UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

RODERICK HAROLD PERSON,

CASE NO. 08-CV-14850

Plaintiff,

DISTRICT JUDGE THOMAS L. LUDINGTON

v. MAGISTRATE JUDGE CHARLES E. BINDER

CITY OF ALPENA, COUNTY OF

ALPENA, JOHN DOE, ALPENA

DEPARTMENT OF ROAD WORKS,

ALPENA POLICE DEPARTMENT,

CHIEF OF ALPENA POLICE 

DEPARTMENT, WILLIAM C. GOHL,

OFFICER MICHAEL BROOKS, 

Defendants.

 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON MOTION FOR SUMMARY JUDGMENT

BY DEFENDANTS CITY OF ALPENA, ALPENA CHIEF OF POLICE,

OFFICER WILLIAM C. GOHL, AND SGT. MICHAEL BROOKS

(Doc. 32)

AND PLAINTIFF’S MOTION FOR DISCOVERY

(Doc. 43)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendants’ motion for

summary judgment be GRANTED; that Plaintiff’s Motion for Discovery be DENIED AS MOOT

because Defendants provided Plaintiff with the information he sought in that motion; and that the

case be dismissed in its entirety.
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II. REPORT

A. Introduction

This case was originally filed in state court on October 1, 2008, alleging claims of excessive

force, failure to train, gross negligence, abuse of process and intentional infliction of emotional

distress, all arising from a fatal car accident that occurred on July 19, 2007, in Alpena, Michigan.

The case was removed to federal court in November 2008. By order of U.S. District Judge

Thomas L. Ludington, the case was referred to the undersigned magistrate judge for general

pretrial case management. (Doc. 5.) 

Before the Court is a Motion for Summary Judgment that was filed by Defendants City of

Alpena, Chief of Alpena Police Department, Officer William C. Gohl, and Sgt. Michael Brooks

(hereafter “Defendants”). Plaintiff filed a response to the motion (Doc. 36) and Defendants filed

a reply. (Doc. 37.) Defendants also filed a supplemental brief with exhibits (Doc. 41) and Plaintiff

filed a supplement to his response. (Doc. 47.) Accordingly, I conclude that pursuant to E.D. Mich.

LR 7.1(e)(2), this motion is ready for Report and Recommendation without oral argument.

B. Background

The complaint asserts that in the early morning hours of July 19, 2007, Plaintiff was driving

a vehicle in the city of Alpena, Michigan, when Defendant Officer Gohl attempted to engage

Plaintiff in a routine traffic stop precipitated by a broken headlight. (Compl. ¶ 3.) Plaintiff, who

had two passengers in his vehicle, did not stop, but instead continued driving and increased his

speed. Plaintiff states that just before he approached a dangerous curve in a road, Defendant

Officer Gohl activated his high beam spotlight and “completely blinded Mr. Person and totally

obstructed his vision of the road and curve.” (Id. ¶ 5.) Plaintiff lost control of the vehicle, which

hit a “substandard guardrail” that “could not sustain the impact of a vehicle,” and went down into
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The police chief is named in his official capacity (see Compl. ¶ 27) and therefore the claims against him

are redundant to the claims against the city. See McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n.2, 117 S.

Ct. 1734, 138 L. Ed. 2d 1 (1997) (a suit against a government officer in his official capacity is the same as a suit

against the governmental entity for which the officer is an entity). 

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a ravine. One of Plaintiff’s two passengers died from his injuries. Plaintiff and the other passenger

both sustained injuries. (Id. ¶ 7.) Plaintiff further alleges that after the crash, as he was about to

give medical attention to one of his passengers, he was assaulted by Defendant Officers Brooks

and “John Doe,” which caused him additional injuries. (Id. ¶¶ 15, 18.)

According to documentation Plaintiff attached to his response, it was determined that

Plaintiff’s alcohol content at the time of the crash was 0.08 grams or more per 100 milliliters of

blood (Doc. 36 at 16) and that Plaintiff’s vehicle was traveling “at minimum speed of 48.78 to

50.22 miles per hour at the start of observed braking” just before the curve in the road. (Id. at 13.)

The road has a speed limit of 25 miles per hour and “has yellow and black advisement signs prior

to the curve indicating curve ahead and suggested speed of 15 miles per hour.” (Id.) Plaintiff was

charged in Alpena County with one count of second-degree murder, MICH. COMP. LAWS §

750.317, and one count of operating while intoxicated causing death, MICH. COMP. LAWS §

257.625(4)(a). (Am. Felony Compl., Doc. 36 at 16.) According to the Michigan Department of

Corrections’ Offender Tracking Information System (OTIS), Plaintiff was found guilty of both

counts by a jury and sentenced on June 2, 2008, to fifteen to thirty years’ imprisonment. He is

currently incarcerated at the Michigan Reformatory in Ionia, Michigan.

