Hunt v. City of Toledo Law Department (881 F. Supp. 2d 854, 2012)

Memorandum Decision and Order

VERNELIS K. ARMSTRONG, United States Magistrate Judge.

The parties have consented to the Magistrate’s jurisdiction in this civil rights case filed pursuant to 42 U.S.C. § 1983. Pending are Defendants’ Motion for Summary Judgment (Docket No. 28), Plaintiffs’ Opposition (Docket No. 36) and Defendants’ Reply (Docket No. 39). For the reasons that follow, the undersigned Grants Defendants’ Motion for Summary Judgment but retains jurisdiction over Plaintiffs’ Excessive Force Claim.

I. Jurisdiction

This Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 1331,1343.

II. Parties.

(1) Plaintiff Michael Hunt at all times relevant to these proceedings, was an adult male citizen of the United States, residing at 2082 North 12th Street, City of Toledo, County of Lucas, State of Ohio 43620.

(2) Plaintiff Janet Hunt at all times relevant to these proceedings, was an adult female citizen of the United States, residing at 2082 North 12th Street, City of Toledo, County of Lucas, State of Ohio 43620.

(3) Defendant City of Toledo is a municipal entity in the State of Ohio, which engages and employs police officers.

(4) Defendant Officers John Does, City of Toledo, are various unnamed law enforcement officers engaged or employed by the City of Toledo, Department of Police

(5) Defendant Detective Eric Sweat is a police/law enforcement officer detective engaged or employed by the City of Toledo, Department of Police.

III. Procedural Background.

On December 10, 2010, the above named Plaintiffs filed their Complaint with Jury Demand in the Lucas County Court of Common Pleas, Civil Division, Lucas County, Ohio, Case NO. Cl 02010 08269, alleging deprivation of civil rights under 42 U.S.C. § 1983. (Docket No. 1). On December 22, 2010, Defendants filed a Notice of Removal pursuant to 28 U.S.C. § 1441, alleging federal question as the basis of jurisdiction. (Docket No. 1). On February 25, 2011, Defendants filed their Answer to Plaintiffs’ Complaint with a Jury Demand (Docket No. 7).

On March 7, 2011, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, U.S. District Court Judge David A. Katz issued an Order of reference, pursuant to the parties’ consent, transferring this case to the undersigned for all further proceedings and entry of judgment (Docket No. 11).

On January 18, 2012, prior to the issuance of this Court’s Order on Defendant’s Motion for Protective Order, Defendants filed a Motion for Summary Judgment (Docket No. 28). On April 12, 2012 Plaintiffs filed an Opposition, and on May 7, 2012 Defendants filed a Reply (Docket No. 36 and 40, respectively)

The is case is presently before this Court on the matters raised in Defendants’ Motion for Summary Judgment.

IV. Factual Background.

Set forth below is a general narrative of the events that gave rise to this case

• During the evening of March 24, 2010, approximately six members of the City of Toledo Department of Police, in furtherance of the execution of a Search Warrant, entered premises located at 2082 North 12th Street, Toledo, Ohio. (Docket No. 1, 3, Docket No. 28, Attachment No. 1, Sweat Affidavit). This action (raid) was undertaken pursuant to an ongoing investigation of the alleged sale of crack cocaine by a person named Gabrial Taylor, an alleged drug dealer (Docket No. 1, Attachment No 1, Complaint; Docket No. 28, Attachment No. 1, Sweat Affidavit; Docket No. 36, Attachment No. 8, Sweat Deposition, 17-18).

• Plaintiffs Michael Hunt and Janet Hunt resided in, and were occupying, the North 12th premises at the time of the above referenced raid. (Docket No. 1, 3).

• Approximately one month prior to the raid of the North 12th Street location, a Confidential Informant allegedly told Toledo Police Detective Eric Sweat that he/she had observed Gabrial Taylor selling crack cocaine from an apartment, purportedly claimed to have been 2082 N. 12th Street (Docket No. 28, Attachment No. 1, Affidavit of Sweat).

