Davey v. Tomlinson

• Decision Date: 15 May 1986
• Docket Number: Civ. No. 83-CV-2977-DT.
• Citation: 627 F. Supp. 1458
• Parties: Lorne Donald DAVEY, Plaintiff, v. Richard TOMLINSON, Maynard Hopson, William Hudson, Steven Dest and City of Detroit, Defendants.
• Court: U.S. District Court — Western District of Michigan

627 F. Supp. 1458

Lorne Donald DAVEY, Plaintiff, v. Richard TOMLINSON, Maynard Hopson, William Hudson, Steven Dest and City of Detroit, Defendants.

Civ. No. 83-CV-2977-DT.

United States District Court, E.D. Michigan, S.D.

February 10, 1986.

As Amended May 15, 1986.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Peter J. Rogissart, Livonia, Mich., for plaintiff.

Thomas H. Peterson, III, City of Detroit Law Dept., Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

This is a federal civil rights action based on the alleged unlawful arrest, detention, and prosecution of the plaintiff, Mr. Lorne D. Davey. Plaintiff seeks damages against several Detroit Police Officers as well as the City of Detroit.

I.

The complaint, filed on July 22, 1983, states that plaintiff was driving his car on July 22, 1981, in an alleyway near the intersection of Appleton and Grand River in Detroit. The plaintiff was then stopped and arrested by Detroit Police Officer Richard Tomlinson. Plaintiff argues that his arrest was without a warrant and without probable cause. Furthermore, plaintiff states that he was "pushed ... over the hood of his automobile and handcuffed ... and forced" into a police car. Complaint at ¶ 11-13.

Plaintiff also alleges that Officer Tomlinson and Officers Maynard Hopson and William Hudson, called as back-up to the scene where plaintiff was arrested, entered into a conspiracy to deprive plaintiff of his constitutional rights. Another unnamed officer, plaintiff argues, threatened to kill him and was also a member of the conspiracy.

The remaining allegations in the complaint, those contained in paragraphs 19-31, allege state law claims for false arrest, false imprisonment, malicious prosecution, negligence, and gross negligence.

Plaintiff's arrest apparently stemmed from a citizen complaint about someone exposing himself in the Sixteenth Precinct area of Detroit. A resident of that area, Cynthia Teal, stated that she saw someone parked outside of her home at 8:00 a.m. on July 22, 1981.¹ She testified:

I opened the front door and I looked out and I saw a baby blue Cutlass ... it was chilly out and I noticed he didn't have a shirt on. There were two little girls in the street and, apparently, he said something to them because they took off running. ...

Transcript at 34.

Ms. Teal further stated that the same man reappeared in the neighborhood several hours later. She said that he pulled up in front of her house. "He had nothing on," she said, "he was masturbating." Transcript at 35. Later the same day, Ms. Teal testified, the man drove near her home on two other occasions. A neighbor then got the man's license plate number, and Ms. Teal called it in to police. The Sixteenth Precinct dispatched Officer Tomlinson to investigate the matter.

After talking with Ms. Teal, Officer Tomlinson was patrolling the area when he spotted a car matching the description given by the neighbors. He stopped the car, saw that the driver was wearing only shorts and shoes, and then arrested him. See Police Incident Report. Plaintiff was subsequently charged with indecent exposure and acquitted by a Detroit Recorder's Court jury. Michigan v. Davey, 81-53596 (Sept. 8, 1981). The present action followed.

II.

Plaintiff predicates jurisdiction on 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, the first, fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution. As a threshold matter, the court must determine whether jurisdiction is proper under the numerous statutory and constitutional provisions upon which plaintiff relies.

