Holz v. City of Sterling Heights

465 F.Supp.2d 758

Clinton James HOLZ, Plaintiff, v. CITY OF STERLING HEIGHTS, Jamie Dubay, John Beaupre, Brandon Pluger, and James Wood, Defendants.

No. 05-74259.

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

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

E. Donald Gurwin, Southfield, MI, for Plaintiff.

G. Gus Morris, Kupelian, Ormond, Southfield, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LAWSON, District Judge.

The plaintiff, Clinton James Holz, has filed an amended complaint in this Court alleging that his constitutional rights were violated when Sterling Heights City police officers arrested and maliciously prosecuted him for drunken driving. Holz admittedly was driving a motor vehicle, and chemical tests showed unequivocally that he was intoxicated. But Holz contended that he was not operating his pickup truck in a place that was open to the public or generally accessible to motor vehicles, which is an element of the crime under Michigan law. A state court jury agreed with him and found him not guilty. However, the Court finds in this case that the undisputed facts demonstrate that the police officers had probable cause to arrest the plaintiff, his prosecution likewise was supported by probable cause, his constitutional rights were not abridged throughout the state court proceedings, and the individual defendants did not conspire to deprive him of those rights in violation of federal law. Therefore, the Court will grant the defendants' motion for summary judgment and dismiss the case.

I.

The events in this case occurred in November 2003 at a condominium construction site in the City of Sterling Heights, Michigan. The plaintiff was working there as a night watchman for his father, who was developing the property for condominiums known as Plumbrook Greens Townhouses. Some of the units were completed, and according to the amended complaint, the project was in its "final phase." Amend. Compl. at ¶ 25. The plaintiffs father testified at the criminal trial that there were construction barrels and signs indicating the area where the plaintiff was driving was a construction zone. Although the plaintiff alleges that the area was hazardous and subject to occupational safety regulations, see Amend. Comp. at ¶ 20, he admits he drank "some beers" while working at the construction site and driving his pickup truck on his inspection tours. Am. Compl. at ¶ 15.

The plaintiff testified that the roads throughout the development were paved, but dirt from the construction area was pushed out onto the road surface obscuring the pavement in the area still under construction because the construction crew was digging basements in the daytime. There were residents living in the townhouses on the south side of the project. The site was located near the corner of Schoenherr and Utica Roads, both of which are major thoroughfares in the area. Residents entering the development would drive into the common entrance off Schoenherr Road on an entry road that split in two directions. The residents would turn south (left) to travel to their buildings; the last phase under development was on a road that led to the north (requiring a right turn).

Shortly after midnight on November 14, 2003, defendant Jamie Dubay, an officer with the Sterling Heights Police Department observed the plaintiff driving a Ford pickup truck in the construction area in manner he described as erratic. The plaintiff was driving over piles of dirt in the area under development causing the truck's headlights to bounce up and down, which attracted Dubay's attention. Officer Dubay testified that he saw the plaintiff exit the construction area and drive toward Schoenherr Road on a paved road within the site. Dubay turned onto the entrance road, flashed his spot light, and stopped the plaintiffs truck. Dubay said that the plaintiff emitted a strong odor of alcohol and admitted he had consumed eight beers. The plaintiff testified that he had been drinking but claimed not to know how many beers he had, although it was at least four.

Both the plaintiff and Dubay identified the location of the traffic stop on a construction site map that was received in evidence at the criminal trial. Dubay fixed the location at the point where the entrance road split into its north and south branches, as shown by the "X" on the trial exhibit reproduced below:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At his deposition, the plaintiff identified the identical location on a similar site map that was marked as a deposition exhibit reproduced here:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defs.' Mot. Summ. J. Ex. B, C. Holz Dep. Exhibit A.

Officer Dubay contacted his dispatcher, and defendants Beaupre, Wood, and Pluger, also police officers, were sent to the scene for back up. While he was waiting for the other officers, Officer Dubay administered several field sobriety tests to the plaintiff. Dubay testified at the preliminary examination that the plaintiff failed the sobriety tests. By this point Officers Beaupre, Wood, and Pluger had arrived.

