 months after the assault, Muskegon concluded that Pena conducted himself in an "unprofessional and abusive manner" in the Clark assault. (Muskegon's Ex. 13., September 11, 1998 letter.)
Citizen Complaint Review Process
On the day Clark was assaulted, the Muskegon Police Department consisted of 77 officers. (Muskegon's Ex. 8, Stout Aff. at ¶ 6.)
At the time of the assault, Muskegon's official citizen complaint policy stated: "It is the policy of the Muskegon Police Department to receive and investigate all complaints regarding members of the Muskegon Police Department or any alleged violation of Department policy." (Muskegon's Ex. 8, Stout Aff., Ex. 3, Policy and Procedural Order 52-1.)
The procedure for carrying out Policy and Procedural Order 52-1 ("Order 52-1") stated:
When a complaint is received by any member of the Department the subject making the complaint will be directed to the Division Commander of the officer on whom the complaint is made. This will be recorded on the proper form and the Chief of Police along with the Division Commander will make the determination on whether the complaint should be assigned to the Internal Affairs Unit or the Division Commander of Unit/Bureau."
(Id.)
To evaluate the effectiveness of these procedures, it is necessary to examine the various steps of the citizen complaint process. Order 52-1 dictates how various police department personnel should handle complaints. It requires first line supervisors to advise the Division Commander of "[c]omplaints that could result in disciplinary action amounting to more than a written verbal reprimand." At the time of the Clark incident, this meant that citizen complaints were passed on to the supervisor of the officer against whom a complaint is lodged. It charges the Internal Affairs Unit with investigating "complaints against Officers for allegations of corruption, brutality, misuse of force. . . . (Id.)
Testimony from the officer in charge of citizen complaints, Captain Daniel Stout, reveals that there was a gulf between Order 52-1 and the police department's citizen complaint procedure as practiced. One example of this was the police departments' practice of ignoring verbal complaints. Although Order 52-1 states that the department will "investigate all complaints regarding members of the Muskegon Police Department," Captain Stout testified that verbal complaints were ignored. Captain Stout said, "if someone didn't come in and put it in writing as a normal practice, we wouldn't follow up on the complaint. I know the practice was then if somebody called in we would have then — or make a complaint they would have been told to come in and contact the command officer and put their complaint in writing." (Clark's Ex. I, Stout Dep. at 10.) Captain Stout also testified that complainants "were required to come in and see the command officer." (Id. at 11.) In instances like the Robinson memo, where a verbal complaint has been transcribed by an officer, Stout stated that if the memo was sent from a Sergeant to a Captain, the handling of the complaint was "[p]retty much [it is] left up to the command officer." (Id. at 10.) Stout's testimony shows that instead of investigating all complaints as its policy stated, Muskegon took a "wait-and-see" approach under which verbal complaints against police officers were ignored unless they were followed up by a written complaint.
Another example of the disconnect between the written policy and actual police practice was highlighted by an affiant who stated she had difficulty filing a citizen complaint. One witness, Charlotte Perez-Hughes, testified that she called the Muskegon Police Department three times to complain about an assault on her son before she was able to speak with a police captain. (Clark's Ex. H, Perez-Hughes Dep. at 12-13.) Ms. Perez-Hughes testified that she was also discouraged from filing a complaint by a Captain who told her that there was no such thing as a citizen's complaint and that he did not "see any reason why we need to discuss this." (Id. at 13.) Despite this conversation, Ms. Perez-Hughes went to the police department and asked to file a complaint where she was told that "the Muskegon Police Department didn't have any papers that [she] can file complaints with. That the only thing [she] could do is [to] put it in writing and bring it back to the captain." (Id. at 16.)
A third example of practice diverging from policy was in the area of archiving complaints. Captain Stout was also the custodian for citizen complaints. (Muskegon's Ex. 8, Stout Aff. at § 8.) While Order 52-1 mandates that "complaints received and or investigations concluded will be kept in a secured filing cabinet," Captain Stout testified that Muskegon had no uniform system for tracking citizen complaints against police officers at the time of Clark's arrest. Captain Stout testified that if the Police Chief did not refer a complaint about an officer to the internal affairs division, the complaint would not be included in the officer's file. (Clark's Ex. I, Stout Dep. at 23.) Thus, there was no central location for complaints handled at the command level and it can be inferred that complaints which did not reach the Chief were also not forwarded to Stout. (Id. at 24.) As to these un-forwarded complaints, Stout stated that "[e]veryone has their own filing system." (Id. at 13.)
