Estate of Smithers Ex Rel. Norris v. City of Flint

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0113p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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ESTATE OF LEON SMITHERS, by his Personal

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Representative, Homer Norris, Jr.; ALAN

SHARP; ROBERT BONNER, -

Plaintiffs-Appellants, -

No. 09-1164

,

>

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v.

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CITY OF FLINT; TERRANCE WALKER; BRIAN

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Defendants-Appellees. N

MURPHREE, Officers; GACIA,

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-40347—Stephen J. Murphy, III, District Judge.

Argued: March 11, 2010

Decided and Filed: April 21, 2010

*

Before: MARTIN and GIBBONS, Circuit Judges; MARBLEY, District Judge.

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COUNSEL

ARGUED: James M. Cull, CULL & CULL, Southfield, Michigan, for Appellants.

Michael J. Gildner, SIMEN, FIGURA & PARKER, P.L.C., Flint, Michigan, I’Lanta M.

Robbins, CITY OF FLINT LAW DEPARTMENT, Flint, Michigan, for Appellees.

ON BRIEF: James M. Cull, CULL & CULL, Southfield, Michigan, for Appellants.

Michael J. Gildner, SIMEN, FIGURA & PARKER, P.L.C., Flint, Michigan, I’Lanta M.

Robbins, CITY OF FLINT LAW DEPARTMENT, Flint, Michigan, for Appellees.

*

The Honorable Algenon L. Marbley, United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 2

_________________

OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Plaintiffs Alan Sharp, Robert Bonner,

and the estate of Leon Smithers appeal the district court’s dismissal of their claims

against Officers Brian Murphree and Terrance Walker and the City of Flint, Michigan

alleging constitutional violations pursuant to 42 U.S.C. §§ 1983, 1985(2) & (3),

regarding the events surrounding the fatal shooting of Smithers and the injury of Sharp

and Bonner. The officers took an intoxicated Shirley Washington Ewing, Smithers’

girlfriend, into custody, ticketed her for trespassing, and released her to her mother

shortly thereafter. Washington then returned to Smithers’ home and shot him, Sharp,

and Bonner. Plaintiffs’ claims stem from the officers’ decision to arrest Washington for

trespassing rather than for domestic violence, which would have required her to be held

for 20 hours, and, they argue, prevented the tragedy. For the reasons set forth below, we

AFFIRM the district court’s entry of judgment for the defendants.

I.

On October 26, 2002, Smithers was in his Flint, Michigan home with Alan Sharp,

Robert Bonner, Shirley Washington Ewing,1 and Booker Washington watching

television and playing cards. According to Sharp, everyone was drinking and a verbal,

but non-physical, argument began between Smithers and Washington, his girlfriend.

Smithers asked Washington to leave, but she refused.

Smithers telephoned the Flint Police Department requesting the removal of

Washington, stating “I got a problem up here in the house. I want someone to leave,

they don’t stay here.” Dispatcher Tanyanika Gibbs testified that, when she requested

additional information, Smithers told her that someone was refusing to leave his house

1

The parties and the court disagree on whether the assailant’s name is Shirley Washington Ewing

or Shirley Ewing Washington. The district court refers to her as Washington and, to avoid confusion, we

do so as well. We likewise refer to Booker Washington as Mr. Washington.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 3

and he was not going to say anything further. Gibbs dispatched Officers Brian Murphree

and Terrance Walker to the residence with the dispatch code TWM, for “trouble with a

man.”

Bonner testified that the intoxicated Washington threatened to kill Smithers,

Sharp, and Bonner, and stated that she intended go home and “retrieve her nine

millimeter handgun” and that this “would be the last time that [Smithers] would ever call

the police on her.”

When the officers arrived, Officer Walker questioned Smithers and Washington.

