Schreiber v. Moe

445 F.Supp.2d 799

James Warren SCHREIBER, Plaintiff, v. William MOE, Officer, and City of Grand Rapids, Defendants.

No. 1:05-CV-91.

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

August 10, 2006.

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Anthony C. Greene, Grand Rapids, MI, for Plaintiff.

Janice F. Bailey, Grand Rapids, MI, for Defendants.

OPINION

ROBERT HOLMES BELL, Chief Judge.

Plaintiff James Warren Schreiber brought this civil rights action pursuant to 42 U.S.C. § 1983 after Defendant, Officer William Moe of the Grand Rapids Police Department, came to Schreiber's home in response to a 911 call and, after an altercation, arrested him. Schreiber argues that Officer Moe violated his Fourth Amendment rights by unlawfully entering his home, arresting him, and using excessive force to effectuate the arrest. Schreiber also alleges that. Defendant City of Grand Rapids ("the City") violated his constitutional rights by maintaining a policy that caused the alleged Fourth Amendment violations. Before the Court is Defendants' motion for summary judgment on Schreiber's claims. Because Schreiber is unable to demonstrate that a constitutional violation occurred, because his false arrest, illegal imprisonment, and excessive force claims are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and because Schreiber has failed to offer any evidence supporting his claim against the City, the Court grants in part Defendants' motion for summary judgment. However, because a minor portion of Schreiber's excessive force claim is not barred by Heck and because qualified immunity does not apply to that portion of the claim, the Court denies in part Defendants' motion for summary judgment.

I.

On November 1, 2002 at approximately 3:39 p.m., the Grand Rapids Police Department emergency communications center received a 911 call from an anonymous caller reporting a domestic dispute between Schreiber and his 15-year-old daughter, Sarah. The following exchange took place between the caller and the 911 dispatch operator:

Operator: Emergency.

Caller: Um, there's a possible problem of a neglect case, a neglect case going on at 2050 Bayou Court.

O: What? There's what?

C: A neglect case in the house.

O: Have you called Child Protective Services?

C: It's going on right now.

O: Okay. At what address?

C: 2050 Bayou Court.

....

O: And how do you know this?

C: Because the girl called me and told me and then her dad took the phone away from her and hung up.

O: Told you what?

C: I could hear her screaming and her dad took the phone away from her and hung up, and I called her back and she was screaming when somebody answered the phone.

O: So because the mad (sic) at her for talking to you on the phone

C: No. No. I don't know why he's mad at her, but she is screaming and hollering.

O: And what is your name?

C: I would like to remain anonymous.

O: Well, you're sending us to talk to somebody, to see about somebody supposedly across on the other side of town, who is supposed to be assaulting their child.

C: But if you guys don't check and something does happen to her, then I did call you guys.

[The operator then attempted to identify the caller based upon the address from which the call originated. The caller denied that he was the person the operator identified.]

O: You were talking to—what's her name?

C: Sarah.

....

O: Yes. How old is Sarah?

C: She is 16, I think; 15.

O: And the phone was disconnected?

C: Yes.

O: And this was after her father was yelling at her?

C: Yeah, and her mother, and she was screaming like these [expletive]—I don't know, as if her life dependent (sic) on it. She was screaming that loud on the phone.

O: And then you called back and what happened?

C: She was screaming and then her dad hung up the phone on me. I could hear her screaming in the background. I just want to make sure nothing is going to happen to her. That's all I want to make sure. If something does happen and you guys don't go out there, then you know, I did call.

....

O: All right. We will see what's going on.

Exhibit B, Nov. 1, 2002 Dispatch Transcript at 1-4. The dispatch operator labeled the incident a "Priority 2." The Grand Rapids Police Department Manual of Procedures provides that a Priority 2 call involves the potential for physical harm against a person present at the scene. At approximately 3:46 p.m., Officer Moe was dispatched to the Schreiber's home to check on the situation. While enroute he received a message from the dispatch operator explaining that it was a Priority 2 call involving the welfare of a 15-year-old girl and that an anonymous caller "thinks she is getting beat." Exhibit D.

