1

 Monell v. Dept. of Social Services, 436 U.S. 658, 690-95 (1978). 

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DWUAN FREEMAN,

Plaintiff, No. 09-CV-13184

vs. Hon. Gerald E. Rosen

CITY OF DETROIT AND DETROIT

POLICE OFFICER JAMES NAPIER,

Defendants.

_______________________________/

OPINION AND ORDER GRANTING DEFENDANT

CITY OF DETROIT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on May 16, 2011 

PRESENT: Honorable Gerald E. Rosen

United States District Chief Judge

I. INTRODUCTION

This Section 1983 police excessive force action is presently before the Court on

the City of Detroit’s August 30, 2010 Motion for Partial Summary Judgment, in which

the City seeks dismissal of Plaintiff’s Monell1

claim for failure to state a claim upon

which relief may be granted. After twice being granted extensions of time, Plaintiff

finally responded to the City’s motion on December 17, 2010.

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 1 of 12 Pg ID 731
2

Having reviewed and considered the parties’ briefs and supporting exhibits, and

the entire record of this matter, the Court finds that the pertinent facts and legal

contentions are sufficiently presented in these materials, and that oral argument would not

assist in the resolution of this matter. Accordingly, pursuant to Eastern District of

Michigan Local Rule 7.1(f)(2), the Court will decide Defendant’s motion “on the briefs.”

This Opinion and Order sets forth the Court’s ruling.

II. PERTINENT FACTS

Plaintiff’s Complaint arises out his arrest on a narcotics charge that occurred on

July 10, 2009. At approximately 9:30 p.m. on that date, Detroit Police Officers James

Napier and Michael McGinnis were on duty, in full uniform and operating a marked

police car. The officers responded to a domestic violence police radio run to 18980

Ohio Street in the City of Detroit which described a felonious assault by a male

perpetrator.

When the officers arrived at the location, they observed Plaintiff Dwuan Freeman

sitting in the driver’s seat of a running motor vehicle in an alley adjacent to the location,

blocking the sidewalk. Freeman was consuming alcohol. As Officer Napier approached

the vehicle, he observed Freeman take a clear bag of pills, which were later identified as

ecstacy, from the vehicle cupholder and place the drugs in his front pants pocket. Officer

Napier walked around the car, opened the driver’s door, and ordered Freeman to exit the

vehicle. Plaintiff and Defendant have different versions of the circumstances that ensued

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 2 of 12 Pg ID 732
2

 Though Plaintiff cites to the transcript of Plaintiff’s Deposition throughout his

account of the events of July 10, 2009, no transcript nor any excerpts therefrom has ever

been filed.

3

thereafter.

Plaintiff alleges that he attempted to be friendly with Officer Napier because they

had gone to high school together, but Napier did not reciprocate.2

 Instead, Plaintiff

alleges that Napier used profanity, ordered him out of his vehicle and patted him down. 

According to Plaintiff, Officer Napier did not find any weapons or contraband on him. 

Meanwhile, Officer McGinnis allegedly searched Plaintiff’s car without asking for his

consent. Plaintiff claims that Napier then ordered him to step to the rear of his vehicle

where he again was patted down. Napier then went to his patrol car, returned, and

allegedly patted Plaintiff down a third time.

Plaintiff further alleges that Napier also reached into the back of his (Plaintiff’s)

pants and inside his underwear. After a brief conversation with Officer McGinnis about

having found something during the search of his person, Napier purportedly punched

Plaintiff in the face, breaking his nose. According to Plaintiff, Officer Napier continued

to abuse him but Plaintiff never made any attempt to defend himself, and eventually, he

was handcuffed and put into the patrol car.

Defendant’s version of what transpired is markedly different. Defendant claims

that after Napier ordered Plaintiff to exit his vehicle, he informed Plaintiff that he was

being arrested for narcotics possession and began to handcuff him. Napier had just

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 3 of 12 Pg ID 733
3

 In his Complaint, Plaintiff alleges that Napier punched him with such force that

he broke his nose and “busted” his lip. See Complaint, ¶¶ 33, 38. He further alleges that

he was handcuffed so tightly (by Officer John Doe) that he suffered bruising and

neurological damage to his hands. Id. ¶ 46.