Plaintiff's section 1981 claim cannot withstand scrutiny. That section, originally enacted as part of the Civil Rights Act of 1866, was aimed at abolishing slavery, its badges, and incidents. Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir.1977). The statute protects against race or alien based discrimination by providing all persons with the same rights as "white citizens." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

In order to state a claim under section 1981, plaintiff must allege that he was treated differently because of his race. Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.1974); German v. Killeen, 495 F.Supp. 822 (E.D.Mich.1980). These allegations should be supported by specific acts, practices, or policies which resulted in the alleged discrimination. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir.1979).

In his complaint, plaintiff alleges that he was illegally arrested, roughed up, wrongfully charged with indecent exposure in Detroit Recorders Court, and eventually found not guilty by a jury. These allegations, considered against the backdrop of Rule 8(f), Fed.R.Civ.P., do not satisfy the requirements for a section 1981 claim. There is no claim or inference that plaintiff was treated any differently than a "white citizen." Thus, plaintiff's section 1981 claim is unsupported by any facts or inferences and must be dismissed.

The same deficiencies plague plaintiff's section 1985(3) claim. That section makes actionable a conspiracy to deprive a person of the equal protection of the law. Unlike section 1983's color of state law requirement, section 1985(3) applies only to private conspiracies predicated on "racial, or perhaps otherwise classbased, insidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). It is necessary to allege a conspiracy, the acts in furtherance thereof, and that the acts stemmed from a class-based animus. Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971). The Court in Griffin stated:

The language of the statute requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, insidiously discriminatory animus behind the conspirators' action.

403 U.S. at 102, 91 S.Ct. at 1798. No such animus being alleged here, the section 1985 claim must be dismissed.

Furthermore, there is nothing alleged to back plaintiff's claim of a conspiracy. Plaintiff argues in conclusory fashion that defendants conspired to deprive him of his constitutional rights but does not go any further. There are no allegations of specific acts or the means by which defendants are alleged to have conspired. There is not enough to show a conspiracy. Copley v. Sweet, 234 F.2d 660 (6th Cir.1956).

Since a section 1986 claim, which plaintiff also asserts, is "designed to punish those who aid and abet violations of section 1985," that claim cannot stand. Without a violation of section 1985(3), there can be no violation of section 1986. Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.1980); Hahn v. Sargent, 523 F.2d 461 (1st Cir.1975); German v. Killeen, 495 F.Supp. at 829-30. ("A section 1986 claim is totally dependent upon section 1985 for vitality.")

Moreover, the court is troubled by plaintiff's shotgun approach at pointing to specific constitutional guarantees he contends were violated. There are no allegations or inferences which would suggest violations of the first, fifth, or sixth amendments. Furthermore, plaintiff's claim under the eighth amendment must be dismissed. The eighth amendment prohibition against cruel and unusual punishment applies only to those convicted of criminal offenses. Since plaintiff was not convicted, any potential claim would be for deprivation of due process. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

III.

Plaintiff is left, therefore, with a statutory claim purporting to arise under section 1983. Count I of his complaint also alleges fourth and fourteenth amendment rights. As noted supra, plaintiff does allege several pendent state law claims.

IV.

This matter is now before the court on defendant's motion to dismiss, or in the alternative, for summary judgment. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir.1975). In a light most favorable to plaintiff, assuming all allegations are true, the court must determine whether the complaint states a valid claim for relief. At this juncture, plaintiff's complaint must be liberally construed.

The U.S. Supreme Court said in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957):

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Id. at 45-46, 78 S.Ct. at 102.

A complaint should set forth sufficient information to outline the elements of the claims asserted to permit inferences to be drawn. Rule 8, Fed.R. Civ.P.; Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). When considering a dismissal on the pleadings, district courts must scrutinize plaintiff's civil rights claims with special care. Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972).

V.

Section 1983 of the Civil Rights Act provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory." 42 U.S.C. § 1983. The statute's primary purpose, as the Supreme Court said in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), is "the preservation of human liberty and human rights...." Id. at 636, 100 S.Ct. at 1408. See also Blackmun, Section 1983 and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away?, 60 N.Y.U.L. Rev. 1 (1985).

In Gomez v....