C. Plaintiff’s Allegations

This case was removed to federal court from state court because the pro se complaint asserts

three federal claims under 42 U.S.C. § 1983: (1) that the Defendant City of Alpena and its police

chief1

 have a custom and policy of failing to adequately train and supervise police officers in the
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Plaintiff failed to identify Defendant John Doe, substitute him into the case, and serve him with process

within the time period allowed by the federal rules and therefore I suggest that he and all other defendants named

in the caption but not served are properly dismissed from the case. See Petty v. County of Franklin, Ohio, 478 F.3d

341, 345-46 (6th Cir. 2007); Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 1993); FED. R. CIV. P. 4(m). 

4

proper use of high beam spotlights during a pursuit of a suspect that amounts to gross negligence

and deliberate indifference to the safety of citizens (Compl. ¶¶ 17, 30, 32, 35, 37-40); (2) that the

Defendant City of Alpena has a custom and policy of failing to adequately train and supervise

police officers in the arrest of citizens without assaulting them, which amounts to gross negligence

and deliberate indifference (id. ¶¶ 18-20, 31, 33, 36-40); (3) that Defendant Officer Brooks and

Defendant Officer John Doe2

 committed acts of excessive force against Plaintiff when they

assaulted him after the accident (id. ¶¶ 15-16).

The complaint also alleges several state law claims. Plaintiff asserts that Defendant Officer

Gohl committed an act of gross negligence which caused the fatal accident. Plaintiff asserts that

the

direct and proximate cause of this accident was the gross negilgence act [sic] of

Officer Gohl, in engaging his blinding spotlight, at night and at a hazardous point

of the road, where he knew or should have known that his actions would have

blinded the driver causing Mr. Person to loose [sic] visual and physical control of

his vehicle.

(Compl. ¶ 8. See also ¶¶ 9-11.)

Plaintiff also brings a claim under Michigan Compiled Laws § 691.1402, asserting that the

Defendant City of Alpena and the Alpena Department of Road Works were grossly negligent in

installing a guardrail that could not sustain an automobile crash and that their negligence was the

proximate cause of his car “tumbl[ing] down the embankment.” (Id. ¶¶ 12-14, 41-45.) Plaintiff

further asserts state law claims for intentional infliction of emotional distress (id. ¶¶ 46-48), abuse
5

of process (¶¶ 49-51), and gross negligence against all defendants. (Id. ¶¶ 52-54.) Plaintiff seeks

$2 million in damages.

D. Motion Standards

Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil

Procedure, and will be granted when “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). All facts and

inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). 

The moving party has the initial burden of showing the absence of a genuine issue of

material fact as to an essential element of the non-movant’s case. Street v. J.C. Bradford & Co.,

886 F.2d 1472, 1479 (6th Cir. 1989) (citing Celotex Corp. v Catrett, 477 U.S. 317, 106 S. Ct. 2548,

91 L. Ed. 2d 265 (1986)). In determining whether the moving party has met its considerable

burden, a court may consider the plausibility of the moving party’s evidence. Matsushita, 475 U.S.

at 587-88. Summary judgment is also proper where the moving party shows that the non-moving

party is unable to meet its burden of proof. Celotex, 477 U.S. at 326.

The non-moving party has an obligation to respond to the motion and present “significant

probative evidence” to show that “there is [more than] some metaphysical doubt as to the material

facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-moving party

cannot rest merely on the pleadings alone. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 191 L. Ed. 2d 202 (1986).

After examining the evidence designated by the parties, the court then determines “‘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.’” Booker v. Brown & Williamson
6

Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52).

Summary judgment will not be granted “if the evidence is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. 

E. Defendants’ Motion for Summary Judgment

1. Federal Claims

a. Failure to Train Claim Against the City of Alpena

Plaintiff alleges that the Defendant City of Alpena has a custom and policy of failing to

adequately train and supervise police officers in (1) the proper use of high beam spotlights during

an automobile pursuit of a suspect vehicle and (2) the arrest of citizens without the use of excessive

force. He claims that this failure to adequately train officers amounts to gross negligence and

deliberate indifference to the safety of citizens.

Section 1983 does not permit a plaintiff to sue a local government entity on the theory of

respondeat superior. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 692-94, 98 S.

Ct. 2018, 56 L. Ed. 2d 611 (1978). A plaintiff may only hold a local government entity liable

under § 1983 for the entity’s own wrongdoing. Id. A local government entity violates § 1983

where its official policy or custom actually serves to deprive an individual of his or her

constitutional rights. Id. 

