Sutherland v. Mizer

• Decision Date: 06 May 2008
• Docket Number: No. 05-72496.,No. 06-15725.,05-72496.,06-15725.
• Citation: 625 F.Supp.2d 492
• Parties: Scott W. SUTHERLAND, Plaintiff, v. Michael J. MIZER, John M. Cecil, David Ruiz, John Dakmak, and Eric Restuccia, Wayne County, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

625 F.Supp.2d 492

Scott W. SUTHERLAND, Plaintiff, v. Michael J. MIZER, John M. Cecil, David Ruiz, John Dakmak, and Eric Restuccia, Wayne County, Defendants.

No. 05-72496.

No. 06-15725.

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

May 6, 2008.

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Deborah A. Bonner, Detroit, MI, for Plaintiff.

Glenn S. Greene, U.S. Department of Justice, Washington, DC, Ronald P. Weitzman, Wayne County Corporation Counsel, Detroit, MI, Jason R. Evans, MI Dept of Attorney General, Lansing, MI, for Defendants.

ORDER

JULIAN ABELE COOK, JR., District Judge.

This case arises from the arrest and the unsuccessful prosecution of the Plaintiff, Scott Sutherland, who had been charged with having committed two murders and one attempted murder. Following his acquittal by a jury of these very serious criminal offenses, Sutherland filed this lawsuit in which he has accused all of the Defendants of violating his federal and state constitutional rights. Two of the Defendants, Special Federal Bureau of Investigation Agents, Michael Mizer and John Cecil, have now asked the Court to dismiss Sutherland's claims against them on the basis of their claimed qualified immunity defense. In a closely related companion case, the Government filed a separate motion, seeking to obtain a dismissal of all of Sutherland's claims against them.¹

I.

At all times that are relevant to the issues in this case, Mizer and Cecil were assigned to an inter-agency task force on violent crime ("Task Force") whose members were selected representatives from various federal, state and local law enforcement agencies within the Eastern District of Michigan. According to Sutherland, this Task Force began its investigation into alleged criminal activities by various motorcycle clubs, including an organization (to wit, the Devil's Disciples) in which he held a membership. During the course of this investigation, one of his fellow motorcycle club members, Mark Berman, was arrested and charged with operating a methamphetamine laboratory. Berman, following his interrogation by Mizer and Ruiz, implicated Sutherland in a variety of violent criminal activities in the metropolitan region of Detroit, Michigan. It is Sutherland's belief that much of this information was false. Based on the information obtained from Berman, these two law enforcement officers arranged for the surveillance of Sutherland, which ultimately led to his arrest for facilitating the sale of illegal narcotics. Thereafter, Sutherland contends these two officers began to pressure him to act as a confidential informant noting that they would do their best to "make things go easier" in his pending criminal case if he agreed to cooperate with them. When their proposals were rejected, Sutherland was subsequently tried, convicted and sentenced to federal prison for facilitating the sale of illegal narcotics.

From Sutherland's view point, his troubles with these law enforcement officers continued without abatement. He says that Special Agent Cecil convinced another motorcycle club member, George Millhouse, to act as an informer in exchange for a substantial reduction in the number of his pending felony charges. Sutherland maintains that on the basis of the false information from Millhouse, he was arrested once again and charged with having caused the murders of James Moore and Denise Robinson, the attempted murder of Paul Robinson, Jr., possessing a weapon during the commission of a felony and being a felon in possession of a firearm. According to Sutherland, Mizer and Cecil told him that they "could make the charges go away" in exchange for his cooperation. He declined their offer.

When these efforts failed, Sutherland says that the members of this Task Force, acting through the Wayne County prosecutor's office, were active participants in the issuance of a legally defective arrest warrant which was based on the false information from Berman and Millhouse. He further alleges that Ruiz, Mizer, and Cecil purposefully ignored extremely relevant exculpatory information from the case files of the Detroit Police Department in order to produce his conviction. Thereafter, Sutherland submits that the case proceeded to a preliminary examination hearing and ultimately to a trial without this evidence being disclosed to the judge or the jury. On January 20, 2004, a jury acquitted him of all charges.

On June 23, 2005, Sutherland filed this lawsuit (Docket No. 05-72496), in which he raised a variety of claims against the Defendants, all of whom were accused by him of violating his constitutional rights under federal and state law.² On April 13, 2007, the Court granted a summary judgment in favor of Ruiz after determining that his decision to seek an arrest warrant was reasonably objective and supported by probable cause. The Court also found that Ruiz had garnered information from multiple sources, all of whom had implicated Sutherland in the shootings of James Moore, Denise Robinson and Paul Robinson, Jr. Furthermore, the Court rejected the argument by Sutherland that Ruiz had relied solely on flawed information from the two motorcycle club members, Berman and Millhouse.

On December 26, 2006, Sutherland filed a separate lawsuit (Docket No. 06-15725), seeking relief against Cecil, Mizer and the United States of America.³

II.

The dismissal of a civil case under Rule 12(b)(6) of the Federal Rules of Civil Procedure is warranted in those situations whereby a plaintiff, through a complaint, "fail[s] to state a claim upon which relief can be granted." Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir.2007). In resolving a dispositive motion which seeks relief under this Rule, the Court must construe the language within the complaint in a light that is most favorable to the plaintiff and, in doing so, accept all the factual allegations therein as being correct. Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995). Although a complaint need not proffer a set of detailed factual allegations, the aggrieved party must nevertheless submit a pleading with more than general conclusions and a ritualistic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Factual allegations must be enough to raise a right to relief above the speculative level and the pleading must contain something more than a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.") (citations and quotation marks omitted).

A. Cecil and Mizer's Joint Motion to Dismiss

1. Defendants' Qualified Immunity Defense to Sutherland's Bivens Claims

Sutherland brought his lawsuit against Cecil and Mizer for their alleged violations of his constitutional rights, citing to 42 U.S.C. § 1983 and relying upon Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).⁴ However, these claims are limited by the doctrine of qualified immunity⁵ which "extends to government officials performing discretionary functions." Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir.1999). The defense protects public officials "from undue interference with their duties and from potentially disabling threats of liability." Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Pursuant to this doctrine, government officials, while acting in their official capacities, are immune from personal civil liability as long as their actions do "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id at 818, 102 S.Ct. 2727 (1982); see also Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ("Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action ... assessed in light of the legal rules that were `clearly established' at the time it was taken."). Thus, a government employee will be shielded from liability if he acted under the objectively reasonable belief that his actions were lawful. Ahlers v. Schebil, 188 F.3d 365, 372-373 (6th Cir. 1999). Although a defendant bears the initial burden of pleading the defense of qualified immunity, an aggrieved person— such as Sutherland—must ultimately demonstrate that the alleged tortfeasors are not entitled to protection under the doctrine. Williams v. Payne, et al., 73 F.Supp.2d 785, 795 (E.D.Mich.1999), citing Blake, supra at 1007.

(a) Claims Involving a Probable Cause Determination

In Counts I, III and VII of the amended complaint in Docket No. 05-72496, Sutherland has asserted claims for retaliatory prosecution, false arrest and malicious prosecution, respectively. In order to establish each claim, he must prove that the Defendants lacked probable cause to support his arrest. See, Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (plaintiff must plead and prove absence of probable cause as element of retaliatory prosecution claim,); Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir.2003) (claim for wrongful arrest turns on whether officer had probable cause under the Fourth Amendment); Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006) (plaintiff alleging malicious prosecution must show that no probable cause existed to justify arrest and prosecution).

A police officer is subject to liability "if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized" Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Malley Court further noted that "[o]nly where the warrant application is so lacking in indicia of probable cause as to render...