Opinion
Case No. 99-CV-73774-DT.
September 28, 2001
MEMORANDUM OPINION AND ORDER
I. FACTS
Plaintiffs John and Lashunda Bryant filed this cause of action on June 28, 1999. On February 12, 1997, Defendants J.W. Tolbert, G. Rossi and Arthur McNamara entered the Plaintiffs home pursuant to a warrant to search for drugs, money, weapons and other evidence of drug trafficking. There were allegations that the Plaintiffs, Brandon Neely (hereinafter "Neely"), Darryl McConnell (hereinafter "McConnell"), William Black (hereinafter "Black"), Linda Wilson (hereinafter "Wilson") and others were engaged in a multi-million dollar, international drug smuggling and money laundering enterprise. It is alleged that the Plaintiffs utilized false passports, private jets and crooked real estate deals to transfer drug proceeds to the Caribbean. The Plaintiffs used real estate deals and bank transfers all over the world to disguise their dealings. It is alleged that Plaintiff Lashunda Bryant assisted her husband in the elaborate scheme by purchasing multiple money orders in $5000.00 increments.
In December of 1996, Officer J.W. Tolbert (hereinafter "Tolbert") was informed that Neely was engaged in the sale of drugs at 18989 Stout in Detroit which was owned by Plaintiff John Bryant. Neely drove a gold colored Honda. The informant also told Tolbert that Neely was in the process of negotiating the purchase of cocaine in California. Once the drugs were purchased, they were to be transported in an older station wagon with a California license plate a few days later to John Bryant at 18989 Stout in Detroit.
Tolbert and other Narcotics officers set up surveillance at 18989 So. in Detroit. At approximately 9:40 p.m. on February 12, 1997, a gold Honda arrived at the Stout address, pulled in the driveway and blew the horn. Electronic gates opened to allow entry. Approximately, twenty minutes later, an older model station wagon pulled in the driveway and blew its horn. Again, the gates opened to allow entry. Based upon the foregoing corroborating evidence, Tolbert left to obtain a search warrant. While Tolbert was gone, several other vehicles entered and exited the Stout premises. When the station wagon with the California license plate left the Stout address, it was stopped by the police and searched for drugs. Although, the police canine indicated that there were drugs in the vehicle, no drugs were found.
A search warrant authorizing entry at 18989 Stout was obtained at approximately 12:15 a.m. The officers entered the Stout premises at approximately 12:30 p.m. The occupants of the home, McConnell, Yamisha Rutherford, Cynthia Lewis, Pinkie Lewis, and Emmaline Blakely, were told to move into the kitchen. Defendant John Bryant was also in the home but refused to come up from the basement. The officers entered the basement and found $24,395.00 on a bed. The monies were seized and a Notice of Seizure issued. The officers left the Stout address after the search was complete.
On June 28, 1999, the Plaintiffs filed this cause of action alleging in Count I-Assault and Battery, Count II-Violation of Ministerial Duties, Count III-False Arrest and False Imprisonment, Count IV-Intentional Infliction of Emotional Distress, and Count V-Violation of 42 U.S.C. § 1983. On July 30, 1999, this cause of action was removed to the Eastern District of Michigan based upon a federal question.
On February 16, 2000, Plaintiff John Bryant was sentenced to 235 months in prison for conspiracy to distribute controlled substances. Mr. Bryant is currently incarcerated in federal prison in Pennsylvania. There was also an indictment in August of 2000 charging Mr. Bryant with drug trafficking and money laundering. Plaintiff Lashunda Bryant pled guilty to money laundering on February 2, 2000.
On September 8, 2000, the Defendants Rossi, McNamara and the City of Detroit, filed a Motion for Partial Summary Judgment based on the statute of limitations. On September 15, 2000, Defendants Rossi, McNamara and the City of Detroit, filed a Motion for Summary Judgment seeking dismissal of all the claims against them. The above-entitled motions are now before this Court. The parties agreed that the above-mentioned motions would be decided based upon the briefs filed.
