Opinion
Case No. 14-cv-12751
12-31-2015
BRITTANY PRESTON, Plaintiff, v. CITY OF ST. CLAIR SHORES, MICHIGAN, et al., Defendants.
ORDER GRANTING MASSEY'S MOTION FOR SUMMARY JUDGMENT AND/OR TO DISMISS (document no. 31) AND GRANTING JACQUEMAIN, MOSKWA AND THE CITY'S MOTION FOR SUMMARY JUDGMENT (doc. no. 32)
Plaintiff Brittany Preston ("Preston") owned a Pit Bull-Labrador mixed breed dog ("the dog") while living with her grandfather, Thomas Warunek ("Warunek"). The dog attacked a police officer and the officer fatally shot the dog. Preston sued the City of St. Clair Shores, Michigan ("City"), Police Officers David Jacquemain ("Officer Jacquemain") and Jeremy Moskwa ("Officer Moskwa"), and Animal Control Officer Thomas Massey ("ACO Massey") (collectively, "Defendants") for violations of her civil rights under 42 U.S.C. § 1983, and violations of Michigan law. Before the Court are ACO Massey's Motion for Summary Judgment and/or to Dismiss, ECF No. 31, and the remaining Defendants' Motion for Summary Judgment, ECF No. 32. For the following reasons, the Court will grant the motions.
BACKGROUND
At 3:12 a.m. on November 22, 2013, a City police officer saw a dog "running around front lawns" of various houses but lost sight of it after several failed attempts to corral it. Statement, ECF No. 33-5. At 4:41 a.m., a paper boy called 911 and reported that "a pit bull [is] roaming around the neighborhood" and that it "seems like a nice dog." Dispatch Audio 3, ECF No. 33-8. At 4:54, Officer Moskwa was dispatched to investigate. Compl. ¶ 19, ECF No. 1.
When he arrived, Officer Moskwa saw a dog run from the street to the south-side porch of a house on the corner of two intersecting streets. Moskwa Dep. 20, ECF No. 40-2. Officer Moskwa attempted to identify the dog but the dog was "running back and forth on th[e] porch . . . while continuing to bark and growl," and "would not let [Officer Moskwa] get close enough" to read its collar Id. at 20-21. From the dispatcher, he learned that Warunek was registered as living at the address, and that the dog was not licensed there. Id. at 21-23. He issued a citation to Warunek for "barking dog" and "dog at large," and spoke with Warunek, who "explained it was not his dog and that he didn't know what [Officer Moskwa] was talking about." Officer Moskwa returned to his police car, voided the citation, and left the scene. Id. at 23, 26, 28. At no point did he have reason to draw his weapon or assume a defensive posture toward the dog. Id. at 28.
At 7:18 a.m., a resident called 911 and reported that "there is a loose pit bull down here that almost chewed me up," had been barking "for over an hour and a half," and "came after" her when she tried to acquire the address for the 911 dispatcher. Dispatch Audio 6, ECF No. 33-8. She called back minutes later to report the address. Id. at 8. Sergeant William Reiss ("Sergeant Reiss") and Officer Moskwa arrived at the scene minutes later. Car 607 Video, ECF No. 33-11; Car 63 Video, ECF No. 33-11. Officer Moskwa met with the resident, who said the dog "attacked" and "charged" her without biting her, and she had to "jump on her car to get away" from it. Moskwa Dep. 31-32, ECF No. 40-2. Her comments—combined with his observations that the dog was "showing its teeth," its hair was standing up, and it was "barking in an aggressive manner . . . a lot louder than" earlier—led Officer Moskwa to conclude that the dog was vicious. Id. at 34-36.
Sergeant Reiss asked Officer Moskwa, "Do you have a snare? It's on its way?" Car 607 Audio, ECF No. 33-11. Officer Moskwa replied, "The only thing I'm gonna do is shoot it. I do not like dogs." Officer Jacquemain arrived minutes later and said, "I'd rather uptake [sic] it than it go after a kid." Id. Sergeant Reiss asked Officer Jacquemain if he brought a snare and Officer Jacquemain said that he did. Officer Moskwa said, "I don't do snares, I don't do dogs. I'll shoot the fucking thing . . . I'd rather kill this dog than have it go after a kid." Sergeant Reiss said, "It's a vicious dog. Its tail is between its legs, and the hair on its back is sticking up." Car 607 Audio, ECF No. 33-11. Soon thereafter, Officer Jacquemain grabbed a snare from his car and the officers moved towards Warunek's house, staying 15 feet from the dog in "passive containment" so it didn't run into the neighborhood. Car 607 Video, ECF No. 33-11; Jacquemain Dep. 156, ECF No. 40-3.
