BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF ST. CLAIR

Case No.# K 09 002175-PZ

ARTHUR L. LOCKETT

Plaintiff

909 Stone Street, Apt. 1

Port Huron, Michigan 48060 (810) 985-9309

THE CITY OF PORT HURON

Defendant

GARY A. FLETCHER (P26823)

T. ALLEN FRANCIS (P66160) Fletcher Fealko Shoudy & Francis, P.C. Attorneys for

522 Michigan Street

Port Huron, Michigan 48060 (810) 987-8444

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY DISPOSITION

Plaintiff is a repeat pro se litigant. As with every other complaint filed by Plaintiff, the instant matter is frivolous. It is unclear exactly what basis for relief Plaintiff is asserting, however, what is clear is that similar allegations were dismissed by the United States Federal District Court in January 2009.(Ex: A – Federal Count Complaint; Ex: B – Order of Summary Dismissal). It appears this is Plaintiff’s attempt to get a second bite of the apple. As explained below, Plaintiff has no basis for relief, his claims are frivolous and Defendant is entitled to summary disposition.

I. FACTUAL BACKGROUND

Plaintiffs claims stem from his arrest in November 2006. At that time, Port Huron Police were dispatched to the Industrial Park Party Store (the "Party Store") to deal with an unwanted person, which turned out to be Plaintiff. (Ex: C – Police Report). Plaintiff refused to leave the Party Store despite being asked to leave by the owner. (Ex: C). When Officers arrived on the scene, Kevin Kenaya, an employee of the Party Store, advised Officers Plaintiff was not welcome at the Party Store. (Ex: C). At that time, Plaintiff advised Officers the Party Store owed him money. Officers repeatedly requested Plaintiff leave the Party Store and that, regardless of whether he thought the Party Store owed him money or not, Mr. Kenaya could ask him to leave. Nonetheless Plaintiff refused to leave the Party Store. (Ex: C). Simply put, Plaintiff was a trespasser. Plaintiff advised the Officers he would not leave until the Party Store paid him. (Ex: C). It was at that point after refusing multiple requests to leave by Mr. Kenaya and Officers, that Plaintiff was arrested for Trespassing. (Ex: C). Had Plaintiff obeyed the requests of Mr. Kenaya and/or the Officers, an simply left the Party Store, he would not have been arrested.

Plaintiffs uncooperative behavior continued even after he was arrested. Plaintiff was handcuffed, but still had keys in his hand. When an Officer removed the keys, Plaintiff "became very irate." (Ex: C). At that point, Officers escorted Plaintiff out of the Party Store. About halfway to the patrol car, Plaintiff began yelling and attempted to tangle himself in such a way that Officers could not move him to the patrol car. (Ex: C). Eventually, Officers were able to get Plaintiff to the patrol car. One of the Officers let go of Plaintiff to open the door and the other held Plaintiff against the car. Plaintiff continued to resist by attempting to push himself away from the car. (Ex: C). In response, an Officer placed Plaintiff in a wrist lock. Once the rear door of the patrol car was open, Officers attempted to place Plaintiff in the car. However, Plaintiff refused. Officers applied physical pressure to the wrist lock to place Plaintiff in the patrol car, but that failed as well. Plaintiff advised he would get into the patrol car if Officers would simply leave him alone. Accordingly, Officer released Plaintiff from the wrist lock and released contact with him. (Ex: C). However, Plaintiff still refused to get into the patrol car. (Ex: C). Officers tried to place Plaintiff in another wrist lock, but were unsuccessful because of Plaintiffs resistance. (Ex: C). Officers warned Plaintiff if he did not cooperate and get into the car, he would be tased. (Ex: C). Plaintiff responded "taser me then." (Ex:

C). After several more unsuccessful attempts to place Plaintiff in the car, Officer Rickert utilize a stun gun in Plaintiffs leg area to subdue Plaintiff. (Ex: C). Plaintiff still refused to get in the patrol car. (Ex: C). Officers were required to use the stun gun two more times, before Plaintiff would get into the patrol car. (Ex: C). During transport to the jail, Plaintiff requested to go to the hospital. Accordingly, Officers transported him to Mercy Hospital. However, once again, Plaintiff was uncooperative. (Ex: C). Specifically, Plaintiff refused to get out of the car to go into the hospital (Ex: C). Once he was in the hospital, Plaintiff was belligerent with the hospital staff. (Ex: C). Further, Plaintiff refused to provide the staff with any information, until a Doctor came into the room. (Ex: C).

As a result of his actions, in addition to trespassing, Plaintiff was also charged with resisting an Officer. Plaintiff was represented by court appointed counsel in regard to the charges. On April 19,2007, Plaintiff was convicted, by a jury, of both charges (the "Conviction").1 (Ex: D – Register of Actions). In the Complaint in this matter, Plaintiff claims he was wrongfully convicted.