II. SUMMARY JUDGMENT
A. Standard of Review
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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether there are issues of fact requiring a trial, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus., Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). A "material" fact exists if there is a "dispute over facts that might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
The moving party has the initial burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment must be entered if the nonmoving party fails to provide sufficient evidence on an essential element to that party's case on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The nonmoving party must present more than a mere scintilla of evidence and "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 249, 252 (internal citation omitted). If the nonmoving party fails to present evidence that opposes the moving party, the evidence submitted by the moving party will be taken as true. Id. at 248-49.
B. Analysis
1. Statute of Limitations
Defendants contend that Plaintiffs' claims of assault and battery, false imprisonment and false arrest are time barred. Defendants assert that Plaintiffs' claims are barred by M.C.L.A. § 600.5805(2) which states that "[t]he period of limitations is two (2) years for an action charging assault, battery or false imprisonment." Defendants raised the statute of limitations as an affirmative defense in their first responsive pleading. Defendants also rely on Fed.R.Civ.P. 12(c) which states in pertinent part, "[a]fter the pleadings are closed but within such time as not to delay trial, any party may move for judgment on the pleadings."
The cause of action arose on February 12, 1997 and this case was filed on June 28, 1999. Plaintiffs have presented no evidence to rebut Defendants' statute of limitations argument. Plaintiffs' claims for assault and battery (Count I) and false arrest and imprisonment (Count II) are time barred. Counts I and II are dismissed.
2. Defendant Rossi
Defendant Rossi states that the § 1983 and intentional infliction of emotional distress claims against him are time-barred based upon the three-year statute of limitations applicable to personal injury claims. As noted previously, the cause of action arose in this case on February 12, 1997. The summons and complaint against Defendant Rossi were executed by the process server on April 5, 2000. (See Defendants' Exhibit E).
The United States Supreme Court in Wilson v. Garcia, 471 U.S. 261, 276-80 (1985), held that the appropriate statute of limitations to be applied in all section 1983 actions is the state statute of limitations governing actions for personal injury. Federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion That Congress favored this simple approach. Id. at 272. The Wilson Court reasoned that "a simple, broad characterization of all section 1983 claims best fits the statute's remedial purpose." Id. at 272. The United States Supreme Court further clarified in Owens v. Okure, 488 U.S. 235, 250 (1989), "that where state law provides multiple statutes of limitations for personal injury actions, courts considering section 1983 claims should borrow the general or residual statute for personal injury actions." Michigan has a three year statute of limitations for personal injury claims. M.C.L.A. § 600.5805(1) states that "[a] person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff, . . ., the action is commenced within the periods of time prescribed by this section." M.C.L.A. § 5805(1) (italics added) M.C.L.A. § 600.5805(9) states that [t]he period of limitation is three (3) years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property." Michigan's tolling statute provides that the statutes of limitations are tolled "[a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant." M.C.L.A. § 600.5856(1) (italics added). See Sanderfer v. Mt. Clemons General Hosp., 105 Mich. App. 458 (1981). The issue of whether the filing of a complaint tolls a statute of limitations turns on whether the requirement of service of the summons within the statutory period is an integral part of that state's statute of limitations. Walker v. Arinco Steel Co., 446 U.S. 740, 746 (1980). The Sixth Circuit has recognized that Michigan's rules and statutes applicable to service of process are an integral part of the Michigan's state statute of limitations. See Blaha v. A.H. Robins Co., 708 F.2d 238 (6th Cir. 1983).
The cause of action accrued on February 12, 1997. The return of service as to Defendant Rossi indicates that he was served with the Summons and Complaint on April 5, 2000. As to the § 1983 and intentional infliction of emotional distress claims against Defendant Rossi, the three-year statute of limitation is applicable. The three-year statute of limitation has run and those claims are time-barred. Plaintiffs have not submitted any evidence to rebut Defendant Rossi's argument. Counts IV and V are dismissed as to Defendant Rossi.