From the moment the officers arrived, the audio recorded the dog barking and growling very loudly while pacing on the side porch. Car 607 Audio, ECF No. 33-11; Moskwa Dep. 36, ECF No. 40-2. Sergeant Reiss suggested that they "taser [the dog] and try and noose it" with the snare, but instead asked Warunek to take the dog inside. Sergeant Reiss knocked on the front door and Warunek appeared a few minutes later. Officer Moskwa asked him, "Is this your dog? If this isn't your dog, then you won't care if I shoot it, because I'm about to. I'm very close to killing this dog. I will kill this dog before it gets a kid." Minutes later, Sergeant Reiss and Warunek then had the following exchange:
R: This isn't a matter of whether you have the dog licensed or not. If this is your dog, or you've been taking care of it, bring it inside or we're going to have no choice here but to put it down.Car 607 Audio, ECF No. 33-11. Sergeant Reiss told Officers Jacquemain and Moskwa that Warunek would let the dog into the house, that Warunek "thinks it's his granddaughter's" dog, and that ACO Thomas Massey would come by and do a "turnover." A civilian approached the scene and Officer Moskwa warned him that "we have our guns out and we might have to shoot [the dog], so I wouldn't be walking around here, okay?" Id.
W: Yeah, put him down.
R: Do you know whose dog it is?
W: No. We called yesterday on it.
R: Why is he hanging out at your house? Usually a dog will take off running. He's staying here because he's protecting that door.
W: My granddaughter fed him.
R: Can you let it in? Then I'll have the dogcatcher come if you want to turn it over.
W: That sounds good.
R: I'm gonna have the dogcatcher respond here as soon as he gets in today . . . a little after 8:00 a.m.
Five people, including three neighbors, witnessed what came next. All of them told consistent stories. The dog jumped off the porch, put its head down, charged forward about five feet, stopped briefly, and lunged towards Officer Jacquemain. Jacquemain Dep. 128-29, ECF No. 40-3; Moskwa Dep. 71-73, ECF No. 40-2. Officer Jacquemain backed up several feet and he and Officer Moskwa each fired two shots at the dog, striking its head and body.
(1) A neighbor who saw the dog "charg[e] the officer" by making "a mad dash" and was within "five feet, or maybe less" when the officer shot the dog, B.G. Dep. 16-17, ECF No. 33-14; see also B.G. Statement, ECF No. 39-1; (2) a neighbor who saw the dog "mov[e] at the police officers, head down, tail down, in an aggressive I'm going to attack stance," D.S. Dep. 43, ECF No. 33-15; and (3) a man who saw the dog "lea[p] off the porch after the officer," R.S. Dep. 16, ECF No. 33-16, and that the officer "had little time to react." R.S. Statement, ECF No. 39-1.
The dog retreated under nearby bushes. Jacquemain Dep. 129, ECF No. 40-3. Sergeant Reiss immediately reported the incident to the dispatcher. Dispatch Audio 11, ECF No. 33-8. Warunek came out of the house and asked, "Did you get him?" and Officer Jacquemain yelled at Warunek to get back in his house. Car 607 Audio, ECF No. 33-11. Sergeant Reiss said, "We may have to do one more here." Officer Jacquemain turned to Sergeant Reiss and asked, "You saw that fuckin' thing come at me, right?" Sergeant Reiss responded, "Absolutely." Warunek exclaimed, "What the fuck . . . shooting it right in front of me?" Sergeant Reiss answered, "It attacked us, sir. The dog attacked us." Warunek responded by saying, "I don't think so. You guys ought to go on TV." Id. Sergeant Reiss told Officer Moskwa that he should "put [the dog] out of its misery." Id. Officer Moskwa responded by walking up to the dog and shooting it at close range. Moskwa Dep. 68, ECF No. 40-2. The shot struck the dog but did not kill it. Id. at 70.
