Opinion
No. 99-74505
February 28, 2002
This matter came before the court on defendants Wendover and Repeck's March 29, 2001 motion for summary judgment; the remaining defendants' April 3, 2001 motion for summary judgment; and plaintiff Thomas Mark Prose's May 23, 2001 motion for summary judgment. Responses and replies were filed; and oral argument was heard August 17, 2001. For the reasons that follow, the court will deny Plaintiff's motion for summary judgment and grant Defendants' motions for summary judgment.
BACKGROUND FACTS
This is an action brought under 42 U.S.C. § 1983 against the City of Plymouth, various city officials, and two individuals who are not city officials. At the core of this lawsuit is a non-neighborly dispute between plaintiff Prose and defendants Wendover and Repeck. Problems arose following Prose's July 1994 purchase of the former National Bank of Detroit building in Plymouth, Michigan. The building adjoined a building owned and operated by Wendover and Repeck, who published the local newspaper, Plymouth-Canton Community Crier ("The Crier"). Prose and Wendover repeatedly battled one another over a property easement, the battles often escalating into shouting matches. The easement problems were eventually resolved in court; however, the two continued to feud. Prose eventually purchased a 2% interest in The Crier and subsequently questioned the paper's financial accounts.
Three specific incidents, occurring over the course of three years, gave rise to the claims in this matter. On September 16, 1996, Wendover had hired David Dameron, who is not a party to this suit, to paint The Crier's building. Dameron had parked his truck on the easement and was using a manlift to paint the second story. Prose came out of his building, the two men got into an argument, and Prose turned off the power to the truck, forcing Dameron to jump to safety on a nearby balcony. Plymouth police were called to the scene. Officer Curtis Hill, also not a party to this suit, answered the call. Defendant Sergeant Edward Ochal then arrived on the scene to assist Hill. The officers had Prose get into the back of a police car while the officers talked to witnesses. They then issued him a ticket. On October 9, 1996, defendants Scoggins, the chief of police, and Ochal presented a complaint and warrant to the Wayne County Prosecutor's Office for disorderly conduct. The prosecutor's office declined to authorize criminal charges against Prose and the ticket was dismissed.
The second incident occurred over two years later on November 3, 1998. Prose had obtained a court order allowing him to review the financial records of The Crier. After a number of phone calls to the newspaper office that did not produce the results he wanted, Prose entered the lobby of The Crier's offices, demanding to see the books. Employees claimed that Prose used profane language and violated three ordinances: harassment, indecent use of profane language in front of women and children, and telephone harassment. Defendant Ochal, although he did not witness the incident, wrote Prose a ticket for violation of the three ordinances based on information received from The Crier's employees. Those charges were dismissed August 4, 1999, by Judge Glenn C. Valasco because of Plymouth's failure to comply with the Michigan Code of Criminal Procedure.
The third occurrence consisted of the stalking charges that were filed the following year on September 17, 1999. The day after this lawsuit was filed, defendants Wendover and Repeck appeared in 35th District Court to swear out a complaint against Prose for stalking them between November 3, 1998, and September 16, 1999. The district court signed a misdemeanor complaint charging Prose with two counts of stalking. Those charges were also dismissed by Judge Valasco, who ruled that application of the stalking law to the conduct attributed to Prose was unconstitutional.
In his Second Amended Complaint, Prose has alleged four causes of action. Count I, entitled "Conspiracy to Violate Federal Law Pursuant to 42 U.S.C. § 1983," claims that the defendants "aided and abetted each other in fabricating the evidence against Dr. Prose," . . . conspired to violate his rights to be free from illegal searches and seizures and unlawful arrest and to be allowed due process and to engage in protected speech under the First Amendment. Second Am. Comp. pp. 9-10.
Count II, entitled "Substantive Violation of 42 U.S.C. § 1983," claims that defendants violated Prose's constitutional rights to be free from illegal search and seizure and unlawful arrest and to be allowed due process and to engage in protected speech. Second Am. Comp. at pp. 11-12.
Count III, entitled "Municipal Liability under Federal Law 42 U.S.C. § 1983," claims that the City of Plymouth has been deliberately indifferent to his rights "by sanctioning the underlying criminal charges . . . without complying with the Michigan Code of Criminal Procedure." Plaintiff claims that the municipality attempted to enforce an unconstitutional ordinance — the use of profane language in front of women and children. In addition, Plaintiff claims the City has been deliberately indifferent by attempting to enforce the two other ordinances in the way they were used against him. Plaintiff claims the City has failed to train its police officers to comply with the Michigan Code of Criminal Procedure because the officers have testified that individuals can be charged for crimes by other citizens without an independent review by the local prosecutor before having the matter sworn to and arraigned in the local district court. This count also alleges a claim for retaliation against the City for seeking a two-count stalking complaint against Prose the day after he filed this lawsuit. Second Am. Comp. at pp. 12-14.
Count IV, entitled "Respondeat Superior/Active Participation," claims that the City, through defendants Dismuke, Koch, Walters and the Board of Commissioners, is vicariously liable for the conduct of defendants Ochal and Scoggins under the doctrine of respondeat superior. For each of the above claims, Plaintiff seeks "in excess of One Hundred Million Dollars." Second Am. Comp. at pp. 14-15.
STANDARD OF REVIEW
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "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 judgment as a matter of law."
The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The movant bears the burden of demonstrating the absence of all genuine issues of material fact. "The burden on the moving party 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." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e).
To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986), "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmovant's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." (Citations omitted).
LAW AND ANALYSIS
When police officers detain persons for investigative purposes, these detentions are considered "seizures" under the Fourth Amendment. United States v. Avery, 128 F.3d 976 (6th Cir. 1997). In order for the police action to be justified under these circumstances, the seizure must be supported by reasonable suspicions of criminal activity. Florida v. Royer, 460 U.S. 491 (1983).
