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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Estate of Joseph Thiel, Deceased,

Plaintiff,

vs Case No: 09-12399

Honorable Victoria A. Roberts

Sterling Heights, et al,

Defendants.

_______________________________/

ORDER

I. INTRODUCTION

This matter is before the Court on Defendants’ Motion for Judgment on the

Pleadings. The matter is fully briefed. For the reasons stated, the Motion is GRANTED

IN PART and DENIED IN PART.

II. BACKGROUND

This is a civil rights action involving claims of excessive and deadly force. 

Plaintiff Jerome Thiel (“Plaintiff”), Personal Representative of the Estate of Joseph Thiel,

brings suit against Defendants City of Sterling Heights (“the City”); the Sterling Heights

Police Department; and, Sterling Heights police officers Maureen Merpi (“Merpi”) and

Tonya Jesperson (“Jesperson”) for the shooting death of his brother, Joseph Thiel

(“Thiel”). 

The Complaint alleges: Count 1 - Violation of 42 U.S.C. §1983 and the Eighth

and Fourteenth Amendments to the United States Constitution; Count 2 - Gross
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Negligence and/or Battery and/or Intentional Infliction of Emotional Distress; and, Count

3 - Violation of Fourth Amendment Protection from Illegal Search and Seizure.

Thiel, a 51 year old single man and 25-year resident of Sterling Heights, was

shot and killed in front of his home following a traffic stop on January 24, 2009. Merpi

and Jesperson say they shot Thiel because he exited his car and charged at them with

a knife. Plaintiff disputes this version. There are no known independent witnesses to

the incident. However, the incident was partially captured by in-car police video and

audio recordings.

Defendants filed an Answer and now move for Judgment on the Pleadings,

pursuant to Federal Rule of Civil Procedure 12(c). They say the Complaint fails to state

a sufficient factual basis for the Court to determine that a Constitutional violation

occurred, and they are entitled to qualified immunity.

III. STANDARD OF REVIEW

Generally, a motion for judgment on the pleadings under Rule 12(c) is reviewed

under the same standard as a motion to dismiss under Rule 12(b)(6). Sensations, Inc.

v. City of Grand Rapids, 526 F.3d, 291, 295-96 (6th Cir. 2008). To withstand a Rule

12(c) motion for judgment on the pleadings, "a complaint must contain direct or

inferential allegations respecting all the material elements under some viable legal

theory." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th

Cir. 2007). The court "need not accept the plaintiff's legal conclusions or unwarranted

factual inferences as true. Id. 

The court must construe the complaint in the light most favorable to the plaintiff,

and, for the purposes of the motion, accept all factual allegations as true. Central States
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Pension Fund v. Mahoning Nat'l Bank, 112 F.3d 252, 255 (6th Cir. 1997).

The "[f]actual allegations must be enough to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true." Ass'n of

Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1970, 167 L. Ed. 2d

929 (2007). 

"[W]hen a complaint adequately states a claim, it may not be dismissed based on

a district court's assessment that the plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the factfinder." Twombly, 550 U.S. at

563 n.8. The function of the court in ruling on such a motion is not to weigh the

evidence, nor to appraise the credibility of witnesses. Miller v. Currie, 50 F.3d 373, 377

(6th Cir. 1995). Rather, the court is simply to determine "whether a complaint states a

plausible claim for relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950, 173 L. Ed. 2d 868

(2009).

If matters outside the pleadings are presented to and not excluded by the Court,

the motion may be treated as one for summary judgment and disposed of as provided in

Rule 56." Fed. R. Civ. P. 12(d). The Court has "complete discretion" whether or not to

consider any material beyond the pleadings which is submitted with a Rule

12[(c)]motion. Stahl v. U.S. Dept. of Agriculture, 327 F.3d 697, 700-701 (8th Cir. 2003)

(quoting 5A Wright & Miller, Federal Practice and Procedure, § 1366). 

Defendants heavily rely on numerous exhibits attached to the motion, namely

various police reports and two in-car police video and audio recordings. They say the

Court can consider them as public records, pursuant to Amini v. Oberlin College, 259
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F.3d 493 (6th Cir. 2001). However, the materials which they characterize as "public

records" are of a different character from those typically admitted by judicial notice.

