Opinion
Case Number 00-CV-10077-BC
March 28, 2002
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Steven Swire, has filed a complaint based on 42 U.S.C. § 1983 alleging that the defendants, the City of Clare and its city manager, violated his rights under the Fourth Amendment when a Clare city police officer briefly detained the plaintiff who was suspected of stealing aviation fuel from the Claire municipal airport. The plaintiff has also brought state common law claims based on theories of false imprisonment and defamation. The matter is before the Court on cross motions for summary judgment. Because the Court finds that the plaintiff has failed to adequately support his claims under any of his theories as a matter of law, the Court will grant the defendants' motion and deny the plaintiff's motion.
I.
In May, 1999 when the incident giving rise to the complaint occurred, the plaintiff was not officially connected to the operations of the Clare municipal airport or to the fixed base operator (FBO) on site. However, the plaintiff's past business affiliations with the airport and the FBO put the May, 1999 incident in context and the Court believes that a recitation of that history is relevant to the issues to be decided. The plaintiff has furnished some of these "facts" in his brief, but the failure to include citations to the record has made reconstruction somewhat difficult.
In May, 1995, a company called Norpac Aviation, Inc., (Norpac) owned by Barbara Zamojta-Swire, the wife of plaintiff Steven Swire, did business as Northgate Aviation, and held a contract with the city of Clare to provide FBO services at the Clare airport. As part of that agreement, the FBO was authorized to provide aircraft repair and maintenance service and to sell aviation fuel. The plaintiff, who states that he is a certified airframe and power plant mechanic, was the one who ran the maintenance operation for the FBO. At the time of the 1995 agreement, the fuel tanks at the airport were owned by Central Michigan Aviation Fuel Tank Company, which was solely owned by the plaintiff. However, the fuel tanks were subsequently sold to Norpac on December 31, 1997. Both before and after the sale, the plaintiff was the party primarily responsible for aviation fuel sales.
The relationship between the city an Norpac and its personnel, including the plaintiff, changed in 1998 when the PRO contract was terminated by defendant Kenneth Hibl, the Clare city manager. The plaintiff claims that the purpose of the termination was the City's intention to hire the plaintiff's wife as airport manager. The plaintiff contends that corresponding negotiations were underway for a replacement FBO contract between the City and Norpac. Mrs. Swire was eventually appointed the airport manager through her separate company, Northgate Aviation Services of Clare, Inc. (Northgate).
The parties agree that separate negotiations between plaintiff Swire and defendant Hibl went poorly. The two points of contention were the need for environmental remediation of the underground fuel storage tanks and Norpac's delinquent rent for two airport hangars. On April 9, 1999, the city subsequently replaced Mrs. Swire and Northgate with Bill George as airport manager.
Meanwhile, in early 1999, the fuel bills for Norpac were in substantial arrears, and the City, on April 22, 1999, issued a check in the amount of $8,947.20 to pay Arrow Energy, Inc., a fuel supplier, for the fuel already purchased by Norpac. The City then apparently filed suit against Norpac for the same amount in May. A Consent Judgment in favor of the City was subsequently entered in the amount of $8,984.72.
One of Bill George's duties as airport manager was to maintain a record of aviation fuel "purchased, used, and sold" by the Airport. Prior to the appointment of George, the City contacted plaintiff's counsel regarding environmental issues and also demanded a guarantee to protect the City's right to the airplane fuel remaining in the underground storage tanks. The City subsequently turned off the pumps used for airplane fuel and placed locks on the cabinets housing the pumps. Still, the City apparently noticed that it was losing fuel.
On May 26, 1999, Bill George advised the Clare Police Department that fuel was being siphoned out of the underground storage tanks at the airport. George said that the individual siphoning the gas appeared to have a red pickup truck. The police investigated the pumps and found them to be secure. Bill George subsequently told Kenneth Hibl that he believed Steven Swire was the individual siphoning aviation fuel from the underground storage tanks. A police report memorialized the contact, and it ended with the words: "Bill advises that he talked to Ken and if Steve Swire is stealing the gas go ahead and arrest him and call Bill George at home."