Officer Dubay wrote in his police report that officers Beaupre and Wood "assisted at scene, witnessed sobriety exercises." Defs.' Mot. Summ. J. Ex. G, Person/Witness List. Apparently this is not entirely true as Beaupre and Wood did not actually witness the sobriety exercises. Officer Dubay testified at his deposition as follows:

A. I wasn't sure what they witnessed. I was going through my sobriety exercises. I don't know when they pulled up. He was not in custody yet. I don't know if they pulled up after I was finished with my sobrieties or while I was in the process of doing them. I don't remember.

Q. Aren't these reports supposed to be accurate?

A. You're talking about two-and-a-half years ago, I can't remember these things.

Q. Well, why didn't you ask them whether they witnessed them?

A. Because either way they probably would have not been able to testify to what they weren't paying attention to. They were there to assist me, they weren't there to witness sobriety exercises. It was my case, it wasn't theirs.

Q. So, that's your reason?

A. Reason for what?

Q. What was your reason for putting them down when you didn't know?

A. Because they assisted me at the scene.

Defs.' Mot. Summ. J. Ex. A, Dubay Dep. at 17-18.

Officer Pluger gave the plaintiff a preliminary breath test (PBT), and the plaintiff registered .17 grams of alcohol per 210 liters of breath. Officer Pluger described the procedure at his deposition as follows:

When I arrived, I got the PBT out of my car, went up to where Jamie [Dubay] was at, he was at the back of his patrol car, advised Mr. Holz I was a police officer, I was requesting him to take a preliminary breath test to do so as a result of a civil infraction and $100 fine. He had no objections to taking it, he took the PBT. I believe the results were.17.

Defs.' Mot. Summ. J. Ex. F, Pluger Dep. at 6-7. The plaintiffs testimony appears to agree with that of Officer Pluger regarding the PBT:

Q. All right, were you read PBT rights?

A. I don't recall.

Q. Did you blow into a PBT?

A. Yes, I did.

Q. Did you see the results?

A. I was told the result. No.

Q. Were you told what the result was?

A. Yes.

Q. What were you told?

A. I forgot. It's—

Q. If I said it was .17, would that refresh your memory?

A. Yes, that would be approximate, .18, .17.

Defs.' Mot. Summ. J. Ex. B, C. Holz Dep. at 111-12.

Dubay then performed a computer-assisted record check and discovered that the plaintiff had two prior drunken driving convictions. Since under Michigan law a third offense elevates the crime from misdemeanor to felony, the plaintiff was arrested for felony drunken driving.

Apparently some of the police cars in Sterling Heights are equipped with video cameras. Officer Pluger was the only one with a video camera in his police car that morning; however Pluger says that his camera did not permanently record any of these events. Pluger testified that he was only called to the scene because he had a PBT device. The video from Pluger's car was destroyed at the end of his shift. Pluger explained:

A. I didn't see any evidentiary value. I didn't observe him driving. I didn't observe the sobriety test. As far as I'm concerned alls [sic] it would have showed [sic] is me pulling up behind another patrol car. I didn't see any evidentiary value so I didn't feel it was necessary and Officer Dubay did not request it of me.

PL's Am. Resp. Ex. F, Pluger Dep. at 10.

The plaintiff was transported to the Sterling Heights police station, where he was administered two breathalyzer tests on a Datamaster machine. The results were .19 and .18 grams of alcohol per 210 liters of breath. Officer Dubay filled out a warrant request, and the Macomb County prosecutor's officer filed a felony complaint.

A preliminary examination was held in accordance with Michigan law. Officer Dubay described the location of the arrest and the plaintiffs driving in his court testimony:

A. It happened at a construction site at Utica and Schoenherr. Um, exact time, I'd have to look at the report.

Q. Okay. Could you describe the— what the construction site was?

A. It was the condominium complex that was goin' up on the southwest corner. Um, the condos weren't up at the time; it was dirt piles, and it had the paved road leading out to Schoenherr.

Q. And was that open to general traffic on—off of Schoenherr?

A. Yes.

Q. Okay.

...

[cross] Q. Officer, you testified that you observed him driving on the construction site. Was he in—was the area where he was driving was it completely under construction?

A. No. The, the drive was clear; anyone could go back in there. There was no, there was no houses or condos put up in that area at all; it was just dirt and mounds of dirt on the side of the paved roadway.

Q. And he was driving on the dirt at the time...