3. Municipal Corporations are Statutorily Immune
Defendants contend that the City of Detroit is statutorily immune from tort liability when engaged in the exercise or discharge of a governmental function. Relying on Ross v. Consumers Power Co., 420 Mich. 567 (1984), Defendants assert that the operation of a police department is a governmental function and that the execution of a search warrant is also a governmental function.
[A] governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function. M.C.L.A. § 691.1407(1). To determine whether a governmental agency is engaged in a governmental function, the focus must be on the general activity, not the specific conduct involved at the time of the tort. Howard v. City of Southfield, 97 F.3d 1452 (6th Cir. 1996) (unpublished opinion). The rationale for the "general activity" rule is that using "anything other than the general activity standard would be to subvert the broad governmental immunity intended by the Legislature [because] it would be difficult to envision a tortious act that is a governmental function." Id. A governmental function is an activity expressly or impliedly mandated or authorized by the constitution, statute, or other provision or law. Id. The execution of search warrant is a traditionally governmental function, United States v. Stauffer, 684 F.2d 1174, 1189 (6th Cir.1984).
The operation of a police department is a governmental function and the execution of a search warrant is a general activity which is traditionally a governmental function. Therefore, the City of Detroit is immune from liability for the execution of a search warrant and the state law tort claims are dismissed as to Defendant City of Detroit.
4. Assault and Battery/Count I
Alternatively, Defendants claim that they are entitled to summary judgment on the assault and battery claims. An assault is "any intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well founded apprehension of imminent contact, coupled with apparent present ability to accomplish the contact" Espinoza v. Thomas, 189 Mich. App. 110, 119; 472 N.W.2d 16 (1991). Battery is "the wilful and harmful or offensive touching of another person which results from an act intended to cause such contact." Id.
Plaintiffs offered general allegations in their complaint to support their claim of assault and battery. Plaintiffs did not respond to the motion for summary in order to support its contentions of assault and battery. Cynthia Lewis testified that the officers entered the dwelling searched it and proceeded to ask questions of the occupants of 18989 Stout. (Deposition of Cynthia Lewis, p. 33). Emmaline Blakeley also testified the officers pushed John and Darryl on the floor. The officers pushed John on the floor by touching the back of his head and shoulders. (Deposition of Emmaline Blakeley, p. 68).
It is well established that an arresting officer may use such force as is reasonably necessary to effect a lawful arrest. Young v. Barker, 158 Mich. App. 709, 722; 405 N.W.2d 395, 401 (1987). Where Plaintiffs have shown the claim of assault and battery was the result of touching necessarily occurring during and arrest or detention, there is no merit to the claims. Id. The only evidence of touching or force by the officers was the testimony of Emmaline Blakeley and Cynthia Lewis, which remains undisputed by Plaintiffs. There is no evidence of unreasonable force sufficient to establish a claim of assault and battery. Summary judgment is appropriate as to Plaintiffs' claims of assault and battery, Count I of the Complaint.
5. Violation of Ministerial Duties/Count II
Defendants contend that the violation of ministerial duties is not a recognizable cause of action in federal or state court. In their Complaint, Plaintiffs allege that Defendant police officers had the following ministerial duties: (1) to use due care to ascertain to a probable degree of certainty whether or not Plaintiffs committed a criminal offense prior to their unlawful search and seizure; (b) to avoid the use of an improper, unwarranted and unlawful search and seizure tactics and to avoid excessive, undue force in the carrying out of the search and seizure; (e) to avoid the use of racially derogatory and otherwise abusive verbal assaults on Plaintiff; (d) to obey all statutes, rules, regulations and applicable laws; (e) to preserve the peace and protect the lawful rights of citizens; (f) to avoid assaulting and/or battering Plaintiffs during the search; and (g) to have a finding of probable cause prior to searching Plaintiffs' residence.