4

 Though Count I is captioned as being a claim against the “Defendant Officers,”

Plaintiff identified only Defendant Napier by name; Napier’s partner was identified only

as a “John Doe.” From the assertions in the City’s summary judgment brief, apparently,

Napier’s partner on the date in question was Officer McGinnis. Plaintiff has never

moved to amend his complaint to name Officer McGinnis as a party-defendant, nor has

McGinnis been served with process in this matter.

4

placed a handcuff on Plaintiff’s left wrist when Plaintiff attempted to jerk his left arm

away from the officer and run away. Officer Napier, however, held onto Plaintiff’s left

wrist to keep him from running. When Plaintiff finally stopped trying to run away, he

threw a a closed-fist punch which just missed Officer Napier. Allegedly in response to

Plaintiff’s aggression, Officer Napier struck Plaintiff in his neck/jaw area. The two men

fell to the ground and Plaintiff continued to attempt to strike Officer Napier and escape. 

Finally, Officer Napier was able to subdue Plaintiff and handcuff his right wrist, and

Plaintiff was taken to jail. Freeman allegedly suffered cuts and bruises and other injuries,

as a result of the scuffle with Officer Napier.3

 

Plaintiff was arraigned on July 12, 2009 on felony drugs and open intoxicant

charges and released on bond. On July 24, 2009, all criminal charges against Plaintiff

were dropped. This lawsuit was thereafter filed on August 17, 2009.

In his Amended Complaint, Plaintiff alleges two counts: In Count I Plaintiff

alleges a Section 1983 excessive force claim against the individual Defendant Officers.4

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 4 of 12 Pg ID 734
5

Count II contains Plaintiff’s Section 1983 Monell “policy and practice” claim against the

City of Detroit.

Discovery closed in this matter on July 30, 2010 and the City of Detroit timely

filed its motion for partial summary judgment on August 30, 2010, in accordance with

the deadlines set forth in the Court’s Scheduling Order. In this motion, the City seeks

entry of summary judgment in its favor and dismissal of Plaintiff’s “policy and practice”

claim (Count II of Plaintiff’s Amended Complaint).

III. DISCUSSION

A. APPLICABLE STANDARDS

Summary judgment is proper if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the plain language of Rule

56[] mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552 (1986). In addition, where a moving party seeks an award of summary judgment in

its favor on a claim or issue as to which it bears the burden of proof at trial, this party’s

“showing must be sufficient for the court to hold that no reasonable trier of fact could find

other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.

1986) (internal quotation marks, citation, and emphasis omitted).

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 5 of 12 Pg ID 735
6

In deciding a motion brought under Rule 56, the Court must view the evidence in a

light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813

(6th Cir. 2006). Yet, the nonmoving party may not rely on mere allegations or denials,

but must “cit[e] to particular parts of materials in the record” as establishing that one or

more material facts are “genuinely disputed.” Fed. R. Civ. P. 56(c)(1). Moreover, any

supporting or opposing affidavits or declarations “must be made on personal knowledge,

set out facts that would be admissible in evidence, and show that the affiant or declarant

is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “the mere

existence of a scintilla of evidence that supports the nonmoving party’s claims is

insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal

quotation marks, and citation omitted). The Court will apply these standards in deciding

the City of Detroit’s motion in this case.

B. MONELL LIABILITY

It is well-settled that a municipality cannot be held liable under 42 U.S.C. § 1983

based on a theory of respondeat superior. “[U]nder § 1983, local governments are

responsible only for “their own illegal acts. . . . The are not vicariously liable under §

1983 for their employees’ actions.” Connick v. Thompson, ___ U.S. ___, 131 S.Ct.