Gudenas v. Cervenik, 2010 U.S. Dist. LEXIS 24487 at *11, n.3. (N.D. Ohio 2010). The

voluminous police reports are not based on personal knowledge, but rather represent

the hearsay statements and/or observations of multiple police officers who arrived on

the scene after the shooting. 

Moreover, the actual shooting and the events immediately before it, are not

captured on video. And, by Defendants’ own admission, the timestamp on one of the

video recordings is inaccurate, and there is a discrepancy in the paramedics’ arrival

time as noted on the ambulance run sheet. 

Lastly, the materials are not referred to in the Complaint and there is no integral

document which is the basis of Plaintiff’s claims. Id. at *11. Accordingly, the Court finds

that the extensive argumentation and exhibits in support of Defendants’ motion for

judgment on the pleadings, which is filed pursuant to Rule 12(c), are premature. The

Court does not rely on those materials to resolve the merits of the motion. 

IV. ANALYSIS

A. Claims against the Sterling Heights Police Department

Police departments are not separate entities and cannot be sued in tort actions.

McPherson v. Fitzpatrick, 63 Mich. App. 461, 463-464, 234 N.W.2d 566 (Mich. Ct. App.

1975). Nor may police departments be sued under § 1983. Rhodes v. McDannel, 945

F.2d 117, 120 (6th Cir.1991). Accordingly, Defendant Sterling Heights Police

Department is dismissed because it is not a separate legal entity that can be sued.
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B. 42 U.S.C. § 1983 Claims 

1. Individual Defendants - Excessive Force

Plaintiff asserts a claim under 42 U.S.C. § 1983 against Merpi and Jesperson in

their individual capacities based on Thiel’s shooting and ultimate death. Plaintiff claims

they used excessive force under the circumstances. Merpi and Jesperson counter that

Plaintiff’s allegations are insufficient to withstand a Rule 12(c) motion and that they are

entitled to qualified immunity. 

In order to prevail on a civil rights claim under 42 U.S.C. § 1983, a plaintiff must

establish that a person acting under color of state law deprived the plaintiff of a right

secured by the Constitution or laws of the United States. Everson v. Leis, 556 F.3d 484,

493 (6th Cir. 2009). For there to be a cognizable excessive force claim under the

Fourth Amendment, a seizure must occur. Dunigan v. Noble, 390 F.3d 486, 492 (6th

Cir. 2004). Apprehension by the use of deadly force constitutes a seizure within the

meaning of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 85 L. Ed. 2d 1,

105 S. Ct. 1694 (1985). 

The use of deadly force is only constitutionally permissible if the officer has

probable cause to believe that the suspect poses a threat of serious physical harm,

either to the officer or to others. Livermore v. Lubelan, 476 F.3d 397, 404 (6th Cir. 2007)

(quoting Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)). 

An officer using deadly force is entitled to qualified immunity if "a reasonable officer

could have believed [the seizure) to be lawful, in light of clearly established law and the

information the [seizing] officer possessed." Hunter v. Bryant, 502 U.S. 224, 116 L. Ed.

2d 589, 112 S. Ct. 534 (1991).
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The Complaint alleges, upon information and belief, that Joseph "Thiel exited his

vehicle and, within (sic) matter of seconds, was fatally shot multiple times by Officer

Merpi and Officer Jesperson. Comp. at ¶17. Plaintiff further alleges that "the shooting of

Thiel occurred without any provocation on Thiel's part," or alternatively that "the

shooting of Thiel occurred without sufficient provocation on Thiel's part to justify the use

of deadly force." Comp. at ¶20, 21. 

Defendants make light of the fact that Plaintiff provides no independent

witnesses or disputable evidence for his allegations. However, that is of no

consequence. On a Rule 12(c) motion, the court must "construe the complaint in the

light most favorable to the plaintiff, accept all of the complaint's factual allegations as

true, and determine whether the plaintiff undoubtedly can prove no set of facts in

support of his claim that would entitle him to relief. "Ziegler v. IBP Hog Mkt., Inc., 249

F.3d 509, 512 (6th Cir. 2001 ). 