It is well settled that ministerial duties are, in general, those obligations that attach to an office and do not require an exercise of judgment or discretion. Williams v. Payne, 73 F. Supp.2d 785, 790 (E, D. Mich. 1999). A ministerial duty is one in respect to which nothing is left to discretion; it is simple, definite, arising under conditions admitted or proved to exist and imposed by law. Swan v. Clinton, 932 F. Supp. 8 (D.D.C. 1996) aff'd by 100 F.3d 976 (D.C. Cir. 1996).
Violation of ministerial duties is a recognizable cause of action. However, Plaintiffs do not state upon which statutory duties they rely. If they are relying upon M.C.L.A. § 691.1407 the Michigan governmental immunity statute, the Williams court has stated that M.C.L.A. § 691.1407 does not support a claim for violation of ministerial duties. Williams, 73 F. Supp.2d at 791. The ministerial duties claim against Defendants, Count II, is dismissed.
6. False Arrest and False Imprisonment/Count III
Alternatively, Defendants also claim they arc entitled to summary judgment on the false arrest and imprisonment claims against them. The Supreme Court has stated, "It is not disputed that the Constitution permits an officer to arrest a suspect without a warrant if there is probable cause to believe that the suspect has committed or is committing an offense." Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Probable cause justifying an arrest "means 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." Id. at 37, 99 S.Ct. 2627; Criss v. City of Kent, 867 F.2d 259. 262 (6th Cir. 1988). Probable cause is an affirmative defense to false arrest and false imprisonment claims. Walker v. Schaeffer, 854 F.2d 138, 142, 43 (6th Cir. 1988). In determining probable cause, defendant's conduct should be weighed in view of the situation and of the facts and circumstances which he knew or was reasonably chargeable with knowing at the time of the arrest. Ross v. Meyers, 883 F.2d 486, 488 (6th Cir. 1989). Defendants' fourth affirmative defense is probable cause. (See Defendants' City of Detroit and Arthur McNamara's Answer to Complaint).
Based upon the facts presented by the Defendants in their Motions for Summary Judgment, which remain undisputed by Plaintiffs, the officer had probable cause to arrest and detain the Plaintiffs. The undisputed facts are that in December of 1996, Officer J.W. Tolbert was informed that Neely was engaged in the sale of drugs at 18989 Stout in Detroit which was owned by Plaintiff John Bryant. Neely drove a gold colored Honda. The informant also told Tolbert that Neely was negotiating the purchase of cocaine in California. The plan was to transport the drugs to 18989 So. in an older station wagon with a California license plate.
Tolbert and other Narcotics officers set up surveillance at 18989 So. in Detroit. On February 12, 1997 at approximately 9:40 p.m. a gold Honda arrived at the Stout address pulled in the driveway and blew the horn. Electronic gates opened to allow entry. Approximately twenty minutes later, an older model station wagon pulled in the driveway and blew its horn. Again, the gates opened to allow entry. Based upon the foregoing corroborating evidence, a search warrant was obtained for 18989 So. The officers also stopped the the station wagon with the California license plates as it left the Stout address. Although, the police canine indicated that there were drugs in the vehicle, no drugs were found.
In view of the facts and circumstances, Defendants had sufficient probable cause to arrest and detain Plaintiffs. Plaintiffs have failed to show that summary judgment is not appropriate in this matter. Count III is dismissed.
7. Intentional infliction of Emotional Distress/Count IV
Defendants contend that Plaintiffs have failed to present evidence to support a prima facie case of intentional infliction of emotional distress. Based upon the testimony of Emmaline Blakeley and Cynthia Lewis, there is no question of material fact that the conduct of the officers was neither extreme nor outrageous.