Schreiber does not dispute that, prior to Officer Moe's arrival, he and his daughter were involved in a "heated" discussion. Schreiber Dep. at 17. The argument was the culmination of Sarah's recent rebellious behavior. Schreiber acknowledges that during the argument, he took the phone away from Sarah and "threw it on the floor because she wouldn't hang up." Schreiber Dep. at 21. It is not clear from the record, but at some point prior to Officer Moe's arrival, Sarah telephoned a social worker at Catholic Social Services, Cindy Musto. Musto explained that she spoke with Schreiber in an effort to calm him down, however, during their conversation, he continued to yell and threaten his daughter. Musto Dep. at 8-9, 12. Schreiber left the phone after hearing a knock at the door. Musto Dep. at 8.¹

The knock on the Schreiber's door was Officer Moe. Officer Moe arrived at Schreiber's residence shortly after being dispatched to the location. Upon his arrival, Officer Moe heard screaming coming from the residence: "I could hear a male voice inside screaming profanities at an unknown person." December 11, 2002 Preliminary Examination Transcript at 7-8 ("Prelim.Tr.").² When Officer Moe knocked on the apartment door, a young boy, James Schreiber Jr., opened the door. When the door opened, Officer Moe could see Schreiber screaming at someone but could not see the target of his invective. Prelim Tr. at 9. Officer Moe was also not able to see Sarah. According to Officer Moe, he asked Schreiber's son if Sarah was okay, however, before the boy could answer, Schreiber. came to the door, yelling profanities, and demanding to know why Officer Moe was there. Prelim. Tr. at 9, 11. Schreiber then profanely told Officer Moe that he was not permitted in the apartment. Schreiber Dep. at 25. Officer Moe informed him that he was going to check on Sarah's welfare. Schreiber Dep. at 24. Despite Schreiber's repeated, belligerent objection to the entry, Officer Moe entered the apartment because he "was deeply concerned that his (Schreiber's) daughter was not okay and she may be injured and he may have assaulted her." Prelim. Tr. at 13. Officer Moe conceded that Schreiber did not invite him into the home. Prelim. Tr. at 13.

After entering the residence, Officer Moe located Sarah in the living room and observed that she was crying and upset. Prelim. Tr. at 14, Schreiber Dep. at 29-30. Despite Officer Moe's arrival, both Schreiber and his daughter continued to argue and curse at each other. Prelim Tr. at 14-15. Officer Moe described the situation as "chaos" and "basically a barrage of profanities" and threats between Schreiber and his daughter. Prelim. Tr. at 17-18. Schreiber also continued to yell at Officer Moe, calling him a "Neo Nazi" and "pig." Schreiber Dep. at 31. He also continued to demand that Officer Moe leave his home or obtain a search warrant. Schreiber Dep. at 31. In light of the situation, Officer Moe requested immediate back up from an additional officer. Prelim. Tr. at 17.

At some point during the early stages of the situation, Officer Moe talked to Musto on the telephone. Prelim. Tr. at 18, Schreiber Dep. at 30-31, Musto Dep. at 12-13. Officer Moe claims that Schreiber's wife handed him the phone and indicated that Musto would explain the situation. Prelim. Tr. at 18. Schreiber does not dispute that Officer Moe spoke with Musto on the telephone. Musto identified herself and explained that she was concerned for Sarah's safety. Musto Dep. at 13-14, Prelim. Tr. at 18. After suggesting that Sarah be taken to a teen shelter, Musto ended the phone call with Officer Moe. Musto Dep. at 13. Upon the arrival of Officer Matthew Veldman on the scene, Officer Moe attempted to run a file check on Schreiber and asked Schreiber's wife if she had a personal protection order against him. During this time, Schreiber continued to yell at Officer Moe and demand that he leave. Schreiber Dep. at 31-32, 34, Prelim. Tr. at 21-22. Schreiber also asked if he could leave the living room to use the bathroom. Schreiber Dep. at 34. Officer Moe refused to allow Schreiber to leave the living room. Prelim. Tr. at 22, Schreiber Dep. at 34. According to Schreiber, Officer Moe said that he would not allow Schreiber to leave because he might have a gun in another room. Schreiber Dep. at 34. Schreiber also asserts that Officer Moe pushed him back onto the couch when he attempted to stand up and leave.

Although Officer Moe would not allow Schreiber to go to another room in the apartment; Schreiber did go outside on a second-story balcony to relieve himself. Schreiber Dep. at 34-35. When Schreiber exited the apartment onto the balcony, Officer Moe closed the sliding glass door behind him. Prelim. Tr. at 25. Schreiber maintains that Officer Moe locked the door and was laughing at him from inside the apartment. Schreiber Dep. at 34-35. Schreiber, however, concedes that he did not see Officer Moe lock the door. Schreiber Dep. at 37. Nevertheless, Schreiber became incensed, used more profanity, and demanded that Officer Moe open the door. Schreiber Dep. at 36. When Officer Moe did not open the door, Schreiber ripped off the screen door, grabbed a lawn chair and struck the glass door three times, causing the door to...