Slayton v. City of River Rouge

515 F.Supp.3d 695

Dominique SLAYTON, Plaintiff,

v. CITY OF RIVER ROUGE and Edward Otis, Defendants,andCity of Wyandotte, Brian Zalewski ¹ , Benjamin Jones, and Gerald Conz, Defendants.

Case No. 17-13875

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

Signed January 27, 2021

Amy J. DeRouin, Christopher Trainor Assoc., Christopher J. Trainor, Trainer Assoc., White Lake, MI, Stephen M. Wittbrodt, The Michigan Law Firm, PLLC, Birmingham, MI, for Plaintiffs.

Timothy S. Ferrand, Cummings, McClorey, Clinton Township, MI, for Defendant Edward Otis.

Ross a. Brunetti, Mary Ann Hart, Law Offices of Catherine A. Gofrank, Troy, MI, for Defendants Benjamin Jones, Gerald Conz.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 72, 74)

Paul D. Borman, United States District Judge

Plaintiff Dominique Slayton filed the instant lawsuit on November 30, 2017 (ECF No. 1, Complaint), alleging that the individual Defendants – Benjamin Jones and Gerald Conz of the City of Wyandotte Police Department and Edward Otis of the River Rouge Police Department – violated his Fourth Amendment rights by using excessive force during the course of his arrest. Plaintiff alleges he was hit and kicked several times in the head and sides while handcuffed face-down on the ground following a police vehicle chase, and the Plaintiff's brief swim in the Detroit River on January 2, 2019. Plaintiff also alleges that the municipal defendants City of River Rouge and City of Wyandotte permitted customs, policies, and/or practices that resulted in a violation of his constitutional rights in failing to train and/or supervise their employees.

Defendants City of Wyandotte, Gerald Conz, Benjamin Jones and Brian Zalewski filed a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(b) on April 16, 2020, arguing that Plaintiff is unable to establish a genuine issue of material fact regarding whether the individual defendants directly participated in the alleged misconduct, and that Plaintiff cannot show his alleged injuries were inflicted pursuant to the municipality's official policy or custom. (ECF No. 72.) Defendants City of River Rouge and Edward Otis filed a Motion for Summary Judgment on June 15, 2020, arguing the claim against Officer Otis is barred by qualified immunity because there is no evidence Otis used excessive force and that the force deployed was reasonable and necessary, and also that there is no evidence to support a municipal liability claim. (ECF No. 74.)

I. Background

a. Plaintiff's Facts

On January 2, 2016, at approximately 9:30 p.m., Dominique Slayton was driving to his mother's house with his girlfriend after dinner with his girlfriend's family in the City of River Rouge. (ECF No. 81-2 Deposition of Dominique Slayton 15:10–16:19.) His girlfriend got out of the car due to an argument. After that, Slayton alleges a black SUV cut him off, causing him to swerve to avoid an accident. (Id. 22:1–25:25, 104:17–105:3.) Slayton did not notice police lights coming from the black SUV, which he believes was unmarked, until "about half a mile" later. (Id. 25:6–15.) Slayton, scared, kept driving and claims he was driving about 40 or 50 miles per hour down Jefferson Avenue before seeing more police lights and pulling into a marina. (Id. 27:4–29:25) Slayton parked his car a few feet from the Detroit River. (Id. 29:25) He contends that he then climbed on and tripped over a cinderblock divider along the river and fell in the Detroit River. (Id. 30:3–31:14.) Slayton maintains that he did not enter the water to get away from the police. (Id. 118:4–19:10.)

After entering the water Slayton pulled himself out of the river and sat on the cinderblock divider waiting for police to arrive. He did not injure himself either falling in or climbing out of the river. (Id. 31:1–32:12) Slayton maintains that no officer assisted him out of the water.

Slayton says the officers arrived "maybe two minutes later" and the two officers ordered him to get on the ground. Initially, two police cars arrived first and then "a minute or two later like two—two more cars were there." (Id. 124:20–25.) It was very dark due to the time of day, and Slayton could not describe in detail the officers who approached him or if they got out of separate cars. (Id. 126:18–21.) Slayton began to get down onto his stomach and put his hands behind his back. (Id. 32:13–33:2) Slayton alleges that "they were grabbing me and putting me on the ground," and that "he was in the process of [getting on the ground]," when "they threw me to the floor." (Id. 125:20–127:20.) Slayton recalls "about four" officers around him when he was handcuffed. (Id. 33:4)

At this point, "[t]hey cuffed me and proceeded to kick me in my face twice, kicked me in my sides about four times." (Id. 33:7–8.) Slayton is unable to identify exactly which officer(s) handcuffed him or which officer(s) kicked him after he was handcuffed. (Id. 133–34.) Slayton also alleges he was on the ground in the handcuffed position for about two minutes. (Id. 128:11–13.)