Although Preston argues that Warunek's statement "creates a genuine issue of material fact as to whether [the dog] attacked the police," Resp. 20, ECF No. 39, the Court notes that there is no evidence to support the assertion that Warunek was an eyewitness to the shooting. And because Warunek was not interviewed or deposed in the instant matter, the Court finds Preston's argument unpersuasive. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) ("If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted.").
At 8:04 a.m., ACO Massey arrived on the scene. Car 607 Video, ECF No. 33-11. He saw the dog laying under the bushes with bullet holes in its face and stomach, and its intestines dangling from a hole in its side. Massey Dep. 39, ECF No. 40-5. Sergeant Reiss approached ACO Massey and said, "This thing has been hit four times, if not five, and it's still alive. It's in the corner and I don't want to take another shot at it while it's in the corner. Can you . . . just choke it out?" ACO Massey declined. Car 607 Audio, ECF No. 33-11; Massey Dep. 51, ECF No. 40-5. He retrieved a snare and a net from his truck and approached the dog. Car 65 Video, ECF No. 33-9. One of the officers suggested that ACO Massey "use the fuckin' shovel" on the dog. Car 607 Audio, ECF No. 33-11. ACO Massey placed the snare around the dog's neck, walked the dog to the animal control truck, and lifted it into the truck using a control stick. Massey Dep. 55, 71, ECF No 40-5; Car 65 Video, ECF No. 33-9. ACO Massey briefly helped the officers locate the gunshot casings that were discharged on the lawn during the shooting and walked over to speak with a nearby witness. The police officers left the scene soon thereafter. Car 607 Video, ECF No. 33-11.
ACO Massey remained on the scene and at some point, he claims that he checked on the dog and saw that it was "laying in there bleeding profusely filling the box with blood, just about done." Massey Dep. 43, ECF No. 40-5. Soon thereafter, he heard a "thud" in the back of the truck and believed "that's when the dog had expired." Id. at 81. ACO Massey claims that he remained at the scene until 9:21 a.m. in order to "find out who owns this dog and what's going to be done with this dog," but did not speak with Warunek because the police told ACO Massey that Warunek "denied ownership of the dog." Id. at 100-01. Around 9:30 a.m., ACO Massey claims that he "went to the [police] station and . . . [p]ut the dog in a contractor bag and placed him in a freezer." Id. at 107.
STANDARD OF REVIEW
Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over material facts is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court must take care, in evaluating the motion, not to make judgments on the quality of the evidence, because the purpose of summary judgment is to determine whether a triable claim exists. Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998) ("[W]eigh[ing] the evidence . . . is never appropriate at the summary judgment stage.").
DISCUSSION
Preston alleges that (1) the actions of Officer Jacquemain, Officer Moskwa, and ACO Massey were objectively unreasonable such that Preston's civil rights were violated under 42 U.S.C. § 1983; (2) the City is liable for "delegating full authority and/or empower[ing] the individual Defendants," and failing to "properly hire, train, supervise, control and/or discipline the individual Defendants with respect to dogs" such as Preston's dog; (3) the City is liable for the individual Defendants' actions under the theory of respondeat superior; (4) Defendants' killing of the dog constituted conversion as a "distinct act of dominion wrongfully exerted over [Preston's] dog"; and (5) Defendants' conduct was "extreme and outrageous," and "intentional or reckless," causing Preston "severe emotional distress." Compl. 12-23, ECF No. 1.
I. Preston's § 1983 claims
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff "must establish that a person acting under color of state law deprived the plaintiff of a right secured by the Constitution or laws of the United States." Waters v. City of Morristown, TN, 242 F.3d 353, 358-59 (6th Cir. 2001). At the summary judgment stage, the doctrine of qualified immunity shields state officials from liability for civil damages unless a plaintiff can present sufficient evidence to create a genuine dispute of material fact as to whether (1) the defendant violated a constitutional right (2) that was clearly established to the extent that a reasonable person in the defendant's position would know that the conduct complained of was unlawful. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]" U.S. Const. amend. IV. A seizure of property occurs when "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 124-25 (1984). Within the meaning of the Fourth Amendment, a dog is an "effect" and "[t]he killing of a dog is a destruction recognized as a seizure." San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005) (quotation omitted) ("San Jose"). Shooting and severely injuring a dog constitutes meaningful interference, as well. Bateman v. Driggett, No. 11-13142, 2012 WL 2564839, at *7 (E.D. Mich. July 2, 2012).
