NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0811n.06
Filed: November 21, 2007
No. 05-2734
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BONITA McCLENDON and )
ELLIOTT McCLENDON, a minor, )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CITY OF DETROIT, a Michigan ) EASTERN DISTRICT OF MICHIGAN
municipality, )
)
Defendant-Appellee. ) OPINION
)
Before: DAUGHTREY, GILMAN, and COOK, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Bonita McClendon and her teenage son Elliott
sued the City of Detroit under 42 U.S.C. § 1983 following the warrantless entry into and search of
their house by Detroit Police Officers Linda Gilbert and Herman Hope. Gilbert and Hope were
searching for Gilbert’s teenage daughter, Cassandra, who had run away. The district court granted
summary judgment in favor of the City. On appeal, the McClendons argue that the City should be
held liable for the officers’ conduct because the City has an unconstitutional custom or policy of
permitting warrantless searches. For the reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
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McClendon v. Detroit
A. Factual background
Officers Gilbert and Hope arrived at the McClendons’ home at approximately 4:00 a.m. on
June 8, 2002. Gilbert’s teenage daughter Cassandra, who was dating Bonita McClendon’s other son
Everett, had run away from home, and Gilbert believed that Cassandra was with Everett. The
officers, who were in uniform and on duty, entered the McClendons’ home through a closed but
unlocked side door. They did not have a search warrant.
Gilbert and Hope woke up Elliott McClendon and asked him about the whereabouts of both
his mother and Cassandra. Elliott told the officers that his mother was upstairs and that he did not
know where Cassandra was. Gilbert instructed Elliott to wake up his mother. Elliott complied, and
then returned to his bedroom. After being awakened by Elliott, Bonita McClendon met Gilbert and
Hope downstairs and told the officers that Cassandra was not at the house and that she had no idea
where Cassandra could be found. When the officers asked for permission to search the basement
of the house, Bonita consented “under duress.” Cassandra was not found at the McClendons’ home
(nor was Everett), and the officers left without any further explanation.
Later that day, Bonita McClendon called the police to report the incident. Officer Cheri
Snow and her partner, Officer Antonio Trupiano, responded to the report of a breaking and entering
at the McClendons’ home. Bonita McClendon informed them that Gilbert and Hope had entered her
house early that morning to search for Cassandra Gilbert. Officer Snow took the complaint from
Bonita.
Based on the entry and search of the McClendons’ home, the Wayne County Prosecutor
charged both officers with the criminal offense of “entering without owner’s permission.” The
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officers were acquitted on November 4, 2002 following a bench trial in the state district court.
Detroit Police Internal Affairs also investigated the incident and determined that the officers had
violated department policy. Gilbert and Hope were both suspended for six months without pay.
B. Procedural background
Based on the foregoing facts, the McClendons subsequently filed lawsuits in both state and
federal court. The state-court case was ultimately settled in May of 2005. In November of 2005,
summary judgment was granted in favor of all the defendants in the federal action. This timely
appeal followed. The McClendons challenge only the grant of summary judgment in favor of the
City.
II. ANALYSIS
A. Standard of review
We review de novo the district court’s grant of summary judgment. Int’l Union v. Cummins,
434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
In considering a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
B. The City’s liability under § 1983
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The McClendons argue that the City can be held liable under § 1983 on the basis of (1) an
unconstitutional custom or policy of allowing warrantless searches, (2) inadequate training of its
police officers, and (3) ratification of Gilbert’s and Hope’s conduct. Because respondeat superior
liability is not available as a means of recovery under § 1983, Doe v. Claiborne County, 103 F.3d
495, 507 (6th Cir. 1996), the McClendons cannot base their claims against the City solely on the
conduct of Officers Gilbert and Hope. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978) (holding “that a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents”). The plaintiffs must demonstrate that the City itself was
a wrongdoer. Id.
Municipalities and other bodies of local government may be sued pursuant to 42 U.S.C.
§ 1983 if they are “alleged to have caused a constitutional tort through ‘a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.’” City
of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). Section
1983 also “authorizes suit ‘for constitutional deprivations visited pursuant to governmental “custom”
even though such a custom has not received formal approval through the body’s official
decisionmaking channels.’” Id. (quoting Monell, 436 U.S. at 690-91). A § 1983 plaintiff might not
be able to demonstrate that a written policy exists, but he or she “may be able to prove the existence
of a widespread practice that, although not authorized by written law or express municipal policy,
is so permanent and well settled as to constitute a custom or usage with the force of law.” Id. at 127.