Smithers stated that Washington was his girlfriend but that she did not live there and that

he wanted her to leave the residence. Smithers asked the “obviously intoxicated”

Washington to leave. Sharp and Booker testified that Washington repeated her statement

that “this would be the last time that [Smithers] would call the police on her,” and stated

that “if you take me to jail, I’m going to come back and kill ‘em.” The officers testified

that they did not hear any death threats. When the officers informed her that she would

be arrested if she did not leave, Washington stated “[f]*** -it, arrest me.” Washington’s

brother, Mr. Washington, testified that he heard her state that she was “going to f***

y’all up when I get out of jail,” as the officers handcuffed her and placed her in the back

of the squad car. Smithers and his friends went back inside without locking the door.

Meanwhile, Washington was taken to the Flint police station, booked, issued an

appearance ticket for trespassing, and released. Washington called her mother to take

her home. Washington returned to Smithers’ house shortly after 7 p.m. with a gun,

fatally shooting Smithers and wounding Sharp and Mr. Washington. Washington was

convicted by a jury of second-degree murder.

On October 14, 2005, Sharp, Bonner, and the estate of Smithers filed suit in the

Circuit Court of Genessee County, Michigan, alleging constitutional violations pursuant

to 42 U.S.C. §§ 1983, 1985(2) & (3), and state law claims arising from the events

surrounding the shooting incident. Plaintiffs allege that the officers “conspired with one

another and other officers in the department, in an attempt to hide . . . the fact that the

death and injuries should have been prevented by the Flint Police Department and its

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 4

officers.” Plaintiffs request monetary damages for “Defendants’ negligent acts, failure

to follow the proper procedures and . . . complete disregard of local, state and federal law

and constitutional protections”, alleging conspiracy and violation of the Fourteenth

Amendment’s Due Process and Equal Protection Clauses. The matter was removed to

federal district court on November 14. On November 22, the district court remanded the

state law claims.

On July 24, 2008, Magistrate Judge R. Steven Whalen heard oral argument on

cross-motions for summary judgment. Magistrate Judge Whalen filed a Report and

Recommendation on September 2, 2008, recommending that the district court grant

defendants’ motion for summary judgment. Following objections,2 the district court

adopted the Report and Recommendation on January 16, 2009, specifically overruling

plaintiffs’ objections and entering judgment in favor of defendants. Estate of Smithers

v. City of Flint, Slip Op., No. 05-40347, 2009 WL 117623, at *11 (E.D. Mich. Jan. 16,

2009). Plaintiffs timely appealed.

II.

A. Standard of Review

Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to

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

Civ. P. 56(c). The “mere existence of some alleged factual dispute will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986).

2

Defendants argue that plaintiffs waived their right to appeal because they filed their objections

to the Report and Recommendation on September 15, 2008, more than 10 days after the Report was filed

on September 2, 2008. However, “[i]n Patterson v. Mintzes, 717 F.2d 284, 286 (6th Cir. 1983), this court

concluded that when written objections to a magistrate’s report are tendered beyond the 10-day period of

28 U.S.C. § 636(b)(1), but are nevertheless filed and considered by the district court, the criteria identified

in [United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)] in justification of the waiver rule

promulgated therein dissipate and the rule will not apply to bar appellate review.” Kent v. Johnson, 821

F.2d 1220, 1223 (6th Cir. 1987). Thus, the district court’s decision to consider the objections excused their

untimely filing, and plaintiffs did not waive their right to appellate review.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 5

B. Procedural Due Process

Plaintiffs allege that Washington made death threats in the presence of the

officers and that the officers were therefore required to detain her for at least 20 hours

for domestic violence, pursuant to MCL § 750.81a, rather than arresting her for

trespassing and releasing her on an interim bond. The officers’ failure to detain

Washington for those 20 hours allegedly deprived plaintiffs of their Fourteenth

Amendment rights to procedural due process. The district court disagreed and entered

summary judgment on the procedural due process claim.