See also Stephenson v. McClelland, No. 15-20182, 2015 WL 8017426, at *6 (5th Cir. Dec. 4, 2015); Brown v. Muhlenberg Twp., 269 F.3d 205, 209-10 (3d Cir. 2001); Lesher v. Reed, 12 F.3d 148, 150-51 (8th Cir. 1994); Altman v. City of High Point, N.C., 330 F.3d 194, 203 (4th Cir. 2003).
In determining whether a seizure is objectively reasonable, courts must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake" by analyzing the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989). Such analysis is done "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," allowing for "the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). The "subjective motivations of the individual officers . . . ha[ve] no bearing on whether a particular seizure is 'unreasonable.'" Graham, 490 U.S. at 397. Simply put, "[t]he task of [the Court] is to put itself into the shoes of the officers at the time the actions took place and to ask whether the actions taken by the officers were objectively unreasonable." Altman v. City of High Point, N.C., 330 F.3d 194, 205 (4th Cir. 2003).
A. Officers Jacquemain and Moskwa
Courts consider several factors when balancing the intrusion on Fourth Amendment interests against the government's interests at stake in a dog shooting case. The relationship between owners and their pets is often very strong. But generally "[w]hen a dog leaves the control of his owner and runs at large in a public space, the government interest in controlling the animal and preventing [harm to citizens] waxes dramatically, while the private interest correspondingly wanes." Altman, 330 F.3d at 205. An "unleashed, uncontrolled, and unsupervised . . . dog ceases to become simply a personal effect and takes on the nature of a public nuisance." Id. at 206. Police officers have a significant interest in protecting citizens—especially children—and themselves from such dogs, and an unreasonable seizure does not occur when officers kill a dog that posed an imminent threat. Dziekan v. Gaynor, 376 F. Supp. 2d 267, 271 (D. Conn. 2005).
It is clear in the present case that the officers' interests outweighed Preston's interests. By itself, the fact that an exceedingly aggressive dog charged at a police officer is outcome dispositive. Additional facts that support a finding of reasonableness include: the dog was part Pit Bull (a notoriously dangerous breed of dog); the dog was freely roaming the streets for several hours unrestrained and without an owner looking on; the dog evaded a police officer's attempts to corral it earlier in the morning; the dog remained unrestrained and aggressive—barking, growling, and pacing—at a time that children typically walk to school; and the dog charged at a resident whose 911 call dispatched the officers to the scene. A reasonable officer would consider these facts as part of his overall assessment of the situation and his specific decisions about how to contain an agitated dog, including the decision to contain it using lethal force, if necessary.
It is clear that an attacking dog can pose a serious threat to the safety of police officers and the safety of the public, in general. A cursory glance at recent local news yields several examples of dogs committing violent acts, and it would be inappropriate for the Court to find that a police officer who acted in self-defense against an attacking dog committed an unreasonable act. See Sarah Jorgensen, Pitbull Owner Faces Murder Charge After Fatal Dog Mauling of 4-Year-Old, CNN, Dec. 7, 2015, http://www.cnn.com/ 2015/12/07/us/michigan-boy-mauled-death-pitbulls/; Danielle Salisbury, Man Attacked By His Pit Bull Mix, Had Severe Facial, Head Injuries, Police Report, MLIVE, Nov. 28, 2015, http://www.mlive.com/news/jackson/index.ssf/2015/11/man_attacked_by_his_pit_bull_m.html; Tom Greenwood, Port Huron Woman Fatally Mauled By Pit Bulls, THE DETROIT NEWS, Dec. 4, 2015, http://www.detroitnews.com/story/news/local/michigan/2015/12/04/port-huron-woman-fatally-mauled-pit-bulls/76775786/.
