Olver v. City of Berkley, 01-CV-71689.

• Decision Date: 22 April 2003
• Docket Number: No. 01-CV-71689.,01-CV-71689.
• Citation: 261 F.Supp.2d 870
• Parties: Kristin A. OLIVER, Plaintiff, v. CITY OF BERKLEY, a municipal corporation, Bruce Henderlight, and Brent Smith, jointly and severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

261 F.Supp.2d 870

Kristin A. OLIVER, Plaintiff, v. CITY OF BERKLEY, a municipal corporation, Bruce Henderlight, and Brent Smith, jointly and severally, Defendants.

No. 01-CV-71689.

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

April 22, 2003.

COPYRIGHT MATERIAL OMITTED

Carol A. McNeilage, Kepes, Wine, Joseph P. McCarroll, Stephanie A. Berg, Southfield, MI, for Plaintiff.

James I. Degrazia, Timothy Mulligan, O'Connor, DeGrazia, Bloomfield Hills, MI, John J. Hoffman, Thomas, Degrood, Southfield, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART DEFENDANTS CITY OF BERKLEY'S AND HENDELIGHT'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT SMITH'S JOINDER IN THE MOTION FOR SUMMARY JUDGMENT, AND DISMISSING PLAINTIFF'S CLAIMS AS TO DEFENDANTS CITY OF BERKLEY AND HENDERLIGHT ONLY

STEEH, District Judge.

Defendants City of Berkley and Bruce Henderlight move for summary judgment of plaintiff Kristin Oliver's 42 U.S.C. § 1983, Elliott-Larsen Civil Rights Act ("ELCRA"), and intentional infliction of emotional distress claims that are premised on May 3, 1998 sexual assaults allegedly committed by former Berkley Police Officer defendant Brent Smith. Defendant Smith filed a "joinder" in City of Berkley's and Henderlight's motion for summary judgment to the extent defendants argue the claims are barred by release. A hearing on the motion was held on March 6, 2003. For the reasons set forth below, City of Berkley's and Henderlight's motion for summary judgment, and Smith's joinder in the motion, will be DNIED, IN PART, to the extent the motion is based on release. The remainder of City of Berkley's and Henderlight's motion for summary judgment will be GRANED, with plaintiffs claims as alleged against City of Berkley and Henderlight ONLY being dismissed in their entirety.

I. Background

Plaintiff Kristin Oliver alleges in her August 13, 2003 First Amended Complaint that she was arrested by Berkley Police Officer Brent Smith on May 3, 1998 for operating a motor vehicle while impaired by alcohol ("OWI"), notwithstanding a preliminary breathalyzer test performed by Officer Smith indicating a .07 blood-alcohol content, as compared to the minimum .08 blood-alcohol content needed to prove per se OWI. Plaintiff alleges she was sexually assaulted by Officer Smith during her arrest:

9. That Officer SMITH inappropriately touched plaintiff when she was carrying out his directions to walk a straight line.

10. That Officer SMITH again inappropriately touched plaintiff after ordering her into the back of his scout car on the pretext of conducting a search of her person for safety reasons.

11. That Officer SMITH next drove plaintiff to the BERKLEY PUBLIC SAFETY DEPARTMENT where he again inappropriately touched plaintiff by slowly sliding his hands up plaintiffs thighs until he reached her pubic area and then "cupping" her pubic area in his hand while telling plaintiff she was a very pretty girl and if she just cooperated everything would go all right for her.

12. That Officer SMITH next told Plaintiff he had to search her again for safety reasons. This time he put his hand inside her bra and felt her breasts. He reached into her underpants where he was prohibited from fully exploring her by her undergarment. He told her she had to remove her undergarment and give it to him whereupon he was able to put his hand inside her pants and feel her vulva again encouraging her to cooperate and things would go well for her.

13. That Officer SMITH intentionally and willfully caused a harmful and offensive contact with plaintiff by improperly touching her breasts and pubic area against her will constituting a battery and depriving plaintiff of her right to privacy.

14. That Officer SMITH repeatedly told plaintiff during these attacks that if she just cooperated things would go well for her conveying to plaintiff the impression that if she did not submit to this offensive touching things would not "go well for her" during her confinement.

15. That Officer SMITH intentionally watched plaintiff urinate when she used the lavatory facilities at the jail. He stood outside the door of the lavatory and watched plaintiff through the glass window located in the door.

16. That at no time did plaintiff harass, threaten, resist arrest or fail to "cooperate" with the defendant police officer or engage in any conduct which justified the actions of Officer SMITH. Plaintiff complied with SMITH'S directives under duress and only due to his authority as a Berkley Police Officer.