On May 27, 1999, Steven Swire went to the airport in his red pickup truck to remove aviation fuel, allegedly to sell to a customer. At 9:10 p.m., Officer Drury was on patrol, and observed a red pickup truck parked near the storage tanks at the airport. Aware of the previous day's report, Officer Drury pulled his vehicle next to the plaintiff, who was pumping fuel out of the underground tanks into two 55-gallon drums using his own portable pump. The plaintiff acknowledges that he was aware that the City had turned off the pumps, and that the City had locked the cabinet providing access to the pumps. Swire Dep. at 77:9-16, Def. S.J. Ex. A.
The plaintiff claims, without citation to the record, that "a police officer . . . parked in such a manner that prevented Mr. Swire from leaving the airport." Pl.'s Br. at 5. The plaintiff's deposition testimony, however, indicates that officer Drury arrived and asked the plaintiff if he had a weapon; the plaintiff said he had a jackknife. Drury next requested that the plaintiff provide his driver's license, but the plaintiff refused. During this initial encounter, the plaintiff described Drury as having a "pleasant demeanor." Drury did not pull out his weapon or approach with his vehicle lights flashing. The plaintiff was neither frisked nor arrested despite refusing to show identification.
Drury then asked the plaintiff to get off his truck and informed him that he was investigating a possible larceny. Drury also advised the plaintiff that the City considered itself the owner of the fuel in the storage tanks. The plaintiff believed that he was being detained because of the allegation that airplane fuel was being stolen.
However, the plaintiff then turned away from Drury and started to walk toward the hangar. After Drury asked the plaintiff where he was going, the plaintiff walked back and informed Drury that he was going to make a call. Drury did not prevent the plaintiff from going to make the call, and never threatened the plaintiff with arrest if the plaintiff walked away. The plaintiff apparently then contacted his wife and his attorney.
While the plaintiff made his telephone calls, police dispatch tried to contact Bill George, who turned out to be unavailable. It then contacted Kenneth Hibl and asked him to come to the airport. When Hibl arrived at the airport, he informed plaintiff's counsel by telephone that the City took the position that it owned the fuel in the tanks because of its payment of the arrearage owed to Arrow Aviation. Hibl recognized that there was a difference of opinion on this issue between plaintiff's counsel and the City of dare which the parties would have to resolve. Plaintiff's counsel, who is also counsel of record in this case, avers that Hibl then told him that the plaintiff would be released "on his own recognizance." The panics then arranged for the plaintiff to take the fuel drums off his truck and leave the Airport.
Earlier in the litigation, plaintiff's counsel filed a motion to permit his representation of the plaintiff even though he may be called as a witness on this case. This Court's predecessor, the Honorable Victoria A. Roberts, granted the motion with respect to pretrial proceedings but denied it without prejudice as to trial. The Court's Order also advises plaintiff's counsel to have co-counsel at the ready if needed, and to explain to plaintiff Swire the implications of a potential withdrawal later in the case.
After Hibl finished the conversation with plaintiff's counsel, he left the airport. The police officers left after the plaintiff removed the drums from his truck. The officers' reports indicate that they were at the Airport from 9:10 p.m. until 9:55 p.m., a span of 45 minutes. The officers left before the plaintiff.
The plaintiff has admitted in deposition to taking fuel from the tanks on at least two or three occasions prior to May 27, 1999. He concedes that he was not the owner of the fuel at that time, that he was not an owner of Northgate Aviation (i.e., Norpac), and that he was not employed or otherwise entitled to access the fuel in question. The plaintiff has admitted that he siphoned gasoline for both his own use and for his friends to use in their race cars. In exchange for the fuel, friends would perform personal services for the plaintiff, such as grading the plaintiff's driveway. The plaintiff also admitted that neither he nor his wife ever paid for fuel removed from the airport by the plaintiff for his personal uses.
Nonetheless, the plaintiff claims in this Court that the he was wrongfully detained by Officer Drury on May 27, 1999 in violation of his fights under the Fourth Amendment, although the plaintiff has not sued Officer Drury. Rather, the plaintiff's theory is that city manager Hibl is responsible for this alleged violation. He claims that this "detention" also gives rise to a common law claim for false imprisonment. He further contends that the statement in the police report which instructs the police to arrest him if he is caught stealing fuel is defamatory per se, entitling him to summary judgment on that count. The defendants have moved for summary judgment on all counts.
