UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARK CHOMOS, 

 Plaintiff, Civil Action No. 15-10103 

v. Honorable Robert H. Cleland 

 Magistrate Judge David R. Grand

WOODHAVEN POLICE 

DEPARTMENT, et al., 

 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS 

TOTH’S AND BRUST’S MOTION FOR SUMMARY JUDGMENT [157] 

I. REPORT 

Before the Court is a Motion for Summary Judgment filed on April 13, 2017, by 

Defendants Lieutenant Toth and Detective Brust (incorrectly pled as “Burst”) (collectively 

“Defendants”). (Doc. #157). Plaintiff Mark Chomos (“Chomos”), an incarcerated person, did 

not file a response to this motion, and the time for responding has now passed.1

 An Order of 

Reference was entered on October 12, 2016, referring all pretrial matters to the undersigned 

pursuant to 28 U.S.C. § 636(b). (Doc. #129). 

In relevant part, Chomos’ complaint includes excessive force claims, brought pursuant to 

42 U.S.C. § 1983, arising out of his arrest on April 13, 2014. In their motion, Defendants assert 

that dismissal of Chomos’ personal capacity claims against them is appropriate because Chomos 

cannot show that they had the requisite level of personal involvement in the events underlying 

 

1

 In his Motion for Reconsideration of the Court’s Denial of Appointment of Pro Bono Counsel, 

filed on May 19, 2017, Chomos specifically indicated that he is not opposing Defendants’ 

summary judgment motion. (Doc. #161 at ¶8). 
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his claims.2

 (Doc. #157 at 19-29). For the reasons set forth below, the Court agrees. 

It is clear that, in order to demonstrate liability under § 1983, a plaintiff must first 

establish that each named defendant acted under color of state law and that his or her actions 

violated rights secured by the Constitution and/or laws of the United States. See Baker v. 

McCollan, 443 U.S. 137 (1989). The plaintiff also must make a clear showing that each named 

defendant was personally involved in the activity that forms the basis of the complaint. See 

Rizzo v. Goode, 423 U.S. 362, 377 (1976); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 

1984). Section 1983 liability cannot be premised upon mere allegations of respondeat superior; 

rather, in order for a party to be held liable under Section 1983, there must be a showing that the 

party personally participated in, or otherwise authorized, approved, or knowingly acquiesced in, 

the allegedly unconstitutional conduct. See Monell v. New York City Dept. of Soc. Servs., 436 

U.S. 658, 691 (1978); see also Bellamy, 729 F.2d at 421. 

In this case, the undisputed evidence clearly establishes that Defendants were not 

personally involved in any of the activity that forms the basis of Chomos’ claims. Specifically, 

Chomos alleges only that Detective Brust “failed to investigate or report excessive use of force 

by officers’ [sic] in his department.” (Doc. #57 at 15). Courts have recognized, however, that § 

1983 does not allow for personal liability claims for the mere failure to investigate. See Frodge 

v. City of Newport, 501 F. App’x 519, 532 (6th Cir. 2012). Similarly, with respect to Lieutenant 

Toth, Chomos alleges that he showed “deliberate indifference when he failed to train or 

 

2

 Defendants also assert that Chomos’ official capacity claims against them should be dismissed 

because they are duplicative of his claims against the City of Woodhaven. (Doc. #157 at 18-19). 

As Defendants point out, “courts have generally treated such [official capacity] suits as ‘another 

way of pleading an action against an entity of which an officer is an agent.’” (Id. at 18 (quoting 

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978)). Because 

Chomos’ official capacity claims against Lieutenant Toth and Detective Brust are more 

accurately viewed as claims against the City of Woodhaven, his claims against these individual 

defendants should be dismissed as duplicative. 
3 

supervise officers’ [sic] under his direct command, in their exertion of excessive force ....” 

(Doc. #57 at 14). The Sixth Circuit has recognized, however, that in order for supervisory 

liability to be imposed, a supervisor “must be personally involved in the conduct” and “must 

know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of 

what they might see.” Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir. 2002) (quoting 

Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)). 

In this case, Chomos does not even allege, let alone come forward with any evidence, 

suggesting that Lieutenant Toth would be subject to supervisory liability in this case. Moreover, 

as indicated above, Chomos apparently realizes that his claims against Defendants are not viable, 

as he has indicated in a recently-filed motion that he does not oppose Defendants’ instant motion 

(and was even willing to stipulate to dismiss his claims against these individuals). (Doc. #161 at 

5). For all of these reasons, the Court agrees that dismissal of Chomos’ claims against 

Defendants Toth and Brust is appropriate. 

II. RECOMMENDATION 

For the reasons set forth above, IT IS RECOMMENDED that Defendants’ Motion for 

Summary Judgment (Doc. #157) be GRANTED and that Chomos’ claims against Lieutenant 

Toth and Detective Brust be DISMISSED in their entirety and with prejudice. 

Dated: May 25, 2017 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

REVIEW

Either party to this action may object to and seek review of this Report and 

Recommendation, but must act within fourteen days of service of a copy hereof as provided for 

in 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections 
4 

constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 

Howard v. Sec’y of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 

(6th Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity 

will not preserve all objections that party might have to this Report and Recommendation. See 

Willis v. Sec’y of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection must be served upon 

this Magistrate Judge. See E.D. Mich. L.R. 72.1(d)(2). 

Note these additional requirements at the direction of Judge Cleland: 

Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must 

specify precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of objections, the non-objecting party must file a 

response to the objections, specifically addressing each issue raised in the objections in the same 

order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response 

must be concise and proportionate in length and complexity to the objections, but there is 

otherwise no page limitation. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on May 25, 2017. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager