Johnson v. Wayne County

Decision Date01 September 1995
Docket NumberDocket No. 169802
Citation540 N.W.2d 66,213 Mich.App. 143
PartiesPatsy JOHNSON, Plaintiff-Appellant, v. WAYNE COUNTY, a municipal corporation, Wayne County Sheriff Deputies Gary Lehman, Mark Javor, Donald Wahl, Eugene Wright, and others as yet identified, Wayne County Sheriff Deputies, and Jail Personnel involved in the custody, cell assignment, and jailing of plaintiff, Defendants-Appellees.
CourtCourt of Appeal of Michigan — District of US

Goodman, Eden, Millender & Bedrosian by Michael J. Haddad and William H. Goodman, Detroit, for plaintiff.

Jennifer M. Granholm, Wayne County Corporation Counsel, and W. Steven Pearson, Assistant Corporation Counsel, Detroit, for defendants.

Before MARK J. CAVANAGH, P.J., and JANSEN and KOLENDA, * JJ.

JANSEN, Judge.

Plaintiff appeals as of right from an October 29, 1993, order of the Wayne Circuit Court granting summary disposition under MCR 2.116(C)(7) and (10) to defendants with respect to all counts in plaintiff's complaint. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff Patsy Johnson was called to serve as a juror for the criminal trial of Tamara Marie Marshall, who was accused of leading three men into a crack house in the City of Detroit where they tortured and killed, in execution style, six people. The case was dubbed the "St. Aubin Street Massacre."

After sitting through two weeks of trial in September 1990, plaintiff failed to appear at 8:45 a.m. on September 13, 1990. Plaintiff did not appear because she attended a friend of the court hearing concerning her children. Upon plaintiff's arrival at the friend of the court, she was told that someone had called from Judge Tennen's courtroom (who was presiding over the criminal matter). Plaintiff then went home instead of attending the meeting. While plaintiff was preparing to go to Judge Tennen's courtroom from her house, police officers came by, picked her up, and brought her to Judge Tennen's courtroom.

When plaintiff arrived, the trial was in session, so she sat in the back room in the court for approximately one hour. At 1:26 p.m., Judge Tennen excused the jury and spoke with plaintiff. Judge Tennen explained to plaintiff that she had delayed the proceeding. Plaintiff was found in contempt of court and sentenced to three days in the Wayne County Jail. She was discharged as a juror from the criminal case.

Plaintiff was taken to a holding cell. When the officer opened the door of the holding cell, plaintiff saw Tamara Marshall alone in the cell. Plaintiff was placed in the cell with Marshall. Marshall asked plaintiff if she was Patsy Johnson because Marshall's attorney had told her what had happened. Marshall asked plaintiff questions regarding what the other jurors were thinking about the case. Marshall badgered plaintiff while pacing around the cell. Plaintiff stated that she was astonished, stunned, and scared while in the cell with Marshall. Plaintiff believed that Marshall might inflict bodily harm on her.

Deputy sheriffs looking at plaintiff and Marshall through the window of the cell door allegedly started laughing. Plaintiff was crying and felt intimidated. Plaintiff was in the cell with Marshall for one hour before deputies took Marshall away and left plaintiff alone in the cell. However, Marshall was again placed in the cell with plaintiff for another hour. The deputies then came and escorted plaintiff and Marshall to the Wayne County Jail. Plaintiff and Marshall were handcuffed together during the move.

When they reached the jail, plaintiff and Marshall were placed in a cell with seven other women. Marshall used the telephone in the cell, mentioned plaintiff's name, and told the other party that plaintiff had been serving on her jury. Approximately forty minutes later, Marshall was removed from the jail cell.

After being released from jail on September 17, 1990, plaintiff was hospitalized at St John Hospital because of a mental breakdown. Over the next year, plaintiff was treated by psychologists and psychiatrists for her psychological injuries. On August 13, 1992, plaintiff filed suit for emotional injuries that she assertedly had sustained during her confinement with Marshall. The trial court ultimately granted summary disposition for defendants with regard to all counts in plaintiff's complaint.