_____________________

1 It should also be noted that Mr. Kenaya reported that Plaintiff threatened Mr. Kenaya that if testified at trial, Mr. Kenaya would be killed. (Ex: C).

Specifically, Plaintiff claims Mr. Kenaya, perjured himself and lied during the trial. Plaintiff asserts without factual support, that "there was no legitimate reason whatsoever for Kenaya to lie concerning bridge-card transactions conducted in his store, unless Kenaya was deliberately attempting to aid the City in deceiving the jury." Plaintiff then contradicts that statement, by alleging other motives Mr. Kenaya had to lie, such as to "hide his illegal conduct and criminal activities concerning funds he removed from Lockett’s and countless other bridge-cards." In short, Plaintiff believes Mr. Kenaya lied during Plaintiff’s trial in an "effort to deceive the jury".

Plaintiff also complains that his court appointed counsel was not effective in presenting his case. Specifically, Plaintiff asserts his court appointed counsel failed to obtain copies of transaction that occurred on Plaintiff’s bridge card and that said failure allowed Mr. Kenaya "to take the witness stand and lie to the jury." Based on his attorneys alleged failure to obtain documents and without further support, Plaintiff concludes "in fact she too, clearly, was working with the City to fraud the court." Plaintiff further states "it is impossible for Plaintiff to believe anything other than that his court appointed counsel acted in concert with the City Attorney, the Port Huron Police an Kenaya …to deprive Plaintiff of his liberty." Plaintiff also complains the Port Huron Police use excessive force against him. In addition to civil claims, Plaintiff apparently is requesting this Co to set aside his jury conviction. As explained herein, Plaintiff’s claims are unsupportable an frivolous.

II. ARGUMENT

A.

Standard of Review

Defendant requests summary disposition pursuant to MCR 2.116(C)(10). Summa disposition is appropriate pursuant to MCR 2.116(C)(1 0) if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A party can defeat a motion for summary disposition brought pursuant to MCR 2.1 16(C)(1 0) by setting forth specific fact demonstrating a factual issue for trial. Mere speculation is not sufficient to defeat a motion pursuant

to MCR 2.1 16(C)(10).

B.

The Conviction Must Stand.

Pursuant to the Complaint, Plaintiff seeks to have the Conviction set aside. As explained herein, there is no basis for the Court to grant Plaintiff such relief.

First and foremost, Plaintiff has tried several times to gain the relief sought in this matter an has been denied, without fail, each time. In addition to the Federal Court matter discussed above this Court dismissed a similar complaint by Plaintiff on June 15,2009. (Ex: E – Order). Plaintiff has not figured out that his claims are repeatedly summarily dismissed, because they are meritless In this matter, Plaintiff seeks to set aside the Conviction in the criminal matter. In support of this request, Plaintiff asserts the Conviction was obtained pursuant to a "fraud upon the court." First, its critical to note Plaintiff did not appeal the Conviction nor did Plaintiff seek to have the Conviction set aside by filing a motion within the criminal matter. Defendant is not aware of any authority authorizing this Court to set aside a jury conviction issued by another Court in the context of separate civil matter. Moreover, as explained herein, there is no support for Plaintiff’s requests an Defendant is entitled to summary disposition.

Plaintiffs claim for relief from the Conviction is premised on the baseless allegation that Defendant assisted in proffering false testimony to the Court in the criminal matter and/or that evidence regarding the Party Store’s bridge card transactions was not accurate. Specifically, Plaintiff asserts that Mr. Livesay had "firsthand knowledge …of the lack of veracity of Mr. Kenaya’ statements and trial testimony." (Complaint 42). Beyond Plaintiffs wild speculations, Plaintiff claims are meritless and wholly unsupportable. There is no factual support that Mr. Livesay knew Mr. Kenaya’s testimony would be false or that it was in fact false. Mr. Livesay testified he did no engage in wrongdoing regarding Plaintiffs criminal matter. (Ex: F). Mr. Livesay’s statement of no wrongdoing is unrebutted by any evidence, except Plaintiff s speculation. Moreover, the testimony of Mr. Kenaya regarding bridge cards, which Plaintiff takes issue with, was not even necessary 0 critical for the jury to convict Plaintiff. As explained above, there is no dispute Plaintiff was asked to leave the Party Store by both Mr. Kenaya and Port Huron Police Officers and that Plaintiff refuse to leave. Once Plaintiff refused to leave, he was guilty of trespassing, as the jury concluded Further, Mr. Kenaya’ s testimony was not relevant to the charge of resisting an officer, which the jury also convicted Plaintiff of. Accordingly, regardless of whether Mr. Kenaya’s testimony regarding bridge card transactions was accurate or not, Plaintiff was undisputedly trespassing and also resisted arrest. If Plaintiff felt the Party Store owed him money, as he alleges, he should have sought a legal remedy. Plaintiff does not recognize that his alleged dispute with the Party Store regarding money did not afford him the right to trespass. The jury properly convicted Plaintiff and there is no basis to vacate the same. Accordingly, Defendant is entitled to summary disposition.