In their complaint, Plaintiffs contend that Defendants intentionally inflicted emotional distress by subjecting Plaintiffs to unprovoked and unjustified mistreatment and humilation; physical assault and battery; verbal abuse; treating Plaintiffs in an extremely and outrageously abusive manner; intentionally depriving Plaintiffs of their liberty; and restraining their physical movement without excuse or justification. (See Complaint ¶ 26).
The Sixth Circuit has adopted the definition of intentional infliction of emotional distress as defined by the Restatement (Second) of Torts § 46 (1948). Ross v. Burns, 612 F.2d 271, 273 (6th Cir. 1980). To establish a prima facie case of intentional infliction of emotional distress, a plaintiff must show: (1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Watkins v. City of Southfield, 221 F.3d 883, 890 (6th Cir. 2000) citing Roberts v. Auto-Owners Insurance Co., 422 Mich. 594 (1985). The Restatement defines intentional infliction of emotional distress in a narrow way. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Polk v. Yellow Freight System, Inc., 801 F.2d 190, 195 (6th Cir. 1986). Liability has only been found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement 2d of Torts § 46 (1965); Polk, 801 F.2d at 195. The defendant is not liable for "mere insults, indignities, threats, annoyances, petty oppressions or other trivialities, nor is the defendant liable where he has done no more than to insist upon his legal rights in a permissible way, even though he was well aware that such insistence is certain to cause emotional distress. Polk, 801 F.2d at 195 citing Restatement 2d of Torts § 46, comment d (1965).
Emotional distress includes "all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of living among people. The law intervenes only where the distress inflicted is so severe no reasonable man could be expected to endure it." Restatement 2d of Torts 46, comment j (1965). Intentional infliction of emotional distress claims may entirely appropriately be dealt with on summary judgment. Miller v. Currie, 50 F.3d 373, 377-78 (6th Cir. 1995).
In Watkins, the plaintiff contended that he was harassed, intimidated and verbally assaulted by Defendant police officers during a stop. Plaintiff stated that he was physically abused and subjected to racial epithets when the defendant pulled him from his car and put him in the squad car. The court stated that the stop of Plaintiffs vehicle was justified in light of the fact that plaintiff ignored the officers' command for him to stop. The force used to effectuate stop was necessary. The officers' actions were not unreasonable or excessive in a manner to maintain a claim of intentional infliction of emotional distress.
When police searched the home of a citizen pursuant to a warrant, they concomitantly receive certain limited rights to occupy and control the premises. Bills v. Aseltine, 958 F.2d 697, 704 (6th Cir. 1992). Pursuant to the warrant, the officers may enter the property, search for items outlined in the warrant, detain the persons found on the premises and take reasonable actions to protect themselves during the execution of the warrant as long as the activities are conducted in a reasonable manner. Id. at 704.
As stated in Watkins, the defendant officers' conduct, in this case, was not extreme and outrageous. Based upon the facts known to the officers at the time they exercised the search warrant, allegations of false arrest, false imprisonment, verbal abuse and humiliation does not rise to the level courts have found to support a claim of intentional infliction of emotional distress. On January 21, 1997, Officer Tolbert had been informed that drugs were being purchased in California by Neely who drove a gold colored Honda. Once the drugs were purchased, they were being transported in an older station wagon with hidden compartments to the home of Defendant John Bryant in Detroit.
Officer Tolbert and other Narcotics officer set up surveillance at 18989 Stout in Detroit on February 12, 1997. At approximately 9:40 p.m., a gold Honda arrived at the Stout address, pulled into the driveway and blew the horn. Electronic gates opened to allow entry. Approximately, twenty minutes later, an older model station wagon pulled in the driveway and blew its horn. Again, the gates opened to allow entry. Based upon the foregoing corroborating evidence, Officer Tolbert left to obtain a search warrant. A search warrant was obtained at approximately 12:15 a.m. which authorized entry into the home at 18989 Stout in Detroit to search for drugs, money, weapons and other evidence of narcotics trafficking. (See Defendants' Exhibit F, Search Warrant).