According to Slayton's deposition:

Q. ... do you know which officer cuffed you?

A. I don't. My face was in ground.

(Slayton Dep. 128:6–7.)

***

Q. Do you know which officers kicked you?

A. I believe it was Otis and one of the other officers from Wyandotte, but I'm not sure which one.

Q. And why is it that you think Officer Otis kicked or hit you?

A. He was on my front side where my head was

Q. What did he look like?

A. Bald head, brown skin

***

Q. Was he African American?

A. Yes.

Q. All right. And the other officer, do you remember what that officer looked like?

A. He was Caucasian and tall.

(Id. 33:9–34:7)

***

Q. And we know there was at least two, if not three, other white officers that were close enough to you to be able to kick you, right?

A. Yes.

(Id. 159:6–9)

***

Q. So as you sit here today do you believe there had to have been more than one, if not two, if not three, and maybe four officers who kicked you?

A. Yes.

Q. Okay. If there's testimony that these officers were close enough to handcuff you and arrest you, you believe those would be the officers who kicked you, right?

A. Yes

(Id. 160:3–11.)

Slayton alleges he was then picked up by the back of his shirt, his sides, and legs and taken to Otis’ SUV patrol car and driven to the River Rouge police station by Otis. When Slayton got the police station, he had a visibly black and swollen right eye. Slayton alleges injuries including a nasal fracture which required surgery, bruising and pain in his torso, a chipped tooth, and psychological injuries. (ECF No. 81 PageID.1267–68 citing Beaumont Grosse Point Medical Records (ECF No. 81-21 PageID. 1488); Dr. Osgood's Medical Records (ECF No. 81-22 PageID. 1498)).

In his Response to the Motion to Dismiss, Plaintiff attaches and relies on a police report about this incident prepared by Sgt. Dotson of the River Rouge police department. (ECF No. 81-7 PageID.1386.) This report cannot be relied upon at this summary judgment stage. Evidence submitted in opposition to summary judgment must be admissible at trial. Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007). According to Fed. R. Civ. P 56(c)(4), any supporting or opposing affidavits "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." See, e.g., Brady v. City of Westland , 1 F. Supp. 3d 729, 736 (E.D. Mich. 2014). In order to fall under the public records exception to hearsay, Fed. R. Evid. 803(8), the report must be based on an officer's firsthand observations. See Dortch v. Fowler, 588 F.3d 396, 402–04 (6th Cir. 2009). Because this report was not prepared by Officer Otis, who had firsthand knowledge, but was prepared by Sgt. Dotson, who was not at the scene, it cannot be relied upon at this stage.

b. Defendants’ Facts

Defendants argue that "[t]he police audio and dispatch recordings contradict every aspect of Plaintiff's testimony." (ECF No. 74 PageID.817.) After Officer Otis was dispatched to investigate a gray vehicle driving recklessly, Otis pursued the vehicle for more than 10 minutes and over nearly eight miles. (ECF No. 74 PageID 817, citing Dispatch Audio) Defendants argue that Plaintiff drove recklessly, traveling the wrong way on streets at a high rate of speed, disregarding stop signs and police sirens. (Id. ) Defendants also report that only after the chase had begun did Slayton stop to allow the female passenger to exit. (Id. ) Slayton then continued to drive, at times in excess of 70 miles per hour, before he pulled into the Silver Shores Marina parking lot and exited the vehicle on foot. (ECF No 74 PageID.819.)

The dispatch audio confirms Defendants’ account of an extended police chase through multiple jurisdictions, and that Plaintiff's girlfriend exited the car after the chase had already begun. (Dispatch Audio, ECF No. 74-3.) The audio recordings do not provide information regarding what happened between the Plaintiff and Defendant Officers during the arrest.

Defendants Jones and Conz (Wyandotte) claim when they reached the river, Plaintiff was still in the water. They asked for Plaintiff's hands, he refused, and then they grabbed him by his shirt and pulled him out of the water. Defendants claim Plaintiff began to resist attempts to handcuff him when he was on the ground. Plaintiff placed his left arm under him and started struggling and flailing his legs. (ECF No. 81-4, Deposition of Benjamin Jones 10:6–21.) Officer Conz pulled out a taser, which Plaintiff kicked out of his hand (Id. 8:7–9:13.) Officers from Ecorse and/or River Rouge assisted in the struggle and in handcuffing plaintiff, although Jones and Conz cannot identify who may have helped. (ECF No. 81-3, Deposition of Gerald Conz. 15:9–16:13.) Both officers deny kicking or hitting the Plaintiff, and do not know how he obtained his injuries. (Jones Dep. 17:9–11; Conz Dep. 31:12–14.)

Officer Otis (River...