Joseph Bailey v. Christopher Fitzpatrick

STATE OF MICHIGAN

COURT OF APPEALS

JOSEPH BAILEY, UNPUBLISHED

January 10, 2017

Plaintiff-Appellant,

v No. 329516

Washtenaw Circuit Court

CHRISTOPHER FITZPATRICK, WILLIAM LC No. 15-000370-CZ

STANFORD, and MICHAEL DORTCH,

Defendants-Appellees.

Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

Two masked men robbed an Ann Arbor party store. One of the assailants wore a

distinctive sweatshirt with a hood that closed into a skeleton mask. An anonymous tipster

implicated plaintiff Joseph Bailey. Bailey was arrested, charged, and bound over for trial

following a preliminary examination. He eventually pleaded guilty to resisting and obstructing a

police officer, and the prosecutor dismissed armed robbery and weapons possession charges.

Bailey then filed a complaint against defendants, three police detectives, alleging false arrest,

malicious prosecution, assault and battery, and “gross negligence.” The circuit court summarily

dismissed all of Bailey’s claims.

We affirm the circuit court’s dismissal of the causes of action, save one. Because

questions of fact remain regarding whether defendant Stanford threatened Bailey and

deliberately spat in Bailey’s face during an interrogation, we reverse the circuit court as to that

narrow ground and remand for further proceedings.

I

On the morning after the robbery, Ann Arbor detective Christopher Fitzpatrick reviewed

video footage of the crime. According to Fitzpatrick, the images showed that one of the

assailants wore “a skeleton mask” hoodie with a “skeleton pattern” visible on the arms and the

lower torso. That robber also wore a dark colored, sleeveless vest with letters or a brand name

on the upper left chest and dark colored blue jeans with a pattern on the right thigh. After

receiving a tip that Bailey was involved in the robbery, defendants Fitzpatrick and Stanford

visited Bailey’s home. Bailey’s mother allowed the detectives to “check” his room to verify that

Bailey was not present. The detectives observed a “skeleton hoodie” hanging from the door.

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Stanford then applied for a search warrant, averring that one of the robbers had worn “a

skeleton sweat shirt,” “blue jeans with a symbol on the upper right thigh,” and “a sleeveless

jacket over the skeleton sweat shirt with a symbol on the upper front left side.” The affidavit

recited that a tip from an unknown caller identified Bailey as the robber, and that detectives had

seen a “skeleton sweat shirt” in Bailey’s room. A magistrate approved the warrant. The police

seized several items of Bailey’s clothing including the sweatshirt, a winter vest with the word

“Avirex” on the left chest area, and a pair of jeans “that had a very distinct pattern on both front

left and right thigh areas[.]” Bailey allegedly resisted his subsequent arrest by fleeing through a

window and hiding in a wooded area. He was charged with assaulting, resisting, or obstructing

an officer in addition to armed robbery and the weapons offense.

A Washtenaw District Court judge conducted a preliminary examination at which

detectives Fitzpatrick and Stanford testified, as well as an officer who had been dispatched to the

robbery scene. The district court judge determined that probable cause existed to believe that

Bailey had committed all three offenses. Bailey was unable to furnish bond and was remanded

to the Washtenaw County Jail.

Approximately five months later, Bailey entered his plea to the resisting and obstructing

charge. The prosecutor successfully moved for nolle prosequi as to the armed robbery and

weapons charges. Bailey first pursued a federal court action brought under 42 USC § 1983.

When the federal district court declined to exercise supplemental jurisdiction over his state law

claims, he filed this case.

Bailey’s 110-paragraph complaint sets forth four counts: (1) “assault and battery,” (2)

“gross negligence,” (3) “false arrest/false imprisonment,” and (4) “malicious prosecution.”

Defendants sought summary disposition pursuant to MCR 2.116(C)(7) and (8), which the circuit

court granted.

II

We review de novo a circuit court’s summary disposition ruling. Allen v Bloomfield Hills

Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). Under MCR 2.116(C)(7), a defendant is

entitled to summary disposition when a claim is barred because of immunity granted by law.

Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). We accept the

plaintiff’s well-pleaded factual allegations as true and construe them in the plaintiff’s favor,

unless the moving party contradicts the allegations with documentary evidence. Maiden v

Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999), citing Patterson v Kleiman, 447 Mich 429,

434 n 6; 526 NW2d 879 (1994). While “a movant under MCR 2.116(C)(7) is not required to file

supportive material, and the opposing party need not reply with supportive material,” a party

“may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other

documentary evidence,” if “the substance or content of the supporting proofs [is] admissible in

evidence.” Maiden, 461 Mich at 119.

A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based solely on

the pleadings. Id. “All well-pleaded factual allegations are accepted as true and construed in a

light most favorable to the nonmovant.” Id. Here, however, the circuit court considered

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evidence outside the pleadings: the preliminary examination transcript and the search warrant

affidavit. Accordingly, MCR 2.116(C)(10) governs our analysis, rather than MCR 2116(C)(8).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency

of a claim. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A (C)(10)

motion should be granted if the pleadings, affidavits, and other documentary evidence, when

viewed in a light most favorable to the nonmovant, reveal no genuine issue with respect to any

material fact. Id.; see also MCR 2.116(G)(3), (4). A genuine issue of material fact exists when

the record, “giving the benefit of reasonable doubt to the opposing party, . . . leave[s] open an

issue upon which reasonable minds might differ.” Skinner, 445 Mich at 162 (quotation marks

and citation omitted). When considering a motion for summary disposition under MCR

2.116(C)(10), the court is not permitted to assess credibility or to determine facts. Id. at 161.

III

A. MALICIOUS PROSECUTION

“A person’s interest in freedom from unjustifiable litigation is protected in part by the tort

of malicious prosecution.” Belt v Ritter, 385 Mich 402, 405-406; 189 NW2d 221 (1971). The

elements of the tort are: (1) the defendant initiated a criminal prosecution against the plaintiff, (2)

the criminal proceedings terminated in the plaintiff’s favor, (3) the person “who instituted or

maintained the prosecution lacked probable cause for his actions,” and (4) “the action was

undertaken with malice or a purpose in instituting the criminal claim other than bringing the

offender to justice.” Matthews v Blue Cross & Blue Shield of Mich, 456 Mich 365, 378; 572

NW2d 603 (1998); see also Walsh v Taylor, 263 Mich App 618, 632-633; 689 NW2d 506

(2004). The dispute in this case centers on whether defendants had probable cause to arrest

Bailey. When no material facts are in dispute, we review this question de novo. Matthews, 456

Mich at 377.

This Court has repeatedly held that “where a person fully and fairly states the facts

known to him to a prosecuting attorney, and signs the complaint on his advice, probable cause

will be considered established so as to prevent a judgment for malicious prosecution against that

person.” Belt v Ritter, 18 Mich App 495, 503; 171 NW2d 581 (1969). One potential situation

giving rise to a malicious prosecution action “is where a police officer knowingly swears to false

facts in a complaint, without which there is no probable cause.” Id. The facts supporting

probable cause in this case included the tip implicating Bailey, the similarities between his

clothing and the clothing seen on the store video, and his flight when the officers attempted to

arrest him.

Bailey argues that defendants’ summary disposition motion was “premature,” and that the

parties should have been permitted to engage in discovery. While we are sympathetic to this

claim, Bailey has failed to offer any argument that could potentially rebut the existence of

probable cause, even if factually supported. Bailey’s brief on appeal contends that the officer’s

initial “search” of his bedroom was illegal, that he had an alibi the officers failed to verify, and

that defendants failed to conduct a line-up “for the victim of the party store to identify Plaintiff.”

These allegations do not create a fact question regarding probable cause.

