Summary
finding allegations that handcuffs applied "so tight as to bruise [plaintiff's] wrists" permitted claim for excessive force to survive summary judgment
Summary of this case from Morrison v. Board of TrusteesOpinion
Civil No. 01-74467
October 24, 2002
AMENDED OPINION AND ORDER
I. INTRODUCTION
In this § 1983 action, plaintiffs Diana Bolan and James Bolan state claims against the City of Keego Harbor ("city"), Officer Nick Maodus ("Maodus"), Officer Paul Whalen ("Whalen") and three unnamed officers for constitutional violations that arose from the execution of a search warrant upon plaintiffs' residence on or about October 12, 1999. Plaintiffs file seven counts: I. the obtaining of a search warrant without probable cause; II. overbroad search; III. unreasonable seizure and prosecution without probable cause; IV. coercive interrogation; V. retaliation; VI. First Amendment refusal to allow speech at city council meeting; and VII. false light invasion of privacy. Defendants city and Whalen have filed motions to dismiss and, in the alternative, motions for summary judgment. In addition, plaintiffs have filed a motion to amend their complaint to assert a claim for intentional infliction of emotional distress.
II. BACKGROUND FACTS
This case arose from a police raid by the West Bloomfield Narcotics Enforcement Unit. Defendant Maodus of the West Bloomfield Police Department confirmed that suspect Vince Richards resided at the Bolans' home. Vince Richards had several drug convictions and had just been released from prison. On October 11, 1999, Maodus searched a garbage bag at the Bolan residence and found a marijuana butt. He obtained a search warrant from a magistrate and assembled a team to search the Bolan residence on October 12 at 10:30 p.m. Maodus also brought defendant Whalen, a police officer for the city of Keego Harbor.
In carrying out the search, the officers found plaintiffs James and Diana Bolan sitting on the couch watching TV. Vince Richards, the intended suspect and Diana Bolan's son from a previous marriage, was not present. While the officers searched the house, plaintiff Diana Bolan verbally complained about the search and how the officers awakened her grandchild with flashlights and guns. The officers found a scale, some pipes and less than one gram of marijuana. The marijuana was found under the arm rest where Diana Bolan was seated.
Maodus then ordered Whalen, who secured the premises but did not otherwise participate in the search, to arrest Diana Bolan. Whalen handcuffed Diana Bolan and took her to the police station. Diana Bolan alleges that the handcuffs were too tight and bruised her wrists. She also claims that during the ride to the police station, Whalen verbally abused her, calling her "scum," her grandchildren scum, "that she was "a piece of shit" and that "people like her were the reason that Keego Harbor was the kind of town it [is]."(Plaintiffs Complaint at 5). James Bolan was not arrested and was never charged.
Diana Bolan was charged with possession of marijuana. Before the trial began, her lawyer brought a motion to suppress which challenged the legality of the search warrant. Judge Cifelli of the Michigan district court denied the request, finding that there was probable cause for the issuance of the search warrant. However, the legality of the arrest and prosecution were never challenged in the state court criminal proceedings. At the trial, the jury acquitted Diana. Bolan in October, 2000.
Before her trial, Diana Bolan appeared twice before the Keego Harbor City Council to complain about Whalen's abuse, but was not allowed to speak. When James Bolan sought to speak on Diana Bolan's behalf, the city council also prohibited him from speaking. At a subsequent hearing, the city council allowed Diana Bolan to speak, but only after the city attorney advised her of her Miranda rights even though she was not in custody. Plaintiffs did, however, submit a written complaint to the city council. The chief of police investigated the matter, but found no wrong doing by Whalen. In order to substantiate her claims, Diana Bolan also took and passed a polygraph test to prove Whalen's abusive statements.
III. ANALYSIS
Plaintiffs concede that neither the city nor Whalen played any part in obtaining the search warrant, executing the search, or conducting the interrogation. Accordingly, counts I (invalid search warrant), II (overbroad search), and IV (coercive interrogation) are dismissed against the city and Whalen. Plaintiffs also withdraw count VI (false light invasion of privacy) and the First Amendment claim against Whalen. Only count III (unreasonable seizure and prosecution without probable cause), count V (retaliatory prosecution), and count VI (refusal to allow speech) remain against the city and Whalen.
I now turn to those three claims and plaintiffs' motion to amend.
