Rogers v. City of Port Huron

• Decision Date: 05 October 1993
• Docket Number: No. 92-CV-75898-DT.,92-CV-75898-DT.
• Citation: 833 F. Supp. 1212
• Parties: Wilson G. ROGERS and Cynthia Reed, Co-Personal Representative of the Estate of Brian Rogers, Deceased, Wilson G. Rogers, Cynthia Reed, and Casey Lynn Gilbert, a Minor, By Her Mother, Violet J. Gilbert, Plaintiffs, v. CITY OF PORT HURON, a municipal corporation, Port Huron Police Department, William Corbett, Individually and as Chief of Police for the City of Port Huron, Police Officer Reid, Police Officer Malott and John Doe, Supervising Officer of Defendants Reid and Malott, Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

833 F. Supp. 1212

Wilson G. ROGERS and Cynthia Reed, Co-Personal Representative of the Estate of Brian Rogers, Deceased, Wilson G. Rogers, Cynthia Reed, and Casey Lynn Gilbert, a Minor, By Her Mother, Violet J. Gilbert, Plaintiffs, v. CITY OF PORT HURON, a municipal corporation, Port Huron Police Department, William Corbett, Individually and as Chief of Police for the City of Port Huron, Police Officer Reid, Police Officer Malott and John Doe, Supervising Officer of Defendants Reid and Malott, Jointly and Severally, Defendants.

No. 92-CV-75898-DT.

United States District Court, E.D. Michigan, S.D.

October 5, 1993.

COPYRIGHT MATERIAL OMITTED

Dani K. Liblang, Liblang & Lehro, P.C., Bloomfield Hills, MI, for plaintiffs.

Timothy Young, Cummings, McClorey, Livonia, MI, for defendants.

OPINION

DUGGAN, District Judge.

Currently before this Court is Defendants' — City of Port Huron, William Corbett, and Police Officers Reid and Malott — motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). This Court has reviewed the briefs submitted in support of and in opposition to defendants' motion and has had the benefit of oral argument held on August 26, 1993.

Plaintiffs commenced an action against defendants alleging that defendants are liable under 42 U.S.C. § 1983 because they violated plaintiffs' decedent's, Brian Rogers, constitutional rights, and further, that defendants are liable under state law pursuant to M.C.L. § 691.1407 for their acts of gross negligence in handling decedent. Defendants assert that they are entitled to dismissal (or partial dismissal) on six grounds: 1) plaintiffs have failed to establish that decedent's constitutional rights were violated by the actions of defendants; 2) the individual police officers are entitled to qualified immunity; 3) the supervisory officer is entitled to dismissal because his subordinates have no liability; 4) plaintiffs have failed to establish facts that would render the City of Port Huron liable for failure to train or implement a policy regarding the treatment of intoxicated citizens; 5) plaintiff cannot bring a claim for loss of consortium under § 1983; and 6) plaintiffs have failed to establish gross negligence under the state law claim.

BACKGROUND

On May 11, 1991, Brian Rogers ("Decedent" or "Rogers") was observed by bystanders lying unconscious along a roadside. At approximately 1:10 a.m., the Port Huron Police received a report of a "man down" and dispatched Officers Malott and Reid to the area.

Upon their arrival at the scene, Officers Malott and Reid attempted to wake the unconscious Rogers by flashing their lights on him and shaking him for several minutes. It is undisputed that he was lying on the grassy area of the lawn by the curb, and smelled of liquor. Rogers was breathing normally, and did not have any signs of injury. When the officers were unable to wake Rogers, they reached into his pocket and searched his wallet in an attempt to identify him. Rogers neither awakened nor made any significant movement in response to the officers' attempts.

Officers Malott and Reid told the bystanders Terry Lee Monzo and Rhonda Lee Paeth not to take Rogers home, after learning that they did not know Rogers. The officers told the bystanders that Rogers was just intoxicated, and that they were going to "let him sleep it off and we'll the officers check on him later." (Paeth Dep at 20-21). The officers would not supply the bystanders with personal information on Rogers because the bystanders had indicated that they did not know Rogers. See (Monzo Dep at 121, 133 & 172). The officers did not force the bystanders to leave the scene, and in fact the bystanders were still at the scene when the officers left to attend another call. See (Paeth Dep at 60-62, 65); (Monzo Dep at 142).