See Altman, 330 F.3d at 206 ("[P]it bulls . . . are a dangerous breed of dog.); Warboys v. Proulx, 303 F. Supp. 2d 111, 118 (D. Conn. 2004) ("The fact that the approaching dog was a pit bull is another factor that supports the court's conclusion that it was objectively reasonable for [the officer] to have responded to the situation as he did."); Vanater v. Vill. of S. Point, 717 F. Supp. 1236, 1241 (S.D. Ohio 1989) ("[G]iven the . . . latency of [a Pit Bull's] aggressiveness and gameness, the Pit Bull poses a danger distinct from other breeds of dogs which do not so uniformly share those traits.").
On several occasions, Officers Jacquemain and Moskwa considered their fear that the dog would run loose and attack children as part of their assessment, and Officer Jacquemain later stated that he "saw two kids across the street." Jacquemain Dep. 123, ECF No. 40-3.
Preston relies almost entirely on the Ninth Circuit's decision in San Jose and argues that the police should have used alternative means to handle the dog or just "stood and waited for the animal control officer" to arrive. Resp. 6, ECF No. 40. San Jose would apply here if the dog had been controlled or contained on the property, the officers failed to develop a realistic non-lethal plan for dealing with the dog, and the officers never faced an exigent circumstance that necessitated the use of lethal force. 402 F.3d 962 (9th Cir. 2005). But in fact the officers (1) perceived a dangerous threat to the neighborhood because the dog had been running freely, was acting very aggressively, and had attacked a civilian; (2) primarily considered non-lethal force—a taser, a snare, and persuading Warunek to bring the dog inside—to nullify the threat; and (3) had to make a snap decision when the dog charged at them.
Preston also relies heavily on Officer Moskwa's comments about shooting the dog. While Officer Moskwa's comments may be considered cavalier, reckless, and unbecoming of a city police officer, Preston's reliance on them is unavailing. Subjective considerations of such comments are irrelevant as a matter of law: "An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force," Graham, 490 U.S. at 397, and the Defendants' qualified immunity defense "may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated." Crawford-El v. Britton, 523 U.S. 574, 588 (1998).
In her response, Preston disputes the fact that the dog "attacked or charged the police officer[s]," Resp. 12, ECF No. 39, citing Officer Moskwa's deposition testimony that the dog was bouncing towards Officer Jacquemain, but that he did not see the dog "running full charge" at Officer Jacquemain. Moskwa Dep. 71, ECF No. 40-2. He also described the dog as having "lunged" toward Officer Jacquemain. Id. at 73. The semantic difference of the dog's actions being categorized as "charging" (as described by Officer Jacquemain and the eyewitnesses) or "lunging" (as described by Officer Moskwa) has no effect on the Court's finding of reasonableness. An aggressive mixed breed Pit Bull attacked a police officer, justifying the use of deadly force. --------
Instead of San Jose, the Fourth Circuit's reasoning in Altman applies because there, as here, the dog was a dangerous breed, was running at large without an owner looking on, took aggressive actions that prompted a 911 call, and attacked an officer (in the "Frye Incident"). 330 F.3d 194 (4th Cir. 2003). In its calculus of reasonableness, the Court cannot ignore the obvious conclusion that by charging at the officers, the dog created an exigent circumstance justifying lethal force. Indeed, had the dog not charged at the officers, it is likely that the officers' plan for Warunek to let the dog in the house would have succeeded. Considering all the facts and the applicable law, the Court finds that the actions of Officers Jacquemain and Moskwa did not constitute an unreasonable seizure.
B. ACO Massey
ACO Massey argues that Preston's § 1983 claims against him are barred by qualified immunity because he played no part in the police officers' actions that fatally injured the dog, and Preston's claims rest entirely on the conclusory allegation that ACO Massey shot the dog after he took it into his custody. Mot. Summ. J., ECF No. 31. Preston argues that ACO Massey's actions constituted an objectively unreasonable seizure by remaining on the scene for 72 minutes after placing the mortally wounded dog in the animal control truck and generally "fail[ing] to timely seek or obtain medical care." Compl. 15, ECF No. 1. In revisiting the balance between Preston's interests and the government's interests, the Court finds that Preston had less of an interest because by the time ACO Massey arrived, the dog was mortally wounded and sure to die.
