Hirmuz v. City of Madison Heights

• Decision Date: 03 January 2007
• Docket Number: No. 05-60293.,05-60293.
• Citation: 469 F.Supp.2d 466
• Parties: Laith HIRMUZ, Luai Hirmuz, Wardia Hirmuz, and Khalil Hirmuz, Plaintiffs, v. CITY OF MADISON HEIGHTS, Madison Heights Police Department, Tim Pawlowski, and Chad Wolowiec, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

469 F.Supp.2d 466

Laith HIRMUZ, Luai Hirmuz, Wardia Hirmuz, and Khalil Hirmuz, Plaintiffs, v. CITY OF MADISON HEIGHTS, Madison Heights Police Department, Tim Pawlowski, and Chad Wolowiec, Defendants.

No. 05-60293.

United States District Court, E.D. Michigan, Southern Division.

January 3, 2007.

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Frederick M. Toca, Toca and Johnson, Farmington Hills, MI, for Plaintiffs.

Michael E. Rosati, Carlito H. Young, Johnson, Rosati, Farmington Hills, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LAWSON, District Judge.

Before the Court is a motion for summary judgment filed by all the defendants, who have been sued under 42 U.S.C. § 1983 for violating the civil rights of Laith Hirmuz. Hirmuz alleges that he was prosecuted wrongfully in a Michigan court for raping his young cousin. After the first jury to hear the state case was unable to reach a decision, resulting in a mistrial, a second jury acquitted the plaintiff of the charges. He contends in the present lawsuit that the defendants arrested him without probable cause, misled the prosecutor and magistrate to obtain the arrest warrant, and used false evidence to prosecute him when they fabricated a confession by taking advantage of his lack of proficiency in the English language. The plaintiffs also allege that the investigating officers were acting pursuant to the customs, policies, and practices of the city and police department, and the municipal defendant is liable under a theory of Municipal and supervisory liability. The defendants argue that the plaintiff's claims are barred by the statute of limitations, collateral estoppel, and qualified immunity, and the plaintiff cannot prevail as a matter of law on his claims. The Court heard oral argument on the motion on December 11, 2006, after which supplemental briefing was ordered. The Court now finds that the City of Madison Heights and its police department are entitled to judgment as a matter of law, and the officers are entitled to judgment in their favor on all the plaintiffs' claims except the false evidence claim. Therefore, the Court will grant the motion in part and deny it in part.

I.

On May 29, 2003, fifteen-year-old Cynthia Nazi and her mother, Hayden Nazi, went to the Madison Heights, Michigan police department to report that both her cousins, Laith Hirmuz and Romel Nazi, had sexually assaulted her. Cynthia informed defendant Officer Chad Wolowiec that Hirmuz and Nazi raped and sodomized her. She alleged that the assaultive behavior started when Cynthia was only six years old; Hirmuz and Nazi were seventeen and twenty-three years old when the attacks began. Defendant Wolowiec took Cynthia's statement. That was his only involvement in the case.

Cynthia reported that the events initially occurred in Cynthia's Madison Heights residence. The attacks by Romel Nazi continued when the family moved to Sterling Heights, but Laith Hirmuz did not move to Madison Heights with the family. Hayden, Cynthia's mother, reported that she brought her daughter to the Sterling Heights and Madison Heights' police departments after Cynthia informed her of the acts. Cynthia testified at trial that she withheld the information for so long because 4 the turmoil that would arise if she disclosed her cousins' alleged conduct.

Cynthia told Officer Wolowiec when he initially interviewed her that Romel Nazi raped her two to three times per week from May 1994 to September 2002. The events occurred, Cynthia said, while her other relatives were asleep.

Cynthia alleged that Laith Hirmuz sexually assaulted her two times at the Madison Heights home some time between May 1994 and September 1995. Cynthia stated that Hirmuz stopped when Cynthia's family moved to Sterling Heights without him. However, Hirmuz states he was not even in the country until December 1994, seven months after this sexual assault supposedly took place, which appears to be corroborated by immigration forms.

The police departments from both Sterling Heights and Madison Heights investigated Cynthia's claims. The Sterling Heights investigation focused on the post-1995 conduct, while Madison Heights focused on the incidents occurring in that City before that date. Cynthia presented consistent statements to both police departments regarding Laith Hirmuz's abusive behavior. She also reported the same allegations to Care House, an institution that counseled Cynthia regarding the alleged abuse. The plaintiffs state that the defendants never interviewed Cynthia after the initial statement she gave to Officer Wolowiec. The plaintiffs further allege that the defendants failed to interview any of the ten to thirteen other relatives who were living in the house when the assaults allegedly took place and never spoke to the Sterling Heights officers who were also investigating Cynthia's allegations.