Cynthia Lewis testified via deposition testimony that the police arrived at 12:30 a.m. at which time the occupants of the home were instructed to lay on the living room floor. The officers proceeded to search the premises. Although, no drugs were found, the officers seized $24,395.00 in cash.
Probable cause exists so long as the totality of the circumstances evidences a probability or substantial chance of criminal activity. United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991). The test is a practical, non technical concept defined in the terms of the facts and circumstances known to die officers at the time of the search. US. v. Nigro, 727 F.2d 100, 103 (6th Cir. 1984).
In the case at bar, the officers relied upon information from a reliable informant that Officer McNamara had met with on numerous occasions. The informant told Defendant McNamara that there was cocaine at the Stout residence. (See Defendants' Exhibit P, Deposition of Arthur McNamara pp 13-14). The officers also relied upon the information concerning the purchase of drugs from California specifically by Neely driving a gold colored Honda and the transportation of drugs in an older station wagon with a California license plate. When the information provided by the informant was confirmed, there was sufficient probable cause to execute a search warrant.
Based upon the foregoing, the officers had probable cause to obtain and execute a search warrant. Based upon the testimony of Cynthia Lewis, the search warrant was not executed in a manner giving rise to a claim for intentional infliction of emotional distress. Although Plaintiffs may have suffered humiliation, fright, and anger there is no evidence of extreme or outrageous physical or verbal abuse supporting a claim for intentional infliction of emotional distress. Plaintiffs are unable to show that the Defendants' conduct was extreme and outrageous and therefore, fail to state a claim for intentional infliction of emotional distress. Count IV is dismissed.
8. 42 U.S.C. § 1983/Count V
a. City of Detroit
Defendants contend that the City of Detroit cannot be held liable under 42 U.S.C. § 1983 based upon Plaintiffs' failure to show that the City of Detroit implemented a policy or custom which caused injury. In addition, Defendants state that Plaintiffs must show that the municipal decision to implement the policy or custom "reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision." Board of County Commissioners v. Jill Brown, 520 U.S. 397, 411 (1997). Plaintiffs have failed to demonstrate that a municipal policy was the moving force behind their injury.
Defendants assert that the execution of the search warrant was valid. The officers had information that cocaine was being purchased in California by Neely who was driving a gold colored Honda and delivered to Detroit. The officers were told that the cocaine would be delivered to Detroit at any time in an older station wagon with California license plates. When the assertions made by the police informants were confirmed, the officers' basis for believing that there were drug proceeds on the premises was valid. Defendants also state that even if the officers were mistaken as a matter of law, they are entitled to qualified immunity.
Plaintiffs' complaint alleges a 42 U.S.C. § 1983 claim against the individual officers and states that the Defendants were acting under color of statute, ordinances, regulations, and/or customs of the State of Michigan, County of Wayne City of Detroit when they subjected Plaintiffs to deprivation of their rights. (See Complaint ¶ 31).
To successfully state a claim under 42 U.S.C. § 1983, a plaintiff must identify a right secured by the United States Constitution and the deprivation ofthat right by a person acting under color of state law. Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994). Where the defendant is a municipality, the plaintiff must show that the defendant's objectionable actions were made pursuant to an official city policy or custom. Monell v. Department of Social Services, 436 U.S. 658, 691-94 (1978). It is firmly established that a municipality . . . cannot be held liable under § 1983 for an injury inflicted solely by its employees or agents. Id. at 694, The deprivations arising from the decisions of its duly constituted legislative body or of those officials whose acts must fairly be said to be those of the [municipality]. Id.
A municipality may be liable for the actions of its policy makers "where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in questions." Pembaur v. City of Cincinnati, 475 U.S4 469, 483 (1986). The policy maker for whose conduct the plaintiff is seeking to hold the municipality liable must possess "final authority to establish municipal policy with respect to the action order." Id. at 481.
A municipality may be liable under § 1983 for its failure to adequately train employees.