The officers did not summon or provide medical assistance to Rogers at the scene. Officers Malott and Reid were then advised, by dispatch, to leave the scene and respond to another call. The officers responded and left Rogers lying on the boulevard. It is undisputed that at this time, Rogers was asleep, breathing normally, and not injured. According to both the officers and the bystanders, Rogers did not appear to be in immediate danger.

At approximately 2:00 a.m., the bystanders returned to check on Rogers. This time they found him in the middle of the block with his head on the curb and his body in the street. They observed blood coming from his ear. Monzo then left to call the police. Upon returning to the scene, Monzo found the officers and an ambulance already there.

Rogers was transported by emergency medical services from the scene to Port Huron Hospital. Rogers was subsequently transported by Survival Flight to the University of Michigan Hospital in Ann Arbor. Rogers never regained consciousness and died at the University of Michigan Hospital on May 14, 1991.

Decedent's estate filed suit against these defendants,¹ alleging that the defendant officers violated the decedent's clearly established constitutional rights under the Fourteenth Amendment through the creation of a special relationship, failure to train, failure to implement a policy, and loss of consortium by not taking him into custody after finding him drunk. Plaintiffs also allege a cause of action under state law for gross negligence under M.C.L. § 691.1407. Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) alleging that no genuine issue of triable fact remains.

STANDARD OF REVIEW

Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. This type of motion tests the legal sufficiency of the plaintiff's complaint. Davey v. Tomlinson, 627 F.Supp. 1458, 1463 (E.D.Mich.1986). In evaluating the propriety of dismissal under Rule 12(b)(6), the factual allegations in the complaint must be treated as true. Janan v. Trammell, 785 F.2d 557, 558 (6th Cir.1986). Rule 12 also states in pertinent part that:

if, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56

Fed.R.Civ.P. 12(b). Because matters outside the pleadings have been presented by both parties in the instant case, defendants' motion to dismiss shall be treated as a motion for summary judgment.

Federal Rule of Civil Procedure 56(c) provides that summary judgment should be entered only where "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has stated that the standard the Court must apply in determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). In Anderson, the Supreme Court also noted that "by its very terms, the standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. 477 U.S. at 247-48, 106 S.Ct. at 2510 (emphasis in original). Although the Court must view the motion in the light most favorable to the nonmoving party, where "the moving party has carried its burden under 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (footnote omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

For the reasons that follow, this Court grants defendants' motion. This Court finds that plaintiffs have, in fact, failed to establish that a genuine issue of material fact exists to preclude judgment for defendants. Accordingly, plaintiffs are not entitled to recover pursuant to either 42 U.S.C. § 1983, or under their state law claim for gross negligence.

A. § 1983 LIABILITY FOR DEFENDANTS REID AND MALOTT

Because § 1983 alone does not create substantive rights, a plaintiff must show that he "has been deprived of a right `secured by the Constitution and laws of the United States.'" Baker v. McCollan, 443 U.S. 137, 140, 146-47, 99 S.Ct. 2689, 2692, 2695-96, 61 L.Ed.2d 433 (1979). The plaintiff must also show that the deprivation was caused by a person acting under the color of state law. It is undisputed that the police officers in the instant action were acting under the color of state law. It is the first prong that is in dispute. The claimed constitutional basis for liability in this case is the Fourteenth Amendment's due process clause, which forbids the state to deprive anyone of life, liberty, or property without due process of law.²

In order for the plaintiffs to allege a violation under the due process clause, this Court must accept the proposition that the clause includes not only the traditional negative liberties — the right to be let alone, in its various forms — but also certain unenumerated positive liberties, including the right to receive protective services provided by city and state police departments, and the right to receive medical care.

This argument must fail because the Constitution is a charter of negative rather than positive liberties. Harris v. McRae, 448 U.S. 297, 318, 100 S.Ct. 2671, 2688, 65 L.Ed.2d 784 (1980); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982); Was v. Young, 796 F.Supp. 1041, 1044-45 (E.D.Mich.1992...