The Supreme Court has held that a state statute written in purportedly mandatory

terms providing that “a peace office shall arrest” a person whom he has probable cause

to believe has violated a domestic restraining order does not give rise to a protected

property interest under the Due Process Clause. Town of Castle Rock, Colo. v. Gonzales,

545 U.S. 748, 749, 766 (2005). The Supreme Court found that police have the

“discretion to determine that—despite probable cause to believe a restraining order has

been violated—the circumstances of the violation or the competing duties of that officer

or his agency counsel decisively against enforcement in a particular instance.” Id. at

761. Castle Rock held that, even if a statute confers an individual entitlement to

enforcement, this is not the “sort of ‘entitlement’ out of which a property interest is

created.” Id. at 764.

The district court found that MCL § 750.81a provides that a police officer may

arrest an individual charged with domestic violence, not that he must.3 The law gives

3

MCL § 764.15a provides for the warrantless arrest of an individual whom the police

believe has violated section 750.81a:

. . . regardless of whether the peace officer has a warrant or whether the violation was

committed in his or her presence if the peace officer has or receives positive information

that another peace officer has reasonable cause to believe both of the following:

(a) The violation occurred or is occurring.

(b) The individual has had a child in common with the victim, resides or has

resided in the same household as the victim, has or has had a dating

relationship with the victim, or is a spouse or former spouse of the victim. As

used in this subdivision, “dating relationship” means frequent, intimate

associations primarily characterized by the expectation of affectional

involvement. This term does not include a casual relationship or an ordinary

fraternization between 2 individuals in a business or social context.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 6

officers discretion in determining whether an action constitutes a domestic violence

incident. While plaintiffs are correct that officers do not have the discretion to release

an individual pursuant to MCL § 780.582a should she be arrested for domestic violence,

the Supreme Court has held that police officers have discretion to determine whether to

arrest someone for domestic violence in the first place, even if the relevant statute seems

to make such an arrest mandatory. Thus, even assuming that the officers heard

Washington make a threat, they had discretion not to arrest her on charges of domestic

violence.

Thus, the district court did not err in granting defendants’ motion for summary

judgment on plaintiffs’ procedural due process claim.

C. Substantive Due Process

Plaintiffs argue that the district court erred in finding that they had failed to

establish a substantive due process claim based on a state-created danger when

defendants released Washington. Essentially, plaintiffs argue that the officers created

a danger to them when the officers chose to ticket Washington for trespassing and to

release her, rather than to detain her for 20 hours on charges of domestic violence. They

also argue that the officers’ arrest of Washington for trespassing created an illusion of

safety because plaintiffs believed that Washington would be held for 20 hours pursuant

to a domestic violence arrest.

In Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189

(1989), the Supreme Court held that the Due Process clause does not “require[] the State

to protect the life, liberty, and property of its citizens against invasion by private actors.”

Id. at 195. In both Deshaney and Bukowski v. City of Akron, 326 F.3d 702 (6th Cir.

2003), the state took temporary custody of a minor, who would eventually become the

victim, based on suspicions of abusive circumstances; however, the state did not

maintain custody of the minors. DeShaney, 489 U.S. at 192, Bukowski, 326 F.3d at

Finally, MCL § 780.582a provides that an individual arrested without a warrant under section 764.15a, or

for a violation of section 750.81a, cannot be released on interim bond by the police.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 7

705-06. Upon their respective returns, Joshua DeShaney was beaten into a coma and

Lisa Bukowski was raped. DeShaney, 489 U.S. at 193; Bukowski, 326 F.3d at 706. In

each case, it was held that the state “had played no part in creating the dangers faced by

the petitioner nor did it do anything to render him any more vulnerable to them.”

Lanman v. Hinson, 529 F.3d 673, 682 n.1 (6th Cir. 2008) (citing DeShaney, 489 U.S. at

201); see Bukowski, 326 F.3d at 709. Essentially, “while the state generally does not

shoulder an affirmative duty to protect its citizens from private acts of violence, it may

not cause or greatly increase the risk of harm to its citizens without due process of law

through its own affirmative acts.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1066

(6th Cir. 1998).

A state-created danger claim has three elements:

(1) an affirmative act by the state which either created or increased the

risk that the plaintiff would be exposed to an act of violence by a third

party; (2) a special danger to the plaintiff wherein the state’s actions

placed the plaintiff specifically at risk, as distinguished from a risk that

affects the public at large; and (3) the state knew or should have known

that its actions specifically endangered the plaintiff.

Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006) (citing Cartwright v. City of

Marine City, 336 F.3d 487, 493 (6th Cir. 2003)); see Ewolski v. City of Brunswick, 287

F.3d 492, 509 (6th Cir. 2002) (“[S]tate officials may violate the Due Process Clause

when their affirmative actions directly increase the vulnerability of citizens to danger or

otherwise place citizens in harm’s way.”). As it is difficult to determine whether an

officer’s “behavior amounts to affirmative conduct or not, we have focused on ‘whether

[the victim] was safer before the state action than he was after it.’” Koulta v. Merciez,

477 F.3d 442, 446 (6th Cir. 2007) (quoting Cartwright, 336 F.3d at 493).

We have been hesitant to find that the police’s response to a 911 call is an

affirmative act that increases the danger to the victim. In Koulta, the police were called

to the scene of Chrissy Lucero creating a disturbance at her ex-boyfriend’s home. The

police told Lucero, who was visibly intoxicated and sitting in her car, “that she had ‘10

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 8

seconds to get out of [t]here.’” Id. at 444. She drove away and crashed into Sami

Koulta’s car approximately 10 minutes later. We held that:

The officers’ failure to administer a breathalyzer test . . . before ordering

her to leave the property may well have been negligent, but it did not

“create” or “increase” the danger—of Lucero drinking and driving—that

pre-dated their arrival on the scene. The same is true of the officers’

decision to order Lucero to leave the property. Consistent with the

homeowner’s understandable request, the officers told Lucero to “go

home” when they arrived at the Offrink’s home, and, when Lucero did

not leave after saying she would, they ordered her to leave the property

immediately. The claimant cannot maintain that Lucero never would

have been drinking and driving that night but for the officers’

conduct-given her acknowledged behavior before they arrived. And the

claimant cannot maintain that Lucero would not have driven to the scene

of the accident but for the officers’ conduct. As Lucero acknowledges,

the officers told her to “go home” when they first arrived and later

ordered her to leave the property. Neither directive required Lucero to

drive home if she lacked the capacity to do so. Nothing prevented her

either (1) from driving down the block, then calling a cab or waiting to

drive the rest of the way home after becoming sober or (2) from asking

the officers for assistance in getting home.

In the final analysis, Lucero’s admitted proclivity to drink and drive that

evening placed Koulta (and other people using the roadways) in as much

danger before the officers arrived as afterwards. And much as the

officers were in a position to head off the tragedy that materialized

minutes later, a reality (and memory) that no court decision will

eliminate, their conduct was no more an affirmative risk-creating act than

the conduct of the officers in DeShaney (who returned an abused child

to the custody of his abusive father) or Bukowski (who returned a

mentally disabled girl to the stranger who had been sexually abusing

her).

Id. at 446-47.

Plaintiffs here argue that the officers engaged in an affirmative act that created

a danger when they released Washington from custody on the trespassing charge rather

than holding her at least overnight on a domestic violence charge, creating an illusion

of safety for plaintiffs. They suggest that the officers’ decision to release Washington

operated as an approval of her threats.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 9

However, while this action may have been ill-advised, the officers’ failure to

hold Washington did not constitute an affirmative act. The officers exercised their

discretion in arresting Washington for trespassing, rather than for domestic violence, for

which they are protected under Castle Rock. Thus, the officers’ first affirmative act had

the effect of protecting Washington’s eventual victims, at least for a short period of time.

Their second affirmative act, releasing Washington from custody, did not

“create” or “increase” the danger to plaintiffs. The officers did not require or encourage

plaintiffs to remain in the unlocked house or suggest that Washington would be held for

20 hours so as to imply that plaintiffs would be safe. Their actions did not constitute an

approval of Washington’s threats any more than the return of the children in DeShaney

or Bukowski encouraged that those children should be further harmed. As in those cases,

these events were tragic; however, the officers’ actions could not have been interpreted

by a reasonable juror to have created or increased the danger to plaintiffs.