This is consistent with Plaintiffs' contention that investigative reports were not in Officer Pena's personnel file. Prior to the Clark assault, a mother complained that Officer Pena used excessive force while arresting her son. Muskegon contends that it fully investigated this complaint and that this investigation found no basis to conclude that Pena took part in Cardona's arrest or that any excessive force was used during that arrest. Clark responds that no record of this investigation was found in Pena's personnel file.
Ms. Perez-Hughes complained that Officer Pena used excessive force while arresting her 15-year old son Gabriel Cardona on October 15, 1995. (Clark's Ex. G.)
Muskegon's New Citizen Complaint Policies
Captain Stout testified that Muskegon has substantially revamped its citizen complaint review process since the Clark assault. Under a system that has been in place since 1998, citizens fill out a complaint form, which is automatically routed to the city manager, the Chief of Police and the Internal Affairs division. The Internal Affairs division investigates the complaint and forwards the results of the investigation to the Chief of Police, the City Manager and a citizen's commission, which is comprised of seven civilians. The citizen is then informed of the action taken on the investigation. (Clark's Ex. I, Stout Dep. at 6.) Also, Muskegon concedes that the Order 52-1 sections requiring the Muskegon Police Department to compile annual statistical summaries based on records of internal affairs investigations, and then make summaries available to the public and to make its procedures for filing a complaint against the Department available to the public were not in effect at the time of the Clark incident.
LEGAL STANDARDS I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The initial burden is on the movant to specify the basis upon which summary judgment should be granted and to identify portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. In order to defeat the motion for summary judgment after the movant has carried its initial burden, the nonmoving party cannot respond by merely resting on the pleadings, but rather the nonmoving party must present some "specific facts showing that there is a genuine issue for trial." Id. at 324 (quoting Fed.R.Civ.P. 56(e)).
II . Section 1983 Standard
Clark seeks relief under § 42 U.S.C. § 1983. To succeed, Clark must establish that he was subjected to, or caused to be subjected to, a constitutional deprivation by a person acting under color of state law. Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 155-56 (1978); Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). That is not a contested issue here because Muskegon does not dispute that if Pena used excessive force in the arrest of Branden Clark, Clark would have suffered a constitutional deprivation by a person acting under color of state law. Graham v. Connor, 490 U.S. 386 (1989).
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
At issue here is whether the municipality can be held liable for that constitutional deprivation. A municipality may be held liable under § 1983 if the municipality itself caused the constitutional deprivation. Monell v. Department of Social Servs., 436 U.S. 658, 690 (1978). But a municipality is not liable under § 1983 on the basis of respondeat superior. Id. at 691-95. "It is only when the `execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (quoting Springfield v. Kibbe, 480 U.S. 257, 267 (1987) (O'Connor, J., dissenting)); see also Monell, 436 U.S. at 694. To establish municipal liability based on a custom, Plaintiffs must show that a practice is so well settled and widespread that policy-making officials can be said to have either "actual" or "constructive" knowledge of the practice. Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir. 1989). Constructive knowledge can be established by a showing that a custom is pervasive. As the Supreme Court has stated, "an act performed pursuant to a `custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Bryan County v. Brown, 520 U.S. 397, 404 (1997), citing Monell, 436 U.S. at 690-691.
Identifying conduct attributable to the municipality is only the first step; a plaintiff must also connect this conduct to the constitutional deprivation. "[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Id. at 403.
