Moore v. Detroit Entertainment, L.L.C.

• Decision Date: 27 May 2008
• Docket Number: Docket No. 275157.
• Citation: 755 N.W.2d 686,279 Mich.App. 195
• Parties: Douglas MOORE, Plaintiff-Appellee/Cross-Appellant, v. DETROIT ENTERTAINMENT, L.L.C., doing business as Motor City Casino, Defendant-Appellant/Cross-Appellee, and Jose Oscar Martinez, Defendant.
• Court: Court of Appeal of Michigan — District of US

755 N.W.2d 686

279 Mich.App. 195

Douglas MOORE, Plaintiff-Appellee/Cross-Appellant, v. DETROIT ENTERTAINMENT, L.L.C., doing business as Motor City Casino, Defendant-Appellant/Cross-Appellee, and Jose Oscar Martinez, Defendant.

Docket No. 275157.

Court of Appeals of Michigan.

Submitted April 8, 2008, at Detroit.

Decided May 27, 2008, at 9:05 a.m.

Gary R. Blumberg, P.C. (by Gary R. Blumberg), Southfield and Warner Norcross & Judd, LLP (by John J. Bursch and Gaëtan E. Gerville-Réache), Grand Rapids, for the plaintiff.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh, Rosalind Rochkind, and Robert F. MacAlpine), Detroit, for the defendants.

Before: O'CONNELL, P.J., and BORRELLO and GLEICHER, JJ.

GLEICHER, J.

Plaintiff commenced this action alleging multiple state-law intentional torts and a violation of 42 USC 1983 after Detroit Entertainment, L.L.C., doing business as Motor City Casino,¹ through several casino employees, denied plaintiff entry into the casino, thereafter detained him inside the casino, and ultimately banned him permanently from the casino. Defendant appeals as of right, challenging various aspects of a final judgment entered by the trial court after a jury trial, at the conclusion of which the jury returned a special verdict in plaintiff's favor. Plaintiff cross-appeals, contesting the trial court's pretrial order granting summary disposition of his abuse-of-process and malicious-prosecution claims. We affirm.

I. Underlying Facts and Proceedings

Plaintiff and five companions traveled to the Motor City Casino on the evening of September 14, 2002, to take advantage of a complimentary meal and to gamble. When the group's Metro car arrived at the casino's valet entrance, some members of the group, including plaintiff, held cups containing alcoholic beverages, but disposed of the cups when advised that they could not enter the casino with them. Much trial testimony disputed whether (1) plaintiff stumbled while alighting from the group's Metro car and approaching the valet lobby, (2) plaintiff's speech was slurred, (3) plaintiff's eyes appeared glassy, or (4) plaintiff's breath smelled of alcohol.

There is no dispute, however, that in the valet lobby, defendant Jose Oscar Martinez, a casino security manager who had obtained "PA 330 certification" under MCL 338.1079,² barred plaintiff's entry on the basis that he appeared inebriated and thus constituted a potential liability to the casino. Plaintiff and some of his companions expressed disbelief, denied that plaintiff was intoxicated, and asked to speak with a manager. But the evidence diverged concerning the extent of plaintiff's physical reaction to Martinez's announcement: some testimony described that while protesting his exclusion and demanding a manager, plaintiff may have made "nonchalant" gestures with his arm or hand, although this testimony varied regarding plaintiff's proximity to Martinez at the time of the gestures, while other testimony recounted that plaintiff seemed to have intentionally pointed a finger or directed an open hand that made contact with Martinez's chest. Many witnesses recalled seeing Martinez step backward.³

Other nearby casino security personnel announced that an assault had occurred, which prompted plaintiff and his companions to depart from the valet lobby and walk across the street. A group consisting of several casino security officers, at some point accompanied by two Detroit police officers, eventually confronted plaintiff and his companions. Another PA 330-certified casino security manager, John Grzadzinski, offered plaintiff the choice to either return to the casino to discuss the alleged assault, or to place himself in the custody of the Detroit Police Department. At trial, Grzadzinski replied affirmatively to plaintiff's counsel's inquiry whether the Detroit police officers present likewise "suggested to [plaintiff] that he go back with [Grzadzinski] into the casino, is that right?" Richard Novak, one of plaintiff's companions and his longtime business attorney, recounted at trial that after Grzadzinski announced the two choices "loud enough for everybody to hear," Novak spoke with the Detroit police officers present in the group, and "asked the DPD" whether they agreed with Grzadzinski's two alternative proposals. According to Novak, the officers "said we don't care, it's your call." Plaintiff, who initially declined to return to the casino, ultimately elected, on Novak's advice, to allow himself to be escorted back to the casino's security office.

