Opinion
Case Number 02-10193-BC
November 25, 2003
OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS PUSSEHL AND CITY OF SAGINAW
This case arises from an assault and battery upon the plaintiff, Fernando Lambert, committed by the defendant, Jeffrey Lickly, an off-duty Saginaw police officer, which occurred at the scene of an automobile accident involving Lambert and defendant Maria Medina, also an off-duty Saginaw police officer and Lickly's girlfriend. The plaintiff's have alleged several federal and state law claims against the defendants, including claims for violation of civil rights based on 42 U.S.C. § 1983. The City of Saginaw and its police chief, Donald Pussehl, have filed a motion for summary judgment, which the plaintiff's oppose. The Court heard arguments on the motion from counsel for the parties in open court on October 30, 2003. The Court now finds that the plaintiff's have failed to come forth with admissible evidence that creates a genuine issue of material fact on the question of whether their injuries were caused by an official policy or custom created by the City or the Chief of Police (sued only in his official capacity), or that the injuries arose from the failure to train or discipline the police officers alleged to have been involved in the automobile accident and who perpetrated the assault. The Court, therefore, will grant the motion for summary judgment and dismiss the complaint as to these defendants.
I.
Medina is Fernando Lambert's former wife. On July 22, 2001, they both attended a graduation party in Bridgeport, Michigan. Medina was employed as a police officer for the City of Saginaw, but she was not on duty at the time nor dressed in her uniform and, according to her, was not carrying her badge or gun. She attended the party with her daughter. Lambert was accompanied by his new wife and their three children, who are all named plaintiff's in this case. Lambert claims that while they were at the party, Medina accosted two individuals involved in an altercation with another party-goer. Lambert contends that his family observed Medina assert her authority as a police officer to force the individuals to leave the party, even though she was not on duty at the time.
Lambert and Medina each left the party with their families at approximately 11:30 p.m. Both were on the road traveling in the same direction when Medina struck Lambert's vehicle from the rear as it made a right-hand turn. Medina contends the accident was unintentional, and Lambert, Pussehl, and the City of Saginaw claim the crash was intentional. After pulling over, Medina exited her vehicle and claims that when she approached the driver's side of Lambert's vehicle, Lambert got out of the passenger side, walked to the driver's side, and verbally accosted her. Lambert's wife exited from behind the wheel to physically restrain Lambert from assaulting Medina. Lambert denies that he assaulted Medina, but acknowledges that a confrontation occurred. However, Lambert contends that Medina precipitated the confrontation by threatening action against Lambert and his family, a threat she claimed to be enforceable due to her position as a police officer. Lambert also claims that he wanted to leave the area to get away from Medina, but Medina prevented him from leaving the scene.
Following the confrontation, Medina moved back towards her own vehicle, at which time she used her personal cell phone to call the 911 operator to report the accident. Medina identified herself as a police officer to the 911 dispatcher. She then called Jeffrey Lickly, who was a Saginaw city police officer and Medina's boyfriend. Medina claims that she made both calls because she was "scared" and that she "just wanted somebody to get there to help me." Dep. of Medina at 18, Pls.' Br. in Opp. to MSJ Ex. 1.
When Saginaw police officers arrived in response to the 911 call, they told Lambert to sit in the back of the police vehicle. It is unclear from the record whether the doors were closed or locked. However, Lambert claims to have been confined in the police vehicle.
Medina testified that her telephone call to Lickly woke him up. He arrived at the scene wearing a Saginaw Police Department T-shirt and carrying his badge, firearm, holster, handcuffs, and keys. Lickly then proceeded to enter the back of the police vehicle in which Lambert was lodged and physically assaulted and battered him. Lambert claims that the on-duty officers observed the incident and were tardy in responding. There is no testimony in the record before this Court suggesting that Lickly acted upon the orders or direction from his superiors, or even with their consent.
As a result of the incident, Medina was charged with operating a vehicle while intoxicated and subsequently was discharged from the Saginaw Police Department. Lickly was discharged and later convicted in state court of the aggravated assault of Lambert.