To meet the culpability standard, "[a] plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Id. at 411. In Canton, the Supreme Court held that municipalities demonstrating deliberate indifference to training police officers could be liable to citizens for constitutional deprivations caused by an otherwise constitutional policy. Federal courts extended Canton beyond the failure-to-train context and have held that a municipality that fails to investigate or effectively respond to citizen complaints may be liable for constitutional deprivations resulting from that failure under § 1983. See Beck v. City of Pittsburgh, 89 F.3d 966 (3rd Cir. 1996); Vann v. City of New York, 72 F.3d 1040 (2nd Cir. 1995); Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992). With such an allegation, courts do not ask whether the number of complaints evidences a custom or policy of abuse, they ask whether the risk of a constitutional deprivation was so "plainly obvious" that the decision not to address it, reflected deliberate indifference on the part of the policymaker. In fact, the Supreme Court has determined that a single constitutional deprivation by the municipality's employee can suffice. Bryan County, 520 U.S. at 408. ("In Canton we did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.") This standard was set forth first in Canton, where the Court found a municipality liable where "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers or the city can reasonably said to have been deliberately indifferent to the need." Canton, 489 U.S. at 390. The Court expanded on this in Bryan County, when it stated that the likelihood and predictability that the officer would violate a citizen's rights "could justify a finding that the policymakers' decision not to train the officer reflected `deliberate indifference' to the obvious consequence of the policymakers' choice — namely a violation of a specific constitutional or statutory right." Bryan County, 520 U.S. at 409.
Once culpability is established, plaintiff must also meet the causation requirement. In undertaking a causation analysis, Bryan County requires a plaintiff "to show that the municipality's indifference led directly to the very consequence that was so predictable." Id, at 410. The Supreme Court has held that the high degree of predictability necessary for a showing that a municipality is culpable "may also support an inference of causation." Id.
At issue in this motion is whether there are genuine issues of material facts that Muskegon's custom of discouraging, ignoring and failing to track citizen complaints against its police officers was so widespread that it had the force of law and whether this custom would so obviously and predictably lead to the use of excessive force by an officer, that such a custom reflected a deliberate indifference to Muskegon's obligation to supervise its employees and was the moving force behind Officer Pena's assault of Branden Clark.
LEGAL ANALYSIS
To prevail, Clark must show that there is a genuine issue of material fact on three issues: (1) the inadequacy of Muskegon's citizen complaint process was so widespread that it had the force of law; (2) the police department's custom of discouraging, ignoring and discarding citizen complaints reflected deliberate indifference to the obvious risk that a constitutional deprivation would follow that decision; and (3) this indifference led directly to the very consequence that was so predictable. The Court will address these issues in turn.
I. The Ineffective Citizen Complaint Custom was So Widespread as to Have the Force of Law
To recover against a municipality in a civil rights action based upon a custom, a plaintiff must show that the custom was so widespread that it had the force of law. Clark has presented substantial evidence that Muskegon's formal citizen complaint policy was flawed and that these flaws created a widespread custom which consistently discouraged, ignored and discarded citizen complaints.
As a starting point, it is important to note that Muskegon does not even assert that Order 52-I was followed in 1997; it asserts only that the policy existed. The existence of a policy is not enough. See Beck, 89 F.3d at 974 ("we cannot look to the mere existence of superficial grievance procedures as a guarantee that citizens' constitutional liberties are secured.")
There is substantial evidence that, contrary to Order 52-1, it was standard practice to ignore verbal complaints. Order 52-1 states that the Police Department will "receive and investigate all complaints regarding members of the Muskegon Police Department or any alleged violation of Department policy." But Captain Stout testified that "if someone didn't come in and put [a complaint] in writing as a normal practice, we wouldn't follow up on the complaint." Captain Stout's testimony is consistent with the testimony of Ms. Perez-Hughes and Mr. Robinson, two citizen complainants, as well as Muskegon's own contemporaneous documents. Sergeant Carter's memo states that he advised Mr. Robinson "if he wanted to make a formal complaint, he could come in and contact the captain." The problem with this custom is highlighted by Sergeant Carter's memo. In that instance, a citizen witnessed the use of excessive force, notified the police department, and despite the fact that a sergeant took his statement, there was no investigation of those serious charges. To require Robinson to go to a police station was wholly unnecessary in light of the memo that Sergeant Carter wrote to the Captain supervising Officer Pena. It appears from this evidence that this custom discouraged citizen complaints.
In addition to ignoring verbal complaints, there is evidence that citizens were discouraged from filing written complaints. The requirement that citizens physically go to the police station to register a complaint is but one example. Ms. Perez-Hughes testified that she was told by a captain that he saw no reason to discuss her complaint. There is also evidence that even if a citizen made it to the police station, no complaint forms were made available for citizens to fill out.