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Aside from a bare-bones accusation that detectives Stanford and Fitzpatrick illegally

searched his bedroom, Bailey proffers no facts or argument in this regard. Fitzpatrick testified at

the preliminary examination that Bailey’s mother allowed the officers to look in Bailey’s

bedroom to confirm that Bailey was not at home, and that the officers saw the sweatshirt in plain

view hanging from the door to the room. We are unable to discern even a hint of illegality, and

Bailey has not explained how even an illegal search could eliminate probable cause in this civil

action. Nor do we find any merit in Bailey’s contention that a line-up should have been

performed as both robbers wore masks covering their faces and no facial characteristics could be

discerned. And the preliminary examination transcript reflects that Fitzgerald testified in detail

to his post-arrest interview with Bailey, including that Bailey claimed to have no “account of his

whereabouts” for the night of the robbery. Bailey has offered no evidence that this statement

was untrue. Given that defendants made a full and fair disclosure of the results of their

investigation to the prosecutor, Payton v Detroit, 211 Mich App 375, 395; 536 NW2d 233

(1995), Bailey’s malicious prosecution claim fails.

B. FALSE ARREST/FALSE IMPRISONMENT

“A false arrest is an illegal or unjustified arrest, and the guilt or innocence of the person

arrested is irrelevant.” Peterson Novelties, Inc v Berkley, 259 Mich App 1, 18; 672 NW2d 351

(2003). “False imprisonment has been defined by this Court as an unlawful restraint on a

person’s liberty or freedom of movement.” Id. at 17-18. “To prevail on a claim of false arrest or

false imprisonment, a plaintiff must show that the arrest was not legal, i.e., the arrest was not

based on probable cause.” Id. at 18.

As discussed above, the district court’s decision at the preliminary examination

established that there was probable cause for Bailey’s arrest as a matter of law, and Bailey

provides no argument to the contrary. Because Bailey cannot “show that the arrest was not legal,

i.e., the arrest was not based on probable cause,” he cannot “prevail on a claim of false arrest or

false imprisonment.” Id. Accordingly, defendants were entitled to summary disposition on these

claims.1

C. GROSS NEGLIGENCE

In order to proceed with a gross negligence claim, the plaintiff must raise a material

question whether “the conduct was so reckless as to demonstrate a substantial lack of concern for

whether an injury results.” Maiden, 461 Mich at 129. Additionally, a plaintiff must plead facts

1

Notably, plaintiff never explains how he can have a valid false imprisonment claim when (by

his own admission) his arrest and confinement for assaulting, resisting, or obstructing an officer

were justified. Additionally, he never presented any substantive argument concerning the false

imprisonment claim below. Moreover, as with the last issue, plaintiff identifies the standards

that must be met for these claims, then provides a list of facts from his complaint, and finally

states in conclusory fashion that there was “absolutely no lawful basis to arrest and imprison”

plaintiff and thus “the decision of the trial court must be reversed.” Any analysis was again

lacking.

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that amount to gross negligence and not actions that also constitute intentional torts. Sudul v

Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997) (“We specifically agree with the

discussion in the dissent/concurrence regarding the nonexistence of a tort called ‘assault and

battery by gross negligence.’ We especially also hold that an individual employee’s intentional

torts are not shielded by our governmental immunity statute, a proposition that too frequently is

mired in confusion.”).2

Here, Bailey pleaded no facts amounting to gross negligence separate and apart from his

allegation of intentional torts.3 The circuit court properly granted summary disposition of this

claim.

D. ASSAULT AND BATTERY

“An assault is . . . any intentional unlawful offer of corporal injury to another person by

force, or force unlawfully directed toward the person of another, under circumstances which

create a well-founded apprehension of imminent contact, coupled with the apparent present

ability to accomplish the contact.” Espinoza v Thomas, 189 Mich App 110, 119; 472 NW2d 16

(1991). In Odom v Wayne Co, 482 Mich 459, 471-472; 760 NW2d 217 (2008), our Supreme

Court held that MCL 691.1407(2) did not abrogate the common-law immunity that government

employees enjoy for intentional torts. Individual “lower ranking” government employees such

as defendants are entitled to qualified immunity from tort liability if they meet all the following

conditions:

2

In Bletz v Gribble, 641 F3d 743, 756 (CA 6, 2011), the Sixth Circuit interpreted Michigan law

in this regard as follows:

Although establishing that a governmental official’s conduct amounted to “gross

negligence” is a prerequisite to avoiding that official’s statutory governmental

immunity, it is not an independent cause of action. The only cause of action

available to plaintiff for allegations of this nature would be for assault and battery.

