JIRIES ABU-JOUDEH, Plaintiff-Appellant, v. HEATHER SCHNEIDER; MICHAEL EDWARDS; PATRICK LEAVECK; BEST RECOVERY SERVICES, LLC, Defendants, SCOTT SHEETS, Defendant-Appellee.
No. 19-1337
United States Court of Appeals for the Sixth Circuit
March 27, 2020
Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0093p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-13893—Robert H. Cleland, District Judge. Argued: January 31, 2020.
COUNSEL
ARGUED: Eric A. Ladasz, ERIC A. LADASZ, P.C., Dearborn, Michigan, for Appellant. James E. Tamm, O’CONNOR, DEGRAZIA, TAMM & O’CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF: Eric A. Ladasz, ERIC A. LADASZ, P.C., Dearborn, Michigan, for Appellant. James E. Tamm, Julie McCann O’Connor, O’CONNOR, DEGRAZIA, TAMM & O’CONNOR, P.C., Bloomfield Hills, Michigan, for Appellee. ON BRIEF AND MOTION TO DISMISS PARTIES TO APPEAL: Alexander D. Bommarito, BOMMARITO LAW OFFICES, PLLC, Freeland, Michigan, for Best Recovery Defendants.
OPINION
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CLAY, Circuit Judge. Plaintiff Jiries Abu-Joudeh sued police officer Scott Sheets, along with several others, under
On appeal, Abu-Joudeh moves to supplement the record, asking this Court to take judicial notice of several documents he never submitted to the district court. While we deny Abu-Joudeh’s motion, the record already includes evidence suggesting that Sheets was the officer who broke into his garage. Because this evidence creates a genuine issue of material fact, the district court erred in granting Sheets summary judgment. Accordingly, we reverse and remand this case for further proceedings.
I. BACKGROUND
A. The Arrest and Repossession
Plaintiff Jiries Abu-Joudeh lives in Allenton, Michigan, with his wife Yasmeen and three sons. On November 20, 2014, Michael Edwards and Patrick Leaveck—two repossession agents with Best Recovery Services, LLC—came to the Abu-Joudehs’ home to repossess their car. An altercation ensued. According to Yasmeen, one of the agents pushed her and later shoved Jiries into her. But the repossession agents say that Jiries asked Yasmeen to get him a gun, and then hit her when she refused. Whatever happened, the repossession agents called the police, and the Abu-Joudehs moved their car into the garage and shut the door.
Police officers soon arrived at the Abu-Joudehs’, specifically Chief Heather Schneider of the Capac Police Department and Trooper Rick Sebring of the Michigan State Police.
Following the arrest, two more police cars arrived at the scene, both driven by male officers. One of these officers—whom Yasmeen refers to as the “third officer” to arrive—entered the house and began assisting Schneider and Sebring. (Yasmeen Dep., R. 77-1 at PageID at #876–77.)
While inside the house, Yasmeen says that the third officer was standing by her and kept her seated on the couch, ordering her to “[s]it down” and repeatedly telling her to “shut up” when she tried to get Jiries his medication. (Id. at #877.) Of particular relevance to this appeal, Schneider’s police report suggests that this third officer was Chief Scott Sheets of the Memphis Police Department. (See Police Report, R. 55-8 at PageID #410 (“Once Chief Sheets showed up I advised him to watch Yasmeen so she didn’t get up and interfere.“).) Yasmeen also described the third officer as being mostly bald with short blond or dirty-blond hair, medium height and build, relatively young, and wearing a blue uniform. On the other hand, the fourth officer had dark or black hair.
According to Yasmeen, the third officer spoke with the repossession agents and then told Schneider and Sebring that the garage was locked. After that, the third officer—joined by the two repossession agents—took a metal bar and attempted to pry open the main electric door to the garage, presumably to help the agents take the Abu-Joudehs’ truck. When this attempt failed, they went around to the side door, which one of them opened, allowing the trio to enter the garage. While Yasmeen did not see which of the three actually opened the side door, Leaveck testified that it was a police officer who let them into the garage:
Q. How did you get into the garage?
A. We were let into the garage.
Q. By who?
A. By one of the police officers.
Q. Which police officer?
A. I don’t know. He didn’t give his name. He basically walked out of the house, walked into the barn, opened the large door, walked out and said, is this the
vehicle you guys are here to get, and I said yes, sir. He said, load it up, get it out of here.
(Leaveck Dep., R. 55-7 at PageID #405.) Edwards and Leaveck then loaded the vehicle onto their tow truck and hauled it away.