There is evidence that complaints were initially pursued at the sole discretion of the officer's supervisor. Order 52-1 required supervisors to bring complaints regarding their own supervisees to the attention of the Police Chief. Thus, there was an incentive for a supervisor to discourage, ignore and discard complaints in order to avoid charges of poor supervision. By contrast, Muskegon's revamped citizen complaint system implemented a series of checks which, if followed, would eliminate these customs. By automatically forwarding a readily-available complaint form to the Police Chief, the City Attorney and a citizen oversight board, Muskegon's new citizen complaint process, as described, avoids conflicts of interest and reflects a genuine interest on the part of Muskegon policymakers to address citizen complaints effectively.
Finally, there is evidence that Muskegon's ability to effectively supervise police officers was significantly hampered by the fact that there was no formal method for archiving the complaints not forwarded to the Police Chief. The failure to track citizen complaints against individual police officers can create an environment where officer misconduct could go unchecked. As one court found, "[b]ecause there is no formalized tracking of complaints for individual officers, a jury could find that officers are guaranteed repeated immunity . . ." Beck, 89 F.3d at 974 (finding municipal liability in part because the City of Pittsburgh had no formal system in place for tracking complaints against its officers.) There is evidence that shoddy recordkeeping occurred in connection with Officer Pena's personnel file. Although Muskegon asserts that it fully investigated Gabriel Cardona's complaint against Officer Pena, Clark responds that no record of the complaint or investigation was found in Pena's file.
Muskegon's argument that the Court should be "impressed with the paucity of the Plaintiffs' evidence" of other citizen complaints against the police department is spurious. (Muskegon's Reply at 2.) In light of the testimony that "everyone has their own filing system," the Court is, in fact, impressed with the evidence Plaintiff has managed to produce. Because Muskegon had a custom of allowing citizen complaints to be discarded, the fact that there are no records of citizen complaints may not prove that no citizens were in fact complaining. Instead, it may prove that the custom of ignoring citizen complaints was highly effective.
As a matter of policy, Muskegon failed to require the police department to catalog and report the number of citizen complaints lodged against its officers each year. There is no dispute that at the time of the Clark assault, the police department did not compile these statistics, nor was it required to under Order 52-1. This is in contrast to the new system which requires the police department to "compile annual statistical summaries, based upon records of internal affairs investigations, and make this summary available to the public." (Order 52-1, at Section XII.)
While any one of these deficiencies may not subject Muskegon to liability, in the aggregate they are sufficient to create a genuine issue of fact as to whether Muskegon's custom of discouraging, ignoring and not tracking citizen complaints was so widespread as to have the force of law. The Court is unimpressed that Muskegon, a city with 40,000 residents and a police department of 77 officers lacked an effective citizen complaint process in 1997. "[A] city's complete failure to maintain an adequate system of disciplining officers who act unconstitutionally might also be fairly said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury." Cox v. District of Columbia, 821 F. Supp. 1, 12 (D.D.C. 1993) aff'd, 40 F.3d 475 (D.C. Cir. 1994) (unpublished opinion).
II. Muskegon was Deliberately Indifferent to the Predictable and Obvious Risks Which Flow From an Ineffective Citizen Complaint Custom
The issue here is whether the use of excessive force by officers is so obviously and predictably a consequence of an ineffective citizen complaint process that Muskegon was deliberately indifferent to the risk.
A police department's primary function is to investigate reports of malfeasance. When it fails to perform that function effectively, an obvious consequence is an increase in malfeasance since perpetrators will feel that their actions will go unpunished. This is no less true when the alleged perpetrator is a police officer. In fact, because police officers are vested with increased power and authority over ordinary citizens, police departments must be especially vigilant when complaints of excessive force are lodged against its officers. Citizen complaint processes are designed to reduce police misconduct. When citizen complaints are discouraged, ignored and discarded, it is an obvious and predictable consequence that in a department with 77 officers, some officers will realize they can commit misconduct with impunity. See Parrish, 963 F.2d at 205 (finding liability where the police chief maintained a policy of opening investigations only when citizens filed written complaints because "officers operating under this system recognized that they could act with impunity unless a citizen filed a written complaint.") An obvious and predictable consequence of this realization is an increased use of excessive force by these officers. Thus, there is a genuine issue of material fact as to whether an obvious and predictable consequence of an ineffective citizen complaint system is an increase in the use of excessive force by police officers.