On these facts and at this stage of the cause of action, Plaintiff states a plausible

excessive force claim. The Court cannot affirmatively state the doctrine of qualified

immunity shield Defendants from Plaintiff’s claim. Therefore, the motion for judgment on

the pleadings on this claim is DENIED.

b. Municipal Liability – Failure to Train/Official Policy

Plaintiff’s § 1983 claim against the City of Sterling Heights is based on Merpi’s

and Jesperson’s use of deadly force against Thiel, and their alleged violation of the

City’s “official policies, training, ordinances, regulations and/or customs.” The City says

(1) it cannot be liable merely because it employs Merpi and Jesperson, (2) the
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Complaint is deficient because it does not state what “policy” was violated, and (3) this

claim must be dismissed to the extent the underlying constitutional claims are

dismissed.

Respondeat superior does not apply to municipalities for claims under § 1983.

Monell v. Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611

(1978). Rather, a municipality is liable under § 1983 only if a plaintiff can establish that

an officially executed policy or the toleration of a custom within the municipality deprived

the plaintiff of that right. Id. at 691. Thus, Plaintiff must establish that: (1) a

constitutional violation occurred; and (2) the City is responsible for the violation. Graham

v. County of Washtenaw, 358 F.3d 377, 382 (6th Cir. 2004) (quoting Monell, 436 U.S. at

694.

Liability may also be imposed upon a municipality on the basis of failure to train,

where the "failure to train amounts to deliberate indifference." Blackmore v. Kalamazoo

County, 390 F.3d 890, 900 (6th Cir. 2005). "To succeed on a failure to train or

supervise claim, a plaintiff must prove the following: (1) the training or supervision was

inadequate for the tasks performed; (2) the inadequacy was the result of the

municipality's deliberate indifference; and (3) the inadequacy was closely related to or

actually caused the injury." Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th

Cir. 2006) (citing Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992)).

"There must be a 'direct causal link' between the policy (or lack of policy) and the

alleged constitutional violation such that the County's 'deliberate conduct' can be

deemed the 'moving force' behind the violation." Graham, 358 F.3d at 383 (citing

Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir. 2001)).
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The Complaint alleges that “the defendants personally violated the City of

Sterling Heights Police Department official policies, training, ordinances, regulations

and/or customs and were deliberately indifferent to the need to follow these policies to

prevent the occurrence described herein.” Comp. at ¶27. Alternatively, the Complaint

alleges the acts by the defendants were pursuant to a custom and/or policy of the City

of Sterling Heights Police Department that encourages deliberate and/or reckless

disregard of the rights of a citizen. Comp. at ¶28.

The Complaint also alleges the City was deliberately indifferent to Thiel and

caused constitutional deprivations of his rights by, among other things: (1) failing to

“train agents and/or employees in the proper determination of dangerous individuals as

opposed to non-dangerous individuals . . .” Comp. at ¶33a; (2) failing “to adequately

train agents and/or employees to recognize eminent danger or harm. Comp. at ¶33f; (3)

“[k]nowingly and recklessly hir[ing] and train[ing] as agents and/or employee individuals

who are not able to effectively determine eminent danger or harm which renders them

unfit to perform the necessary duties of their position. Comp. at ¶33d; 

At this stage in the proceedings, the Court finds that Plaintiff adequately pled a

claim for Monell liability based on an official policy and/or failure to train. Therefore, the

motion for judgment on the pleadings on this claim is DENIED.

c. Substantive Due Process/Failure to Render Medical Treatment

Plaintiff’s Eighth and Fourteenth Amendment claims against Merpi and

Jesperson are based on their use of deadly force against Thiel and their alleged failure

to obtain medical treatment and/or provide care and treatment to Thiel after the
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shooting. The claims against the City are based on the actions of Merpi and Jesperson,

as well as the City’s alleged failure to establish a custom or policy that was not

deliberately indifferent to Thiel’s rights and its failure to adequately train agents or

employees to recognize eminent danger or harm. Defendants first said there was a

fifteen minute delay between the shooting and arrival of medical treatment; the delay

was later said to be seven minutes. In any event, Defendants say the delay does not

rise to the extremely high standard required for Plaintiff to maintain this claim.

A duty to render medical care is generally thought of as arising under the Due

Process Clause of the Fourteenth Amendment or the Eighth Amendment. See, e.g.,

DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 200, 109 S. Ct.