See, e.g., Van Vorous v Burmeister, 262 Mich App 467, 483; 687; NW2d 132

(2004)[, overruled on other grounds by Odom v Wayne Co, 482 Mich 459, 473 n

33; 760 NW2d 217 (2008)] (“Thus, plaintiff’s claim of gross negligence is fully

premised on her claim of excessive force. As defendants correctly note, this

Court has rejected attempts to transform claims involving elements of intentional

torts into claims of gross negligence. Thus, plaintiff did not state a claim on

which relief could be granted.”) (citations omitted); see also Livermore [ex rel

Rohm v Lubelan, 476 F 3d 397, 408 (CA 6, 2007)] (rejecting a gross-negligence

claim against an officer-defendant because it was “undoubtedly premised on the

intentional tort of battery” where it was based on a shooting that resulted in

death).

3

In his brief on appeal, Bailey does not specifically identify the acts (or inactions) that he

believes were grossly negligent.

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(1) the acts were taken during the course of employment and the employees were

acting, or reasonably believed that they were acting, within the scope of their

authority, (2) the acts were taken in good faith, and (3) the acts were

discretionary-decisional, as opposed to ministerial-operational. [Id. at 468.]

Our Supreme Court “has described a lack of good faith as ‘malicious intent, capricious action, or

corrupt conduct’ or ‘willful and corrupt misconduct.’” Id. at 475, quoting Veldman v Grand

Rapids, 275 Mich 100, 113; 265 NW 790 (1936), and Amperse v Winslow, 75 Mich 234, 245; 42

NW 823 (1889). Unlike ministerial acts, discretionary acts require personal deliberation,

decision, and judgment. Odom, 482 Mich at 475-476.

Bailey alleges that defendant Stanford threatened him during an interrogation and

deliberately and intentionally spit in his face at least twice. Specifically, Bailey alleged in his

complaint that:

66. During the May 25, 2012, interrogation, Defendant Stanford threatened and

scared Plaintiff by saying words to the effect of, “Don’t tell me what to

fucking do” and “You’re in my house now, I can kick your ass.”

67. During the May 25, 2012, interrogation of Plaintiff by Defendants Fitzpatrick

and Stanford at the Ann Arbor Police Department, Defendant Stanford, who

was less than one foot away from Plaintiff’s face, deliberately and

intentionally spit in Plaintiff’s face on at least two occasions and also made

threatening statements.

Whether Stanford’s threats amount to an assault presents a question of fact that must be

resolved by a jury. Stanford’s threat that he could “kick [Bailey’s] ass” because Bailey was in

the police station suffices to permit an inference that Bailey reasonably apprehended imminent

contact. Similarly, a jury will have to determine whether Stanford actually spat in Bailey’s face

or, as defendants contend, saliva from Stanford’s mouth contacted Bailey. See People v Terry,

217 Mich App 660, 663; 553 NW2d 23 (1996) (“spitting upon a person is a battery”). The

presence of fact questions regarding whether the events occurred and Stanford’s intent render

summary dismissal inappropriate. Dextrom, 287 Mich App at 429.

We affirm the circuit court’s order granting defendants’ motion for summary disposition

and dismissing plaintiff’s complaint against defendants, except with regard to plaintiff’s assault

and battery claims against defendant Stanford, which we reverse. We remand for reinstatement

of plaintiff’s assault and battery claims against defendant Stanford. We do not retain

jurisdiction.

/s/ Kurtis T. Wilder

/s/ Stephen L. Borrello

/s/ Elizabeth L. Gleicher

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