Payne v. Lowry
| Decision Date | 15 August 2019 |
| Docket Number | Case No. 18-11154 |
| Parties | JAMES U. PAYNE, Plaintiff, v. JOSEPH LOWRY, OFFICER CLARK, and KELLIE M. FITTONNEVILLE, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
On April 9, 2018, Plaintiff James U. Payne filed a pro se civil complaint under 42 U.S.C. § 1983, alleging violations of the First, Fourth, and Fourteenth Amendments. Before the Court is a Motion for Summary Judgment [Doc. #32] filed by Defendants Lowry, Clark, and Fittonneville, which has been referred for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion be GRANTED.
Mr. Payne's handwritten complaint is a bit rambling, but it can be read to make the following allegations and claims. While driving his green Lincoln Navigator, he was pulled over by the Hazel Park, Michigan police. He alleges that the stop was the result of "mistaken identity," since the dispatcher's report said that the police were looking for someone driving blue Lincoln Navigator. He states that he was not allowed to talk when he appeared in court, and claims that this was a violation of his First Amendment rights.
Mr. Payne states that he had a seizure while he was in the lockup in Hazel Park, and that the police "denied him to go to the hospital to get treated like the ambulance people said I needed to go." He claims a Fourteenth Amendment Due Process violation based on this denial of medical care. He also alleges that the police took his driver's license and his Michigan medical marijuana card, in violation of the Fourth Amendment. He alleges that s a result of not having his driver's license returned, he lost his Lincoln Navigator. Mr. Payne alleges that Defendant Kellie Fittonneville, a probation officer, lied in court, as a result of which he served 17 days in jail:
"Probation officer Kellie M. Fittonneville lied and told the judge I was at Time Horton's eating and she said I was trying to get my property and try to leave when I came to her office first and she was busy. She lied in court that's perjury in court so the judge sent me back to jail for about 17 days for nothing.
Finally, Mr. Payne alleges that "Officer Clark said he would come in to testify."
Exhibit C to Defendants' motion is a transcript of Mr. Payne's deposition. He testified that he suffered from seizures, and in the past had received Social Security Disability payments. Payne Dep., 18-19. He states that on April 11, 2016, he picked up a friend at her house in Hazel Park. While he was parked in front of the house, the police appeared "out of the blue" and "pull[ed] him over for being parked for nothing." An officer tapped on his car window, but "out of fear" Mr. Payne drove off. Id. 43-48. He drove around a residential neighborhood and came back out on Nine Mile Road. Eventually he stopped, exited his car, and ran, with a police officer in pursuit. Id., 49-51. When he came to a parking lot, he lied down. Id., 54.
Mr. Payne testified that the police seized 2.4 ounces of marijuana, scales, a medical marijuana caregiver's card, transaction records, and $655.30 in cash. Id., 55-56. He said that although the police returned part of his money, they did not return his marijuana caregiver's card or his driver's license. Id., 56-57. He obtained a new driver's license on June 23, 2016. Id., 57.
Mr. Payne testified that when he was taken into custody, he told people at the jail that he was taking medication for seizures, specifically Depakote ER and Keppra. Id., 61-62. However, he said that at the time he did not have an active prescription for these medications. Id. 64. He said that his custodians tried to give him "pink regular Depakote, which that wasn't strong enough for me." Id., 63-64. He said that he had a seizure the following day (April 12), and that paramedics told him that he needed to go to the hospital. Instead, he states, he was taken to the Oakland County jail. Id., 64-70.
Mr. Payne testified that Officer Clark, a Defendant in this case, said Id., 70-71. Mr. Payne said that he named Clark as a defendant because "he didn't want him to lose his job," and didn't know how to put him on the "plaintiff side" of the complaint. He conceded that Officer Clark did nothing wrong:
Mr. Payne testified that he was suing Officer Lowry because Lowry refused to return his driver's license, his medical marijuana caregiver's card, his medical marijuana patient card, and his marijuana. Id., 75-81.
Mr. Payne testified that he was suing Probation Officer Fittonneville because she lied in court (apparently at a probation violation hearing) by stating falsely that he had been eating at a Tim Horton's restaurant instead of reporting to her. However, he conceded that he was late for his appointment with her. Id., 79-84.