B. The District Court’s Summary Judgment Order
In November 2016, just under two years after the repossession and arrest, Jiries Abu-Joudeh filed suit in federal court. While Abu-Joudeh initially named several police officers and the repossession agents as defendants, the only relevant claim for this appeal is that against Scott Sheets for allegedly breaking into Abu-Joudeh’s garage, thereby violating his Fourth Amendment right against unreasonable searches and seizures.1
After the parties conducted discovery, Sheets moved for summary judgment, arguing that Abu-Joudeh failed to present “any evidence” that Sheets “unlawfully enter[ed] Plaintiff’s garage.” (Mot. for Summ. J., R. 55 at PageID #357 (emphasis omitted).) Inexplicably, Abu-Joudeh’s counsel never deposed Sheets or sent him any discovery requests, and so Sheets submitted a one-page affidavit saying he “did not open Plaintiff’s garage without consent, did not enter Plaintiff’s garage without consent, and did not enter Plaintiff’s vehicle or participate in its repossession.” (Sheets Aff., R. 55-10 at PageID #431.)2 Sheets also pointed to Yasmeen’s inability to tell whether it was the “third officer” or one of the repossession agents who actually broke into the garage, and the fact that Yasmeen did not recognize Scott Sheets’s name when asked at her deposition. However, while characterizing these documents as supporting summary judgment, Sheets also pointed to the police report noting his presence at the scene and reflecting Schneider’s request for Sheets to watch Yasmeen, as well Leaveck’s testimony that it was a police officer who let the repossession agents into the garage.
The magistrate judge recommended denying Sheets’s motion for summary judgment. Abu-Joudeh v. Schneider (Abu-Joudeh I), No. 16-13893, 2019 WL 2219738, at *4 (E.D. Mich. Jan. 16, 2019), adopted in part and rejected in part, 2019 WL 1090746 (E.D. Mich. Mar. 8, 2019). While the magistrate judge held that Yasmeen’s declaration was invalid and refused to consider it, id. at *2 n.3, she found that the remaining evidence was enough to create a triable issue of fact as to whether Sheets was the officer who opened Abu-Joudeh’s garage, id. at *2–4. Specifically, the magistrate judge noted that “Yasmeen testified to seeing an officer with a metal bar breaking the lock to the garage,” that this was the third officer who arrived at the scene, and that Yasmeen provided a physical description of this third officer. Id.3 But in describing the applicable law, the magistrate judge said that Abu-Joudeh “need not provide specific identifying information [in order] to create a question of fact about whether Sheets was the officer who opened the garage,” citing several cases in which this circuit or its district courts denied summary judgment even without a clear identification of which officer committed the alleged constitutional violation. Id. at *3.
Sheets objected to the magistrate judge’s recommendation. On the facts, Sheets claimed that the magistrate judge erred in saying Yasmeen “testified to seeing an officer with a metal bar breaking the lock to the garage,” since she only saw the officer prying at the main electric door,
The district judge agreed with Sheets, rejecting the report and recommendation and granting him summary judgment. Abu-Joudeh v. Schneider (Abu-Joudeh II), No. 16-13893, 2019 WL 1090746, at *2, *4 (E.D. Mich. Mar. 8, 2019). First, the court agreed with Sheets’s factual objections, noting that Yasmeen “could not state which individual—the third officer or one of the tow truck drivers—actually broke the [side door] lock,” and that neither Yasmeen nor Leaveck “conclusively stated that the third officer opened the garage.” Id. at *2. The district court also disagreed with the magistrate judge’s statement of the law, distinguishing the excessive-force cases cited in the report and recommendation and finding that Abu-Joudeh needed to affirmatively identify which officer opened the garage. Id. at *2–3. And while the district court never discussed the other evidence relied on by the magistrate judge (such as Yasmeen’s physical description of the officer who opened the garage), it described the evidence that Sheets was the “third officer” as merely “speculation and conjecture.” Id. at *3.
Abu-Joudeh then appealed.
C. Proceedings on Appeal
On appeal, the sole issue Abu-Joudeh raises is whether he presented a triable issue of fact as to the identity of the officer who opened his garage. But rather than limit himself to the record below, Abu-Joudeh filed a “Motion for Judicial Notice” that attempts to introduce additional documents never presented to the district court. The first document is the Michigan State Police
II. MOTION FOR JUDICIAL NOTICE
Before addressing the merits of his appeal, Abu-Joudeh asks us to take judicial notice of several documents he failed to file in the district court. This misunderstands the purpose of judicial notice because what Abu-Joudeh really seeks is to supplement the record on appeal. And because Abu-Joudeh cannot meet the requirements for such an expansion of the record, his motion is denied.
While parties must normally submit admissible evidence to support the factual allegations in their case, sometimes a fact is so obvious that federal courts will allow a shortcut around these procedures. This shortcut—judicial notice—is governed by
But courts do not take judicial notice of documents, they take judicial notice of facts. See, e.g., id. at 834–35 (taking judicial notice of facts regarding the defendant’s criminal history that were found in court records from other proceedings); Davis v. City of Clarksville, 492 F. App’x 572, 578 (6th Cir. 2012) (discussing this distinction). The existence of a document could be such a fact, but only if the other requirements of Rule 201 are met. Here, Abu-Joudeh goes even further, asking us to take judicial notice of the contents of these documents for the truth of
Viewed properly as a request to supplement the record, Abu-Joudeh’s motion must be denied. While
Even if the standard for judicial notice applied instead, Abu-Joudeh’s motion would still fail. This is because the facts he asks us to notice—namely the contents of the police report and his deposition transcript—are “subject to reasonable dispute.”
