Harris v. Lieber
| Decision Date | 10 January 2022 |
| Docket Number | 20-11113 |
| Parties | BRYANT HARRIS, Plaintiff, v. GEORG LIEBER, DAVID KENNAMER, RYAN DOBBS, NICOLAS WALLEMAN, VICTORIA DALLAS, ANDREW SNYDER, RODOLFO LOPEZ, KARIANN NELSON, BRIAN ROSS, ROBERT PICKELL, CHRISTOPHER SWANSON, GENESEE COUNTY, and DANIEL EDMONSON, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION: DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR SUMMARY JUDGMENT (ECF NOS. 57, 59)
Plaintiff Bryant Harris filed this civil rights suit on December 1, 2020 without the assistance of counsel and is proceeding in forma pauperis. (ECF Nos. 1, 3). This case was referred to the undersigned for all pretrial matters. (ECF No. 11). Remaining defendants Victoria Dallas, Ryan Dobbs, Daniel Edmonson, Genesee County, David Kennamer, Georg Lieber, Rodolfo Lopez, Kariann Nelson, Robert Pickell, Brian Ross, Andrew Snyder, Christopher Swanson, and Nicolas Walleman moved for judgment on the pleadings on August 26, 2021, and then for summary judgment on September 24, 2021. (ECF Nos. 57, 59). The motions are fully briefed and are ready for report and recommendation.
For the reasons discussed below, the undersigned RECOMMENDS the motion for judgment on the pleadings be GRANTED IN PART, DENIED IN PART, the motion for summary judgment be GRANTED as to the remainder, and this case be dismissed.
Defendants Monica Wilson, Mark Ross (both of whom were Plaintiff's court-appointed criminal defense attorneys), and the Genesee County Sheriff were previously dismissed. (ECF Nos. 40, 47). The allegations below pertain only to the remaining defendants. Plaintiff brought this action under 42 U.S.C. § 1983 alleging violations of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (ECF No. 1, PageID.8). The allegations relate to events concerning his arrest and those which occurred while later housed at the Genesee County Jail. Generally stated, the claims include unlawful search and seizure of his person and his cellular telephone, denial of access to the courts due to the lack of a law library and effective grievance process at the Genesee County Jail, detaining him for more than 72-hours before he was arraigned, and holding probable cause conferences without him present.
According to the complaint, on August 22, 2019, after he was “illegally” arrested for human trafficking and related computer crimes, Plaintiff was “illegally . . . searched” by defendants Lieber, Kennamer, Dobbs, Dallas, Walleman, Lopez, and Snyder when he entered the Genesee County Jail to post bond for his girlfriend. (Id. at PageID.10, 11). The complaint fails to provide sufficient details related to the respective actions of those involved in the arrest. At any rate, he asserts the defendants did not have probable cause to arrest him. Plaintiff contends the defendants submitted false police reports on August 22 and 23, 2019, to justify the illegal arrest. The human trafficking and computer-related charges were later dismissed. He alleges defendant Nelson illegally seized and searched his cellular telephone on August 23, 2019, as the search was not authorized by a warrant until August 28, 2019. (Id.). Plaintiff listed additional allegations of events that occurred while he was detained. While at the jail, Defendant Edmonson allegedly illegally strip-searched Plaintiff on August 22, 2019, without a search warrant or probable cause. In the briefing on both of Defendants' motions, both parties make clear this search occurred during the booking process after Plaintiff's arrest. According to Harris, defendants Pickell and Swanson were the “enforcers of all Jail policies and rules.”
(Id. at PageID.10). While acting in that capacity, these two defendants denied Plaintiff access to a law library and to a “sufficient grievance system.” (Id.). He alleges Genesee County is also liable for denial of access to the law library and not having an adequate grievance system. According to Plaintiff, it is “literally impossible to file a lawsuit due to not having a law library at all.” . He also alleges he was not arraigned within 72-hours of his arrest and there were five probable cause hearings or conferences without his presence during which court proceedings were adjourned without his consent. (Id. at PageID.11). During October 2019, defendant Ross allegedly ordered Plaintiff's jail cell to be searched. Unspecified defendants “destroyed” the cell and damaged and removed legal documents and commissary items. (Id. at PageID.10).