The plaintiff's filed their complaint in this Court on July 12, 2002. The Court conducted a case management conference in January 2003 and entered a Case Management and Scheduling Order on January 14, 2003, which allowed the parties until August 11, 2003 to complete discovery. Saginaw and Pussehl filed their motion for summary judgment on March 25, 2003, accompanied by the affidavit of Donald Pussehl in which he attests to various hiring and discipline practices of the Saginaw Police Department. The plaintiff's filed their initial response in opposition to the motion on April 22, 2003. Attached to the plaintiff's' motion papers are excerpts from defendant Medina's deposition, an answer by defendant Lickly to an interrogatory, a transcribed statement apparently given by Fernando Lambert to a Saginaw County Sheriff's deputy, and copies of unverified papers from other lawsuits involving the City of Saginaw that contain allegations that the plaintiff's claim are pertinent to the issues in this case. Also attached is a photocopy of a citation apparently issued by defendant Lickly to the plaintiff's' present counsel, Michael J. Forster, for resisting and obstructing a police officer (i.e., Lickly) in the performance of his duty in March 2001. The citation is accompanied by a report of a traffic stop of a van in which Forster was a passenger, describing Forster's refusal to remain seated in the vehicle while the officer completed the traffic citation, and Forster's subsequent arrest for disobeying the police officer's order. Forster argues in the brief that the prosecution was never pursued because Lickly exceeded his authority in issuing the citation.
The papers from other lawsuits include an unverified complaint in a case brought by one Daniel P. Kuhn against the Saginaw Police Department and its then-chief for employment discrimination. The complaint contains allegations of reverse discrimination, and categorically describes incidences of African-American police officers receiving less severe discipline than the plaintiff in that case believed was warranted. Also included is a brief prepared by attorney Forster in a lawsuit brought by Gerald and Kathy Forsythe against the City of Saginaw, apparently complaining of discriminatory practices in the hiring of police officers, in which Mr. Forster charges that minority and female cadets were given hiring preferences. He specifically refers to Maria Medina, a defendant in this case, and states that as "a 27 year old Hispanic female, [she] was hired as a cadet and later promoted to a police position despite: (a) A SPD [Saginaw Police Department] Lieutenant having reported that he did not trust her; (b) She had no military experience; (c) Her financial history was unfavorable; both her mother-in-law and brother-in-law had sued her; three of her accounts had been placed in collections; and (d) Her reputations was only considered `fair.'" Pls.' Br. in Opp. to MSJ Ex. 6 at 27. The plaintiff's offer these papers as emblematic of the evidence that could be developed in this case.
Although the motion for summary judgment was filed earlier, the hearing was not held until after the close of discovery. On June 9, 2003, the plaintiff's filed a supplemental brief and the affidavit of Vincente Gomez, who averred that a he attended the graduation party in July 2001 along with the plaintiff's, and that a person matching the description of defendant Medina displayed her badge, stated that she was a police officer, and told him to leave the party. No other "pleadings, depositions, answers to interrogatories, admissions on file, [or] affidavits," see Fed.R.Civ.P. 56(c), have been filed by any party.
II.
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and 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 (1986). The "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotes omitted).
A fact is "material" if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001). "Materiality" is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is "genuine" if a "reasonable jury could return a verdict for the nonmoving party." Henson v. NASA, 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). 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. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000). Thus a factual dispute which "is merely colorable or is not significantly probative" will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir. 1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir. 1999).
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Personal Care Home, Inc. v. Hoover Univ., Inc., 276 F.3d 845, 848 (6th Cir. 2002). The party opposing the motion then may not "rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J. C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate 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. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir. 1991). "[T]he party opposing the summary judgment motion must `do more than simply show that there is some "metaphysical doubt as to the material facts."'" Highland Capital, Inc. v. Franklin Nat. Bank, ___ F.3d ___, ___, No. 02-5505 (6th Cir., Nov. 25, 2003) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994), and Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "Thus, the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Ibid. (quoting Anderson, 477 U.S. at 252; internal quote marks omitted).