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. Nat'l Aeronautics Space Admin., 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. Anderson, 477 U.S. at 248; 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 non-moving 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 opposing the motion 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). The party opposing the motion 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 demonstrate that there is a factual question on which reasonable minds might differ 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).
III.
The plaintiff has admitted on this record that he was taking aviation fuel from the Clare municipal airport that did not belong to him. There apparently was a dispute as to whether the City was the owner of the fuel, or whether the plaintiff's wife's company still retained ownership of it even after the City paid the delinquent fuel bill and obtained a money judgment against Norpac. It is undisputed that there is no claim of ownership by the plaintiff himself, however. It is equally clear that the City asserted a possessory interest in the fuel in Norpac's tanks. Given these undisputed facts, the Court will address each of the plaintiff's claims in turn.
A.
The plaintiff first alleges that he was wrongfully "seized" in violation of the Fourth Amendment by the City of Clare police officers at Kenneth Hibl's direction. It is the plaintiff's theory that defendant Hibl "knew" that the plaintiff was not stealing gas, and ordered him arrested solely to harass the plaintiff.
To establish a claim under 42 U.S.C. § 1983, the plaintiff must show that he was deprived of a right secured by the Constitution or the laws of the United States by a person acting under color of law. Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir. 1999). Section 1983 is not itself a source of substantive rights; rather, it provides a vehicle for vindicating rights provided by the Constitution. Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990). A § 1983 claim based on false imprisonment or arrest against a municipality is properly evaluated under the Fourth Amendment's prohibition of unreasonable searches and seizures. See Albright v. Oliver, 510 U.S. 266, 274 (1994). A civil rights action for false imprisonment against municipal officials for an investigatory stop will lie only where the officers lacked reasonable suspicion that a crime was being committed. Watkins v. City of Southfield, 221 F.3d 883, 887-88 (6th Cir. 2000) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
The plaintiff has not properly pleaded a cause of action against the City of Clare. The complaint only alleges that the City "is liable for the acts of its agents under the doctrine of respondeat superior." Compl. ¶ 18. However, the Supreme Court has plainly held that respondeat superior alone is not a basis of municipal liability under 42 U.S.C. § 1983. See Monell v. Dep't of Social Servs., 436 U.S. 658, 691-92 (1978). The plaintiff has not alleged nor established by admissible evidence that his rights were violated by a municipal policy or practice. Nor, as discussed below, is there any proper claim that the City encouraged or directed unconstitutional conduct, see Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984), and Sova v. City of Mount Pleasant, 142 F.3d 898, 904 (6th Cir. 1998), or that municipal personnel abandoned their responsibility to prevent unconstitutional behavior or engaged in a cover-up. See Taylor v. Michigan Department of Corrections, 69 F.3d 76, 81 (6th Cir. 1995); Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). The federal claim against the municipal defendant will therefore be dismissed.
As to the individual actors, the plaintiff does not dispute that the officers themselves, based on the police report of the prior day, had reasonable suspicion to investigate the presence of a red truck parked next to the airport's fuel tanks. In fact, the plaintiff has not sued the officers themselves. The plaintiff's claim thus turns on the allegation that defendant Hibl ordered Swire detained in had faith. Although Hibl did not initiate the detention, he could be held personally liable for the behavior of the officers if he provided the impetus or directions for their actions which are determined to be unconstitutional. See Bellamy, 729 F.2d at 421 (discussing supervisory liability).
Defendant Hibl was not the chief of police. According to the city charter, he did have the responsibility to "see that all laws and ordinances are enforced." City of Clare Plan of Government § 3.9. However, there is no evidence in the record that Hibl could displace the chief of police or that he enjoyed direct supervisory authority over line officers. Thus, Hibl's role as a government official was quite similar to that of any citizen who seeks help from the police in protecting his property interests. Stripped to its bare essence, then, the plaintiff's § 1983 claim questions whether Hibl could properly invoke police action to enforce a disputed possessory and ownership interest in the aviation fuel. This question might be troublesome if the plaintiff was able to assert a claim of right in the fuel on his own. However, on this record the best status that the plaintiff can claim is that of an agent, and even that status is tarnished by the plaintiff's admissions that he was taking the fuel for his own purposes to use as barter for personal services performed for him individually, not for the corporation of which he claimed to be an agent.