C.

Plaintiff is not Entitled to Money Damages

In addition to setting aside the Conviction, Plaintiff also seeks monetary damages in this matter. Specifically, Plaintiff alleges, without support beyond speculation, that as a result everyone of in the criminal justice system illegally working against him, he has suffered "severe physical injuries, pain and other damages, including, but not limited to, loss of earnings and earning capacity loss of career opportunities …. ". (Complaint 83). As with Plaintiffs request to set aside the Conviction, Plaintiffs claims for money damages is meritless.

i.

There is no evidence of wrongdoing

As explained above, beyond Plaintiffs wild speculation, there is no evidence Defendant engaged in any wrongdoing in regard to handling Plaintiffs criminal matter. Moreover, there is n evidence Defendant engaged in any wrongful conducted in arresting Plaintiff for crimes the jury ultimately convicted him of. According to the Police Report, Plaintiff refused Mr. Kenaya’ demand to leave the Party Store, resulting in Mr. Kenaya calling the police. Thereafter, Plaintiff refused to leave the Party Store after being request to do so several times by Port Huron Police Officers. As a result of Plaintiffs refusal to leave private property, he was arrested, which h resisted. Had Plaintiff simply obeyed the repeated requests to leave the Party Store he would no have been arrested. If Plaintiff had a concern regarding the Party Store or a claim that the Party Store owed him money, he could have commenced legal action. He did not have the right to trespass on private property or refuse to obey lawful order from the police. Plaintiffs own criminal conduct caused his problems, not any actions by Defendant. Furthermore, as noted by the Federal District Court in Plaintiff s federal case regarding this matter, to the extent Plaintiff seeks relief arising fro the Conviction, his claim fails. The law is clear, in order to obtain monetary relief for an alleged improper conviction, Plaintiff must show the conviction was set aside. (Ex: B at 3). As explained above, there is no basis to reverse Plaintiff’s Conviction or evidence the Conviction was improper. Rather, the jury properly convicted Plaintiff. In fact, the testimony Plaintiff asserts was inaccurate was not critical or necessary for the jury to convict Plaintiff. Accordingly, to the extent Plaintiff seeks monetary relief arising out of his criminal conviction, Defendant is entitled to summary disposition.

ii.

Plaintiff was not subjected to excessive force

Although unclear, it appears Plaintiff also seeks damages for allegedly being subjected to excessive force at the hands of Defendant. As with Plaintiff’s other claims in this case and claim in other cases, Plaintiff’s claim he was subjected to excessive force is meritless.

Claims of excessive force are analyzed under the "objective reasonableness" standard of the Fourth Amendment. Graham v Conner, 490 U.S. 386, 394 (1989). The law is clear, police officer have the right to use some degree of physical coercion to effect an arrest. Saucier v Katz, 533 U.S 194,208 (2001). According to the Supreme Court, the "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene at that moment, rather than with the 20/20 vision of hindsight. Graham, 490 U.S. at 396; citing Terry v Ohio, 392 U.S. 1,20-2 (1968). In that regard, "not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment." Id. Rather, the calculus of reasonableness in excessive force cases, "must embody allowance for the fact that police officers are often force to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397. I evaluating the reasonableness of force used, courts must consider the specific circumstance surrounding the arrest, including "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id at 396. Courts must give "deference to the officer’s on-the spot judgment about the level of force necessary in light of the circumstances of the particular case.’ Burchett v Kiefer, 310 F.3d 937 (6th Cir. 2002).

In this case, there is no dispute Plaintiff trespassed on private property after several request to leave. Likewise, there is no dispute Plaintiff resisted arrest. Specifically, as detailed above Plaintiff refused to cooperate with even getting into the patrol car. In fact, prior to utilizing a stun gun, Officers let go of Plaintiff to allow him to voluntary get into the patrol car, but Plaintiff refused Only after a significant period of Plaintiff physically resisting arrest and after Plaintiff made it clear verbally that he would not cooperate, did Officers utilize a stun gun. Clearly, giving deference t the Officers on the spot judgment, as required by the law, it cannot be said that Officers use excessive force against Plaintiff. Officers acted reasonably and used the minimum amount of force necessary to arrest Plaintiff, without injuring Plaintiff. In fact, it is clear Plaintiff suffered no injury as a result of being arrested. The Officers on the scene afforded Plaintiff every opportunity to cooperate, but he refused. Defendant is entitled to summary disposition to the extent Plaintiff seek damages for excessive force.

Plaintiff’s claims in this matter are maritless and lack any legal or factual support, accordingly, Defendant respectfully request this Court grant it summary disposition.

FLETCHER FEALKO

SHODDY & FRANCIS, P.C. Attorneys for the City of Port Huron

By: T. Allen Francis 522 Michigan St., Port Huron, Michigan 48060 (810) 987-8444

Dated: August 6, 2010

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