Only where a municipality's failure to train its employees in a relevant respect evidences a "deliberate indifference": to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under § 1983. . . . Only where a failure to train reflects a "conscious" choice — a "policy" as defined by our prior cases — can a city be liable for such a failure under § 1983.City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
A failure to train may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the madequacy so likely to result in the violation of constitutional rights, that the policymakers were deliberately indifferent to the need. In that event, the failure to properly train may be fairly said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.Id. at 390.
Plaintiffs make no allegation in their complaint that the City of Detroit maintained a custom or policy which deprived Plaintiffs of their rights. There are neither allegations that a policy maker established a custom or policy nor that the City of Detroit failed to adequately train its officers. Plaintiffs' complaint lacks a basis for a claim against the City of Detroit. Plaintiffs did not respond to the Defendants' Motion for Summary Judgment. Therefore, based upon the contents of the complaint, Plaintiffs have failed to allege a custom or policy implemented by the City of Detroit which caused Plaintiffs' injury. There exist no genuine issues of material fact regarding the City of Detroit's liability for any injury caused by a custom or policy. Summary judgment is appropriate as to the 42 U.S.C. § 1983 claim against the City of Detroit as a matter of law. Count V is dismissed as to the City of Detroit.
b. Qualified Immunity
Defendants contend that even if the individual officers were mistaken regarding the sale of drugs at the Stout address, they are entitled to qualified immunity.
The right to qualified immunity hinges on whether an objectively reasonable officer would believe that his or her conduct was lawful. Yates v. Cleveland, 941 F.2d 444, 446 (6th Cir. 1991). Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory of constitutional rights of which a reasonable person would have known. Poe v. Haydon, 853 F.2d 418, 423 (6th Cir. 1988) citing Harlow v. Fitzgerald, 457 U.S. 800 (1982). An officer who participates in a search that violates the Fourth Amendment may not be held personally liable for money damages if a reasonable officer could have believed that they comported with the Fourth Amendment Harlow, 457 U.S. 813. That is, a reasonable officer could have believed [a search] to be lawful, in light of clearly established law and the information the . . . officers possessed. Hunter v. Bryant, 502 U.S. 224, 227 (1991). The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law. Id. at 229.
As stated previously, probable cause exists so long as the totality of the circumstances evidences a probability or substantial chance of criminal activity. United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991). The test is a practical, non technical concept defined in the terms of the facts and circumstances known to the officers at the time of the search. U.S. v. Nigro, 727 F.2d 100, 103 (6th Cir. 1984).
In the case at bar, the officers relied upon information from a reliable informant that Officer McNamara had met with on numerous occasions. The informant told Defendant McNamara that there was cocaine at the Stout residence. (See Defendants' Exhibit P, Dep of Arthur McNamara pp 13-14). The officers also relied upon information concerning the purchase of drugs from California specifically by Neely driving a gold colored Honda and the transportation of drugs in an older station wagon with a California license plate. When the information provided by the informant was confirmed, there was sufficient probable cause to execute a search warrant. Based upon these facts, the officers had probable cause to obtain and execute a search warrant and are therefore, entitled to qualified immunity. Plaintiffs have not presented any evidence sufficient to rebut Defendants' evidence presented at summary judgment. Count V is dismissed as to the individual defendants.
III. CONCLUSION
For the same reasons set forth above,
IT IS ORDERED that Defendants' Motion for Partial Summary Judgment (Docket No. 41, filed September 8, 2000) is GRANTED.
IT IS FURTHER ORDERED that Defendants Rossi, McNamara and the City of Detroit's Motion for Summary Judgment (Docket No. 42, filed September 15, 2000) is GRANTED.
IT IS FURTHER ORDERED that the Complaint is DISMISSED against Defendants Rossi, McNamara and the City of Detroit with prejudice.
IT IS FURTHER ORDERED that Defendant J.W. Tolbert is DISMISSED without prejudice for lack of service.