Emery v. Kory

Decision Date22 September 2020
Docket NumberCASE NO. 2:19-cv-11419
PartiesNEIL EMERY, Plaintiff, v. ALLAN KORY, ROSCOMMON, COUNTY OF and OGEMAW COUNTY STING TEAM Defendants.
CourtU.S. District Court — Eastern District of Michigan

DISTRICT JUDGE GEORGE CARAM STEEH

MAGISTRATE JUDGE PATRICIA T. MORRIS

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (ECF No. 41, 43)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendants Allan Kory and County of Roscommon's Motion for Summary Judgment, (ECF No. 43), be GRANTED, and Defendant Ogemaw County Sting Team's Motion for Summary Judgment, (ECF No. 41), also be GRANTED.

II. REPORT
A. Introduction

On May 14, 2019, Plaintiff Neil Emery, who appears before the Court pro se, filed a complaint against Allan Kory, the County of Roscommon (the County), and the Ogemaw County Sting Team (STING), along with several other defendants, under 42 U.S.C. § 1983. (ECF No. 1, PageID.7.) Plaintiff alleged that the Defendants placed him in a state-created danger; Plaintiff avers that he signed a confidential informant agreement, his name was subsequently used in a police report after the arrest of an individual Plaintiff informed the police about, and as a result, he was injured by an individual due to his cooperation with the police. (Id. at PageID.6-7.)

Plaintiff filed an amended complaint on June 11, 2019. (ECF No. 7.) An Order and Opinion dismissing several defendants was filed on July 15, 2019, (ECF No. 8), and all pretrial matters were assigned to the undersigned Magistrate Judge on July 16, 2019. (ECF No. 9.) Defendants filed answers to Plaintiff's complaint on October 4, 2019, (ECF No. 15), and November 26, 2019 (ECF No. 28). Defendant STING filed a Motion for Summary Judgment on April 13, 2020. (ECF No. 41.) Defendants Kory and the County filed a Motion for Summary Judgment on April 30, 2020. (ECF No. 43.) Plaintiff filed a response to both Motions on July 10, 2020, (ECF No. 53), and Defendants filed replies on July 28, 2020, (ECF No. 51), and August 5, 2020. (ECF No. 52.) Below, I summarize the allegations set forth in the instant Motions as well as allegations in the amended complaint insofar as they correspond to the relief sought at this juncture.

B. Factual Background

According to Plaintiff, he was arrested on January 2, 2018 and taken to the Roscommon County Jail. (ECF No. 7, PageID.24.) At the jail, a "sting narcotics team officer," Defendant Kory, offered Plaintiff an opportunity to "work off his charge;" Plaintiff signed a "confidential informant agreement." (Id.) Plaintiff alleges that when he signed the agreement, he understood that his identity would be kept confidential, and he could "work off" his charge of possession of methamphetamine. (Id.)

Plaintiff next alleges that on February 26, 2018, while he was apparently released from the jail, he was at a friend's house when an individual named James Bailey "pulled a piece of paper from his pocket and said Emery you snitch[.]" (Id.) Plaintiff alleges that Bailey then punched Plaintiff with brass knuckles, breaking his jaw in two places and "caving the left side of his face in." (Id.) Plaintiff avers that this attack was the result of Defendant Kory including Plaintiff's name in the police report of someone named Robert Emery. (Id.)

In June 2018, Plaintiff was arrested again, this time for "delivery of meth." (Id.) Again, "sting narcotic officer" Defendant Kory approached Plaintiff to work as a confidential informant. (Id. at PageID.24-25.) Plaintiff informed Defendant Kory of the attack in February, and "Officer Allan Kory stated it was an accident and it wouldn't happen again." (Id. at PageID.25.) Plaintiff alleges that after agreeing to work as a confidential informant a second time, he was released from jail on bond so that he could work for "sting." (Id.) On July 23, Plaintiff avers that Defendant Kory asked him several questions about other people, then compiled all the information from Plaintiff and used it in "over 5 to 7" police reports, which caused Plaintiff "to be assaulted two more times in the county jail." (Id.) Plaintiff complains that his name was included in police reports concerning the arrest of the following individuals: Robert Emery, Jason Bracknet, Joe Sheperd, Kelsey Herbert, and Kim Pritz. (Id.) Plaintiff complains that his cooperation with Defendant Kory and the "sting" team was supposed to be confidential. (Id. at PageID.24-25.)