Rule 12(c) Judgment on the Pleadings Standard
Rule 12(c) motions are analyzed under the same criterion as a rule 12(b)(6) motion for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(h)(2). I must construe the complaint in a light most favorable to the plaintiffs, accept all of the factual allegations as true, and determine whether the plaintiffs undoubtedly can prove no set of facts in support of their claims that would entitle them to relief. Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) (citations omitted).
Motion for Summary Judgment Standard
In the alternative, the city and Whalen move for summary judgment pursuant to Rule 56. Fed.R.Civ.P. 56. Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). I must view the evidence and any inferences drawn from the evidence in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted), Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
Municipal Immunity
First, a preliminary matter: the United States Supreme Court has determined that a municipality cannot be held liable under § 1983 solely because it employs a tortfeasor. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court held that a municipality may be sued when the action that is alleged to be unconstitutional implements a policy statement, regulation, or decision which has been officially adopted and promulgated by the body's officers. Id. at 690, 98 S.Ct. 2018. A municipality will not be held liable under § 1983 for random, unauthorized acts of its employees. Id. at 691, 98 S.Ct. 2018. Plaintiffs do not provide any evidence that Diana Bolan's arrest was made pursuant to a municipal policy. The City of Keego Harbor is therefore entitled to judgment on the pleadings on count III., unreasonable seizure and prosecution without probable cause and count V., retaliation for Whalen's actions.
Qualified Immunity
Qualified immunity is "an entitlement not to stand trial or face the other burden of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). To determine the issue of qualified immunity, I must determine first, whether the officer's alleged conduct violated a constitutional right; and if so, I must determine whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In addition, even if a right is clearly established, defendants are still entitled to qualified immunity if their actions were reasonable. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987).
A. Unreasonable Seizure and Prosecution without Probable Cause
Plaintiffs state two grounds under the Fourth Amendment prohibition against "unreasonable seizures and prosecution without probable cause": 1) unreasonable seizure and prosecution without probable cause; and 2) excessive force.
i. Unreasonable Seizure and Prosecution without Probable Cause
Probable cause to make an arrest exists if the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001).
Viewing the evidence in a light most favorable to plaintiffs, I find that there was probable cause to arrest and prosecute Diana Bolan for possession of marijuana. The officers found marijuana and various drug paraphernalia in Diana Bolan's residence, and Diana Bolan was sitting on the couch where the marijuana was found at the time the arrests occurred.
ii. Excessive Force
Plaintiffs also claim that Whalen used excessive force when he handcuffed Diana Bolan. They submit an affidavit stating that the handcuffs were too tight and bruised Diana Bolan's wrists. Viewing the evidence in a light most favorable to the plaintiffs, this claim survives summary judgment.
However, even though the freedom from excessive force is a constitutionally protected right and is clearly established, defendant is nevertheless entitled to qualified immunity if his actions were reasonable. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court set out a test that cautioned against the "20/20 vision of hindsight" in favor of deference to the judgment of reasonable officers on the scene. The Graham Court set forth a list of factors to consider, "requir[ing] careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." In addition, even if an officer is mistaken in assessing the amount of force necessary to effectuate an arrest, that mistake is entitled to qualified immunity so long as it is reasonable. Saucier v. Katz, 533 U.S. 194 at 205 (2001).
Applying the Graham factors to this case, however, Whalen's actions were unreasonable. The crime at issue was possession of less than one gram of marijuana. Diana Bolan is a petite woman in her early fifties and does not pose a physical threat to the officers. While both parties agree that Diana Bolan verbally complained about the police search, there is no testimony that she resisted arrest or presented a flight risk. Therefore, viewing the evidence in a light most favorable to the plaintiffs, it was unreasonable for Whalen to handcuff Diana Bolan so tight as to bruise her wrists.
B. Retaliation
In order to state a claim for retaliation, a plaintiff must establish that: 1) the plaintiff engaged in a constitutionally protected activity; 2) that the defendant's adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and 3) that the adverse action was motivated at least in part as a response to the exercise of plaintiffs constitutional rights. Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998).
Plaintiffs present two claims of retaliation. First, plaintiffs claim that Maodus and Whalen retaliated against Diana Bolan's verbal complaints by arresting and charging her; second, plaintiffs claim that the city council retaliated against Diana Bolan by refusing to let her speak at the city council meeting. I discuss both claims.