(citation and quotation marks omitted). Such a plaintiff “must also show a direct causal link between
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the custom and the constitutional deprivation.” Doe, 103 F.3d at 508. “This requirement is necessary
to avoid de facto respondeat superior liability explicitly prohibited by Monell.” Id.
C. Claims of the McClendons
The McClendons first argue that “[t]he trial court erred where the Defendant City of Detroit
had a policy, custom and practice of exercising warrantless entries under exigent circumstances
through its police Department.” This bald assertion, however, amounts to nothing more than setting
forth one of the hallmark exceptions to the Fourth Amendment warrant requirement. The exigent-
circumstances exception allows the government to “overcome the presumption that a warrantless
entry is unreasonable if it proves that ‘the exigencies of the situation make the needs of law
enforcement so compelling that a warrantless search is objectively reasonable under the Fourth
Amendment.’” United States v. Huffman, 461 F.3d 777, 782 (6th Cir. 2006) (quoting Brigham City
v. Stuart, 126 S. Ct. 1943, 1947 (2006) (citation and quotation marks omitted)).
In their brief, the McClendons’ most direct explanation of their theory of municipal liability
is as follows:
By virtue of its police power, the Defendant City of Detroit, through
its police officers, is vested with statutory authority to enter the
homes, such as Plaintiffs-Appellants, without a warrant. Said entry
is grounded in exigent circumstances. Here, Defendant police
officers believed a minor was in the Plaintiffs-Appellants home
without permission to be there and that the minor may have been in
some danger. Acting as police officers, vested by the Defendant City
of Detroit, Defendant officers entered the premises without a warrant.
The warrantless entry into Plaintiffs-Appellants home constitutes a
deprivation because the officers were exercising a policy, custom,
practice of Defendant City of Detroit’s warrantless entry.
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The McClendons appear to be arguing that even if Officer Gilbert’s and Hope’s warrantless entry
into the McClendons’ home was justified by exigent circumstances, the City could still be held liable
under § 1983. In other words, the McClendons are asking us to predicate municipal liability on the
basis of a policy that accords with the settled law of warrantless searches. This we decline to do.
Moreover, based on the disciplinary actions taken by the Detroit Police Department against
Officers Gilbert and Hope, the City recognized that their conduct fell outside of the exigent-
circumstances exception. The fact that the officers were disciplined for their unauthorized entry into
the McClendons’ house thus refutes any claim that the City has a custom or policy that caused the
constitutional violation by the individual officers.
According to the McClendons, however, the officers’ acquittal in the state-court criminal
proceeding is evidence of “an established policy, custom and practice.” But the state trial court
apparently acquitted the officers because their behavior was found to fall within Michigan’s
emergency-aid exception to the warrant requirement. No conclusion was reached by the state court
about the customs or policies of the City or the Detroit Police Department.
The McClendons next allude to the possibility of municipal liability for inadequate training.
“[T]here are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for
liability under § 1983.” City of Canton v. Harris, 489 U.S. 378, 387 (1989). The present case,
however, does not fall within those limited circumstances. Harris makes clear that “the inadequacy
of police training may serve as the basis for § 1983 liability only where the failure to train amounts
to deliberate indifference to the rights of persons with whom the police come into contact.” Id. at
388. The McClendons offer no evidence of inadequate police training on the part of the City, but
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make only naked assertions that the City “lacks protocols that, if in place, safeguard against abuses
of the policy, custom and practice of conducting warrantless searches.” Such assertions are
inadequate to support a finding of municipal liability under § 1983 because warrantless searches
under proper exigent circumstances are indeed constitutional. See Huffman, 461 F.3d at 782.
Finally, the McClendons argue that the City ratified the actions of Gilbert and Hope because
the punishment meted out to the officers amounted to “a mere slap on the hand.” A six-month
suspension without pay, however, can hardly be classified as a mere slap on the hand. Such action
by the City precludes the McClendons from being able to show “that the municipal action was taken
with ‘deliberate indifference’ as to its known or obvious consequences.” Board of County Comm’rs
of Bryan County v. Brown, 520 U.S. 397, 407 (1997) (quoting Harris, 489 U.S. at 388).
We thus conclude that the McClendons have failed to meet their burden of proving that
“through its deliberate conduct, the [City] was the ‘moving force’ behind the injury alleged.” Id.
at 404 (emphasis in original). To the contrary, the apparent “moving force” in the present case was
the misguided individual decision of Officer Gilbert to locate her runaway teenage daughter where
she suspected Cassandra could be found. The unique circumstances that motivated this
unconstitutional search by the individual officers is simply not attributable to any unlawful custom
or policy of the City.
III. CONCLUSION
For all the reasons stated above, we AFFIRM the judgment of the district court.
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