In a detention room, pursuant to casino policies and applicable administrative rules, plaintiff underwent a pat-down search and the removal and inventory of his personal property, before being left alone in the locked detention room. At plaintiff's request, someone later escorted him to a bathroom. On returning to the detention room, against plaintiff's expressed wishes, security personnel locked him back inside the detention room. Ultimately, Grzadzinski obtained plaintiff's signature on an "86 form" permanently banning him from the casino, although Grzadzinski denied plaintiff's requests that Novak review the form or that plaintiff receive a copy of the form.

The trial evidence established that plaintiff's detention period was about 2-1/2 hours. Plaintiff then left the Motor City Casino with his companions, and everyone went to the Greektown Casino.

In May 2003, a Wayne County Sheriff's deputy arrested plaintiff at Detroit Metropolitan Airport when he learned plaintiff had outstanding assault and battery warrants arising from the September 14, 2002, incident at the Motor City Casino. The criminal proceedings against plaintiff were temporarily terminated in September 2003, when the 36th District Court dismissed the charge without prejudice because no prosecution witnesses appeared. Sometime in 2005, plaintiff discovered the existence of resurrected arrest warrants relating to September 14, 2002. After a December 2005 trial in the 36th District Court, a jury acquitted plaintiff.⁴

II. Challenges to 42 USC 1983 Special Verdict

Defendant first contends that the trial court erred by denying its motion for a directed verdict regarding plaintiff's § 1983 claim. Defendant specifically challenges the trial court's ruling as a matter of law that the casino, through the conduct of its PA 330-certified security officers, acted under color of state law during the September 14, 2002, detention of plaintiff.

A

This Court reviews de novo a trial court's ruling on a litigant's motion for a directed verdict. Candelaria v. BC Gen. Contractors, Inc., 236 Mich.App. 67, 71, 600 N.W.2d 348 (1999). In reviewing the trial court's ruling, this Court examines the evidence presented and all legitimate inferences arising therefrom in the light most favorable to the nonmoving party. Farm Credit Services of Michigan's Heartland, PCA v. Weldon, 232 Mich.App. 662, 668, 591 N.W.2d 438 (1998). "A directed verdict is appropriate only when no material factual question exists upon which reasonable minds could differ." Candelaria, supra at 71-72, 600 N.W.2d 348. "If reasonable jurors could honestly have reached different conclusions, neither the trial court nor this Court may substitute its judgment for that of the jury." Hunt v. Freeman, 217 Mich.App. 92, 99, 550 N.W.2d 817 (1996). The "appellate court recognizes the jury's and the judge's unique opportunity to observe the witnesses, as well as the factfinder's responsibility to determine the credibility and weight of trial testimony." Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 219 Mich.App. 190, 195, 555 N.W.2d 733 (1996).

B

According to 42 USC 1983, any person who experiences "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" because of the actions of another person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" may file an action seeking relief against the party that caused the deprivation. (Emphasis added.) The dispute in this appeal focuses on the "under color of" state law element of a § 1983 claim.

The United States Court of Appeals for the Sixth Circuit recently examined, in relevant part as follows, the contours of the requisite state-action element:

The issue in this appeal is whether Plaintiffs can demonstrate that Defendant acted "under color of state law" by showing that Defendant's conduct constituted state action. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 942, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).... Section 1983 does not, as a general rule, prohibit the conduct of private parties acting in their individual capacities.... However, "[a] private actor acts under color of state law when its conduct is `fairly attributable to the state.'" Romanski [v. Detroit Entertainment, LLC, 428 F.3d 629, 636 (C.A.6, 2005)] (quoting Lugar [supra at 937, 102 S.Ct. 2744]).

"What [conduct] is fairly attributable [to the state] is a matter of normative judgment, and the criteria lack rigid simplicity." Brentwood [Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)]. The Supreme Court and this Court, however, have provided several significant milestones to guide our inquiry as to whether Defendant's conduct constitutes state action. As we recognized in Chapman [v. Higbee Co., 319 F.3d 825, 833 (C.A.6, 2003),] "[t]he Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test." Of these three tests, the only one relevant to the instant case is the public function test. Under the public function test, courts have found "state action present in the exercise by a private entity of powers traditionally exclusively reserved to the State." Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)....