A document provided by Defendants Kory and the County, (ECF No. 43-2, PageID.215), details the interview between Defendant Kory and Plaintiff on July 24, 2018. In the notes under the title, "Interview with Neil Emery," Defendant Kory indicated that Plaintiff was aware of the following individuals who trafficked narcotics in the Roscommon County area: Joe Shepard, Samantha Moore, and Brandon Schroder. (Id.) Defendants Kory and the County argue that they had no evidence of Plaintiff serving as a "confidential informant" in an investigation by Defendant Kory. The following pages of the document include a form, titled "Confidential Source," which is signed by Plaintiff, under the following language, in part: "Any information you provide may be used in criminal or civil proceedings. The Department of State Police will use all reasonable means to protect your identity; however, this cannot be guaranteed." (ECF No. 43-3, PageID.219.) However, this "Confidential Source" document is dated April 14, 2010. (ECF No. 43-3, PageID.219.) Defendants Kory and the County point out that this 2010 agreement does not mention Defendant Kory or any other individual from the County. (ECF No. 52, PageID.295-296.)

C. Summary Judgment Standard

A court will grant a party's motion for summary judgment when the movant shows that "no genuine dispute as to any material fact" exists. Fed. R. Civ. P. 56(a). In reviewing the motion, the court must view all facts and inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears "the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case." Street v. J.C.Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted). In making its determination, a court may consider the plausibility of the movant's evidence. Matsushita, 475 U.S. at 587-88. Summary judgment is also proper when the moving party shows that the non-moving party cannot meet its burden of proof. Celotex, 477 U.S. at 325.

The non-moving party cannot merely rest on the pleadings in response to a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead, the non-moving party has an obligation to present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant cannot withhold evidence until trial or rely on speculative possibilities that material issues of fact will appear later. 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2739 (3d ed. 1998). "[T]o withstand a properly supported motion for summary judgment, the non-moving party must identify specific facts and affirmative evidence that contradict those offered by the moving party." Cosmas v. Am. Express Centurion Bank, 757 F. Supp. 2d 489, 492 (D. N.J. 2010). In doing so, the non-moving party cannot simply assert that the other side's evidence lacks credibility. Id. at 493. And while a pro se party's arguments are entitled to liberal construction, "this liberal standard does not . . . 'relieve [the party] of his duty to meet the requirements necessary to defeat a motion for summary judgment.'" Veloz v. New York, 339 F. Supp. 2d 505, 513 (S.D.N.Y. 2004) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)). "[A] pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summaryjudgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D. N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

When the non-moving party fails to adequately respond to a summary judgment motion, a district court is not required to search the record to determine whether genuine issues of material fact exist. Street, 886 F.2d at 1479-80. The court will rely on the "facts presented and designated by the moving party." Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992). After examining the evidence designated by the parties, the court then determines "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52). Summary judgment will not be granted "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.

D. Governing Law
1. Defendant STING and the Urban Cooperation Act

Defendant STING argues that it is not a juridical entity capable of being sued. Federal Rule of Civil Procedure 17(b)(3) provides that the determination of whether a party, who is not an individual or a corporation, has capacity to sue or be sued is governed by state law. Fed. R. Civ. P. 17(b)(3); see, e.g., Trevino v. Teachout, No. 16-14338, 2018 WL 732236, at *1 (E.D. Mich. February 6, 2018). Plaintiff does not assert, and research has not suggested, that Defendant STING operates as an individual or a corporation for purposes of Federal Rule of Civil Procedure 17(b). Defendant STING is a task force createdby an interlocal agreement between Crawford County, Oscoda County, Roscommon County, City of Au Gres, City of...

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