D. Conspiracy

On appeal, plaintiffs argue that the district court erred in dismissing their charges

of civil conspiracy pursuant to 42 U.S.C. §§ 1985(2) and (3) based on the intracorporate

conspiracy doctrine.4 Plaintiffs believe that the officers conspired with one another and

the City, and then later with their attorney, in their statements that they had not heard

4

The intracorporate conspiracy doctrine states that:

It is basic in the law of conspiracy that you must have two persons or entities to have

a conspiracy. A corporation cannot conspire with itself any more than a private

individual can, and it is the general rule that the acts of the agent are the acts of the

corporation.

Hull v. Cuyahoga Valley Joint Vocational Sch. Dist., 926 F.2d 505, 509-10 (6th Cir. 1991) (citations

omitted); see also Doherty v. Am. Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984) (adopting the general

rule in civil conspiracy cases that a corporation cannot conspire with its own agents or employees). In

Hull, we found that the intracorporate conspiracy doctrine applies to claims brought under sections

1985(2) and (3). Hull, 926 F.2d at 510. The Supreme Court has recognized a circuit split on this issue,

Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775 n.24 (1984), but it has not yet acted

to resolve it.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 10

Washington’s threats of violence and in not filling out the state-required domestic

violence forms.5

However, plaintiffs have not submitted sufficient evidence of a conspiracy,

outside of their own assertions, including any evidence of Officer Walker’s alleged

failures in record-keeping or any evidence that Officer Walker conspired with Officer

Murphree or any other party, to survive a motion for summary judgment on this issue.

Plaintiffs seem to be asserting that the fact that they have a different version of the

events than that provided by the officers in their records and testimony means that the

officers are necessarily conspiring with one another to mislead the court and deprive

plaintiffs of an unnamed constitutional right. However, this alone is insufficient to

permit a claim of conspiracy to survive a motion for summary judgment.6

Thus, the district court did not err in dismissing plaintiffs’ civil conspiracy claim.

E. Equal Protection

Plaintiffs argue that the district court erred in granting defendants’ motion for

summary judgment on their equal protection claim. Essentially, they argue that

defendants treated their situation differently from other domestic violence situations

because the aggressor in this incident was female, rather than male, and the event took

place in a poor neighborhood.

“The State may not, of course, selectively deny its protective services to certain

disfavored minorities without violating the Equal Protection Clause.” DeShaney, 489

U.S. at 197 n.3 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). To sustain a claim

under section 1985(3), a claimant must prove both membership in a protected class and

5

Plaintiffs further argue that the officers’ counsel conspired with Officer Walker to provide false

testimony that Washington had not made any threats at deposition. However, this allegation is neither

asserted in their complaint (as it arose after the complaint was filed) nor did plaintiffs request leave to

amend their complaint so as to include it. This allegation was therefore not properly before the district

court and is not properly before this Court.

6

As plaintiffs failed to present sufficient evidence to survive a motion for summary judgment on

their claim of conspiracy, we need not address the issue of whether the intracorporate conspiracy doctrine

applies to protect police officers and police departments.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 11

discrimination on account of it. Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir. 2000).

In other words, there must be proof of “some racial, or perhaps otherwise class-based,

invidiously discriminatory animus.” Id. at 559-60 (citing United Bhd. of Carpenters and

Joiners of Am. v. Scott, 463 U.S. 825, 829 (1983)).

In the district court, plaintiffs alleged that Officers Murphree and Walker violated

plaintiffs’ equal protection rights by treating the trespassing complaint differently

because the aggressor was a woman and because the complaint originated in a poor

neighborhood. Plaintiffs assert that the protected class in this case is male victims of

domestic violence and that the alleged unequal treatment is the failure to arrest female

perpetrators of domestic violence. Sharp and Bonner testified to their beliefs that the

officers would have responded differently to Washington’s behavior had she been a man,

but neither testified to a belief that the type of neighborhood in which Smithers lived

contributed to the officers’ actions.