While ACO Massey claims that he remained on the scene to ascertain the identity of the dog's owner, it is unclear why he made no effort to speak with Warunek, who was the only confirmed resident of the house in front of which the dog was shot. Nevertheless, the facts—even when construed in a light most favorable to Preston—support a finding that ACO Massey acted reasonably. First, when ACO Massey arrived on the scene, the dog had sustained at least four close range gunshots and was nearly dead. Second, the officers immediately informed ACO Massey about the shots and that the dog had somehow survived the encounter. Third, because of the dog's serious injuries, the officers suggested that ACO Massey euthanize the dog. Fourth, ACO Massey observed the dog laying on the ground with thumb-sized holes in its jaw and mid section, and six to ten inches of intestine hanging out of a hole on its side. Fifth, ACO Massey checked on the dog and saw that it was "laying in there bleeding profusely filling the box with blood, just about done," Massey Dep. 43, ECF No. 40-5. And sixth, ACO Massey heard a "thud" in the back of the truck and believed "that's when the dog had expired." Id. at 81.
The Court finds that a reasonable animal control officer would consider these facts as part of his overall assessment of the situation and his specific decisions about how to handle such a mortally wounded dog, including the decision to remain on the scene to contact the owner instead of immediately transporting the dog to the nearest care facility. Here, there is no evidence whatsoever that rushing the dog to a care facility would have saved the dog's life. Accordingly, the Court finds that ACO Massey did not act unreasonably in the instant matter, and is entitled to qualified immunity as a result.
Even if the Court were to find that ACO Massey acted unreasonably, Preston has not presented sufficient evidence to create a genuine dispute of material fact as to whether her right was clearly established to the extent that a reasonable person in ACO Massey's position would know that the conduct complained of was unlawful. Saucier, 533 U.S. at 201-02. A right is "clearly established" when "the contours of the right are sufficiently clear, even if the specific action in question has never been held unlawful." Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006). Generally, the inquiry "acknowledge[s] that reasonable mistakes can be made as to the legal constraints on particular" conduct, and "[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the [instant] factual situation." Saucier, 533 U.S. at 205. It is possible that "[a]n officer may correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular" course of action is legal in those circumstances. Id. If the "officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense." Id. Put simply, qualified immunity "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotation marks and citation omitted).
While ACO Massey may have mistakenly believed that the dog was mere moments away from death when he arrived and the most merciful thing to do was to let it die in peace in the back of the animal control truck, the Court finds that it was a reasonable mistake, and ACO Massey was not "plainly incompetent" in making it. It was not clearly established that an animal control officer must take a mortally wounded animal to a clinic, as opposed to letting it die on the scene. There is simply not enough case law on point for the Court to find that Preston's rights to the possession of a mortally wounded dog were "clearly established" when ACO Massey arrived. Indeed, most related § 1983 cases involve the shooting deaths of dogs that died at the scene, and not in the custody of animal control officers afterwards. And even viewing all the facts in a light most favorable to Preston, the alleged violation was not "sufficiently obvious under general constitutional standards." Lustig v. Mondeau, 211 F. App'x 364, 371 (6th Cir. 2006). In sum, the Court finds that Preston's right was not "clearly established," and ACO Massey is entitled to qualified immunity.
In a final attempt to bolster her allegations against ACO Massey, Preston makes much of an independent necropsy performed on the dog by veterinarian Dr. Deborah Burkholder ("Burkholder") on November 29, 2013. Burkholder Aff., ECF No. 40-6. Preston claims that the existence of several more bullet holes in the dog's body—the causes of which are unaccounted for—show that the dog "was shot four more times after Defendant Massey took custody" of the dog. Resp. 2, ECF No. 40; Compl. 9-10, ECF No. 1. Preston asserts that such circumstantial evidence is sufficient "to establish a genuine issue of material fact." Id. at 18. The Court disagrees.
"In order to survive a motion for summary judgment, the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy." Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004) (quotation and quotation marks omitted). "Evidence which presents no more than a choice of probabilities is not deemed substantial enough to warrant the submission of a case to the jury." Dayton Veneer & Lumber Mills v. Cincinnati, N.O. & T.P. Ry. Co., 132 F.2d 222, 223 (6th Cir. 1942).