998, 103 L. Ed. 2d 249 (1989). Due process requires that police officers seek the

necessary medical attention for a detainee when he or she has been injured while being

apprehended by either promptly summoning the necessary medical help or by taking

the injured detainee to a hospital. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245, 103

S. Ct. 2979; 77 L. Ed. 2d 605 (1983). 

 That right is violated if an officer acts with deliberate indifference to a substantial

risk of serious medical harm and resulting injuries. Wagner v. Bay City, 227 F.3d 316,

324 (5th Cir. 2000). Deliberate indifference requires that the official have subjective

knowledge of the risk of harm. Id. “Mere negligence will not suffice, and ‘deliberate

indifference, i.e., the subjective intent to cause harm, cannot be inferred from a . . .

failure to act reasonably.’" Id. 

Plaintiff concedes that Merpi and Jesperson summoned EMS in a timely manner. 

But, Plaintiff says the many officers on the scene made no effort to assist Thiel or try to
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staunch the flow of blood. Rather, Plaintiff says they allowed him to bleed to death in

the snow. Plaintiff also says the EMS truck was temporarily blockaded and not allowed

to reach Thiel until an “all clear” was called, and it had difficulty reaching Thiel due to

the large presence of police vehicles on the scene. These allegations are not found in

the Complaint. 

The Complaint does allege that “ . . . Thiel fell to the frozen ground and laid there

until paramedics arrived without any medical assistance despite several uniform police

officers arriving on the scene.” Comp. at ¶18. It also alleges that Defendants “[f]ailed to

determine the immediate need for medical attention and the close observation of a

person detained and failed to obtain proper medical attention for a person who was

detained whose dire condition was necessitated by the Defendants’ actions.” Comp. at ¶

33c.

The Court finds these allegations sufficient to make out a plausible Substantive

Due Process claim. See Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 602-03

(6th Cir. 2005) (evidence viewed in light most favorable to plaintiff sustained a

deliberate indifference to a serious medical need claim when there was a six minute

delay between the time of the injury and the actual arrival of medical care); see also

Scozzari v. City of Clare, 2010 U.S. Dist. LEXIS 39078, at *30-31 (E.D. Mich 2010)

(plaintiff presented question of fact whether officers were deliberately indifferent to a

known, life-threatening risk when they solicited witnesses to view the victim, resulting in

a twelve-minute delay between shooting and medical care). Therefore, the motion for

judgment on the pleadings on this claim is DENIED.

d. Fourth Amendment Illegal Search and Seizure Claims
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Plaintiff claims a violation of Fourth Amendment rights based on the warrantless

search of Thiel’s residence immediately after the shooting. Plaintiff complains the

warrantless search was unjustified; there were no exigent circumstances as Thiel laid

on the ground near death. Defendants say the warrantless entry was necessary and

justified to protect the officers and third parties at the scene.

Warrantless entries are permitted where "exigent circumstances" exist. Hancock

v. Dodson, 958 F.2d 1367, 1375 (6th Cir. 1992). Exigent circumstances exist where

there are "'real immediate and serious consequences' that would certainly occur were a

police officer to 'postpone[] action to get a warrant.'" O'Brien v. City of Grand Rapids, 23

F.3d 990, 997 (6th Cir. 1994). (quoting Welsh v. Wisconsin, 466 U.S. 740, 751, 80 L.

Ed. 2d 732, 104 S. Ct. 2091 (1984)). 

The relevant inquiry is whether the facts are such that an objectively reasonable

officer confronted with the same circumstances could reasonably believe that exigent

circumstances existed. Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996). 

The court’s inquiry is limited to whether exigent circumstances existed at the moment

the police entered the residence. United States v. Morgan, 743 F.2d 1158, 1162 (6th

Cir. 1984). 

Three types of circumstances have traditionally been found to constitute exigent

circumstances: "(1) when the officers were in hot pursuit of a fleeing suspect; (2) when

the suspect represented an immediate threat to the arresting officers and public; (3)

when immediate police action was necessary to prevent the destruction of vital

evidence or thwart the escape of known criminals." Hancock, 958 F.2d at 1375. 

When a search requires a warrant, the failure to satisfy the Fourth Amendment’s
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Warrant Clause makes the search "presumptively," if not per se, "unreasonable."

Baranski v. Fifteen Unknown Agents of the BATF, 452 F.3d 433, 445 (6th Cir. 2006) (en

banc). To satisfy the Reasonableness Clause, officers not only must obtain a valid

warrant; they must also conduct the search in a reasonable manner. Dalia v. United

States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). Even when a

warrant is supported by probable cause, the subsequent search may still be challenged.