August 13, 2001 First Amended Complaint, ¶¶ 9-16, at 3-4. In Counts I and II, respectively, plaintiff alleges Smith is liable for assault, and intentional infliction of emotional distress. Count III alleges Smith, City of Berkley, and Police Chief Bruce Henderlight are liable under 42 U.S.C. § 1983 for violations of plaintiffs civil rights as protected by the Fourth, Fifth, Eighth, and Fourteenth Amendments of the Constitution. Count IV alleges liability under Michigan's ELCRA, M.C.L. § 37.2101 et seq., for sexual harassment.

Defendants City of Berkley and Henderlight previously moved for summary judgment on August 15, 2001¹ based on two written releases executed by plaintiff as part of her plea to a non-alcohol related charge of careless driving. The court performed a three-part Rumery analysis, consistent with Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), Burke v. Johnson, 167 F.3d 276 (6th Cir.1999), and Coughlen v. Coots, 5 F.3d 970 (6th Cir.1993), examining whether plaintiff voluntarily executed the releases, whether there was evidence of prosecutorial misconduct, and whether enforcement of the release agreements would affect relevant public interests. In denying the prior motion for summary judgment, this court reasoned:

Construing the pleadings and evidence in a light most favorable to plaintiff, and even assuming that plaintiff voluntarily signed the subject release and that there is an absence of evidence of prosecutorial misconduct, it remains possible for plaintiff to develop a record demonstrating that, in this particular case, the public's interest in vindicating constitutional rights and deterring police misconduct weighs in favor of permitting plaintiffs case to go forward despite the signed release. Defendants' argument that the court must focus only on those facts and allegations of police misconduct that the prosecutor knew about at the time the release was executed (which here appears to be nothing) in [sic] not well taken, and at best, is properly directed at the second prosecutorial misconduct factor. The Coughlen court makes clear that, under the third public interest factor, substantial evidence of police misconduct supporting a § 1983 claim may of itself outweigh the public interest in litigation finality and docket control, even absent prosecutorial misconduct. Coughlen, 5 F.3d at 974. Stated differently, whether competing public interests weigh in favor of disregarding a release depends upon whether there is substantial evidence available that could support an actionable § 1983 claim of police misconduct even though, at the time the release was executed, the prosecutor properly sought the release. If plaintiff Oliver is able to produce substantial evidence that she was repeatedly sexually assaulted by defendant Officer Smith, this court could conclude that the public's interest in vindicating constitutional rights and deterring police misconduct, despite the release and absent evidence of prosecutorial misconduct, outweighs the more general prosecutorial interest in case load management, permitting plaintiff to proceed with her claims. Id. Release agreements are subject to closer scrutiny where, as here, there are allegations of police misconduct. Burke, 167 F.3d at 281. October 30, 2001 Opinion and Order, at 6-7. The court recognized that the burden of proving that the releases are enforceable is on the defendants. Id., at 7 (citing Burke, 167 F.3d at 281).

Motion for Summary Judgment

In their instant motion for summary judgment, defendants renew their argument for dismissal based on release, "refiling" their earlier 13 page motion for summary judgment as an exhibit. Defendant Henderlight also argues he cannot be held individually liable in the absence of proof that he encouraged or participated in Officer Smith's alleged sexual assault. Defendant Henderlight further argues he cannot be held individually liable because he is entitled to qualified immunity. Defendants City of Berkley, and Chief Henderlight in his official capacity, maintain they cannot be held liable under 42 U.S.C. § 1983 because plaintiff has failed to show that the alleged sexual assault was the result of an official policy, custom, or practice of deliberate indifference to plaintiffs constitutional rights. Defendants also argue that they are entitled to summary judgment of plaintiffs intentional infliction of emotional distress claim because Michigan does not recognize such a tort claim.

As to the defense of release, plaintiff counters that the defendants have not met their burden of proving that plaintiff voluntarily signed the releases, given her testimony that she agreed to plea to a lesser charge of careless driving, and thus to execute the releases, only because she reasonably believed her estranged husband's threats that she would lose custody of her daughter in a pending divorce action if she were found guilty of OWL Plaintiff also argues that defendants have not shown that enforcing the "blanket releases" in light of uncontroverted evidence of police misconduct outweighs the strong public interest of discovering and rectifying meritorious constitutional claims of unlawful invasion of bodily integrity. Plaintiff continues that Chief Henderlight may be held individually liable as the Berkley Police Department's policy maker, and for his failure to properly train and supervise Berkley Police Officers. Plaintiff argues...