ACO Massey persuasively argues that in substantiating her claim, Preston faces two insurmountable hurdles. First, by Burkholder's own admission, the report was seriously flawed. Despite signing an affidavit on August 14, 2015 stating that she "was a licensed veterinarian" and "had training sufficient to perform" the necropsy, Burkholder admitted in a letter to her insurance carrier that she "do[es] not have any special training in 'ballistics' and ha[s] never done this type of necropsy before, but I thought it would be an interesting challenge." Letter, ECF No. 42-2. In an e-mail with the person who directed Preston to Burkholder for the necropsy, Burkholder stated the following:
[A]lthough we counted the number of holes and speculated about the number of shots (I stress "speculated"), it is possible that we were not able to determine accurate entrance and exit wounds, etc. that one bullet could have caused more holes . . . than was at first apparent. [T]here could have been bullets richochetting [sic] off things to maybe imply that more shots were fired. It is almost impossible to know without knowing the angles. In my opinion, I would not press the issue too much about the number of shots."E-mail, ECF No. 42-4.
Second, even if Burkholder's report were credible, Preston has presented no evidence that ACO Massey caused the extra bullet holes. Reply 4-5, ECF No. 42. Specifically, there is no evidence that ACO Massey possessed a gun at any time on the day of the incident, no witnesses claiming they saw or heard him use or possess a gun, and no specific allegations as to when and where the shots were fired to cause the alleged additional bullet holes. Reply 4-5, ECF No. 42. In sum, the Court finds that Burkholder's report is unpersuasive, and that ACO Massey's alleged liability is improperly "predicated upon mere conjecture or speculation as to the proximate cause of damage." Dayton Veneer, 132 F.2d at 223. Accordingly, the Court will grant ACO Massey's motion for summary judgment.
C. The City
Because the Court finds that Preston's constitutional rights were not violated, Preston's claims of municipal liability and respondeat superior against the City necessarily fail. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 900 (6th Cir. 2004) ("A municipality or county cannot be liable under § 1983 absent an underlying constitutional violation by its officers."). Accordingly, Preston's § 1983 claims are barred by qualified immunity.
II. Preston's State Law Claims
Preston also brings state law claims of conversion and intentional infliction of emotional distress against all Defendants. The Court will address both of Preston's arguments in turn.
A. Conversion
"Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein." Thoma v. Tracy Motor Sales, Inc., 360 Mich. 434, 438 (1960). Liability does not arise, however, "if the actor is privileged to dispose of the chattel." Id. In the instant case, Preston admitted that she had not properly licensed the dog, Preston Dep. 41-42, ECF No. 31-2, and the officers were privileged to dispose of the dog in accordance with their duty to enforce the State laws and City ordinances regarding pet licensing. See M.C.L. §§ 287.266, 287.268; St. Clair Shores Ord. Ch. 19 §§ 2, 3, 8, 10A, 15, 18, 19-21. Accordingly, the Court finds that the Defendants were privileged to dispose of the dog, and Preston's claim necessarily fails.
B. Intentional Infliction of Emotional Distress
A prima facie case of intentional infliction of emotional distress ("IIED") requires four elements: "(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress." Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602 (1985) (quotation marks omitted). "Pets have long been considered personal property in Michigan jurisprudence," and "[t]here is no Michigan precedent that permits the recovery of damages for emotional injuries allegedly suffered as a consequence of property damage." Koester v. VCA Animal Hosp., 244 Mich. App. 173, 176, (2000). Accordingly, the Court will grant summary judgment to the Defendants on Preston's IIED claim.
CONCLUSION
Any pet lover would understand why Preston was upset by the events in the case. But as a legal matter, five witnesses, including three neighbors, gave uncontradicted testimony that the police officers only shot the dog after it attacked one of the officers. The Constitution simply does not require that a police officer allow himself to be hurt by a vicious dog that was left outside to freely roam the neighborhood. Accordingly, the Court will grant Defendants' motions for summary judgment and dismiss Preston's claims with prejudice.
ORDER
WHEREFORE, it is hereby ORDERED that Defendant Massey's Motion for Summary Judgment and/or to Dismiss (document no. 31) and Defendants Moskwa, Jacquemain, and the City's Motion for Summary Judgment (document no. 32) are GRANTED.
IT IS FURTHER ORDERED that the case is DISMISSED WITH PREJUDICE.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge Dated: December 31, 2015 I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on December 31, 2015, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager