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### STATE OF MICHIGAN

COURT OF APPEALS

CARLETON BUCK,

Plaintiff-Appellant, UNPUBLISHED July 16, 2015

v No. 320967 Wayne Circuit Court CITY OF HIGHLAND PARK, CURTIS WHITE, and JANE DOE, LC No. 12-010985-NO

Defendants-Appellees.

Before: F ORT H OOD , P.J., and S AAD and R IORDAN , JJ.

P ER C URIAM

. Plaintiff appeals as of right the order granting summary dispo sition in favor of defendants. We affirm.

This case arises from a shooting that occurred during an armed robbery at the Gold Nugget, a pawnshop in Highland Park, Michigan. Although the fa cts are highly disputed, defendant police officer Curtis White, along with his partner p olice officer Heather Holcomb (presumably defendant “Jane Doe”), both employees of defendant City of Highland Park (Highland Park), responded to a robbery alarm at the Gold Nugge t. Upon arriving, the officers entered the pawn shop. Plaintiff entered the pawn shop directl y after the officers. Shortly thereafter, the armed burglars in the pawn shop fired at the of ficers. White and plaintiff were shot and injured.

Plaintiff subsequently filed a complaint against defendants al leging constitutional violations pursuant to 42 USC 1983. Defendants filed a motion for summary disposition, which the trial court granted. Plaintiff thereafter filed a motion f or reconsideration, which was denied. Plaintiff appeals the order gran ting defendants’ motion for sum mary disposition and the order denying plaintiff’s motion for r econsideration. We affirm.

I. MOTION FOR SUMM ARY DISPOSITION

We first address plaintiff’s argument that the trial court err ed in granting defendants’ motion for summary disposition. We disagree.

Defendants brought a motion for summary disposition pursuant t o MCR 2.116(C)(7), (8), and (10). In rendering its deci sion, the trial court granted t he motion for summary disposition for-2- the reasons stated in defendant s’ brief in support of the motio n for summary disposition. Because defendants moved for summary disposition on multiple gr ounds and the trial court ruled on the motion without specifying the subrule under which it dec ided the issue but considered material outside the pleadings, this Court will review the deci sion as based on MCR 2.116(C)(10). Cuddington v United Health Servs
, Inc , 298 Mich App 264, 270; 826 NW2d 519 (2012).

This Court reviews de novo a tr ial court’s decision regarding a motion for summary disposition. Pew v Mich State Univ , 307 Mich App 328, 331; 859 NW2d 246 (2014). A motion for summary disposition under M CR 2.116(C)(10) challenges wheth er a plaintiff provided sufficient factual s upport for the claims i n his complaint. Stone v Auto-Owners Ins Co , 307 Mich App 169, 173; 858 NW2d 765 (2014). T his Court considers “the p leadings, admissions, affidavits, and other relevant documentary evidence of record i n the light most favorable to the nonmoving party to determine whether any genuine issue of mater ial fact exists to warrant a trial.” Id . (citation and quotation marks omitted). “Mere conclusory all egations that are devoid of detail are insufficient to demonstrate that there is a genui ne issue of material fact for trial.” Bennett v Detroit Police Chief , 274 Mich App 307, 317; 732 NW2d 164 (2006).

42 USC 1983 provides a federal remedy against any person who, under the color of state law or custom having the force of law, deprives another of righ ts protected by the constitution or laws of the United States. The s tatute does not provide the so urce of the rights, but only provides the remedy for a violation of the United States constitution or a federal statute. Lavigne v Forshee , 307 Mich App 530, 537; 861 NW2d 635 (2014). In order to prev ail in an action under 42 USC 1983, a plaintiff must show “that (1) defendants acted u nder color of state law and (2) that defendants’ conduct deprived [ him] of a federal right.[]” Id . at 539.

Plaintiff alleged that defendant s violated his due-process rig hts under the United States and Michigan Constitutions. The Due Process Clause of the Four teenth Amendment to the United States Constitution provides that a state shall not “dep rive any person of life, liberty, or property, without due process of law.” US Const, Am XIV, § 1. The Due Process Clause of the Michigan Constitution “provides protection coextensive with its federal constitutional counterpart.” By Lo Oil Co v Dep’t of Treasury , 267 Mich App 19, 32; 703 NW2d 822 (2005). “In the context of individual gove rnmental actions or actors . . . to establish a substantive due process violation, ‘the governmental conduct must be so arbitra ry and capricious as to shock the conscience.’ ” Cummins v Robinson Twp , 283 Mich App 677, 701; 770 NW2d 421 (2009) (citation omitted). In general, the government’s failure to pr otect an individual against a third party does not violate the indi vidual’s due-process rights. DeShaney v Winnebago Co Dep’t of Social Servs , 489 US 189, 197; 109 S Ct 998; 103 L Ed 2d 249 (1989). Howev er, several exceptions to the general rule exist, including the failure to train and the state-created danger doctrine. Plaintiff asserts that defendants are liable pursuan t to both doctrines.

A. STATE-CREATED DANGER DOCTRINE

“[A] state might still be liable for private acts of violence that result from the state’s affirmative acts that greatly increase the risk of harm to its citizens.” Manuel v Gill , 270 Mich App 355, 366-367; 716 NW2d 291 (2006), aff’d in part on other g rounds, rev’d in part on other-3- grounds by 481 Mich 637 (2008). The state-created danger theor y of liability provides that a government entity is liable to a p laintiff if the plaintiff sho ws:
1) an affirmative act by the state which either created or inc reased the risk that the plaintiff would be expos ed to an act of violence by a third party; 2) a special danger to the plaintiff wherein the state’s actions pla ced the plaintiff specifically at risk, as distingui shed from a risk that affects the public at large; and 3) the state knew or should have known that its actions specifi cally endangered the plaintiff. [ Id . at 367 (citations and quotation marks omitted).]

The trial court did not err when it granted defendants’ motion for summary disposition because plaintiff failed to provide fact ual support for his claim that the affirmative actions of Officers White or Holcomb created or increased that plaintiff would be e xposed to an act of violence by a third party.

Plaintiff alleged that the officers committed an affirmative a ct that increased the risk of danger when they entered the Gold Nugget. Plaintiff claims tha t the officer’s presence caused the robbers to start shooting. W e reject plaintiff’s assertion s for several reasons. Primarily, we do not agree that the officers’ entry into the building constit uted an affirmative act which increased the risk to plaintiff. This argument completely igno res that the primary act that caused plaintiff’s injury was the armed robber shooting plaintiff. Pl aintiff’s argument attempts to deflect blame from the robber to the officer in an illogical manner. Moreover, we do not agree that the officers’ entry into t he building, the alleged affirma tive act, increased the risk to plaintiff. Rather, the presence of the officers decreased the risk of harm to plaintiff since the officers were in a position to protect him fro m the robbers. Finally, we rej ect plaintiff’s assertion that the officers committed an affirmative act that increased the risk o f danger when they drew their handguns inside of the Gold Nugget. The undisputed evidence sh ows that the police officers did not draw their handguns until after the robbers began shooting. Plaintiff also claims that the officers should not have parked d irectly in front of the pawn s hop. However, the evidence showed that the police parked at least one space away and looke d in the windows of the Gold Nugget before going inside. More over, as plaintiff admits, the shooting did not occur until the officers entered into the pawn shop, not because of where the o fficers parked their vehicle.

Plaintiff’s remaining argument s regarding the officers’ allege d affirmative acts relate to a multitude of inactions by the officers that he claims created o r increased the risk to him. Primarily, plaintiff argues that t he officers failed to establi sh a perimeter around the scene of the incident or advise plaintiff and other patrons not to enter the pawn shop. According to plaintiff, the officers knew that an armed robbery was occurring and shoul d have done more to protect plaintiff. We agree with plaintiff that these failures are tro ubling. However, the failure to act does not constitute an “affirmative act” under the state-create d danger doctrine. Jones v Reynolds , 438 F3d 685, 691 (CA 6, 2006). Accordingly, we do not agree that the officers committed an affirmative act that created or increased the risk of danger to plaintiff. Because plaintiff cannot establish an a ffirmative act, his state-create d danger theory of liability fails. Accordingly, we conclude that it is unnecessary to address the remaining arguments relating to this issue.