I

We review de novo the trial court's ruling regarding a motion for summary disposition. Wieringa v. Blue Care Network, 207 Mich.App. 142, 144, 523 N.W.2d 872 (1994). The trial court granted summary disposition with respect to plaintiff's claims under the Michigan Constitution, Const.1963, art. 1, § 2 (equal protection), § 16 (cruel or unusual punishment), and § 17 (due process). These claims only relate to the individual defendants and not to defendant Wayne County.

Although it is not entirely clear from the record, it appears that the trial court granted summary disposition regarding these claims under MCR 2.116(C)(10). MCR 2.116(C)(10) tests the factual basis underlying a plaintiff's claim. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). MCR 2.116(C)(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the opposing party. MCR 2.116(G)(5); Radtke, supra. The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). The court must not make factual findings or weigh credibility in deciding a motion for summary disposition. Manning v. Hazel Park, 202 Mich.App. 685, 689, 509 N.W.2d 874 (1993). Thus, we examine the facts of this case in a light most favorable to plaintiff. Id., at 690, 509 N.W.2d 874.

A

First, plaintiff claims that the trial court erred in granting summary disposition with regard to her claim alleging denial of equal protection under Const.1963, art. 1, § 2.

In Smith v. Dep't of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987), aff'd sub. nom. Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), in a memorandum opinion, a majority of the justices were of the opinion that a claim for damages against the state arising from a violation by the state of the Michigan Constitution may be recognized in appropriate cases. Two of the justices stated that liability should be imposed on the state only where the action of the state agent implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers or governmental custom. Id., at p.p. 642-643, 410 N.W.2d 749. However, two other justices would not limit liability to only those situations where the alleged constitutional violation occurred by virtue of a governmental custom or policy. Id., at p. 658, 410 N.W.2d 749.

Recently, this Court held that a plaintiff's claim under Const.1963, art. 1, § 17 that her procedural due process rights were violated by the defendant city depended upon a showing that, by virtue of a custom or policy, the city deprived her of her property rights without due process of law. Marlin v. Detroit (After Remand), 205 Mich.App. 335, 338, 517 N.W.2d 305 (1994). Thus, in light of Marlin, we must determine if plaintiff showed that, by virtue of defendant Wayne County's custom or policy, Wayne County deprived her of a constitutional right.

Although this claim is one against the individual defendants only, we believe that the requirement that a custom or policy be shown to sustain a constitutional tort must also be met. That is, where a plaintiff alleges a constitutional tort against governmental employees only, the plaintiff must show that the alleged constitutional violation occurred by virtue of a custom or policy that the governmental employees were carrying out. See Smith, supra, at pp. 642-643, 410 N.W.2d 749 (Boyle, J.).

Plaintiff argues that she was denied equal protection because defendants singled her out to injure and taunt. Plaintiff's equal protection claim must fail because she has failed to provide any evidence that, by virtue of a custom or policy, defendants deprived her of equal protection. Plaintiff has presented evidence that it was the general policy or general procedure of deputy sheriffs to place all prisoners together in the same holding cell unless there was a known possibility of physical harm (see issue II, infra ). However, we find no evidence that the policy deprived plaintiff of equal protection.

Const.1963, art. 1, § 2 requires that "[n]o person shall be denied the equal protection of the laws." Plaintiff has not identified any legislation that discriminates against her. See Doe v. Dep't of Social Services, 439 Mich. 650, 662, 487 N.W.2d 166 (1992); Thompson v. Merritt, 192 Mich.App. 412, 424-425, 481 N.W.2d 735 (1991). Thus, plaintiff has failed to present any evidence that she was denied equal protection of the law. An equal protection claim is unavailing where a plaintiff alleges that governmental employees "singled her out" (from a group that plaintiff does not identify) to injure and taunt.

Accordingly, the trial court did not err in granting summary disposition for defendants with regard to the equal protection claim.

B

Next, plaintiff argues that the trial court erred in granting summary disposition regarding her cruel or unusual punishment claim under Const.1963, art. 1, § 16.

We do not believe that plaintiff has shown that, by virtue of a custom or policy, defendants inflicted cruel or unusual punishment on her. Although plaintiff has presented...

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