However, neither Sharp nor Bonner cited additional evidence to substantiate their

beliefs that gender was a factor in the officers’ responses. Plaintiffs rely on statistics that

purport to compare male-female offender rates, unrestricted to domestic violence cases,

in Genessee and Wayne Counties. The City provided statistics pursuant to the MCL

§ 23.257,7 but these statistics do not appear to break out the numbers for domestic

violence apart from other offenses. According to the statistics provided, a smaller

percentage of female offenders as compared to male offenders were arrested in Genesee

7

MCL § 28.257 provides that:

The chief of police of each city . . . shall report to the department of state police, in a

manner prescribed by the department, the following information related to domestic

violence incidents:

(a) The number of assaults reported that involve an adult and a minor and the disposition

of those offenses.

(b) The number of assaults reported that involve either 2 male adults or 2 female adults

and the disposition of those offenses.

(c) The number of assaults reported that involve 1 male adult and 1 female adult and the

disposition of those offenses.

(d) The number of crimes reported that involve an individual and his or her spouse, his

or her former spouse, an individual with whom he or she has had a child in common, an

individual with whom he or she has or has had a dating relationship, or an individual

who resides or has resided in the same household; and the disposition of those offenses.

...

(e) Other statistics the director of the department of state police considers necessary to

obtain accurate and reliable data on the incidence of domestic violence in this state.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 12

and Wayne Counties than in the State at large during 2002, the year of the incident, for

all offenses, not just domestic violence. As the district court correctly found, “[n]either

the statistics and the Plaintiffs’ deposition testimony come close to satisfying their

burden of demonstrating facts sufficient to overcome summary judgment.” Smithers,

2009 WL 117623, at *11.

Plaintiffs also argue that the City failed to keep statistics on domestic violence

and report them to the Michigan Department of State Police, as required by the State of

Michigan. MCL § 28.257. Plaintiffs argue that the City failed to comply with the statute

requiring it to submit statistics to the State on domestic violence incidents during the

applicable year. This failure to report data in accordance with section 28.257, plaintiffs

contend, entitles them to a jury instruction that documents not produced are considered

to be adverse to the City.8

However, even had the requested statistics been provided, they would not have

been sufficient to survive a motion for summary judgment. Plaintiffs claim that the

alleged disparity in female offenders “can only be explained due to Defendant, City’s

[sic] closure of its jail, and its reliance, contrary to law, on the County of Genesee’s

policy of treating females on an ‘individual basis.’” (Appellants’ Brief at 20.) The

requested statistical data would not necessarily prove out this point. Indeed, this data

could show a number of things about the relevant counties apart from the contention that

the police discriminate against male victims of domestic violence, such as relative

efficiencies of the police or the rates of occurrence of offenses committed by men and

women across the state. As such, plaintiffs were not entitled to a jury instruction on this

point.

In short, plaintiffs’ unsubstantiated opinions, that they believe that the situation

would have been handled differently had the perpetrator been male, and the lack of

8

Plaintiffs also argue, but provide no evidence, that the officers conspired with the City to deprive

plaintiffs of their constitutional rights by failing to produce documents related to domestic violence cases.

No. 09-1164 Estate of Leon Smithers, et al. v. City of Flint, et al. Page 13

statistics, which would be inconclusive at best, are insufficient to survive a motion for

summary judgment. Thus, the district court did not err in granting defendants’ motion.9

III.

We therefore AFFIRM the district court’s judgment.

9

Moreover, plaintiffs argue that the district court erred in finding that defendants are entitled to

qualified immunity and that plaintiffs had not established a cause of action against the City based on a

theory of municipal liability. A finding that a constitutional violation occurred is required to deny

defendants qualified immunity, see Hills v. Kentucky, 457 F.3d 583, 587 (6th Cir. 2006), and to state a

claim of municipal liability. See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001). As

set forth above, plaintiffs have not shown facts sufficient to find that a constitutional violation occurred.

Thus, we need not reach the issues of qualified immunity or municipal liability.