B. FAILURE TO TRAIN-4- Plaintiff also argues that his due process rights were violate d by Highland Park’s failure to train its police officers. We disagree. A municipality cannot be liable solely because an act of its employee violated the plaintiff’s constitutional rights. S ee Payton v Detroit , 211 Mich App 375, 398; 536 NW2d 233 (1995). However, “[a] municipality can be held liable under § 1983 for its policies that violate the constitution or laws of the U nited States.” Id . The policy does not need to be unconstitutional in and of itself. York v Detroit , 438 Mich 744, 755; 475 NW2d 346 (1991). Instead, a plaintiff mu st show that the constitutional violation was a result of action taken under an official municipal policy. Payton , 211 Mich App at 398. “[The] first inquiry in any case alleging municipal liability under § 1983 is the quest ion whether there is a direct causal link between a municipal policy or custom and the alleged const itutional deprivation.” Id

. (citations and quotation marks omitted; alteration in original) . Although there is usually formal approval for a municipal policy, “the plaintiff may assert and prove that the policy-making officials of the municipality deliberately approved an unconstitutional cu stom or practice.” Id . at 399 (emphasis added). Mere negligence is insufficient to give rise to municipa l liability under the statute. Id . Instead, the plaintiff must p rove that the municipality acte d with deliberate indifference. Id . The term “deliberate indifference” includes “ ‘knowledge, ac tual or constructive, and a conscious disregard of a known danger’ by the policy-making official.” Id

. (citation omitted). A municipali ty may be liable for failing t o train its police officers if it had a policy of failing to train and th e failure to train caused a vi olation of the plaintiff’s constitutional rights. Id . at 400.

The trial court did not err when it granted defendants’ motion for summary disposition regarding Highland Park’s failure to train because plaintiff fa iled to show that the constitutional violation was a result of acti on taken under an official munici pal policy. See id. at 398. First, plaintiff failed to show that Hi ghland Park had a formal or inf ormal policy or custom of failing to train its police officers. See id

. at 398-399. While Highland Park did not have a police academy or a training division, Officer White testified that he receive d formal training through the Detroit Police Academy, as well as informal training from veteran offic ers at the Highland Park police department and through his years on the job. He also received a copy of the Highland Park Municipal Code and a copy of the H ighland Park Police Departmen t Regulations. More specifically, Officer White stated that he was trained in crime scene investigation and in establishing a perimeter around the scene of an assaultive crim e. Officer White testified that the correct procedure to protect bystanders at the scene of an assa ultive crime was to inform the bystanders to vacate the area. Based on the submitted evidence , we do not agree that plaintiff established a question of fact that Highland Park maintained a policy or custom of not training its officers. See id

. Further, plaintiff failed to provide factual support for his a ssertion that Highland Park acted with deliberate indifference. See id . at 399-400. As defendants assert, there is no indication that Highland Park knew that training was necessary or that the lack of training would lead to a violation of plaintiff’s constitutional rights. Ther efore, the trial court did not err in granting defendants’ motion for summary disposition with regard to plaintiff’s allegation of failure to train.

C. FINDINGS OF FACT-5- Plaintiff argues that the trial court had to make improper fin dings of fact in order to grant summary disposition in favor of defendants. As discussed above , plaintiff failed to provide sufficient factual support to survive a motion for summary disp osition on his claims even when all factual disputes are resolved in his favor. See Stone , 307 Mich App at 173. Therefore, plaintiff’s argument fails.

II. DISCOVERY

Plaintiff also argues that the trial court erred when it grant ed defendants’ motion for summary disposition before plaintiff ascertained certain discov ery. Specifically, plaintiff asserts that the trial court should have withheld its decision until af ter plaintiff received the Michigan State Police investigation report, the audiotape recordings of the 911 telephone calls and dispatch calls from the incident, and training materials from the Highland Park Police Department. We disagree. We review a trial c ourt’s decision regarding discove ry for an abuse of discretion. PCS4LESS
, LLC v Stockton , 291 Mich App 672, 676; 806 NW2d 353 (2011). “An abuse of discretion occurs when the trial court chooses an outcome falli ng outside a range of principled outcomes.” Id . at 676-677.

A trial court prematurely grants summary disposition if a party has not had the opportunity to conduct discovery. Huntington Nat’l Bank v Daniel J Aronoff Living Trust , 305 Mich App 496, 513; 853 NW2d 481 (2014). “However, the mere fac t that the discovery period remains open does not automatically mean that the trial court’s decision to grant summary disposition was untimely or otherwise inappropriate. The quest ion is whether further discovery stands a fair chance of uncoveri ng factual support for the oppo sing party’s position.” Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club , 283 Mich App 264, 292; 769 NW2d 234 (2009).