Taking the evidence in the light most favorable to the plaintiff for the purpose of this motion, this Court credits the plaintiff's allegation that the basis for the officers' detention of him was the statement in the police report, filed the previous day, that "Bill advises that he talked to Ken and if Steve Schwire [sic] is stealing the gas go ahead and arrest him and call Bill George at home." This statement does not establish Hibl's individual liability, however, for several reasons. First, the order to arrest the plaintiff seems to have been issued by Bill George, not Kenneth Hibl. Bill George was the individual who filed the report. The police report, even through its double hearsay, fails to establish that Hibl had anything to do with the plaintiff's detention at all, aside from showing up at the airport when requested by the police department. Second, the plaintiff has no evidentiary support for his contention that Hibl "knew" Steve Swire was not "stealing" gas. The basis for the plaintiff's allegation is that Hibl, prior to the detention, had never informed the plaintiff directly that the City asserted ownership over the gas inside the airport's fuel tanks. In other words, the plaintiff claims that a property owner cannot, as a matter of law, have his property stolen unless he first informs the would-be thief that he owns it. That proposition is devoid of legal substance, and the plaintiff, not surprisingly, has offered no authority to support it. Finally, to the extent that the plaintiff may be trying to suggest that Hibl's failure to discuss ownership of the gasoline gives rise to an inference of dishonesty or bad faith, his claim still fails. The plaintiff offers no direct evidence of intent by Hibl to harass the plaintiff with municipal resources. Although the plaintiff is entitled to offer circumstantial evidence in support of his claims, he cannot simply label what appears to be a perfectly proper action "bad faith" and hope that a jury will speculate in his favor. See Marthel v. Bridgestone/Firestone, Inc., 926 F. Supp. 1293, 1300 (M.D. Tenn. 1996) (holding that plaintiff cannot defeat summary judgment by offering conjecture and speculation as to a defendant's motives).
In addition to claiming that no violation of the plaintiff's rights occurred, the defendants claim that Hibl is entitled to qualified immunity. Public employees are entitled to qualified immunity when engaged in discretionary functions. Scott v. Clay County, Tenn., 205 F.3d 867, 873 n. 9 (6th Cir. 2000). The Court's inquiry into qualified immunity must proceed in two parts. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). First, it must determine whether the facts alleged, viewed in the most favorable light to the party asserting the injury, show that the officer's conduct violated a constitutional right. Id. Second, if and only if a potential constitutional violation is found, the Court proceeds to determine whether the party's right to be free from the violation was "clearly established" at the time of the violation such that a reasonable officer would understand that it as such. Id. Qualified immunity provides "ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Scott, 205 F.3d at 873 n. 9.
The Sixth Circuit recently discussed qualified immunity in the context of an investigatory detention. In Risbridger v. Connelly, 275 F.3d 565 (6th Cir. 2002), the plaintiff was detained by police after he was identified by a witness as someone involved in a recent fight. The plaintiff refused to produce identification, and the police arrested him for the local offense of obstructing an officer. The plaintiff subsequently sued the City of Lansing and the arresting officer, claiming violations of his Fourth Amendment rights. Rejecting the plaintiff's claim, the Court found that the officers were entitled to qualified immunity because the Circuits were split on the question of whether a mere refusal to provide identification during a Terry stop, without more, could justify an arrest. Id. at 572.
In this case, however, the Court finds that the plaintiff suffered no violation of the Fourth Amendment because the actions of the defendants were reasonable. To review the undisputed facts in this case, defendant Hibl (1) was informed by Bill George that someone with a red pickup truck was stealing gas, (2) decided it was likely that the individual with the red pickup truck was Steve Swire, and (3) ordered the police to arrest Swire "if he is caught stealing gas." By its action of locking down the gas pumps, it was obvious upon casual inspection that the city asserted some possessory interest in the aviation fuel, and that it knew it was disappearing. There is no dispute that the fuel did not belong to Swire. The police are not instructed to harass Swire, but only to arrest him if he is caught committing a crime. The reasonableness of Hibl's alleged assumptions is only enhanced by Swire's own confession that he had been stealing gas for months for his friends' race cars.