• Upon receiving this information Detective , Sweat, assisted by Sergeant Steven Harrison, commenced surveillance of what they claimed was this location. Detective Sweat alone or with Detective Harrison surveilled what they claimed was this location on several occasions (Docket No. 36, Attachment No. 8, Sweat Deposition, at pp. 18, 21; Docket No. 28, Attachment No. 1, Sweat Affidavit; Docket No. 18, Attachment No. 1, Sweat Affidavit for Search Warrant; Docket No. 36, Attachment No. 7, Harrison Deposition, 13-17).

• On March 22, 2010, two days before the raid, Det. Sweat orchestrated a controlled buy of crack cocaine from a location that he stated was 2082 N. 12th Street, utilizing his Confidential Informant to purchase the contraband (Docket No. 28, Attachment No. 1, Sweat Affidavit; Docket No. 28, Attachment No. 7, Crime Report). Pursuant to a drug field test performed immediately after the controlled buy, the substance purchased by the Cl was determined to be cocaine, thereby confirming the Detective’s belief that criminal activity was occurring in the residence from which the substance was purchased, which apartment Detective Sweat believed to be 2082 N. 12th Street, i.e., Plaintiffs’ apartment. (Docket No. 36, Attachment No. 8, Sweat Deposition, 14, 38; Docket No. 28, Attachment No. 1, Sweat Affidavit; Docket No. 18, Attachment No. 1, Sweat Affidavit for Search Warrant). Detective Sweat’s Cl also advised Det. Sweat that, while he was inside the apartment making the buy, he had observed a gun in the apartment. (Docket No. 36, Attachment No. 8, Sweat Deposition, 14, 38; Docket No. 28, Attachment No. 1, Sweat Affidavit; Docket No. 18, Attachment No. 1, Sweat Affidavit for Search Warrant).

• On March 24, 2010, Det. Sweat applied to the Toledo Municipal Court for a “night season no-knock” search warrant, supported by his affidavit, of the Plaintiffs’ apartment located at 2082 N. 12th Street, the location Det. Sweat believed to have been the site of on going criminal activity (Docket No. 36, Attachment No. 8, Sweat Deposition, 36; Docket No. 28, Attachment No. 1, Sweat Affidavit; Docket No. 18, Attachment No. 1, Sweat Affidavit for Search Warrant). On that date, a Toledo Municipal Court Judge issued the search warrant (Docket No. 18, Attachment No. 1 Sweat Affidavit for Search Warrant, Attachment No. 2, Search Warrant).

• At approximately 9:45 P.M. on March 24, 2010, Det. Sweat along with about a half a dozen members of the Toledo Police Department’s Directed Patrol unit executed the Search Warrant and conducted a search of Plaintiffs’ apartment. The unit made a forced entry of Plaintiffs’ apartment, secured the premises and the Plaintiffs and conducted a search of Plaintiffs’ apartment. (Docket No. 28, Attachment No. 1, Sweat Affidavit). The search uncovered a small amount of marijuana, rolling papers, a marijuana joint, baggies and marijuana stems, a loaded 22 caliber handgun and rounds of ammunition. All items were seized as evidence. (Docket No. 28, Attachment No. 1, Sweat Affidavit and Attachment No. 3, Crime Report, and Attachment No. 6, Inventory arid Receipt).

• No crack cocaine, drug purchases activities or other items or materials indicative of illegal crack cocaine procession or distribution activities as referenced in the Search Warrant were observed by law enforcement in or about the premises during or after the raid. (Docket No. 18, 5, 6, 11).

• Plaintiffs were handcuffed, arrested and charged with possession of marijuana, and obstructing official business. (Docket No. 28, Attachment No. 1, Sweat Affidavit E. Sweat and Attachment No. 7, Crime Report), the former charge being dismissed with court costs and fine only. (Docket No. 18, 5, 14). The handgun seized by the Toledo Police Department during the raid was eventually returned to Plaintiffs (Docket No. 11). On August 27, 2010, both Plaintiffs Michael and Janet Hunt plead no contest to the obstruction charges and were found guilty of obstructing official business by a Toledo Municipal Court Judge (Docket No. 28, Attachment No. 1, Sweat Affidavit and Attachment No. 8 Journal Details).