On June 10, 2003, defendant detective Tim Pawlowski contacted Laith Hirmuz and Romel Nazi to discuss Cynthia's complaints. Pawlowski also sent letters to them requesting a meeting. On June 16, 2003, both Nazi and Hirmuz came to the police station for interviews. Nazi denied having sexual intercourse with Cynthia at any time in the Madison Heights home. However, he told the detectives that his penis may have touched her buttocks while they, were living there because they shared the same bed. Nazi allegedly admitted having anal intercourse with the then ten-year-old Cynthia after they moved to Sterling Heights, but he continued to deny having vaginal sex with her because she had to be a virgin for her wedding. According to the detectives, he claimed to have sodomized her two or three times per week for approximately three years. Nazi informed the officers that he could not write in English, so he did not prepare a written statement.

Laith Hirmuz also met with defendant Pawlowski and non-party police detective Gary Kowalski that same day. The officers' notes indicate that Hirmuz was told he was not under arrest and could leave at any time. Pawlowski later testified at a state court hearing that Hirmuz did not exhibit any difficulty understanding English. During the interview, the officers informed Hirmuz of Cynthia's allegations. The officers' report contains the following description of the interview:

When questioned [Laith] Hirmuz stated that he use to live in Madison Heights some time around 1994 to 1995.... Hirmuz stated that ... he shared a room with Romel, Cynthia, Jessica and Matthew [Cynthia's siblings]. Hirmuz stated that there were two king sized beds in the bedroom that he shared. Hirmuz stated that he often slept in the same bed as Cynthia.

Sgt. Kowaleski and I advised Hirmuz that Cynthia informed us of two sexual encounters that he had with her. Hirmuz initially denied having any type of sexual encounters with Cynthia. Hirmuz then stated that he did remember on two separate occasions that he did "do some wrong things with Cynthia". Hirmuz stated that on both occasions he put Cynthia to bed earlier than everybody else, because she had school in the morning. Hirmuz stated that he and Cynthia "played around in their bedroom on a bed". Hirmuz said that they were both under the blankets and no one else was in the bedroom with them. Hirmuz states that he was wearing boxer shorts on both occasions. Hirmuz states that Cynthia had her underwear off one time and on the next time. Hirmuz said that when he and Cynthia were lying in bed, she got on top of him. Hirmuz states that Cynthia began rubbing her "butt and vagina area on his penis". Hirmuz stated that they both got excited and his penis got hard. Hirmuz stated that his penis came out of his boxer shorts through the opening in the front. Hirmuz stated "I rubbed my penis in between her butt Crack and in between the opening of her pussy lips, but I did not put my penis inside of her pussy hole". Hirmuz stated that this happened on both occasions. Hirmuz stated that he did not ejaculate on either occasion. When asked how he did it the second time when her underwear was on he stated, "she moved her underwear over to one side". Hirmuz indicated this allowed him to place his penis in between Cynthia's buttocks and vagina opening. Hirmuz stated that he was 17 years old and Cynthia was approximately 7 years old when these incidents occurred.

Defs.' Mot. Summ. J. Ex. 6, OIC Notes. Hirmuz also signed a written statement, which reads as follows:

I come to Madison Hts Polic to take about Laith have sex with Cynthia back in 1995 in APT in Madison Hts I, was 17 yers oled she was 7 yers oled. She was [illegible] to bad for schol so I had to go with her Synthia she made move on me she jomp on top of me she got excited so my penis got hard she star rubbing against my penis my penis went between her ass crack then went between her vagina lips this happened twice in one week she did not have untes on one time my penis came through opening in my boxr shorts the second time she moved her panties to one side I rubbed my penis between her, butt crack and her vagina crack.

Defs.' Mot. Summ. J. Ex. 8, Narrative Report. Hirmuz alleges that this statement was fabricated entirely by the police. The defendants admitted `to helping the plaintiff spell some of the words in his written statement, including Cynthia, penis, excited, rubbing, ass crack, vagina, and panties. Pl.'s Resp. Ex. M, Trial Tr. at 73. For some reason, after, Hirmuz made this confession, defendant Pawlowski allowed him to leave the police station, after which Pawlowski submitted his findings to the Oakland County, Michigan prosecutor's office. Pawlowski explained:

I know why I didn't arrest him. I used my discretion. I felt more comfort [sic] getting a warrant-from the prosecutor's office from [sic] a crime `that occurred approximately nine years ago. I was confident that they, if we're talking about Laith at this particular moment, that. I was...