1350, 1359 (2011) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658,

691 (1978)) (emphasis in original). A plaintiff who seeks to impose liability on a local

government under § 1983 must prove that “action pursuant to official municipal policy”

caused his injury. Monell, 436 U.S. at 691. Official municipal policy includes the

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 6 of 12 Pg ID 736
5

 At issue in Monell was the unwritten policy of the New York City Department

of Social Services requiring pregnant employees to take unpaid leaves of absence before

7

decisions of a government’s lawmakers, the acts of its policymaking officials, and

practices so persistent and widespread as to practically have the force of law. Connick,

supra; Monell, supra; see also Pembaur v. Cincinnati, 475 U.S. 469, 480-81 (1986). The

alleged policy must be the “moving force of the constitutional violation.” Monell, supra

at 694. As enunciated by the Sixth Circuit, this requires that the plaintiff “identify the

policy, connect the policy to the city itself and show that the particular injury was

incurred because of the execution of that policy.” Garner v. Memphis Police Dept., 8 F.

3d 358, 364 (6th Cir. 1993).

In this case, Plaintiff has not pointed to any decisions of City lawmakers or any

acts of its policymaking officials. Rather, Plaintiff’s § 1983 claim against the City of

Detroit is a “policy and practice” claim predicated upon a “failure to train” theory of

liability.

In limited circumstances, a local government’s failure to train certain employees

about their legal duty to avoid violating citizens’ rights may rise to the level of an official

government policy for purposes of § 1983. Connick, supra, 131 S.Ct. at 1359. “A

municipality’s culpability of a deprivation of rights is at its most tenuous where the claim

turns on a failure to train.” Id.; see also Oklahoma City v. Tuttle, 471 U.S. 808, 822-23

(1985) (“[A] ‘policy’ of ‘inadequate training’” is “far more nebulous and a good deal

further removed from the constitutional violation, than was the policy in Monell.”)5

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 7 of 12 Pg ID 737
those leaves are required for medical reasons.

8

In any event, it is not enough for the plaintiff simply to show that the City pursued

an official policy or custom; he must also show that such official policy or custom was

adopted by the official makers of policy with “deliberate indifference.” City of Canton v.

Harris, 489 U.S. 378, 387-88 (1989). Thus, to satisfy the requisites of Section 1983, a

municipality’s failure to train its employees in a relevant respect must amount to

“deliberate indifference to the rights of persons with whom the [untrained employees]

come into contact.” Connick, supra (quoting Canton, 489 U.S. at 388.)

“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.” Board of

County Commissioners of Bryan, County, Oklahoma v. Brown, 520 U.S. 397, 410 (1997). 

When city policymakers are on actual or constructive notice that a particular omission in

their training program causes city employees to violate citizens’ constitutional rights, the

city may be deemed deliberately indifferent in the policymakers’ choosing to retain that

program. Id. at 407.

However, a single act of misconduct by an officer is insufficient to impose

municipal liability under a failure to train theory. Oklahoma v. Tuttle, 471 U.S. 808, 823-

24 (1985). Where the policy itself is not unconstitutional, “considerably more proof than

the single incident would be necessary. . . to establish both the requisite fault on the part

of the municipality, and the causal connection between the policy and the constitutional

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 8 of 12 Pg ID 738
6

 The cases relied upon by Plaintiff in which Napier was named as a defendant are

Andrews v. City of Detroit, et al., EDMI No. 09-11462; Seals v. City of Detroit, et

al.,EDMI No. 09-14725; and Hayes v. Napier, EDMI No. 10-10476. Defendant

9

deprivation.” Id. See also, Sudel v. City of Hamtramck, 221 Mich. App. 445, 562

N.W.2d 478 (1997):

As a matter of pure logic, a single incident does not a custom, policy or

practice make. . . . Where a policy maker’s decision does not itself directly

order or authorize a constitutional violation, more than a single incident

should be necessary to establish causation.

Id. at 469-70.

A pattern of similar constitutional violations by untrained employees is “ordinarily

necessary” to demonstrate deliberate indifference for purposes of failure to train. Bryan

County, supra, 520 U.S. at 408. Showing only that one individual officer was

inadequately trained is insufficient to establish that the lack of proper training is the

“moving force” behind the plaintiff’s injury. Id. “That a particular officer may be

unsatisfactorily trained will not alone suffice to fasten liability on the city, for the

officer’s shortcomings may have resulted from factors other than a faulty training

program.” City of Canton v. Harris, 487 U.S. at 390-91.