Further, the detention affected by the officers at the scene was limited in duration, scope and character. Swire's own movements were not restricted. He was not frisked. He was not placed in restraints. He was allowed to walk away from the officer and enter a building unescorted. After the officers investigated the circumstances of an individual, in the dark of night, using a portable pump to remove aviation fuel from underground tanks whose pumps were locked down, in light of a complaint from the city that someone was siphoning fuel without authority, he was allowed to leave "on his own recognizance." The conduct was well within the confines of permitted investigatory detentions authorized by Terry v. Ohio, 392 U.S. 1 (1968), and was reasonable under the Fourth Amendment. The plaintiff's § 1983 claim will be dismissed.
B.
The plaintiff has also alleged that the defendants are liable on the basis of common law false imprisonment. To defeat summary judgment on this claim, the plaintiff must present admissible evidence to establish that (1) the defendant confined or instigated the confinement of the plaintiff, Clarke v. K-Mart Corp., 197 Mich. App. 541, 546, 495 N.W.2d 820, 823 (1993); and (2) the restraint was unlawful, Stowers v. Wolodzko, 386 Mich. 119, 134, 191 N.W.2d 355, 363 (1971) (detainment of patient beyond court-authorized treatment was unlawful). See also Dan Dobbs, Law of Torts § 36, at 67 (2000). Dobbs also states, and nothing in Michigan law suggests otherwise, that a plaintiff seeking to recover damages for emotional distress must also demonstrate a third element: awareness of the first two elements. Id. at 67 n. 5.
In this case, the plaintiff was not physically restrained, but he did testify at deposition that the officer parked his police vehicle at the airport so as to effectively block the plaintiff's departure in his red pick-up truck. Although false imprisonment can only occur if the victim is restrained in some manner, Michigan courts have warned that the restraints need not be physical. For example. in Clarke v. K-Mart Corp., supra, the plaintiff was detained on her way out of a K-Mart on suspicion of shoplifting. 197 Mich. App. at 543, 495 N.W.2d at 821. The trial court dismissed the false imprisonment claim, ruling that the plaintiff was neither arrested nor detained in an office, and that she could have wandered the store and left had she really wanted to. Id. at 546, 495 N.W.2d at 822-23. The court of appeals criticized the trial court holding, finding that it "rests on an unduly narrow view of this tort." Id. The question was not simply whether the plaintiff had been physically restrained, but rather whether there was some "personal coercion" involved that would have hampered the plaintiff's departure. Id. at 546-47, 495 N.W.2d at 823.
As is the case with a Fourth Amendment false imprisonment case, a police officer's reasonable suspicion that a crime was in the making precludes liability for common-law false imprisonment over an investigatory stop. See Dan Dobbs, Law of Torts § 87, at 201 (2000); see also Blackman v. Cooper, 89 Mich. App. 639, 643, 280 N.W.2d 620, 622 (1979) (police officer privileged to arrest when done in good faith).
In this case, the plaintiff false imprisonment claim fails. Although the plaintiff has satisfied the confinement element for the purpose of this motion, the detention was founded on a reasonable suspicion of a crime taking place. The plaintiff's allegations to the contrary, as discussed above, are not persuasive. Cf. Flones v. Dalman, 199 Mich. App. 396, 407-08, 502 N.W.2d 725, 731 (1993) (bare allegations of "bad faith grandstanding" insufficient to state a claim for malicious prosecution against city officials). The defendants claim that they are entitled to governmental immunity for this claim. However, because the plaintiff has failed to establish a substantial prima facie claim at the outset, that issue need not be addressed. The false imprisonment claim will therefore be dismissed.
C.
The plaintiff has brought a defamation claim against defendant Hibl based on the plaintiff's perception that Hibl was accusing the plaintiff of being a thief. Aside from the plaintiff's own testimony at deposition that he took aviation fuel that did not belong to him and used it in barter transactions, the plaintiff could not identify a truly defamatory statement made by Kenneth Hibl. At deposition, the plaintiff initially claimed that Hibl was spreading rumors, but could identify no individuals who told him this. Eventually, the plaintiff claimed that he heard it from one of the police officers during the plaintiff's detention on May 27, 1999, which of course stems, once again, from the police report filed by Bill George. The plaintiff claims that the police report statement necessarily implies that he steals gas. The defendants assert that Hibl's "if; then" statement cannot be so construed, and even if it was, the defendant is entitled to governmental immunity.