First, we note that the court granted summary disposition after the close of discovery, which had already been extended once. Although defendants file d the motion for summary disposition before the close of discovery, the trial court did not err because it decided the motion after the close of discovery, an d plaintiff could have continue d to conduct discovery during this period. See id

. Furthermore, there was not a fair chance of uncovering factual support for plaintiff’s position. First, the audiotape r ecordings of the 911 telephone call and the dispatch call from the 911 operator to the Highland Park Police Department were played on the record during the hearing on defendants’ motion for summary disposition. Thus, t he court was fully appraised of its contents when rendering its decision. Second, defendants h ad previously explained that the specific training materials that plaintiff requested did not ex ist, and the court ordered defendants to give the materials to plain tiff if found. Third, the court addressed at the hearing on the motion for summary disposition the issue of the Michigan State Police investigation report. The court stated that defense counsel did not have the responsibility to provide the report to plaintiff, and ruled that plaintiff should have r equested the report from the Michigan State Police directly. Further, we are not convinced that the investigation report wou ld have supported to plaintiff’s position, especially in light of our disposition regarding defe ndants’ motion for summary disposition. Again, plaintiff cannot show that the officers’ e ngaged in an affirmative act that increased the danger to plaintiff. While the report may show t hat the officers failed to act-6- appropriately, it would not change the fact that plaintiff cann ot establish an affirmative act by the officers. See Jones , 438 F3d at 691. Accordingly, we re ject plaintiff’s claims.

III. MOTION TO AMEND COMPLAINT

Plaintiff next argues that the trial court erred when it refus ed to consider his motion to amend his complaint. We disagree.

This Court reviews a trial cour t’s decision to deny a motion t o amend the complaint for an abuse of discretion. Diem v Sallie Mae Home Loans, Inc , 307 Mich App 204, 215-216; 859 NW2d 238 (2014). In general, a trial court should grant a moti on to amend the complaint. Id

. MCR 2.118(A)(2) provides, “Except as provided in [MCR 2.118(A)( 1)], a party may amend a pleading only by leave of the court or by written consent of th e adverse party. Leave shall be freely given when justice so re quires.” MCR 2.116(I)(5) provid es that when a party brings a motion for summary disposition under MCR 2.116(C)(8), (9), or ( 10), the trial court must allow the parties to amend a pleading unless the amendment would not be justified. A trial court may deny a motion to amend for the following reasons:

(1) undue delay, (2) bad faith or dilatory motive on the part o f the movant, (3) repeated failure to cure deficie ncies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, or (5) futility of the amendment. Absent bad faith or actual p rejudice to the opposing party, delay, alone, does not warrant denial of a moti on to amend. [ Diem , 307 Mich App at 216 (citation a nd quotation marks omitted).]

The trial court denied plainti ff’s motion because amendment wo uld be futile. Plaintiff first asserts that he should have been permitted to amend his c omplaint because, in granting the motion for summary disposition, the court noted that plaintiff had only pleaded conclusory statements with regard to the alleged constitutional violation. We conclude that amendment would be futile because, as discussed above, plaintiff failed t o allege a constitutional violation in his complaint sufficient to survive a motion for summary dispos ition pursuant to MCR 2.116(C)(10). Further, plaintiff failed to explain in the tria l court or on appeal how he would have amended the complaint to i nclude addition factual support for his claims. In addition, plaintiff attached an amended complaint to his motion for recon sideration, which included citations to Highland Park ordin ances and regulations, but did not allege any additional factual support that was not considered by the trial court. Therefore, we agree with the trial court that amendment of the complaint would have been futile. See Diem , 307 Mich App at 216.

Second, plaintiff argues that he would have alleged a claim of gross negligence had he been given the opportunity to amend his complaint. MCL 691.140 7(2) provides:

Except as otherwise provided in this section, and without rega rd to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agenc y . . . is immune from tort lia bility for an injury to a person or damage to property caused by the officer, employ ee, or member while in the course of employment . . . while acting on behalf of a governmental agency if all of the following are met:-7- (a) The officer, employee, member, or volunteer is acting or r easonably believes he or she is acting with in the scope of his or her aut hority.

(b) The governmental agency is engaged in the exercise or disc harge of a governmental function.

(c) The officer’s, employee’s, member’s, or volunteer’s conduc t does not amount to gross negligence that i s the proximate cause of the i njury or damage.