Mr. Payne said that as a result of the incident on April 11, 2016, he was charged with fleeing and eluding a police officer, but pled guilty to the misdemeanor charge of attempted resisting and obstructing an officer. Id., 84-91. He was sentenced to 18 months probation. Id. 95-96.
Defendants' Exhibit B is the affidavit of Hazel Park Police Officer Matthew Viviano. He states that on April 11, 2016, he received a report of a suspicious, dark colored Lincoln Navigator, and observed a car matching that description parked against a curb. Viviano Affidavit, ¶¶ 2-3. The Plaintiff was in the driver's seat, and when Viviano motioned for him to roll down the window, the Plaintiff started to drive away. Viviano yelled for him to stop, but Plaintiff continued to flee. Id. ¶ ¶ 4-6. Viviano pursued him in his patrol car until Plaintiff stopped on Nine Mile Road, exited his car, and ran on foot to the parking lot of Village Hall. At that point, Plaintiff was taken into custody and transported to the Hazel Park Police Department. Id., ¶¶ 6-10. Viviano, who remained at the scene, conducted an inventory search of Plaintiff's Lincoln Navigator. He discovered 2.4 ounces of marijuana, two digital scales, two boxes of plastic sandwich bags, scissors, transaction log sheets, a Michigan medical marijuana patient card, and a marijuana caregivers card. Id. ¶¶ 11-12. During booking, Plaintiff was found to have $655.30 on his person. Id. ¶ 13. Viviano states that on information and belief, Plaintiff's driver's license was never discover, confiscated, destroyed, or discarded by any Police Department employee, including himself. Id. ¶ 14.
Viviano states that the Navigator was impounded, and a notice of seizure and intent to forfeit was served on Plaintiff. Id. ¶¶ 16-17. The Notice is attached to Viviano's affidavit as Exhibit 1. The police report regarding the incident is attached to the affidavit as Exhibit 2. It states that the medical marijuana cards found in the car "were confiscated and held for safekeeping." It also notes that the Oakland County Prosecutor's Office approved a warrant for the felony charge of fleeing and eluding a police officer, third degree.
Defendants' Exhibit D is the affidavit of Janeen Gielniak, a Hazel Park Police Detective. Gelniak states that a forfeiture notice was served on Plaintiff regarding his automobile on April 11, 2016. Gielniak Affidavit, ¶ 7. The amount of the forfeiture bond for the release of the vehicle was $500.00. Id. ¶ 10 and Exhibit 3 to the affidavit. It would not have been necessary for Plaintiff to produce a driver's license to have the car released, because the police had already verified that he had a valid license and that he was the registered owner of the car. Id. ¶ 11. In addition, Plaintiff could have authorized the release of a vehicle to a third party, but he did not do so. Id. ¶ 12.
Defendants' Exhibit E is the affidavit of Hazel Park Police Detective Joseph Lowry. He states that he never saw or possessed Plaintiff's driver's license. To the best of his knowledge, Plaintiff never produced his license, and no police official confiscated, destroyed, or discarded Plaintiff's license. Lowry Affidavit, ¶¶ 6-7. Lowry states that on June 21, 2016, Plaintiff's cell phones, medical marijuana cards, and money ($655.30), which had been held for safekeeping, were returned to him. Id. ¶ 10. Exhibit 4 to Lowry's affidavit is notice of receipt of this property, signed by Plaintiff under penalty of perjury, and dated June 21, 2016. The signed receipt states, "I certify, under penalty of perjury, that I am the lawful owner/owner's representative of the property listed above and that I have taken possession of the described property from the Hazel Park Police Department." However, Lowry states that the Plaintiff's marijuana was not returned to him because it is a Schedule I controlled substance. Lowry Affidavit, ¶ 13.
Defendant's Exhibit F is a transcript of Plaintiff's arraignment in the Hazel Park District Court, on the charge of fleeing and eluding a police officer, a five-year felony. The judge cautioned the Plaintiff that he had a right to remain silent and the right to an attorney, entered a plea of not guilty on Plaintiff's behalf, and appointed counsel. Arraignment Transcript, 6-7. The judge then asked the Plaintiff if he wished to say anything before he set bond, and Plaintiff gave a lengthy statement. Id., 8-10.
Defendants' Exhibit L is the transcript of Plaintiff's plea hearing in the...
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