Zumbroegel v. City of Dearborn Heights, 88-1281.

• Decision Date: 02 February 1989
• Docket Number: No. 88-1281.,88-1281.
• Citation: 705 F. Supp. 358
• Parties: Edward Paul ZUMBROEGEL, Plaintiff, v. CITY OF DEARBORN HEIGHTS, a Municipal Corporation, and City of Dearborn Heights Police Officer, Jeff Sapienko, Individually and in his Official Capacity, Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

705 F. Supp. 358

Edward Paul ZUMBROEGEL, Plaintiff, v. CITY OF DEARBORN HEIGHTS, a Municipal Corporation, and City of Dearborn Heights Police Officer, Jeff Sapienko, Individually and in his Official Capacity, Jointly and Severally, Defendants.

No. 88-1281.

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

February 2, 1989.

Peter Lyons, Swanson and Torgow, Detroit, Mich., for plaintiff.

Edward Salah, Cummings McClorey Davis & Acho, Livonia, Mich., for defendants.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

Plaintiff brought this suit under 42 U.S. C. § 1983 against the City of Dearborn Heights and City of Dearborn Heights Police Officer Jeff Sapienko.¹ Plaintiff's section 1983 claim arises out of an incident in which Officer Sapienko arrested plaintiff for driving under the influence of alcohol. In sum, plaintiff alleges that he was verbally and physically abused by the officer during the course of his arrest, in violation of his fourteenth amendment due process rights. Plaintiff's complaint against the City of Dearborn Heights under section 1983 is that the City allegedly had certain policies that led to the deprivation of his due process rights. Before the court is a summary judgment motion filed on behalf of both defendants. For the reasons stated below, the court grants defendant City of Dearborn Heights' motion for summary judgment and denies defendant Sapienko's motion for summary judgment.

I. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir. 1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact; rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. F.R. Civ.P. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986),

there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the nonmovant's evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id. at 249-50, 106 S.Ct. at 2511 (citations omitted); see Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact.

II. STATEMENT OF FACTS

On April 17, 1987, at approximately 12:02 p.m., Officer Sapienko stopped plaintiff's car for failing to stop his car at a stop sign located near the intersection of Dartmouth and Monroe in the City of Dearborn Heights. The officer's version of the events after he stopped the plaintiff is as follows:

Plaintiff, Edward Zumbroegel, exited his motor vehicle and was informed by the Defendant of the traffic violation. When Plaintiff was asked if he had been drinking, Plaintiff responded that he had been. Following the Field Sobriety Tests, Plaintiff was advised that he was under arrest for O.U.I.L. While Defendant was attempting to handcuff the Plaintiff, Plaintiff tried to avoid the application of the handcuffs, and resisted arrest.

Defendants' Summary Judgment Motion at 4; see Sapienko Affidavit. Plaintiff, on the other hand, presents a different version of the events:

Mr. Zumbroegel existed sic his vehicle and approached the officer whereupon the officer inquired whether Mr. Zumbroegel believed in stopping at stop signs. Mr. Zumbroegel responded by indicating that he did not realize that he had rolled through the stop sign. Officer Sapienko then inquired whether Mr. Zumbroegel had been drinking and Mr. Zumbroegel admitted that he had. The officer then administered a field sobriety test and then instructed Mr. Zumbroegel to get into the police car. Mr. Zumbroegel ask sic Officer Sapienko if he could get his keys, whereupon Officer Sapienko swore and grabbed Mr. Zumbroegel and forced his torso and his face into the police car. Mr. Zumbroegel was then handcuffed and, after being handcuffed and as he was being placed into the police car he was struck in the face by Officer Sapienko. During the transport to the police station Mr. Zumbroegel complained that the handcuffs had been applied to sic tightly but was refused any relief.

Plaintiff's Response Brief; Complaint at paragraphs 9-17.

III. SECTION 1983 CLAIM AGAINST CITY OF DEARBORN HEIGHTS

Plaintiff's Complaint against the City of Dearborn Heights alleges that the City had express or implied policies and methods of arrest and detention that permitted officers to use excessive force; that the City acquiesced in the use of excessive force by its police officers; that the City failed to test properly its police officers' ability to comprehend and follow through with City policies with respect to effectuating arrests; and that the City failed to properly train its officers in the proper methods of effectuating arrests. See Complaint at paragraph 20(a) — (d).

Defendant City argues that there is no evidence that it had any unconstitutional policy of allowing its police officers to use excessive force. The City has presented the Affidavit of Deputy Chief Sam DiPrima in which he states that the City does not allow its police officers to use excessive force. The affidavit states that "it is the policy of the Dearborn Heights Police Department to allow officers to use force only to the extent necessary to effectuate an arrest." Further, the affidavit states that "it is a violation of Dearborn Heights Police policy for a police officer of the Dearborn Heights Police Department to use excessive force during the course of an arrest." In addition, the affidavit indicates that the City does not tolerate the use of excessive force by its police officers and that the City would discipline any officer using excessive force.

Plaintiff's response to the motion is superficial. Plaintiff argues that the defendant has not shown "what the policies of the City of Dearborn Heights were with respect to the level of permissible force necessary to effectuate a traffic stop." In a convoluted argument, plaintiff contends that the City's Answers to Interrogatories cannot be reconciled with the Affidavit of Deputy Chief DiPrima. The court will not attempt to rephrase the argument. Basically, plaintiff argues that "a threshold question of fact is created for the trier of fact as to what the City's policy is in the first instance," thus precluding a grant of summary judgment.

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

Under section 1983, a governmental entity cannot be held vicariously liable for the unconstitutional acts of its employees, but it can be held liable under section 1983 for constitutional violations that occur as a result of an official policy or custom. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The plaintiff must show that an official policy or custom that is "fairly attributable" to the governmental body caused the specific constitutional violation. See Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir.1987), cert. denied sub nom. City of Fayetteville v. Spell, ___ U.S. ___, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988). The governmental body must be a "moving force" behind the constitutional violation, Monell, 436 U.S. at 694, 98 S.Ct. at 2037, and an affirmative link must exist between the policy or custom and the alleged constitutional violation. Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). Official policy involves a "deliberate choice to follow a particular course of action ... made from among various alternatives" by an official who has the final authority to establish governmental policy." Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986); see Molton v. City of Cleveland, 839 F.2d 240 (6th Cir.1988) (...