To prevail on a claim that a city is liable for the allegedly unconstitutional actions of its

police officers, the plaintiff must prove that the officers’ actions were the product of an

unconstitutional policy, custom, or practice of “deliberate indifference” to plaintiff’s constitutional

rights. Oklahoma v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (citing

Canton v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) and Monell, 436

U.S. at 694). A municipality may not be held liable under § 1983 unless its deliberate action was
7

the “moving force” behind the plaintiff’s deprivation of federal rights. Id. (citing Monell, 436 U.S.

at 694). “[R]igorous standards of culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its employee.” Brown, 520 U.S. at 405

(citing Canton, 489 U.S. at 391-92).

A municipality may be held liable for a failure to train and supervise its officers if the

municipality was put on notice that its training program did not prevent constitutional deprivations

yet it continued to take the same approach in deliberate indifference to continuing constitutional

violations, that is, a continuous pattern of tortious conduct as opposed to an officer being involved

in a single tortious event. Id. at 408. A single incident may support a finding of “deliberate

indifference” where a “highly predictable consequence” results from the officer’s obvious lack of

specific tools to handle a situation arising from a deliberate indifference to train. Id. at 409, 410.

“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality . . .

can a city be liable for such a failure under § 1983.” Canton, 489 U.S. at 391. The risk of a

constitutional violation arising as a result of inadequacies in a municipal policy must be “plainly

obvious” in order for the plaintiff to prevail. Brown, 520 U.S. at 412; see also Stemler v. City of

Florence, 126 F.3d 856, 865 (6th Cir. 1997).

In support of its motion for summary judgment, the City of Alpena (hereafter “the City”)

has supplied affidavits from six police officers and video footage taken from the dashboard

cameras of the vehicles driven by three police officers on the night in question, including that of

Defendant Officer Gohl. (Docs. 41, 42.)

i. Evidence Regarding Use of Spotlight

The video shows that Officer Gohl initiated a traffic stop of Plaintiff’s car and that Plaintiff

sped away. Officer Gohl followed and, as the pursuit entered a less-populated area, Officer Gohl
3

After Defendants filed their affidavits and videos, Plaintiff filed a motion for discovery seeking Defendant

Brooks’ time records for the applicable period, the dispatch records related to the events at issue, and the names of

all emergency and police personnel on the scene the night of the accident. (Doc. 43.) Defendants responded by

providing the information Plaintiff sought. (Doc. 45.) Plaintiff thereafter filed the supplemental response (Doc. 47)

that is referred to here.

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turned on his high beam spotlight. Officer Gohl states in his affidavit that “[i]t is standard

procedure to use a spotlight during a night pursuit, as it helps the officer to keep a suspect vehicle

in sight from a greater distance and allows the officer to observe if the occupants of the suspect

vehicle throw anything out of the windows.” (Gohl Aff., Doc. 41, Ex. D ¶ 7.) On the video, the

beam of light from the spotlight can be seen moving around from the ground to the trees on either

side of the road to the back of Plaintiff’s car. The cars approached a curve, and Officer Gohl states

that he saw Plaintiff’s brake lights light up. (Id. ¶ 10.) Officer Gohl slowed down, and as he

rounded the curve he “saw a plume of dust and smoke in the air, and skid marks leading off the

roadway into the ditch.” (Id.)

Plaintiff, as the non-moving party, has an obligation to respond to the motion by presenting

“significant probative evidence” to show that “there is [more than] some metaphysical doubt as

to the material facts.” Moore, 8 F.3d at 339-40. Plaintiff’s response3

 does not present any

significant probative evidence. Instead, Plaintiff alleges that the videos have been tampered with

and that all of the officers “knowingly made false statements under oath by submitting sworn

affidavits to this honorable court. Plaintiff would ask all of these individuals to submit to a

polygraph test to the statement they made in their affidavits.” (Doc. 47 at 3.) Plaintiff’s response

does not mention the failure to train claim.

ii. Evidence Regarding Alleged Assault by Defendant Officer Brooks

Defendant Sergeant Michael Brooks states in his affidavit that he was not on duty on July

19, 2007, and was not present at the scene of the accident. (Doc. 41, Brooks Aff. ¶ 5.) Kim Miller,
9

Police Chief of the City of Alpena Police Department, states that the employment records of

Sergeant Brooks verify that he was not on duty that day. (Miller Aff. ¶ 4.) Defendant Officer

Gohl, who was at the scene, states that “Sergeant Brooks was not on duty at the time and was not

present at the scene of the car crash. Neither Sergeant Brooks nor any person who was present at

the scene of the car crash assaulted Mr. Person.” (Gohl Aff. ¶ 22.) Officer Koch and Officer

Grant, both of whom were present at the scene, also state that Sergeant Brooks was not present.

(Koch Aff. ¶ 9; Grant Aff. ¶ 13.)