In the October 1996 incident in which plaintiff Prose was detained in the back of the patrol car for 30-45 minutes, the police action was an investigative detention. Dameron, the complaintant, had specifically asked that charges be brought Prose for turning off the truck and endangering Dameron's welfare by shutting off a manlift truck while Dameron was suspended in the air. The police officers had a reasonable suspicion of criminal activity by Prose and thus were entitled to detain him temporarily while they completed their investigation.
In addition, the issuance of the appearance ticket was supported by probable cause. Michigan's statutory scheme gives police officers a procedural outline for issuing tickets in lieu of an arrest. Mich. Comp. Laws Ann. §§ 764.9c, seq. While there may be an issue whether the issuance of a ticket is a "seizure" in cases in which no arrest occurs, plaintiff Prose was never made to answer in court. He was ticketed under the disorderly person ordinance, but the ticket was dismissed by the prosecutor. Plaintiff was never required to appear in court or answer to the charges.
"The Supreme Court has defined probable case as the `facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'" Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (quoting Michigan v. Defillippo, 443 U.S. 31, 37 (1979)).
The test for the existence of probable cause is an objective one. "If the circumstances, viewed objectively, support a finding of probable cause, the arresting officer's actual motives are irrelevant." Criss, at 262 (citing Scott v. United States, 436 U.S. 128, 138 (1978)). In this case there was sufficient probable cause for a reasonably prudent officer to conclude that Prose had committed an offense. Therefore, his detention was not a violation of his constitutional rights.
In the 1998 incident in which Prose entered the newspaper office lobby demanding to see the books, Prose was issued an appearance ticket for three city misdemeanors. The issue again is whether the ticket was supported by probable cause. Although no police arrived on the scene and the ticket was sworn out by Wendover, who was not present at the newspaper office during the incident, there was probable cause for issuance of the ticket based on the officers' after-the-fact investigation. Crier employees Michael Came and Linda Szyniszewski later explained to police what Prose had done and said in the office, and it was on the basis of their eye witness testimony that officers issued Prose a ticket. The state court judge subsequently dismissed the profane language charge as unconstitutional as applied in that case.
The 1999 incident involves the seeking of a warrant for stalking the day after this suit was filed. Police chief Scoggins requested that a prosecutor review the matter to determine whether a warrant should issue. He further directed defendant Ochal to submit documentation to the prosecutor's office to see if it would authorize a warrant. Ultimately, prosecutor Ray Walsh signed the authorization September 16, 1999; and the matter went before a district court judge. Wendover and Repeck testifed at the swear-to hearing; and based upon that testimony, Magistrate Theodore Johnson then made a determination that probable cause existed and signed the warrant. Thus, Plaintiffs Fourth Amendment rights were not violated because an impartial witness found probable cause to arrest for the stalking charge.
The gravamen of Plaintiffs complaint is that the defendants conspired to deprive him of his constitutional rights. Plaintiff alleges that defendant Ochal told officer Jerry Vorva of the Plymouth Police Department, "Wendover's got nothing to worry about. I'm going to fuck that asshole [Dr. Prose]." Ochal allegedly warned Vorva before his deposition, "They better not find out anything they wouldn't know, or you're a dead man." Assuming these allegations are true, there still was probable cause for the issuance of the tickets for each of the three times plaintiff Prose was ticketed. That finding is dispositive in this case. As long as probable cause exists, the officer's motives are irrelevant.Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). Since Plaintiffs rights were not violated, the court need not address the issue of qualified immunity.
Municipalities cannot be held liable for a constitutional deprivation unless there is a causal link between a municipal policy or custom and the alleged constitutional violation. Monell v. New York City Dept of Soc. Sevs., 436 U.S. 658, 691 (1978). Because the court has found that the officers had probable cause to issue the tickets and Plaintiffs constitutional rights were not violated, the City of Plymouth cannot be held liable. Likewise, as to Count IV, the case law is clear that a municipality cannot be liable under the theory of respondeat superior.City of Canton v. Harris, 489 U.S. 378 (1989).
Only Count I of the Second Amended Complaint alleges a cause of action against defendants Wendover and Repeck. Plaintiffs claim that the two conspired with other defendants to deprive him of his constitutional rights must fail when the court has found no constitutional violations.
Finally, to the extent Plaintiff has alleged a claim for violation of his First Amendment rights, Defendants are also entitled to summary judgment on those claims. In Count II, Plaintiff alleged that Defendants violated his "federal constitutional rights, including the following rights: d) the right to be allowed to engaged [sic] in protected speech and associate with those of one's choosing as protected by the First Amendment of the United States Constitution." In his Second Amended Complaint, Plaintiff has not challenged the constitutionality of the City's ordinance barring profanity and threatening action in front of women. Even if the court were to assume that ticketing Plaintiff for violation of the ordinance during his November 3, 1998 visit to The Crier's office was a constitutional violation, the defendant officers are entitled to qualified immunity, as they had probable cause to believe that Prose's conduct violated a presumptively valid city ordinance. An arrest can be found to be lawful even though the city ordinance is later declared unconstitutional. Michigan v. Defillippo, 443 U.S. 31 (1979).
ORDER
For the reasons set forth above, it is hereby ORDERED that defendants Wendover and Repeck's March 29, 2001 motion for summary judgment is GRANTED.
It is further ORDERED that the remaining defendants' April 3, 2001 motion for summary judgment is GRANTED.
It is further ORDERED that plaintiff Thomas Mark Prose's May 23, 2001 motion for summary judgment is DENIED.