A.
The defendants claim that neither Medina nor Lickly were acting "under color of law," and therefore no claim can be maintained against the City or its police chief under Section 1983, presumably based on the theory that the absence of any unconstitutional conduct by an officer generally removes the basis for any liability against his department as a matter of law. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Proof of both elements is required to sustain a claim under this statute. Simescu v. Emmet County Dep't of Soc. Services, 942 F.2d 372, 374-75 (6th Cir. 1991). "Thus, `before a defendant may be held liable under section 1983, that defendant must first possess power by virtue of state law, then misuse that power in a way that violates federal constitutional rights.'" Cassady v. Tackett, 938 F.2d 693, 695 (6th Cir. 1991) (quoting Christian v. Belcher, 888 F.2d 410, 414 (6th Cir. 1989)).
"[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." Atkins, 487 U.S. at 50. The defendants correctly observe that both Medina and Lickly were off duty when the incident occurred in this case. However, the Sixth Circuit has made clear that "[t]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law." Redding v. St. Eward, 241 F.3d 530, 533 (6th Cir 2001) (quoting Stengel v. Belcher, 522 F.2d 438, 440-41 (6th Cir. 1975); internal quotes omitted). Factors that have been considered relevant to such an inquiry include displaying a badge, identifying oneself as a police officer, placing an individual under arrest, intervening in a dispute between third parties pursuant to a duty imposed by police department regulations, carrying a service pistol, and claiming to act on official authority. See, e.g., Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980) (holding that officer acted under color of law where he had authority under law to carry weapon, argument between plaintiff and officer arose as a result of officer's performance of his official duties on a prior occasion, and threats made to officer by plaintiff were communicated to officer through police agency); Stengel, 522 F.2d at 441 (holding officer acted under color of law where he intervened in an altercation, used his department issued mace and handgun, and attempted to arrest individuals involved in altercation); Pickrel v. City of Springfield, 45 F.3d 1115, 1118-19 (7th Cir. 1995) (holding officer acted under color of law when he acted as a private security guard at a McDonald's restaurant wearing his police uniform and badge and arrested plaintiff's); United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991) (holding deputy sheriff acted under color of law when he beat his wife's former lover while telling victim that he had special authority as a deputy sheriff to do so, told victim he could shoot him because he was a deputy, and summoned other police officers to the scene to follow the victim to the edge of town).
In this case, there is evidence that defendant Medina identified herself as a police officer to the dispatcher after the motor vehicle accident occurred. She also asserted her official authority to prevent the plaintiff's from leaving the scene. Defendant Lickly arrived at the scene toting his service pistol, badge, holster, handcuffs, and keys, and wearing garb that identified him as a Saginaw police officer. Attired in that way, he gained access to the rear compartment of a Saginaw police cruiser in which the plaintiff was lodged, and he assaulted him there. A fact finder could infer from this evidence that both of these off-duty police officers were able to perpetrate the assault on Fernando Lambert by using — and abusing — their official authority. The Court finds that there is sufficient evidence that Medina and Lickly acted under color of law to send that aspect of the case to trial.
B.
The City and Pussehl also argue that the record is insufficient to hold the municipality liable since it has not been shown that Lickly or Medina acted pursuant to a departmental policy or custom, and there is no evidence of an official failure to train or discipline them.