At bottom, Abu-Joudeh’s motion for judicial notice is really a motion to supplement the record with new evidence that he failed to submit in opposition to summary judgment below. Accordingly, we deny Abu-Joudeh’s motion and limit our review to the district court record.
III. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
We review the district court’s grant of summary judgment de novo. E.g., King v. United States, 917 F.3d 409, 421 (6th Cir. 2019) (citing Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc)). A party is entitled to summary judgment if she shows “there is no genuine dispute as to any material fact and . . . [she] is entitled to judgment as a matter of law.”
The burden of demonstrating the absence of a genuine dispute of material fact first rests with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the burden then shifts to the nonmoving party to establish a “genuine issue” for trial via “specific facts.” Id. at 324. Additionally, the moving party is entitled to summary judgment when the nonmoving party “fails to make a showing sufficient to establish the
When evaluating a motion for summary judgment, this Court must “view[] [the evidence] in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). This includes drawing “all justifiable inferences” in the nonmoving party’s favor. Anderson, 477 U.S. at 255. “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but [only] to determine whether there is a genuine issue for trial.” Jackson, 814 F.3d at 775 (quoting Anderson, 477 U.S. at 249).
B. Discussion
The district court held that to avoid summary judgment, Abu-Joudeh needed to submit evidence suggesting that Sheets was the one who opened the garage. Abu-Joudeh II, 2019 WL 1090746, at *3. The court found that Abu-Joudeh had not done so, and had instead relied “on speculation [and] conjecture” that Sheets was the perpetrator. Id. While the district court is right on the law, we cannot say the same when it comes to the facts. When viewing the evidence in the light most friendly to Abu-Joudeh, and drawing all reasonable inferences in his favor, the record suggests that Sheets was the “third officer” who opened Abu-Joudeh’s garage. Because this presents a genuine issue of fact for the jury to resolve at trial, the district court erred by granting summary judgment in this case.
To prevail in a claim under
In rejecting the magistrate judge’s recommendation and granting Sheets summary judgment, the district court focused on the magistrate judge’s statement that Abu-Joudeh “need not provide specific identifying information to create a question of fact about whether Sheets was the officer who opened the garage.” Abu-Joudeh I, 2019 WL 2219738, at *3. However, a better view of the cases cited by the magistrate judge is that they discuss what identifying information is actually needed to create such a question of fact. Sheets suggests that the “offending officer” must be identified by “name, department, or description” to overcome summary judgment (Appellee Sheets Br. at 19), but this Court’s cases only require enough evidence to support a reasonable inference that the defendant was the officer in question.
For example, in Binay v. Bettendorf, the plaintiff testified that “the officer with the shotgun was the one who pointed his gun at Plaintiffs throughout the interrogation.” 601 F.3d at 651. Because the defendant “admitted to carrying a shotgun during the raid,” and another officer “testified that only one officer would carry a shotgun on a raid,” the jury could reasonably infer that the defendant was personally involved in the constitutional violation. Id.; see also id. (finding “there [was] a question of fact as to whether [another officer] was one of the officers pointing a gun at or securing Plaintiffs during some part of the raid” when that officer carried a firearm during the raid, was present for several key incidents, and wore a mask that prevented a more detailed identification). Similarly, in Pershell v. Cook, 430 F. App’x 410, 416 (6th Cir. 2011), although the plaintiff “was unable to see the officers standing above and behind him at the precise moment of the blows to his body, he [still] provided significant information about the location and conduct of the officers based on his own sensory observations.” Because the officers also provided accounts of the incident, these sources together could “provide the jury with sufficient information to determine the liability of each individual defendant for the alleged constitutional violation,” thereby precluding summary judgment. Id.
Abu-Joudeh uses that same approach. As discussed above, Yasmeen testified that the “third officer” entered her house, watched her when she was sitting on the couch, and then helped the repossession agents break into the garage. (Yasmeen Dep., R. 77-1 at PageID #876–79, #881–84; see also id. at #882 (noting that Yasmeen only “talked to [the fourth officer] from afar” and that “he did not approach” the garage).) Schneider’s police report suggests that this officer was Sheets, saying that “[o]nce Chief Sheets showed up [Schneider] advised him to watch Yasmeen so she didn’t get up and interfere.” (Police Report, R. 55-8 at PageID# 410.) And while Leaveck could not identify which officer opened the garage, he testified that it was a police officer who did this, and not one of the repossession agents. Taken together, these pieces of evidence indicate that Sheets was the one who opened the garage.
Even without Leaveck, Yasmeen’s testimony is enough to show that it was the officer who broke into the garage, not one of the repossession agents. She said that the third officer grabbed a metal bar and was using it in an attempt to pry open the electric garage door. And while the officer was standing with the two repossession agents at the side door, so Yasmeen could not see which of the three broke open that door, a reasonable juror could easily infer that it was the police officer who did so, given the fact that he was holding the metal bar and had already attempted to open the electric door.
IV. CONCLUSION
While the district court was correct that Abu-Joudeh needed to submit evidence suggesting that Sheets was the officer who opened his garage, the record shows that Abu-Joudeh met his burden. Accordingly, we reverse the district court’s grant of summary judgment, deny the motion to take judicial notice, and remand this case for further proceedings.