Barbour v. City of Detroit
| Docket Number | 355866 |
| Decision Date | 23 November 2021 |
| Parties | MIJUAN BARBOUR, Plaintiff-Appellant, v. CITY OF DETROIT, JOSE MARTINEZ, ZACHARY DIGIACOMO, and JAMES AUDE, Defendants-Appellees, and DETROIT POLICE DEPARTMENT, TREEHOUSE CLUB MARIJUANA DISPENSERY, FABIO DALLO, KESHAUNA BUTLER, DEON DOE, DEANDRE MACK, and TROMELL ROBINSON, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 18-006258-NO
Before: Gleicher, P.J., and K. F. Kelly and Ronayne Krause JJ.
Plaintiff appeals as of right following the trial court's order granting summary disposition in favor of defendants [1] the City of Detroit (the city), Detroit Police Corporal Jose Martinez, Detroit Police Officer Zachary Digiacomo, and Detroit Police Detective James Aude. This matter arises out of a brutal beating and sexual assault plaintiff suffered at the hands of several individuals associated with the Treehouse Club Marijuana Dispensary (the Treehouse), following an investigation into a break-in at the Treehouse by Officer Digiacomo and Corporal Martinez, during which they arrested plaintiff as a suspect. During the investigation, Martinez took a picture of plaintiff with his cellphone and texted the picture to a Treehouse employee. Plaintiff was savagely assaulted by several Treehouse employees following his release from incarceration. Plaintiff generally contends that the photograph was responsible for bringing about the assault, and the other police defendants facilitated the assault by covering up the transmission of the photograph. The trial court expressed sympathy for plaintiff, but it concluded that responsibility for the assault could not be attributed to the police defendants. We agree and affirm.
In the early morning hours of April 24, 2017, Officer Digiacomo and Corporal Martinez arrived at the Treehouse in Detroit in response to a report of a breaking and entering. According to the report, the breaking and entering had been committed by a man was wearing a red scarf and carrying a pipe, and another man who was carrying a backpack. After they arrived, Digiacomo and Martinez arranged for a Treehouse employee to meet them at the business. While they waited for the employee, Digiacomo and Martinez noticed that someone had recently called 911 to report that there was a car parked at a nearby vacant house. Plaintiff estimated that the Treehouse was about "eight houses down" from that vacant house.
Officer Digiacomo and Corporal Martinez went to the vacant house and discovered a car parked in the driveway. They heard a rear garage door close, and, upon further investigation, they discovered plaintiff, Morris Broadnex, and Javion Moore inside of the vacant house's garage. Plaintiff testified that Broadnex had invited him to the house to smoke marijuana, he had arrived at about 10:50 p.m. to find Moore also present, and he had been there for two to three hours when the police arrived. The police initially ordered the three individuals out at gunpoint, but they lowered their guns when plaintiff, Broadnex, and Moore followed their commands; the police did not otherwise threaten plaintiff. Digiacomo and Martinez also found a red scarf and a blue backpack in the garage, and a sledgehammer near the garage. Digiacomo and Martinez placed plaintiff, Broadnex, and Moore in a police car, and drove the men to the Treehouse.
After they arrived at the Treehouse, Digiacomo and Martinez met with Deandre Mack, who worked at the Treehouse. Mack showed Digiacomo and Martinez a surveillance video recording, which depicted the breaking-and-entering, and still photographs taken from that video. The surveillance video showed a man, whom Digiacomo and Martinez identified as Moore, wearing a red scarf and using a sledgehammer to destroy security cameras, and another man who was wearing a backpack. Mack told Digiacomo and Martinez that only a portion of the surveillance video was available because the building had lost power during the breaking-and-entering, and that more footage would be available in the future.