Baranski, 452 F.3d at 445.

The Complaint alleges that: (1) “the Decedent was initially stopped for expired

license plate tabs and both his vehicle and drivers license were already in the

possession of the police officer who made the initial stop and/or under their control

when the Decedent parked in the driveway to his home.” Comp. at ¶46; (2) “the

shooting took place on the front lawn/driveway area of decedent’s residence and there

was no reason to conduct a warrantless search of the residence and subsequently

obtain a search warrant and conduct a second search of the premises in an attempt to

validate the already conducted search.” Comp. at ¶47; and (3) “said searches resulted

in Defendants removing numerous items of personal property from the decedent’s home

with no relevance to the underlying police stop or the subsequent shooting.” Comp. at

¶48. 

While these allegations contain a number of conclusory statements, they also

contain facts which raise a plausible claim for relief based on the non-existence of

exigent circumstances for the first search or the unreasonableness of the second

search. Therefore, the motion for judgment on the pleadings on this claim is DENIED.

C. State Law Claims
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1. Gross Negligence

Michigan courts do not allow a plaintiff to maintain a negligence claim for

intentional actions. VanVorous v. Burmeister, 262 Mich. App. 467, 687 N.W.2d 132, 143

(Mich. Ct. App. 2004). There is no suggestion in the record that the shooting of Thiel

was accidental. Officers Merpi and Jesperson admit that they intentionally aimed and

fired at Thiel, and Plaintiff does not call this admission into question. Accordingly,

Defendants Merpi and Jesperson are entitled to judgment on the pleadings with respect

to the gross negligence claim. The motion on the gross negligence claim is GRANTED.

2. Battery

Generally, to recover for battery, a plaintiff must demonstrate a "willful and

harmful or offensive touching of another person which results form an act intended to

cause such a contact." Espinoza v. Thomas, 189 Mich. App. 110, 472 N.W.2d 16, 21

(1991). However, "government actors may find it necessary -- and are permitted -- to

act in ways that would, under different circumstances, subject them to liability for an

intentional tort." VanVorous, 687 N.W.2d at 142. 

It is well settled in Michigan that a police officer may use reasonable force when

making an arrest. Id. at 141. The force reasonably necessary to make an arrest is "the

measure of necessary force that an ordinarily prudent and intelligent person, with the

knowledge and in the situation of the arresting officer, would have deemed necessary.

Id. Thus, the standard is an objective one under the circumstances. Id. 

The analysis of Plaintiff’s battery claim, therefore, tracks the analysis of the §

1983 Fourth Amendment claim discussed above. For the reasons stated above, the
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motion for judgment on the pleadings as to the battery claim is DENIED.

3. Intentional Infliction of Emotional Distress

Although the Michigan Supreme Court has not recognized Intentional Infliction of

Emotional Distress (“IIED”) claims, the Sixth Circuit assumes that it will do so. Andrews

v. Prudential Sec., Inc., 160 F.3d 304, 309 (6th Cir. 1998). The elements of such a

claim consist of "(1) extreme and outrageous conduct; (2) intent or recklessness; (3)

causation; and (4) severe emotional distress." Id. 

The Complaint alleges that Thiel was “shot multiple times by Officer Merpi and

Officer Jesperson,” and “without provocation on Thiel’s part.” Comp. at ¶ 17, 20. It also

alleges that “Thiel fell to the frozen ground and laid there until paramedics arrived

without any medical assistance despite several uniformed police officers arriving on the

scene,” Comp. at ¶ 18, and he “suffered great emotional and physical pain, humiliation,

degradation, suffering and death” as a result. Comp. at ¶ 31. 

These allegations make out a plausible claim of Intentional Infliction of Emotional

Distress. Accordingly, Defendants motion for judgment on the pleadings is DENIED

with respect to this claim.

V. CONCLUSION

Defendants’ Motion to Dismiss should be GRANTED IN PART and DENIED IN

PART. The Court dismisses all claims against the Sterling Heights Police Department

and the Gross Negligence claims against Merpi and Jesperson. The remaining claims 

proceed.

IT IS ORDERED.
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 /s/ Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 10, 2010

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

August 10, 2010.

s/Linda Vertriest 

Deputy Clerk