Gross negligence is “conduct so reckless as to demonstrate a s ubstantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). “Therefor e, for a plaintiff to be successful in a tort action against a governmental employee, the plaintiff must prove both that (1) the governmental employee’s conduct demonstrated a substantial lack of concern for whether his conduct would cause injury to the plaintiff, and (2) the allege d misconduct was the proximate cause of the plaintiff’s injury.” Tarlea v Crabtree , 263 Mich App 80, 83; 687 NW2d 333 (2004).

In Robinson v Detroit , 462 Mich 439, 459; 613 NW2d 307 (2000), the Michigan Supreme Court held that the phrase “the proximate cause” means “the one most immediate, efficient, and direct cause prec eding an injury.” Plaintiff fa ils to argue in his brief on appeal that the police officers acted with a substantial lack of concern fo r whether an injury would result from their actions. As discussed above, there was no indicatio n from the record that the officers were aware of the danger to plaintiff. Even assuming that the officers exhibited a substantial lack of concern for whether an i njury would result from their a ctions, the police officers’ conduct was not the proximate cause of plaintiff’s injury. See Tarlea , 263 Mich App at 83. Instead, the robbers who shot plaintiff were the most immediate, efficient, and direct cause preceding plaintiff’s injury. See Robinson , 462 Mich at 459. Therefore, the trial court did not err beca use an amendment of plaintiff’s complaint to add a gross negligence claim would have been futile. See Diem , 307 Mich App at 216.

IV. QUALIFIED IMMUNITY

Plaintiff next argues that the trial court erred when it ruled that Officer White’s conduct was protected by qualified imm unity. We disagree.

This Court reviews de novo the issue whether a defendant is en titled to qualified immunity. Morden v Grand Traverse Co , 275 Mich App 325, 340; 738 NW2d 278 (2007). This Court also reviews de novo a motion for summary disposition. Pew , 307 Mich App at 331. “A defendant is entitled to summary disposition under MCR 2.116(C) (7) if the plaintiff’s claims are barred because of immunity granted by law.” Id. at 332-333. This Court considers plaintiff’s complaint to be true, unless the documentary evidence contradic ts it. Id

. at 332. The movant may support the motion with documents in the record if the docu mentation would be admissible at trial. Id . “If reasonable minds could not differ on the legal effects o f the facts, whether governmental immunity bars a plai ntiff’s claim is a question of law.” Id

. The issue of whether a police officer’s actions are protected by qualified immunity is distinct from the merits o f the underlying claim. See Morden , 275 Mich App at 342. “Qualified immunity shields an officer from suit when [he] makes a decisio n that, even if constitutionally deficient , reasonably misapprehends the law governing the circumstances [he] confronted.” Id

.-8- (citation omitted). “A police officer may invoke the defense o f qualified immunity to avoid the burden of standing trial when faced with a claim that the offic er violated a person’s constitutional rights.” Lavigne , 307 Mich App at 542. The plaintiff has the burden to show th at a police officer is not protected by qualified immunity before trial. Id . Thus, if there was no violation of a plaintiff’s consti tutional rights, then the cour t does not need to make a further inquiry into the issue of qualified immunity. Morden , 275 Mich App at 341.

The trial court did not err when it ruled that plaintiff’s cla im against Officer White was barred by qualified immunity. As discussed above, there was no constitutional injury in this case. Therefore, there is no need to conduct a further inquiryinto whether Officer White was entitled to qualif ied immunity. See id.

V. MOTION FOR RECONSIDERATION

Plaintiff also argues that the trial court abused its discreti on when it denied his motion for reconsideration. We disagree. “ This Court reviews a trial court’s decision on a motion for reconsideration for an abuse of discretion.” Huntington Nat’l Bank , 305 Mich App at 515. Plaintiff’s primary argument i s that the trial court judge who decided the motion for reconsideration erroneously dete rmined that she was not in a po sition to reconsider the ruling of a predecessor trial judge on the motion for summary disposition . Based on our disposition regarding the merits of plaintiff’s claim, it is unnecessary fo r us to address plaintiff’s argument, and we conclude that the trial court properly denied plaintiff’ s motion for reconsideration because there was no palpable e rror necessitating correction. MCR 2.119(F)(3).

Affirmed. Defendants, the prevai ling parties, may tax costs. MCR 7.219.

/s/ Karen M. Fort Hood /s/ Henry William Saad /s/ Michael J. Riordan