After he saw the video, Martinez went outside, and he arranged plaintiff, Moore, and Broadnex on the driver's side of a police car. Martinez used his cellphone to take individual photographs of each of the three men, then he sent the photographs to Mack via text message. Digiacomo was apparently talking to Mack at that time. Ultimately, Martinez and Digiacomo arrested plaintiff, Broadnex, and Moore for the breaking-and-entering, and drove them to the Detroit Detention Center. Martinez testified that he believed plaintiff had been involved in the breaking-and-entering because of the sledgehammer and because plaintiff was also committing the crime of entering a property without the owner's permission at that time. However, his report only listed the breaking-and-entering offense. At his deposition, Martinez believed that the incomplete surveillance video showed plaintiff breaking lights and a utility box, and "two other persons" standing near an alley. However, Digiacomo admitted that only Moore was actually identified using the surveillance video, which depicted Moore wearing a red scarf and carrying a pipe or sledgehammer, and it further depicted one other man wearing a backpack.
On deposition, plaintiff testified that he was released from the Detention Center on April 27, 2017, and he was told that "all the charges were dropped or something." According to Detroit Police Investigator Tamara Foster, a "Mr. Ghassan Hanna" was the owner of the Treehouse, [2] and Hanna had declined to speak with the prosecutor because "they'll get out anyway" and he did not want "to cooperate with the courts to pursue charges against the 3 defendants." After he was released, plaintiff spoke with, and "had text messages and calls" on his Snapchat[3] from Deon Doe, who worked at the Treehouse. Doe asked plaintiff to meet him at the Treehouse to discuss a construction job for plaintiff. Plaintiff knew Doe "from the east side," and he asked Doe "what was up with that construction job." Doe replied that plaintiff's "name had come up about that Tree House being broken into," and he said that he would talk to plaintiff the next day about a construction job. Plaintiff's uncle drove him to the Treehouse at the arranged time.
According to plaintiff, after he went inside the Treehouse, five men grabbed him, threw him to the floor, and placed handcuffs on him. Plaintiff recounted that the people he recognized inside the Treehouse during the attack were the Treehouse's "owner," "Deon," "Dre," "Mack," "some fat guy," and "some short guy with dreads." Plaintiff described being punched, choked, struck on the head with a firearm, and ultimately sodomized with an object. During the attack, one man threatened to harm plaintiff's family if plaintiff did not give him more than $10, 000 for the damage caused to the Treehouse. Also during the attack, someone showed plaintiff a cellular phone that displayed "the exact picture that the officer took" of him in handcuffs. The incident lasted about two hours, following which plaintiff was taken outside to his uncle's car. Plaintiff's uncle drove plaintiff home, whereupon plaintiff's mother drove him to the hospital. Plaintiff remained at the hospital for about five days.
Plaintiff was interviewed by Detroit Police detectives at the hospital regarding the attack, and Detective Aude was eventually assigned to investigate. Later, a Detroit Police Internal Affairs investigation concluded that Corporal Martinez's transmission of the photographs to Mack constituted misconduct which may have assisted the Treehouse defendants in identifying and then attacking plaintiff. The prosecutor assigned to prosecute the men who attacked plaintiff indicated that Detective Aude failed to disclose that Corporal Martinez had been the person who sent the photograph of plaintiff. Similarly, the Internal Affairs investigation concluded that Detective Aude also engaged in misconduct when he failed to mention Martinez's transmission of the photographs in written search warrants related to the investigation into the attack on plaintiff.
Plaintiff's mother indicated to the Internal Affairs investigator that plaintiff "was afraid to talk to anyone because he was told by unknown people that he would be killed if he talk[ed]." It is not clear to us whether any of the men involved in the assault were ever charged or convicted with any crime.
Plaintiff raised six claims in his amended complaint: (1) a 42 USC 1983 claim against Corporal Martinez and Officer Digiacomo for a Fourth Amendment violation, (2) a § 1983 claim against Martinez, Digiacomo, and Detective Aude alleging a state-created danger, (3) a claim of municipal liability against the city under § 1983 for constitutional violations, (4) a claim of intentional infliction of emotional distress against Martinez, Digiacomo, Aude, and the Treehouse defendants, [4] (5) a § 1983 conspiracy claim against Martinez, Digiacomo, Aude, and the Treehouse defendants, and (6) a claim of assault and battery against Martinez, Digiacomo, and the Treehouse defendants. Defendants moved for summary disposition, and the trial court granted the motion. This appeal followed.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a...
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