Plaintiff has not responded to these affidavits with any contrary evidence. Instead, he

makes unsubstantiated allegations that the video tapes have been edited and tampered with to hide

the assault and that “Sgt. Brooks has been involved in other civil actions based on excessive force

and brutality [that] can and will be substantiated.” (Doc. 47 at 3.)

iii. Discussion

In this case, Plaintiff alleged in his complaint that the City of Alpena did not adequately

train Officer Gohl in the use of high beam spotlights and Officer Brooks in how to arrest a subject

without assaulting him, and that as a result the City was deliberately indifferent to Plaintiff’s

safety. With regard to the City’s failure to train on the proper use of spotlights, the evidence of

record demonstrates that it is the custom and policy of officers in the City of Alpena to use a

spotlight during a night pursuit in order to better see the suspect vehicle and to be able to observe

if objects are thrown out of the vehicle. Plaintiff has not submitted any evidence in response to

Defendants’ motion that suggests that there is a risk of a constitutional violation arising as a result

of this policy, let alone provide evidence that raises a material issue of fact as to whether such a

risk is “plainly obvious,” as would be required for Plaintiff to prevail. See Brown, 520 U.S. at 412.
10

With regard to the claim that the City failed to train its officers on the proper use of force

during an arrest, I suggest that the Defendant City is entitled to summary judgment because

Plaintiff has failed to submit any evidence to raise a jury question as to whether such an assault

occurred, let alone whether it was the result of improper police training.

Accordingly, after examining the evidence designated by the parties, I suggest that

Defendant City of Alpena’s motion for summary judgment be granted because there is not a

“sufficient disagreement” to require that Plaintiff’s failure to train claims be submitted to a jury,

but rather the evidence is “so one-sided that one party must prevail as a matter of law.” Anderson,

477 U.S. at 251-52.

b. Excessive Force Claim Against Defendant Brooks

A claim that a police officer used excessive force against a citizen while effecting a seizure

or arrest is governed by the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S.

Ct. 1865, 104 L. Ed. 2d 443 (1989). Fourth Amendment jurisprudence recognizes “that the right

to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion

or threat thereof to effect it.” Id. at 396 (citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S. Ct. 1868,

20 L. Ed. 2d 889 (1968)). “The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments-in circumstances that are tense,

uncertain, and rapidly evolving-about the amount of force that is necessary in a particular

situation.” Id. at 396-97. The reasonableness of an officer’s use of force is “judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Id. at 396 (citing Terry, 392 U.S. at 20-22)).

Defendant Sergeant Brooks moves for summary judgment, not on the grounds that the force

used was reasonable, but on the grounds that he was not even present at the scene of the accident
11

when Plaintiff alleges the assault took place. As discussed, the affidavits supplied by five officers

all state that Sergeant Brooks was not at the scene. Plaintiff has not submitted any evidence to

refute these statements. Furthermore, after viewing the videos from the scene, Plaintiff has not

argued that Defendant Brooks is one of the officers depicted on the videos.

Accordingly, I suggest that Defendant Brooks is entitled to summary judgment on the

section 1983 claim of excessive force made against him because, even viewing the evidence in a

light most favorable to Plaintiff, no reasonable jury could return a verdict in Plaintiff’s favor. See

Anderson, 477 U.S. at 248. 

4. Pendent State Law Claims

The remaining claims of gross negligence, intentional infliction of emotional distress, and

abuse of process are brought pursuant to Michigan law. I suggest that, pursuant to United Mine

Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), this Court should

decline to exercise its discretion to entertain the pendent state law claims. See id. at 726 (noting

that generally “if the federal claims are dismissed before trial, . . . the state claims should be

dismissed as well.”) See also Hankins v. The Gap, Inc., 84 F.3d 797, 802-03 (6th Cir. 1996) (when

all federal claims have been dismissed at a pretrial stage and the parties are non-diverse, the district

court should decline to exercise supplemental jurisdiction over the surviving state law claims).

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A party may respond to another

party’s objections within 14 days after being served with a copy.” FED. R. CIV. P. 72(b)(2). See
12

also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard

v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise

others, will not preserve all the objections a party may have to this Report and Recommendation.

Willis v. Sec’y of Health & Human Servs., 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). Pursuant to E.D. Mich. LR

72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: March 9, 2010 United States Magistrate Judge

CERTIFICATE OF SERVICE

I hereby certify that on March 9, 2010, I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will send notification of such filing to all

counsel of record and U.S. District Judge Thomas L. Ludington. I also hereby certify that

the paper was mailed by United States Postal Service to the following non-ECF

participants: Roderick Person. 

Dated: March 9, 2010 By s/Mimi D. Bartkowiak 

Law Clerk to Magistrate Judge Binder