First Retaliation Claim i. Constitutionally Protected Activity
First, I note that Diana Bolan's actions are constitutionally protected. The first amendment clearly protects her right to criticize the officers for the manner in which they conducted their search. See e.g.Bloch (holding that rape victim had a First Amendment right to criticize sheriffs investigation of the crime); Sandul v. Larion, 119 F.3d 1250 (6th Cir. 1997) (holding that individual's act of shouting "f---k you" at a group of abortion protestors did not amount to fighting words and was thus speech protected by First Amendment).
ii. Would Defendant's Action Likely Chill the Protected Activity
Plaintiffs allege that "the sole basis for selecting [Diana Bolan] for prosecution was in retaliation for her protest of the officers' abusive activity." Pl. Response Br. at 12. Arresting and prosecuting a citizen with a crime is indeed likely to chill the exercise of First Amendment rights. Therefore, plaintiffs have satisfied this element of Diana Bolan's retaliation claim.
iii. Motivation
Probable cause to bring a charge does not defeat the retaliation claim. Plaintiffs satisfy the motivation element so long as the adverse actions alleged were motivated in part as a response to the exercise of Diana Bolan's constitutional rights. Bloch at 678. The motivation prong is satisfied here because James Bolan was similarly situated but was not charged. He also resides in the house and would be under the same suspicion as Diana Bolan was for possession of marijuana. Indeed, he even admitted to owning the scale that was deemed to be "drug paraphernalia.". The only difference in the fact situation is that Diana Bolan verbally complained about the police action, but James Bolan did not. Moreover, Whalen's alleged remarks to Diana Bolan in the police car can be construed as evidence of his ANIMUS towards her. A reasonable jury can find that the police were motivated by Diana Bolan's verbal complaints in arresting and charging her. Thus, plaintiffs have made out a claim for retaliation.
Defendant Whalen cites Darrah v. City of Oak Park, 255 F.3d 301, 312 (6th Cir. 2001), for the proposition that if probable cause exists, then plaintiff cannot make out a claim for malicious prosecution. However, this is a retaliation claim and not a malicious prosecution claim. Bloch is clear that so long as the adverse action was motivated at least in part as a response to the exercise of plaintiffs constitutional rights, it satisfies the motivation prong. Bloch at 678.
Qualified Immunity
In Bloch, a rape victim alleged that the county sheriff retaliated against her after she criticized the investigation of the rape in a local newspaper by releasing intimate details of the rape incident to the local media. The Sixth Circuit, after finding that plaintiff satisfied the elements for a retaliation claim, held that "if the [rape victim] can prove that the intimate details of the rape were released in order to retaliate against [her] criticism, a reasonable officer should have known that the action violates the [victim's] rights and therefore cannot benefit from the doctrine of qualified immunity." Id. at 683.Similarly here, interpreting the evidence in plaintiffs' favor, a reasonable jury can find that the officers arrested and prosecuted Diana Bolan in part because she complained to the officers and a reasonable officer should have known that the action violates Diana Bolan's rights to be free of retaliation. Therefore, Whalen is not entitled to the qualified immunity defense.
Second Retaliation Claim
The second claim is without merit. While plaintiffs' First Amendment claim survives summary judgment (see Section C., infra), they cannot claim retaliation against the city council. The grievance was filed against Whalen, and not the city, and plaintiffs have failed to demonstrate any motivation on the part of the city council to retaliate against the plaintiffs. Therefore, summary judgment is granted as to the retaliation claim against the city council.
C. First Amendment Refusal to Allow Speech
In a public forum, reasonable time, place, and manner restrictions must be "justified without reference to the content of the regulated speech[,] narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1983).
First of all, the restrictions are clearly content-based and are not based on time, place and manner. The city would not allow Mr. and Mrs. Bolan to address the city council on the issue of police abuse.
The city claims that the significant governmental interest is the "orderly and efficient conduct of its business" and cites numerous cases for that proposition. However, after examining the videotape submitted by the defendants of the city council meetings, I find no disruption of the city council meeting and no disorderly conduct by Mr. and Mrs. Bolan. Mr. and Mrs. Bolan calmly presented their desires to address the city council but were not allowed to speak.
The city also argues that it kept the Bolans from speaking at the city council meeting because it was afraid of tainting the potential jury pool for the pending criminal case. This is not a recognized compelling government interest, and even if it were, prohibiting Diana Bolan from speaking is not narrowly tailored to serve that interest. A jury had not been selected, and potential jurors would in any event be disqualified if they learned of facts outside the courtroom. Moreover, Diana Bolan was seeking to address the city council about Whalen's abusive behavior during the arrest and not to the underlying criminal charge. This issue had no bearing on the substantive criminal charges against her at that time.
Standing
Defendant city also argues that James Bolan does not have standing to bring a First Amendment claim against the city because only Diana Bolan was not allowed to speak. This assertion contradicts the undisputed facts. During the city council meeting, James Bolan stood up to speak on behalf of Diana Bolan but was not allowed to speak. Therefore, he has standing to assert the violation against his First Amendment rights.
Mootness
The city also argues that this claim is moot because the city council eventually did allow Diana Bolan to speak at a subsequent city council meeting. This argument is mistaken.
The mootness doctrine is grounded in the "case or controversy" requirement in Article iii of the United States Constituion. U.S. Const. Art. III. Sec. 2. See SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 406, 92 S.Ct. 577, 30 L.Ed.2d 560 (1972).
Defendants cite Kentucky Right to Life, 108 F.3d 637 (6th Cir. 1997) to support their contention that since the city council finally did allow Mrs. Bolan to speak, her First Amendment claim is mooted. However, they ignore the "voluntary cessation" exception to the mootness doctrine. InUnited States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), the United States sued to enjoin a practice of several corporations having similar boards of directors for violating federal antitrust laws. In response to the suit, the defendants said that they had eliminated the interlocking directorships and would not resume the practice. The Supreme Court held that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot" because "defendant is free to return to his old ways." Id. at 632. It further held that "[t]he case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated."Id. at 633 (citations omitted). That burden, however, "is a heavy one."Id.
The reason that legislative changes generally do not fall under the "voluntary cessation" exception to the mootness doctrine, like the challenged legislation in Kentucky Right to Life, is because without "any expressed intention by the Kentucky General Assembly to reenact the prior legislative scheme . . . there is no possibility now that the statute's [previous] form will be applied to appellant or will chill the rights of others." Kentucky Right to Life, at 645 (citations omitted). On the other hand, a city that announced its intention to reenact an unconstitutional ordinance if the case is dismissed as moot does not moot a case. See City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1983).
That heavy burden is not met here. Defendants' council represented to this court that there is no written policy regarding the viewpoints and contents of speech at the City of Keego Harbor City Council Meetings. The decision to keep Mr. and Mrs. Bolan from speaking at the city council meeting was an ad hoc decision and "defendants are free to return to [its] own ways." Id. at 632. Therefore, I conclude that defendants have not met their burden to show that there is no reasonable expectation that the wrong will be repeated. Accordingly, the First Amendment claim is not moot.
Second, the city attorney advised Diana Bolan of her Miranda rights before allowing her to speak before the city council. There was no need to do so. Diana Bolan was not in custody, and a reasonable jury can find that the warnings were read to harass and humiliate plaintiff and chill plaintiffs First Amendment exercise by making her appear as a criminal before a public city council meeting.
Thus, the First Amendment claim for refusal to allow speech at the city council meeting survives summary judgment.
Plaintiffs' other First Amendment complaint for "refusing to allow petition for redress of grievances" (Complaint ¶ 58) is not a recognized cause of action and is hereby dismissed.
D. Plaintiffs' Motion to Amend and add a claim for Intentional Infliction of Emotional Distress
Plaintiffs move to add a claim for intentional infliction of emotional distress. The Supreme Court of Michigan has not recognized the tort of intentional infliction of emotional distress. See Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 597, 374 N.W.2d 905, 906 (1985) ("[w]e are constrained from reaching the issue of whether [the tort of intentional infliction of emotional distress] should be formally adopted into our jurisprudence"). The Court of Appeals of Michigan, however, has recognized the tort. See, e.g., Linebaugh v. Sheraton Michigan Corp., 198 Mich. App. 335, 497 N.W.2d 585, 588-89 (1993); Atkinson v. Farley, 171 Mich. App. 784, 431 N.W.2d 95, 96-98 (1988).
Since the Michigan Supreme Court has not recognized this tort, I cannot do so. Federal courts must look to the highest state court expression in determining state law. See Dinsmore Instrument Co. v. Bombardier. Inc., 199 F.3d 318 (6th Cir. 1999) ("In determining questions of state law, Court of Appeals follows the decisions of the state supreme court. . .") Accordingly, plaintiffs motion to amend is denied.
IV. CONCLUSION
Accordingly, count III for excessive force and count V for retaliatory prosecution survive against Whalen. Count VI for First Amendment violation survives against the city. Plaintiffs' motion to amend is DENIED.