Kubik v. Brown, 1:96 CV 848.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Citation979 F.Supp. 539
Docket NumberNo. 1:96 CV 848.,1:96 CV 848.
PartiesRonald KUBIK and Diann Kubik, Plaintiffs, v. Clark A. BROWN, Tim Baker, and The Michigan Department of State Police, Defendants.
Decision Date29 July 1997
979 F.Supp. 539
Ronald KUBIK and Diann Kubik, Plaintiffs,
Clark A. BROWN, Tim Baker, and The Michigan Department of State Police, Defendants.
No. 1:96 CV 848.
United States District Court, W.D. Michigan, Southern Division.
July 29, 1997.

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Peter H. Shumar, Gray, Ford & Seaman, PC, Traverse City, MI, for plaintiffs.

Margaret A. Nelson, Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Tort Defense Div., Lansing, MI, for defendants.


QUIST, District Judge.

This matter is before the Court on the Motion by defendants Clark A. Brown, Tim Baker and the Michigan Department of State Police to Dismiss, or alternatively, for Summary Judgment (Dkt.# 6). For the reasons stated below, the Defendants' Motion is granted.

As a preliminary matter, the Court must address documents which have been submitted in support of Defendants' Motion. The plaintiffs' claims primarily are based on the arrest of plaintiff Ron Kubik. In support of their motion, the defendants have submitted several police reports. Although the admissibility of the police reports was not raised by the plaintiffs, their admissibility must be addressed by the Court in order to determine what evidence will be considered.

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In support of their motion, the defendants have submitted the following police reports relating to the October 24, 1994 incident:

(1) Original Incident Report for Incident No. 071-3329-94, dated October 24, 1994;

(2) Supplemental Incident Report dated 10-28-94;

(3) Supplemental Incident Report dated 11-3-94; and

(4) Supplemental Incident Report dated 12-21-94.

A copy of the related Warrant or Disposition Request and LEIN Report, as well as a Standard Crime Report for Incident No. 176383 dated August 8, 1983 and accompanying Case Supervision sheet from the City of Brighton, Michigan Police Department have been submitted. All of the foregoing documents are in Defendants' Group Exhibit 1.

Statements of a victim, alleged perpetrator, witnesses and even the prosecutor contained within a police report constitute inadmissible hearsay. Miller v. Field, 35 F.3d 1088, 1091-92 (6th Cir.1994). Police reports may qualify as records or reports of a public agency pursuant to F.R.E. 803(8)1 to the extent that the reports contain factual findings which are based upon the knowledge or observation of the person preparing the reports. Miller, 35 F.3d at 1091. Under F.R.E. 803(8), the reporting person's legal duty supplies the indicia of trustworthiness which allows admission of the report. See Miller v. Caterpillar Tractor Co., 697 F.2d 141, 142-43 (6th Cir.1983) (hereinafter Caterpillar). However, factual findings based on inadmissible hearsay are not admissible under Rule 803(C) because the underlying information is untrustworthy. Complaint of Paducah Towing Co., Inc. (United States v. Paducah Towing Co., Inc.), 692 F.2d 412, 420-21 (6th Cir.1982); Caterpillar, 697 F.2d at 144 (district court did not abuse its discretion in refusing to admit as "untrustworthy" a police report based on the statements of witnesses).

In the present case, the Original Incident Report and subsequent Supplemental Reports relating to Ron Kubik's arrest in October 1994, are based in large part on Diann Kubik's statements to Brown. The report also includes Brown's own observations. The Court will consider those reports to the extent that they reflect Brown's own observations and conclusions based on his personal observations. However, statements regarding events or conversations outside of Brown's presence which Diann Kubik and others made to Brown will not be considered.2

The August 1988 reports from the City of Brighton Police department and accompanying documentation (Brighton Reports) are not admissible because they consist largely of hearsay and because they are not relevant. Those reports refer to an incident between the Kubiks in 1983. The reports appear to have been delivered to Brown on or about November 8, 1994, and accordingly, did not serve as any arguable basis for probable cause in Kubik's October 25, 1994, arrest. Furthermore, even though the Brighton Reports contain officers' observations, those reports have no factual bearing on the issues before this Court. Therefore, those reports are not admissible pursuant to F.R.E. 401 and 402.