Plaintiff here has not met the above standards. Plaintiff has not alleged, let alone

proven, a pattern of similar constitutional violations. The only evidence proffered by

Plaintiff is that Defendant Napier has been sued under Section 1983 in three other cases,

and Officer McGinnis, Napier’s partner on the date of the incident complained of in this

case, was sued once before. See Plaintiff’s Response Brief, pp. 17-19.6

 However, in

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 9 of 12 Pg ID 739
McGinnis was one of the named-defendants in Russell v. City of Detroit, et al., EDMI 08-

14132.

7

 The cases cited in footnote 2 at page 17 of Plaintiff’s brief do not support

Plaintiff’s theory, either. The cited cases involved the liability of individual defendants

and individual supervisors and whether they were entitled to qualified immunity; none of

the cases involved a municipality’s Monell liability.

10

none of those cases were there ever any factual findings nor any determination of liability

on the officer’s or the City’s part. Two of the cases in which Napier was named as a

party-defendant, as well as the one case in which Officer McGinnis was a party, settled

extra-judicially without any findings having been made nor any dispositive motions ever

filed. The fourth case remains pending before another judge of this court. (No findings

of fact have been made nor have any dispositive motions been filed in that case, either.)7

But in any event, as the Supreme Court held in City of Canton, and reiterated in

Bryan County and again, most recently in Connick, the fact that a particular officer may

be unsatisfactorily trained is insufficient to demonstrate the requisite “pattern of

constitutional violations” needed in a failure-to-train claim to “establish that the ‘policy

of inaction’ was the functional equivalent of a decision by the city itself to violate the

Constitution.” See Connick v. Thompson, 131 S.Ct. at 1366 (quoting City of Canton, 487

U.S. at 395). As the Court reasoned in Canton:

In resolving the issue of a city’s liability, the focus must be on

adequacy of the training program in relation to the tasks the particular

officers must perform. . . . It may be, for example, that an otherwise sound

program has occasionally been negligently administered. Neither will it

suffice to prove that an injury or accident could have been avoided if an

officer had had better or more training, sufficient to equip him to avoid the

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 10 of 12 Pg ID 740
11

particular injury-causing conduct. Such a claim could be made about

almost any encounter resulting in injury, yet not condemn the adequacy of

the program to enable officers to respond properly to the usual and

recurring situations with which they must deal. And plainly, adequately

trained officers occasionally make mistakes; the fact that they do says little

about the training program or the legal basis for holding the city liable.

Id., 487 U.S. 390-91.

Furthermore, to recover from a municipality under § 1983, a plaintiff must also

establish a “rigorous” standard of causation. Bryan County, 520 U.S. at 405; Connick,

131 S.Ct. at 1368 (Scalia, J., concurring). The plaintiff must “demonstrate a direct causal

link between the municipal action and the deprivation of federal rights.” Id. Plaintiff

here has pointed to no other incident tending to make it more likely than not that his

injury flows from the municipality’s action, rather than “some other intervening cause.” 

Id. Lacking this requisite causal link, even if Plaintiff had demonstrated the existence of

an unconstitutional policy, his Section 1983 claim against the City fails.

CONCLUSION

For all of the foregoing reasons, the Court finds that Plaintiff has failed to state a

Section 1983 claim against the City of Detroit upon which relief may be granted. 

Therefore,

IT IS HEREBY ORDERED that Defendant City of Detroit’s Motion for Partial

Summary Judgment [Dkt. # 18] is GRANTED. Accordingly,

IT IS FURTHER ORDERED that Plaintiff’s Section 1983 claim against the City

of Detroit, as alleged in Count II of Plaintiff’s Amended Complaint, as well as the

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 11 of 12 Pg ID 741
12

respondeat superior claims against the City of Detroit as alleged in Count I, are hereby

DISMISSED, with prejudice.

Therefore, this case will proceed to trial only on Plaintiff’s Section 1983 claims

against individual Defendant James Napier.

SO ORDERED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: May 16, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record

on May 16, 2011, by electronic and/or ordinary mail.

s/Ruth A. Gunther 

Case Manager

2:09-cv-13184-GER-MKM Doc # 46 Filed 05/16/11 Pg 12 of 12 Pg ID 742