Brown-Mosby v. Gadwell

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TERRELL KENNETH BROWN-MOSBY, Plaintiff, v. CITY OF DETROIT, BRIAN GADWELL, and STEVEN RAUSER, Defendants.

No. 4:22-cv-10336

United States District Court, E.D. Michigan, Southern Division

July 31, 2023

F. Kay Behm District Judge

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION TO GRANT DEFENDANTS GADWELL AND RAUSER'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 19)

ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION: The Court should GRANT Defendants Gadwell and Rauser's motion for summary judgment (ECF No. 19) and dismiss this matter.

II. REPORT

A. Background

On October 23, 2018, Terrell Kenneth Brown was paroled in a matter unrelated to the case at bar. (ECF No. 19-3 PageID.156-157.) This lawsuit stems from the alleged events of March 4, 2019, at which point he was still on parole. (ECF No. 19-7, PageID.182-183, 189; see also ECF No. 19-3, PageID.112.) It is not in dispute that, on that date, Detroit Police Officers Brian Gadwell and Steven Rauser pursued Brown-Mosby, and he was arrested. (ECF No. 1, ¶¶ 9, 30, 33; ECF No. 19, PageID.79-80.)^[1]

Brown-Mosby was charged with several crimes, including, inter alia, fleeing a police officer (second degree), unlawful driving away, and assaulting / resisting / obstructing a police officer. See Case No. 19-002344-01-FC (Wayne County). (ECF No. 19-6, PageID.173-174.) On August 22, 2019, at which time he still appears to have been on parole, he pleaded guilty to one count of police officer fleeing second degree. (Id., PageID.163-172.) On September 9, 2019, he was sentenced to prison. (Id., PageID.174.)

B. Instant Lawsuit

On February 3, 2022, while located at the Michigan Department of Corrections (MDOC) Muskegon Correctional Facility (MCF), Brown-Mosby initiated this lawsuit in pro per against the City of Detroit, Gadwell, and Rauser. (ECF No. 1.) Brown-Mosby's causes of action include: (1) failure to intervene and use of excessive force pursuant to 42 U.S.C. §§ 1983, 1985; (2) municipal liability against City of Detroit pursuant to 42 U.S.C. § 1983; (3) assault and battery under state law; (4) gross negligence under Mich. Comp. Laws § 691.1407; and, (5) intentional infliction of emotional distress under state law. (ECF No. 1, PageID.4-13 ¶¶ 18-45.)

On April 26, 2022, this Court entered an order dismissing the City of Detroit. (ECF No. 13.) Accordingly, only Counts I, III, IV, and V remain.

C. Instant Motion

Judge Behm has referred this case to me for pretrial matters. (ECF No. 21.) Currently before the Court is Defendants Gadwell and Rauser's December 20, 2022 motion for summary judgment (ECF No. 19), as to which Plaintiff's response was due initially on or about January 10, 2023. E.D. Mich. LR 7.1(e)(2)(A).

On January 26, 2023, noting that Plaintiff had yet to file a response, the Court entered an order requiring Plaintiff “to show cause no later than February 16, 2023 for why summary judgment should not be granted pursuant to the justification set forth in the summary judgment motion.” (ECF No. 20.) The order further explained: “If Plaintiff fails to timely show cause, the Court will consider the motion for summary judgment without his response. And if the Court finds that summary judgment is proper, the Court may grant summary judgment and dismiss the case.” (Id.)

Plaintiff filed a motion for enlargement of time within which to file a response, due to the “unavailability of legal assistance at his present place of incarceration” and “delay in obtaining photocopies ....” (ECF No. 22.)^[2] On February 23, 2023, I entered a text-only order granting the motion in part, discharging the earlier show cause order, extending the response deadline to April 10, 2023, and expressly stating, “Plaintiff will receive no further extensions as to this motion.” (ECF No. 23.) A copy of this order was served upon Plaintiff at Bellamy Creek Correctional Facility (IBC), and there is no indication on the docket that it was returned as undelivered.

To date, Plaintiff has not filed a response. Thus, Gadwell and Rauser's motion for summary judgment is unopposed. Nonetheless, “a district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded.” Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991). “The Court is required, at a minimum, to examine the movant's motion for summary judgment to ensure that he has discharged that burden.” Id.

D. Plaintiff's contact information

Shortly after the Court granted Plaintiff's application to proceed in forma pauperis and directed service of process by the U.S. Marshal (ECF Nos. 4, 5, 6), the Clerk of the Court issued a notice regarding parties' responsibility to notify the Court of address changes (ECF No. 7). Plaintiff heeded this directive on October 14, 2022, when he informed the Court of his transfer to IBC (ECF No. 16), and IBC appears to have been the correct address through at least mid-February 2023 (ECF No. 22).^[3]

E. Standard

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment 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 if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (internal citations omitted).

“The moving party has the initial burden of proving that no genuine issue of material fact exists ....” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56 (e)(2) (providing that if a party “fails to properly address another party's assertion of fact,” then the court may “consider the fact undisputed for the purposes of the motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must “make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009). To survive summary judgment, one “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. See also Metro. Gov't of Nashville & Davidson Cnty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts .... [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.”) (internal quotation marks and citations omitted). Moreover, “the mere existence of a scintilla of evidence that supports the nonmoving party's claims is insufficient to defeat summary judgment.” Pack v. Damon Corp., 434 F.3d 810, 814 (6^th Cir. 2006) (internal quotations and citations omitted) .

Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when “a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case....” Stansberry, 651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

F. Discussion

1. Plaintiff's factual allegations concern his March 4, 2019 arrest.

Preliminarily, in their motion, Gadwell and Rauser describe a “dangerous vehicular chase” followed by a “foot chase.” (ECF No. 19, PageID.86.) Notably, Plaintiff's factual allegations begin at the point of the “on foot” pursuit.

According to Brown-Mosby, Detroit Police Officers Gadwell and Rauser “pursued [him] on foot before tackling [him] to the ground.” (ECF No. 1, ¶ 9.) Plaintiff also alleges that, despite him “offering no resistance after being tackled,” Gadwell “struck Plaintiff in the head multiple times with his City of Detroit issued weapon[,]” and Rauser “deployed his City of Detroit issued taser into Plaintiff's back at close range.” (Id., ¶¶ 10-11.) Plaintiff further alleges Gadwell and Rauser “wrote false police reports about the excessive use of force.” (Id., ¶¶ 12.)

Plaintiff alleges that Gadwell and Rauser “acted in bad faith in exerting excessive force upon Plaintiff[,]” and:

a. Exerted excessive force upon Plaintiff in violation of his 4th Amendment rights;

b. Failed to intervene to stop the wrongful conduct of another officer;

c. Was grossly negligent, and made Plaintiffs condition worse after taking him into their custody and control; and,

d. Intentionally caused serious emotional distress[.]

(ECF No. 1, PageID.¶¶ 14, 16.) These assertions align with Counts I, III, IV, and V.

2. Count I

Plaintiff's first cause of action is based on 42 U.S.C. §§ 1983, 1985 and alleges the “individual police defendants” - i.e., Gadwell and Rauser - were acting “in their individual capacities,” “under color of state law[,]” “fail[ed] to intervene,” and violated his “right to be free from the use of excessive force (4^th and 14^th Amendment)[.]” (ECF No. 1, ¶¶ 19-20.) Plaintiff alleges the direct and proximate result of Gadwell and Rauser's actions was “injury and damages ....” (Id., ¶ 21.)

a Fourth Amendment, reasonableness of force, & ...