As previously noted, the plaintiff's' federal cause of action is based on 42 U.S.C. § 1983, under which the plaintiff's must establish that a person acting under color of state law deprived the plaintiff's of a right secured by the Constitution or laws of the United States. Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001). Local governmental institutions are considered "persons" for the purpose of Section 1983, but municipalities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The plaintiff "must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Garner v. Memphis Police Dep't, 8 F.3d 358, 363-64 (6th Cir. 1993). Proof of a single incident of unconstitutional activity may be sufficient to impose liability, but not unless the evidence includes proof that it was caused by an existing, unconstitutional municipal policy. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
The plaintiff's claim that the city and its police chief have followed a policy or custom of hiring unqualified candidates because they have given preferences to minorities and women, they have not adequately trained their police officers, and they have allowed certain police officers, including defendant Lickly, to act well beyond their proper authority with impunity. The plaintiff's contend that the items attached to their motion provide a representation of the kind of evidence that could be developed in this case. However, none of the statements upon which the plaintiff's rely to support their arguments for municipal liability are in the form of affidavits. The Sixth Circuit has held that "documents submitted in support of a motion for summary judgment must satisfy the requirements of Rule 56(e); otherwise, they must be disregarded." Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993) (citing Dole v. Elliott Travel Tours, Inc., 942 F.2d 962, 968-69 (6th Cir. 1991), and State Mut. Life Assurance Co. of Am. v. Deer Creek Park, 612 F.2d 259, 264 (6th Cir. 1979)). Federal Rule of Civil Procedure 56(e) sets forth the following requirements for an affidavit filed in opposition to summary judgment: (1) the affidavit must be made based upon personal knowledge; (2) it must set forth such facts that would be admissible in evidence; and (3) it must affirmatively show that the affiant is competent to testify as to the matters in the affidavit. See, e.g, Monks v. Gen. Elec. Co., 919 F.2d 1189, 1192 (6th Cir. 1990) (stating that affidavits by experts who are not familiar with the record are not sufficient to withstand a summary judgment motion). "Affidavits composed of hearsay and opinion evidence do not satisfy Rule 56(e) and must be disregarded." Dole, 942 F.2d at 968 (quoting State Mut. Life Assurance Co., 612 F.2d at 264); U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997) (stating that "[h]earsay evidence, as well as evidence which is irrelevant to the issue presented, must be disregarded"); Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (finding that the District Court correctly found that plaintiff's hearsay affidavit was not proper under Rule 56(e) because the affidavit was not based on personal knowledge and did not set forth facts that would be admissible in evidence). Further, affidavit statements that "are merely conclusory, restating the requirements of the law," do not meet the requirement of the rule that a party must offer specific facts to show a genuine issue for trial. Doren v. Battle Creek Health Sys., 187 F.3d 595, 598-99 (6th Cir. 1999). The plaintiff's' submissions fail to meet these requirements, and for that reason alone the plaintiff's have not made a showing adequate to withstand summary judgment on the question of municipal liability.
Even if the Court were to accept the plaintiff's' statements as properly proven facts, however, there is insufficient proof that the injuries arose from a violation of policy or custom relating to the hiring, training or discipline of Saginaw police officers.
1.
As noted above, the plaintiff's federal cause of action is based on 42 U.S.C. § 1983, under which the plaintiff's must establish that a person acting under color of state law deprived them of a right secured by the Constitution or laws of the United States. Berger, 265 F.3d at 405. Local governmental institutions are considered "persons" for the purpose of Section 1983, but municipalities cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The plaintiff's "must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy." Garner, 8 F.3d at 363-64(relying on Monellv. Dep't of Social Servs., 436 U.S. 658 (1978)). Proof of a single incident of unconstitutional activity may be sufficient to impose liability, but not unless proof of the incident includes evidence that it was caused by an existing, unconstitutional municipal policy. Tuttle, 471 U.S. at 823-24.
The plaintiff's point to the City's affirmative action hiring policy and allege that incompetent or underqualified police officers populate the police force as a result. The plaintiff's also cite the allegations surrounding Medina's hiring as an example of the flaw in the hiring policy. Allegations of general incompetence or lack of qualifications do not satisfy the Supreme Court's test for causation, which is intended to guard against a claim of "municipal liability for a hiring decision from collapsing into respondeat superior liability." Ed. of County Comm'rs v. Brown, 520 U.S. 397, 410 (1997). The Supreme Court requires the district court to "carefully test the link between the policymaker's inadequate decision and the particular injury alleged." Ibid. There must be evidence that the hiring policy will lead to the "plainly obvious consequence" of the particular constitutional deprivation that actually occurred. Id. at 411. The Supreme Court explained:
[A] finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong.Id. at 412.
The plaintiff's have not identified any potential evidence that connects the hiring policy to Lickly's individual hiring. The evidence relating to Medina simply does not demonstrate that she was highly likely to inflict a particular injury upon the plaintiff's. Since there is nothing in Medina's background that should have made it plainly obvious to the chief or the City that she would engage in constitutional violations, the City's hiring policy does not subject it to liability under Section 1983. Nor does evidence of Lickly's later conduct put the defendants on notice prior to hiring him that he might also engage in a misuse of police power. Accordingly, the plaintiff's' attack on the City's hiring policy fails to establish a basis for municipal liability.
2.
The plaintiff's' brief in opposition to the summary judgment motion also can be construed to raise the issue of whether the City and its police chief adopted a custom relating to the training and discipline of officers that caused the constitutional deprivation alleged in this case. Indeed, as an alternative to a showing of policy, the plaintiff's can also attempt to show that the unconstitutional behavior was motivated by an unwritten custom widely followed by the Saginaw police. That standard, however, is also quite rigorous. As the Sixth Circuit explained:
A "custom" for purposes of Monell liability must "be so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691 (internal quotation marks and citation omitted); see also Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, 510 U.S. 826(1993). In turn, the notion of "law" must include "deeply embedded traditional ways of carrying out state policy." Nashville, Chattanooga St. Louis Ry. Co. v. Browning, 310 U.S. 362, 369 (1940). It must reflect a course of action deliberately chosen from among various alternatives. City of Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985). In short, a "custom" is a "legal institution" not memorialized by written law. Feliciano, 988 F.2d at 655.Doe v. Claiborne County, Tenn., 103 F.3d 495, 507-08 (6th Cir. 1996). Thus, in Doe, the plaintiff's attempts to hold the Claiborne County School Board liable for the sexual misconduct of a teacher were unsuccessful. The School Board obviously did not have a policy of affirmatively condoning sexual abuse, and the plaintiff was unable to demonstrate that the Board had long been aware of the misconduct but was deliberately indifferent to it. Accordingly, no municipal liability was found.
In this case, the plaintiff's allege that the City failed to properly train its police officers in the scope of their police authority. The plaintiff's contend that the police administration "trained" its officers to believe that they could abuse their police authority and suffer either no consequences or only minimal consequences. Alternatively, the plaintiff's posit that the failure to discipline officers who act beyond their authority created an atmosphere akin to anarchy among the rank-and-file police officers that enabled defendants Medina and Lickly to believe they could abuse the plaintiff's with little or no consequence to them.
a.
In order to prevail on a Section 1983 "failure to train" claim, the plaintiff must show that the "training program is inadequate to the tasks that the officers must perform; that the inadequacy is the result of the city's deliberate indifference; and that the inadequacy is closely related to or actually caused the plaintiff's injury." Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989) (citations omitted). See also Cherrington v. Skeeter, 344 F.3d 631 (6th Cir. 2003). The Supreme Court recognized municipal liability under 42 U.S.C. § 1983 for failure to train employees in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). In that case, a detainee brought suit against the City of Canton alleging, among other claims, that jail officials were inadequately trained to deal with her medical needs. Id. at 381. On review of a Sixth Circuit decision, the Supreme Court held that a municipality can be held liable for inadequate police training under Section 1983 "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id at 388. The mere fact that a few officers may be inadequately trained is not sufficient to demonstrate liability, as the shortcomings could be caused by officer inattention or poor administration. Id at 390-91. Allegations that the officers in question could have been better trained are also insufficient. Ibid Rather, the "failure to train [must] reflect a deliberate or conscious choice by a municipality." Id at 389.
The Court recognized two fact patterns in which a citizen could state a claim for failure to train. First, the nature of the officers' duties could be such that "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 of the city can reasonably be said to have been deliberately indifferent to the need" in not providing training. Id at 390. The Court isolated the need to apprehend fleeing felons and the possession of firearms by officers as indicating to a "moral certainty" that proper training would be required. Id at 390 n. 10. Thus, liability might be found "if a municipality failed to instruct its officers in the use of deadly force." Cherrington, 344 F.3d at 631 (citing Brown v. Shaner, 172 F.3d 927, 931 (6th Cir. 1999)). Second, the police may have so often violated constitutional rights that the need for further training must have been "plainly obvious to the city policymakers, who, nevertheless, are `deliberately indifferent' to the need." City of Canton, 489 U.S. at 390; see also id. at 397 (O'Connor, J., concurring) (finding that such behavior constitutes "tacit authorization" of the officers' conduct).
The Sixth Circuit applied this standard in Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990). In Walker, an inmate's estate brought suit against prison guards and their supervisors for failure to prevent his stabbing death. Id at 1452. There, prison guards refused to open a prison door to assist an inmate who was being stabbed to death on the other side. Id. at 1451-52. The plaintiff alleged that the guards' supervisors had failed to give them proper training in opening the prison doors. Id. at 1456. Rejecting the plaintiff's claim, the Court found that corrections officers received three weeks of training upon hiring, and 40 hours per year of refresher training after that. In effect, plaintiff alleged only that the guards could have been better trained, which is insufficient under City of Canton. Ibid There was no other evidence of deliberate indifference toward training in the record, and the district court's decision to dismiss the plaintiff's claim was affirmed. Ibid
The issue of poor training came before the Sixth Circuit again in Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994). There, the plaintiff estate brought suit for the fatal shooting of its decedent by a police officer, alleging two failure to train theories: inadequate training per se and failure to discipline officers who had previously committed constitutional violations. Id. at 1344. The Sixth Circuit gave plaintiff's first theory short shrift. Undisputed testimony established that candidates at the Detroit Police Academy underwent over 600 hours of training, including 60 hours of firearms training. Id. at 1347. The Academy's training on use of fatal force exceeded state minimum requirements, and candidates were required to score 100 percent on the written fatal force policy examination. Ibid The officers also had annual refresher training concerning the use of deadly force, received frequent bulletins on the issue, and had to requalify themselves each year in firearms usage. Ibid The officer in question had completed all of these programs. The plaintiff's expert himself admitted that he had no problem with the department's training programs. Ibid As such, the plaintiff's claim that the City of Detroit's policymakers were deliberately indifferent to the need for training was rejected.
In this case, the police chief furnished an affidavit stating that Saginaw police officers in general and defendants Medina and Lickly have met the minimum qualifications established by the General Orders of the Saginaw police department to be law enforcement officers with the City, and they had completed the Michigan law enforcement training program and were duly certified in accordance with Michigan law. As previously noted, once the defendants have made a prima facie showing that material facts are not in dispute and that they are entitled to judgment as a matter of law, the plaintiff's may not simply rely on their allegations or deny the defendants' testimony. Rather, they must come forward with affirmative evidence from which a reasonable jury could find in their favor. See Street, 886 F.2d at 1479. However, the plaintiff's have marshaled no evidence in support of their failure to train claims. There is no testimony that either officer was inadequately trained. There is no affidavit from an expert witness in police training and procedures suggesting deficiencies in Saginaw's training program. There is no testimony in the record demonstrating that Officer Lickly's training — or lack of it — or the City's deliberate indifference to the training needs of its officers, was the moving force behind the plaintiff's' injuries. See Hill, 884 F.2d at 275. The plaintiff's have not created a fact issue with respect to their failure to train claims.
b.
