Abu-Joudeh v. Schneider

• Decision Date: 27 March 2020
• Docket Number: No. 19-1337,19-1337
• Citation: 954 F.3d 842
• Parties: Jiries ABU-JOUDEH, Plaintiff-Appellant, v. Heather SCHNEIDER ; Michael Edwards; Patrick Leaveck; Best Recovery Services, LLC, Defendants, Scott Sheets, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

954 F.3d 842

Jiries ABU-JOUDEH, Plaintiff-Appellant,

v. Heather SCHNEIDER ; Michael Edwards; Patrick Leaveck; Best Recovery Services, LLC, Defendants,Scott Sheets, Defendant-Appellee.

No. 19-1337

United States Court of Appeals, Sixth Circuit.

Argued: January 31, 2020

Decided and Filed: March 27, 2020

ARGUED: Eric A. Ladasz, ERIC A. LADASZ, P.C., Dearborn, Michigan, for Appellant. James E. Tamm, O'CONNOR, DEGRAZIA, TAMM & O'CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF: Eric A. Ladasz, ERIC A. LADASZ, P.C., Dearborn, Michigan, for Appellant. James E. Tamm, Julie McCann O'Connor, O'CONNOR, DEGRAZIA, TAMM & O'CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF AND MOTION TO DISMISS PARTIES TO APPEAL: Alexander D. Bommarito, BOMMARITO LAW OFFICES, PLLC, Freeland, Michigan, for Best Recovery Defendants.

Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

CLAY, Circuit Judge.

Plaintiff Jiries Abu-Joudeh sued police officer Scott Sheets, along with several others, under 42 U.S.C. § 1983 for breaking into his garage during the repossession of Abu-Joudeh's vehicle. Abu-Joudeh claims this violated his Fourth Amendment right to be free from unreasonable searches and seizures. Sheets—the only defendant left on appeal—argued that Abu-Joudeh failed to show that Sheets was the police officer who opened his garage. While the magistrate judge disagreed and recommended that the case proceed to trial, the district court sided with Sheets and granted summary judgment in his favor.

On appeal, Abu-Joudeh moves to supplement the record, asking this Court to take judicial notice of several documents he never submitted to the district court. While we deny Abu-Joudeh's motion, the record already includes evidence suggesting that Sheets was the officer who broke into his garage. Because this evidence creates a genuine issue of material fact, the district court erred in granting Sheets summary judgment. Accordingly, we reverse and remand this case for further proceedings.

I. BACKGROUND

A. The Arrest and Repossession

Plaintiff Jiries Abu-Joudeh lives in Allenton, Michigan, with his wife Yasmeen and three sons. On November 20, 2014, Michael Edwards and Patrick Leaveck—two repossession agents with Best Recovery Services, LLC—came to the Abu-Joudehs' home to repossess their car. An altercation ensued. According to Yasmeen, one of the agents pushed her and later shoved Jiries into her. But the repossession agents say that Jiries asked Yasmeen to get him a gun, and then hit her when she refused. Whatever happened, the repossession agents called the police, and the Abu-Joudehs moved their car into the garage and shut the door.

Police officers soon arrived at the Abu-Joudehs', specifically Chief Heather Schneider of the Capac Police Department and Trooper Rick Sebring of the Michigan State Police. Yasmeen let the officers into the house and denied that Jiries hit her. But after a scuffle with Schneider, Jiries was arrested for assault.

Following the arrest, two more police cars arrived at the scene, both driven by male officers. One of these officers—whom Yasmeen refers to as the "third officer" to arrive—entered the house and began assisting Schneider and Sebring. (Yasmeen Dep., R. 77-1 at PageID at #876–77.)

While inside the house, Yasmeen says that the third officer was standing by her and kept her seated on the couch, ordering her to "[s]it down" and repeatedly telling her to "shut up" when she tried to get Jiries his medication. (Id. at #877.) Of particular relevance to this appeal, Schneider's police report suggests that this third officer was Chief Scott Sheets of the Memphis Police Department. (See Police Report, R. 55-8 at PageID #410 ("Once Chief Sheets showed up I advised him to watch Yasmeen so she didn't get up and interfere.").) Yasmeen also described the third officer as being mostly bald with short blond or dirty-blond hair, medium height and build, relatively young, and wearing a blue uniform. On the other hand, the fourth officer had dark or black hair.

According to Yasmeen, the third officer spoke with the repossession agents and then told Schneider and Sebring that the garage was locked. After that, the third officer—joined by the two repossession agents—took a metal bar and attempted to pry open the main electric door to the garage, presumably to help the agents take the Abu-Joudehs' truck. When this attempt failed, they went around to the side door, which one of them opened, allowing the trio to enter the garage. While Yasmeen did not see which of the three actually opened the side door, Leaveck testified that it was a police officer who let them into the garage:

Q. How did you get into the garage?

A. We were let into the garage.

Q. By who?

A. By one of the police officers.

Q. Which police officer?

A. I don't know. He didn't give his name. He basically walked out of the house, walked into the barn, opened the large door, walked out and said, is this the vehicle you guys are here to get, and I said yes, sir. He said, load it up, get it out of here.