III. There is a Direct Causal Link Between the Ineffective Citizen Complaint Process and Officer Pena's Assault on Branden Clark
To establish causation, Clark must show that it was predictable and obvious that Muskegon's indifference would lead to the use of excessive force by Officer Pena.
Canton and Bryan County are the two leading Supreme Court opinions addressing causation in municipal liability cases. In Canton, the Supreme Court held a municipality liable where it was shown that the police department's deficient training program actually caused the police officers' indifference to the plaintiff's medical needs. In Bryan County, the Supreme Court distinguished a single instance of inadequate screening during the hiring of a police officer from Canton's inadequate training program because the consequences of a single instance of inadequate screening are far less obvious and predictable than those that "flow from the failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties." Bryan County, 520 U.S. at 410. In Bryan County, the Supreme Court was concerned that without a link between the municipality's action and the particular injury alleged, municipal liability would simply collapse into respondent superior liability such that a plaintiff could recover on the claim that "[b]ut for the municipality's decision to hire the employee, the plaintiff would not have suffered the injury." Id.
This case is distinguishable from Bryan County and analogous to Canton. Here, it was predictable that a widespread, ineffective citizen complaint procedure would lead to the use of excessive force by an officer because when a municipality with 77 officers routinely discourages, ignores and discards citizen complaints, there is a plainly obvious risk that a constitutional violation, through the use of excessive force, will occur. Municipal liability here is not premised on the theory of respondeat superior; it is based instead on the causal connection between Muskegon's ineffective policy and Pena's use of excessive force.
One commentator has suggested that to establish causation in a citizen complaint case, Canton and Bryan County require a plaintiff to show that this particular officer had a history of uninvestigated citizen complaints and that the municipality's failure to investigate those complaints led to this constitutional deprivation. Beh, Hazel Glenn, "Municipal Liability For Failure To Investigate Citizen Complaints Against Police" 25 Fordham Urb. L.J. 209, 221 (1998). The Court disagrees that such a stringent showing is required. A direct link between the municipalities acts and those of the officer can exist where there is evidence that the ineffectiveness of a municipality's citizen complaint system was widespread, because it can be inferred that every police officer was aware that excessive force could be used with near impunity. See Parrish, 963 F.2d at 205. Officer Pena serves as a good example of why requiring a plaintiff to show that a particular officer would commit a constitutional deprivation would allow otherwise culpable municipalities to avoid liability unnecessarily. After the Clark assault, Pena assaulted Scotty Waller. Despite the fact that Muskegon had the exact same citizen complaint program in place during both assaults, a more stringent causation requirement would allow Waller to bring a claim against Muskegon, but not Clark. One justification for this requirement is that after the Clark assault went uninvestigated, Pena knew he could get away with excessive force and therefore Muskegon's failure to investigate caused the Waller assault. While this certainly establishes causation, Pena's knowledge of the potential consequences of his actions could also be established by a less stringent requirement. Police officers do not operate in a vacuum; they are aware of events that surround them. As a member of the police department, there is a genuine issue of fact as to whether Pena was aware of the department's lax customs in handling citizen complaints and supervising its officers. If a jury finds that Pena had such knowledge when he assaulted Clark, a direct link may be established between the police department's customs and Pena's actions towards Clark. Alternatively, it may be possible for a jury to find a link between Muskegon's customs and Pena's behavior based upon evidence that past complaints against Pena were not found in his personnel file.
Because there is no concern here that Muskegon is being held liable solely because of the actions of its employee, this Court will not impose a stringent requirement that Clark show that Pena had previously avoided punishment because of Muskegon's ineffective citizen complaint procedure. Muskegon's deliberate indifference to the risks that flow from an inadequate citizen complaint process is sufficient to establish causation where an officer who knows that an ineffective process exists uses excessive force.
CONCLUSION
For the foregoing reasons, the Court finds that there are genuine issues of material facts as to whether Muskegon's custom of discouraging, ignoring and failing to track citizen complaints against its police officers was so widespread that it had the force of law and whether this custom would so obviously and predictably lead to the use of excessive force by an officer, that such a custom reflected a deliberate indifference to Muskegon's obligation to supervise its employees and was the moving force behind Officer Pena's assault of Branden Clark. Muskegon's Motion for Summary Judgment is denied.