The Amended Complaint alleges that on October 24, 1994, Officer Clark Brown responded to a call regarding a domestic dispute

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between the plaintiffs, Ron and Diann Kubik. As part of his investigation, Brown interviewed Diann Kubik at the home of her friend for approximately four hours. It is alleged that during the interview, Brown asked Diann Kubik questions regarding her relationship with her husband, Ron Kubik, any history of abuse, her attendance at church, and Ron Kubik's alleged refusal to allow their children to attend parochial school because Ron Kubik is an atheist. At the time of the interview, both Diann Kubik and Defendant Brown were members of Trinity Lutheran Church (Trinity), where Brown served as an elder. Trinity operated the parochial school which the Kubik children previously had attended. The complaint alleges that Brown inquired as to whether Diann Kubik had asked God for forgiveness. He told her that as an elder of the Church, he could absolve her of her sins. Brown also tried to contact their Pastor prior to and during the interview, but he was not successful. Brown also allegedly made comments to the effect that he knew of persons who would wish to date Diann Kubik should she divorce her husband, and Brown provided her with information on obtaining a divorce. It is undisputed that Diann Kubik told Brown that she did not want Ron Kubik to be arrested.

During the interview, Ron Kubik telephoned the friend's residence and spoke with Brown. Brown then went to the Kubik home to speak with Ron Kubik in person. Subsequently, Diann Kubik and the Kubik children returned to the home, accompanied by Brown. Later that evening, Brown telephoned Diann Kubik to inquire as to whether everything was fine. The complaint alleges that when Brown made that call, he learned that Ron Kubik remained at the house.

The following day, Brown telephoned Diann Kubik to tell her that a warrant had been issued for her husband's arrest. Later that day, Ron Kubik was arrested at the Kubik family home on a charge of spousal assault and battery pursuant to a warrant obtained by the Grand Traverse County prosecutor. Ron Kubik was released on bond on the condition that he not have contact with Diann Kubik. That condition was later amended to prohibit contact with their children. Ron Kubik eventually pled guilty to the charge of assault and battery, and he was placed on probation. His probation conditions required that he and Diann Kubik continue in counseling, which they had been undertaking prior to the incident on October 24, 1994.

The complaint alleges that during an unspecified time following Ron Kubik's arrest, Brown contacted Diann Kubik on several occasions. According to the Complaint, he inquired about whether she would be attending church and whether she needed a "wake up call," and he indicated to her that she was the subject of prayers. Brown also invited Diann Kubik and her children to dinner on two occasions. He encouraged her to divorce Ron Kubik and told her, among other things, that she could be charged with neglect for allowing her children to witness the violence between her and Ron Kubik. The complaint also alleges that Brown informed Diann Kubik that she would likely keep the house and custody of her children if she divorced her husband.

Ron Kubik contends that he was arrested because he is an atheist. The complaint alleges that it is the plaintiffs' belief that the Michigan State Police usually do not seek an arrest in domestic violence cases involving "minor" violence. Ron Kubik alleges that he only threw Diann Kubik's purse at her. The complaint alleges that the defendants engaged in conduct which violated the plaintiffs' rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. §§ 1983 and 1988, Article 1, Sections 2, 4, 11, 16, 17, and 23 of the Michigan Constitution of 1963, as well as M.C.L.A. § 37.2101 (the Elliott-Larsen Civil Rights Act). The complaint seeks compensatory and punitive damages from the defendants. Eighth Amendment claims made in the original complaint have been omitted from the Amended Complaint, and the defendants' contention that the complaint should be dismissed for failure to comply with Fed.R.Civ.P. 10(a) was previously disposed of pursuant to Magistrate Judge Rowland's March 31, 1997 Opinion and Order (Dkt. # s 32 & 33).

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The defendants filed a Motion to Dismiss or alternatively, for Summary Judgment on December 6, 1996 (Dkt.#6). Although the plaintiffs filed an Amended Complaint on February 7, 1997, the parties have proceeded on the defendants' motion as being applicable to the Amended Complaint. The Motion contends that the defendants are entitled to dismissal or summary judgment because a) the Michigan State Police are immune from suit, b) the complaint fails to state a claim as to the Federal Constitutional claims, c) Brown is entitled to qualified immunity, and d) the plaintiffs have failed to state any state law claims.

Because the Court has concluded that it may consider certain portions of the police reports, the following information also may be considered with respect to the Motion for Summary Judgment. First, Brown's initial observation of Diann Kubik was that she had a slight reddening of her left cheek with very faint fingerprints visible. Those marks faded during the interview. Diann Kubik also showed Brown a bruise on her upper left arm. No other injuries were visible to Brown. During the interview, Brown called the Women's Resource Center because...

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