(Leaveck Dep., R. 55-7 at PageID #405.) Edwards and Leaveck then loaded the vehicle onto their tow truck and hauled it away.

B. The District Court's Summary Judgment Order

In November 2016, just under two years after the repossession and arrest, Jiries Abu-Joudeh filed suit in federal court. While Abu-Joudeh initially named several police officers and the repossession agents as defendants, the only relevant claim for this appeal is that against Scott Sheets for allegedly breaking into Abu-Joudeh's garage, thereby violating his Fourth Amendment right against unreasonable searches and seizures.¹

After the parties conducted discovery, Sheets moved for summary judgment, arguing that Abu-Joudeh failed to present "any evidence" that Sheets "unlawfully enter[ed] Plaintiff's garage." (Mot. for Summ. J., R. 55 at PageID #357 (emphasis omitted).) Inexplicably, Abu-Joudeh's counsel never deposed Sheets or sent him any discovery requests, and so Sheets submitted a one-page affidavit saying he "did not open Plaintiff's garage without consent, did not enter Plaintiff's garage without consent, and did not enter Plaintiff's vehicle or participate in its repossession." (Sheets Aff., R. 55-10 at PageID #431.)² Sheets also pointed to Yasmeen's inability to tell whether it was the "third officer" or one of the repossession agents who actually broke into the garage, and the fact that Yasmeen did not recognize Scott Sheets's name when asked at her deposition. However, while characterizing these documents as supporting summary judgment, Sheets also pointed to the police report noting his presence at the scene and reflecting Schneider's request for Sheets to watch Yasmeen, as well Leaveck's testimony that it was a police officer who let the repossession agents into the garage.

Abu-Joudeh's response, though not a model of clarity, noted that the police report identified Sheets and that Yasmeen provided a physical description of the "third officer" that could allow him to be identified as Sheets. Rather than stop there, Abu-Joudeh also submitted a "Declaration of Yasmeen Abu-Joudeh" identifying Scott Sheets as the third officer. Yasmeen says that she knows this officer was Sheets based on a photograph—apparently a picture of a computer screen showing a news article featuring Sheets—that was attached to her declaration. This "declaration" was unsworn, contained no statement that it was submitted under penalty of perjury, and was electronically signed by typing Yasmeen's name. Sheets's reply brief was dedicated to attacking this declaration as unsworn, unsigned, and in contradiction to Yasmeen's prior deposition testimony. The motion was then referred to a magistrate judge.

The magistrate judge recommended denying Sheets's motion for summary judgment. Abu-Joudeh v. Schneider (Abu-Joudeh I ), No. 16-13893, 2019 WL 2219738, at *4 (E.D. Mich. Jan. 16, 2019), adopted in part and rejected in part , 2019 WL 1090746 (E.D. Mich. Mar. 8, 2019). While the magistrate judge held that Yasmeen's declaration was invalid and refused to consider it, id. at *2 n.3, she found that the remaining evidence was enough to create a triable issue of fact as to whether Sheets was the officer who opened Abu-Joudeh's garage, id. at *2–4. Specifically, the magistrate judge noted that "Yasmeen testified to seeing an officer with a metal bar breaking the lock to the garage," that this was the third officer who arrived at the scene, and that Yasmeen provided a physical description of this third officer. Id.³ But in describing the applicable law, the magistrate judge said that Abu-Joudeh "need not provide specific identifying information [in order] to create a question of fact about whether Sheets was the officer who opened the garage," citing several cases in which this circuit or its district courts denied summary judgment even without a clear identification of which officer committed the alleged constitutional violation. Id. at *3.

Sheets objected to the magistrate judge's recommendation. On the facts, Sheets claimed that the magistrate judge erred in saying Yasmeen "testified to seeing an officer with a metal bar breaking the lock to the garage," since she only saw the officer prying at the main electric door, and did not see who actually broke the lock on the side door. (Objs. to R. & R., R. 77 at PageID #855–56 (quoting Abu-Joudeh I , 2019 WL 2219738, at *2 ).)⁴ Sheets also said the magistrate judge wrongly found that "Leaveck corroborated the testimony of Mrs. Abu-Joudeh to support the allegation that Officer Sheets was the officer who opened the garage." (Id. at #856.)⁵ Finally, Sheets claimed that the magistrate judge erred on the law, arguing that Abu-Joudeh had to affirmatively show that Sheets was the one who broke into the garage.

The district judge agreed with Sheets, rejecting the report and recommendation and granting him summary judgment. Abu-Joudeh v. Schneider (Abu-Joudeh II ), No. 16-13893, 2019 WL 1090746, at...