As noted above, the issue of inadequate discipline also came before the Sixth Circuit in Berry v. City of Detroit. That court also rejected the plaintiff's argument that the department's alleged "failure to discipline" wayward officers led to the fatal shooting. The Court first noted that "deliberate indifference" in this context exists only upon "a showing of a history of widespread abuse that has been ignored by the City." 25 F.3d at 1354 (citing City of Canton, 489 U.S. at 397). The Court rejected the findings of the plaintiff's expert witness, holding that the expert, at best, demonstrated "that discipline was not as frequent or as severe as he would have liked," which does not demonstrate constitutional infirmity. Ibid. The Court distinguished the situation in Berry from that in several other cases. First, the Court cited Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987). In that case the facts were as follows: (1) seven lay citizens testified that they had filed brutality complaints that were not investigated; (2) eight present or former officers of the city police department testified as to a "code of silence" and of training in improper means of subduing suspects; (3) an assistant district attorney had investigated and prosecuted officers for excessive force, with no noticeable effect; (4) the department's legal advisor left because of concerns over police brutality; (5) internal records showed that complaints filed were completely disregarded. Id. at 1355 (citing Spell, 824 F.2d at 1391-95). Second, the Court looked to Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986). In Fiacco, the plaintiff's demonstrated that although the municipality in question had a policy on use of force, the police chief had never seen it. Id. at 329. The plaintiff also offered eight citizen complaints about police brutality that not only were not investigated, but were not even noted in the officers' files. Id. at 330. Finally, the Court looked to the Tenth Circuit's decision in Zuchel v. The City and County of Denver, 997 F.2d 730 (10th Cir. 1993). There, the plaintiff's successfully alleged deliberate indifference to the officers' inadequate training in the use of deadly force. The plaintiff's expert demonstrated that the department's training in the use of fatal force was completely deficient. Id. at 740. The plaintiff also proffered a letter from a county district attorney, which referenced six recent, fatal shootings that he felt were the result of poor training. Ibid. The district attorney recommended a series of training procedures to alleviate the problems, but his recommendations were ignored. Ibid.
In Berry, however, the plaintiff could provide nothing that met the standards established by these cases. The evidence showed that the City of Detroit had procedures in place to review violations of its fatal force policy, and that over a five-year period, 38 officers were retrained and 52 disciplined as a result of internal investigations. Berry, 25 F.3d at 1355. Even if the plaintiff was correct in asserting that the internal investigations were grossly mismanaged, there was no evidence of deliberate indifference toward situations involving fatal shootings. Ibid. Accordingly, the plaintiff's claims for inadequate discipline and training of officers was dismissed.
In this case, defendant Saginaw and Pussehl rely on Pussehl's affidavit once again to address the discipline practices of the Saginaw police force. Pussehl states that his department "regularly publishes and provides to all of its employees General Orders which outline specific rules and regulations of the Department, and which rules and regulations, if violated, may lead to disciplinary action." Aff. of Donald Pussehl ¶ 7. Medina apparently had never violated any of the General Orders until she was involved in the altercation with the plaintiff in July 2001, for which she was fired from the police force. Lickly had violated rules, but he had been reprimanded and suspended for the violations, and he was fired for his assault on the plaintiff. The officers' collective bargaining agreement allows for the arbitration of disputes, and both Medina's and Lickly's termination was upheld by the arbitrator.
In response, the plaintiff's offered the hearsay statements that certain African-American officers were not disciplined with sufficient severity according to the plaintiff in the Michael Kuhn complaint. There is no evidence that Kuhn is qualified to give an opinion on the matter, nor is there any suggestion that his criticism amounts to more than a complaint that the discipline imposed was not "as severe as he would have liked." Berry, 25 F.3d at 1354. Simply put, the plaintiff's have not come forward with admissible evidence that creates a genuine fact issue on the questions of whether the City's discipline customs were inadequate, or that the custom of mild or not-existent discipline led to the assault on Fernando Lambert by the off-duty Saginaw police officers.
III.
The Court finds that although there is a fact question presented by the evidence as to whether defendants Medina and Lickly were acting under color of state law when the collision and subsequent assault on the plaintiff occurred, there is no question of material fact on the issues relating to municipal liability. The plaintiff's have failed to come forward with admissible evidence that tends to show that the officers were acting pursuant to a policy or custom of the City of Saginaw, or that the plaintiff's' injuries resulted from any failure to train or discipline on the part of Saginaw police officials.
Accordingly, it is ORDERED that the motion for summary judgment by defendants City of Saginaw and Donald Pussehl [dkt #19] is GRANTED.
It is further ORDERED that the plaintiffs' complaint as to these defendants is DISMISSED WITH PREJUDICE.