An individual who publishes information to an individual knowing that it will be repeated to another is liable for both acts of publication under general principles of defamation law. See Dobbs, Law of Torts § 402, at 1123. However, in Michigan, statements made to police regarding criminal activity are absolutely privileged. Hall v. Pizza Hut of Am., Inc., 153 Mich. App. 609, 619, 396 N.W.2d 809, 813 (1986) (employee who mistakenly identified patrons to police as robbers was immune from defamation claim).
Further, Michigan law provides that "[a] judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority." Mich. Comp. Laws § 691.1407(5). In American Transmissions, Inc. v. Attorney General, 454 Mich. 135, 560 N.W.2d 50 (1997), the plaintiffs sued the Attorney General for the State of Michigan, claiming that he had defamed them during a press conference in which he called them "crooks." The defendant filed a motion for summary disposition, claiming that he was absolutely immune from liability pursuant to the statute. The court of appeals held that immunity was unavailable because the defendant's authority as Attorney General did not include the dissemination of false information. The Michigan Supreme Court reversed, finding that there was no room in the statute for a "malevolent-heart exception" and that the motive of the defendant was irrelevant. Id. at 139, 560 N.W.2d at 53. Because the Attorney General was responding to questions regarding an official investigation he had conducted, the Court found that he was clearly "acting within the scope of [his] executive authority," and reinstated the trial court's judgment of dismissal. Id.
The plaintiff in this case contends that defendant Hibl was acting outside of his authority in attempting to deny Swire access to the aviation fuel. However, the investigation of potentially criminal activity is a governmental function. See Fluellen v. United States Dep't of Justice Drug Enforcement Admin., 816 F. Supp. 1206, 1215-16 (E.D. Mich. 1993) (police criminal investigations and detentions are part of a legitimate governmental function). In making the determination of whether an action is part of a legitimate governmental function, the Court focuses on the general function being performed, rather than the specific conduct of the government's employees. See Payton v. City of Detroit, 211 Mich. App. 375, 392, 536 N.W.2d 233, 241 (1995). In that case, the plaintiff filed suit for malicious prosecution against city officials, but also sought to hold the City liable under a respondeat superior theory. The plaintiff attempted to argue that immunity was unavailable to the City, as the officials in question had performed their duties improperly and in bad faith. The Court rejected that claim, holding that the City was still immune as long as the officials' actions, whether appropriate or not, were committed under the auspices of a legitimate governmental function, namely the pursuit and detention of suspected criminals. Id. at 392-93, 536 N.W.2d at 241-42. As a result, the City was completely immune from liability for the officials' actions. Id. at 394, 536 N.W.2d at 242.
In this case, there is little dispute that Hibl's actions were directed at protecting the City's interest in the aviation fuel for which it paid the supplier. For the purpose of this motion, the Court will presume that defendant Hibl did make the statement that Steven Swire should be arrested if he were caught stealing aviation fuel. However, that statement standing alone is not defamatory. At most, it implies that Swire does not own the fuel, a true proposition. It does not imply or suggest that Swire had taken the fuel in the past, even though he had.
Further, assuming that Hibl's statement as related by another in a police report could be construed as defamatory, it would nonetheless be absolutely privileged as a report concerning criminal activity. Protecting the City's possessory interest in the fuel fails directly within the scone of the city manager's duties. in addition, Hibl, as the highest level executive official in the city, enjoys absolute immunity from state-law suit. Mich. Comp. Laws § 691.1407(5). His actions were taken in the course of his prescribed duties under City of Clare ordinance. As the Michigan Courts have stated numerous times, there is no intentional tort exception to governmental immunity. Flones, 199 Mich. App. at 407, 502 N.W.2d at 731.
Based on the undisputed facts, the Court finds that the plaintiff has failed to sustain his claim of defamation as a matter of law. It will, therefore, be dismissed.
IV.
The Court finds that the plaintiff has failed to properly support his claims, as required by F. R. Civ. P. 56, based on 42 U.S.C. § 1983, the state law theory of false imprisonment, and the state law claim for defamation. Accordingly, it is ORDERED that the defendants' motion to dismiss or for summary judgment [dkt # 16] is GRANTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 18] is DENIED.
It is further ORDERED that the complaint is DISMISSED WITH PREJUDICE, and that all other pending motions are dismissed as moot.