Defendants moved for judgment on the pleadings. They argue Plaintiff's threadbare allegations are insufficient to state a plausible claim to relief against any of the defendants and that they are protected by qualified immunity. (ECF No. 57). In response, Plaintiff argues his complaint sufficiently states his claims and there are issues of material fact. (ECF No. 62, PageID.566-58). He provided more facts in his response. Defendant Ross not only ordered his cell to be searched, but also watched while jail personnel destroyed his property. (Id. at PageID.567). As to his denial of access claims, Plaintiff asserts his appointed criminal attorney was ineffective. Because of the attorney's alleged ineffectiveness, he wanted to access the law library to conduct research for his trial. Yet he was denied. He submitted several grievances about “jail conditions” but the grievance system only allowed an inmate to write the initial grievance; there was no process by which to appeal. (Id. at PageID.567). Plaintiff then provided argument on issues not raised in his complaint or the motion for judgment on the pleadings about a subpoena issued without notice to Plaintiff and that Kennamer allegedly seized Plaintiff's outgoing mail. (Id. at PageID.568-69). Attached to Plaintiff's response are documents he uses to support his claim that there are issues of material fact that must go to a jury, including the felony complaint for human trafficking, the order dismissing the charges, and a forensic extraction report for a “suspect[s]” cellular telephone. (ECF No. 62, PageID.570-604). Defendants did not explain why they filed two dispositive motions with different legal standards. In the motion for summary judgment they argue: (1) Plaintiff's assertion of the Fifth Amendment to keep from testifying at his deposition precludes Plaintiff from offering evidence on the subject of his assertion of the privilege, (2) Defendant Kennamer had probable cause to arrest Plaintiff based on his interaction with the alleged victims and Defendant Sgt. Lopez's report, (3) Defendant Nelson's act of charging Plaintiff's cell phone before the search did not violate constitutional law and Nelson did not conduct the search of the telephone until after the search warrant had issued, (4) Defendants Genesee County, Pickell, and Swanson cannot be held liable for denial of a law library or an ineffective grievance process, and (5) the claim of filing false police reports against defendants Lieber, Walleman, Dobbs, and Dallas should be dismissed both because Plaintiff asserted the Fifth Amendment privilege against testifying and because their reports, submitted after Plaintiff was arrested, had no bearing on his incarceration. In light of their argument that there is no constitutional violation, the defendants argue they are entitled to qualified immunity. (ECF No. 59).
As to asserting the Fifth Amendment privilege against self-incriminating testimony, Plaintiff asserts defendants' counsel was conducting the deposition “in bad faith and to oppress and harass” him. Counsel made false prostitution charges at the deposition and “tried to damage plaintiff's credibility by making derogatory and defaming statements.” (ECF No. 66, PageID.713). He moved to terminate the deposition pursuant to Fed.R.Civ.P. 30(d)(3). For these reasons, he invoked the Fifth Amendment. He also argues there are questions of material fact on all his claims that preclude summary judgment. For instance, he asserts it is not enough that he rented a hotel room for another person to charge him with human trafficking, especially since no sexual acts were exchanged and there was no evidence the women in the hotel room were prostitutes. After his arrest at the preliminary examination, both women testified Plaintiff did not force or encourage prostitution and the officers tried to coerce them into lying that there were trafficked. (Id. at PageID.714). He challenges the credibility of Kennamer and Walleman, asserting they lied in reports and under oath. (Id. at PageID.717-18). Plaintiff again asserted claims that were not pleaded in the complaint: defendants' counsel served a third-party subpoena without giving Plaintiff notice, Defendant Kennamer seized Plaintiff's mail without a search warrant, and while he was incarcerated defendants harassed persons with whom Plaintiff communicated.
The undersigned will initially address Defendants' motion for judgment on the pleadings. As discussed more fully below, the undersigned suggests the motion be granted in part and the claims against Genesee County and the supervisor defendants be dismissed. As to the remaining claims, because Defendants could glean sufficient factual material from the complaint to attack the merits of the claims on a motion for summary judgment, the undersigned will address the remainder in that context. There, the undersigned recommends the motion be granted as to the claims not dismissed on the motion for judgment on the pleadings.
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