Below are additional alleged facts relevant to the various claims raised on summary judgment.

Complaint, pp. 1-9, Docket No. 1, Attachments # 1 (filed with removal 12/22/2010). Lucas Co. CCP, case number CI10-8239 (December 10, 2010): • Gabrial Taylor never resided in 2082 N. 12th Street, and Plaintiffs Hunts do not know him p. 3 (¶ 3) • Defendants threatened and assaulted and intimidated and frightened Plaintiffs without just cause, p. 3 (¶ 5) • Defendants verbally harassed Plaintiffs with threats of jail and bodily violence if they challenged Defendants, p. 4, (¶ 7) • Defendants severely and forcibly handcuffed the Plaintiffs, including injuring the wrists of Mr. Hunt and caused him to shed blood, p. 4, (¶ 8) • The actual location of the illegal activity was 2080 N. 12 St. p. 5, ¶ 12 • As of the time of the raid, Plaintiffs had resided in 2082 North 12th Street for 21 years and there had been no complaints, but the lease at 2080 North 12th Street was not renewed and there had been police calls to and about North 12th Street p. 5 ¶ 12a • police had prior knowledge that the pending raid was tainted, p. 5, ¶ 14 • “That police officers did engage in physical acts against the Plaintiffs wherein excessive force was used against the Plaintiffs by the officers to subdue the Plaintiffs including displaying and brandishing guns accompanied with dire threats of their usage against the Plaintiffs.” p. 6, ¶ 16

Deposition of Detective Eric Sweat (by Attorney Tolliver), Docket No. 18, Attachment No. 3, May 13, 2011, pp. 1-65: • Detective Sweat received information and instruction on proper police methods of obtaining a search warrant, received continuing education and has a training officer. pp. 8-9, p. 10, In. 16-18 • The Cl first gave Det. Sweat information about the crack cocaine activity at Beacon Place apartments, and the name and description of Gabrial Taylor, and the police files on Taylor indicated that he sold out of other people’s residences, p. 15, In. 11-12, p. 15, 16, 17 (p. 17, In. 22-23) • Det. Sweat engaged in pre-raid surveillance, occurring on multiple dates, each occurrence lasting 30 minutes to several hours during the night, p. 18, p. 24 • Det. Sweat did not consult with management prior to the raid, but on other occasions did consult with management, and claimed he could not find any information about the residents of 2082 prior to the raid. p. 43, In. 11-16, p. 53-54, p. 54-55 • It was alleged that Det. Sweat was told on several occasions, by different people, including Plaintiffs, during the raid that he had the wrong location, but he didn’t recall being told this. p. 45, In. 15-21, p. 50, In. 17-23 • Det. Sweat acknowledged that Plaintiffs were handcuffed during the raid to control them, p 52, In. 7-11, p. 53, In. 1-7.

Crime Report (signed by Det. Sweat, marked as exhibit B) Docket No. 28, Attachment No. 3, dated March 22, 2010, time 2030), p. 1: • The report of the Cl controlled buy of March 22, 2010, at 2030 hours, does not identify address from which controlled buy was made. It identifies as the location of the occurrence, 525 Erie Street and states that the Cl made a purchase and the evidence was booked. The report also states, “Please see supplemental reports for further details.” No supplemental reports were provided, however, re: the events of March 22, 2010

Deposition of witness Johnnie M. Feagins (by Attorney Green) Docket No. 36, Attachment No. 4, September 9, 2011, pp. 1-23: • lives at 2084 N. 12 Street, p. 3, In. 24-25 • Feagins had lived there around three years as of the date of deposition, was a surgical technician at St. Vincent’s hospital, now retired, was the Plaintiffs’ next door neighbor, and has known them ever since she moved into Beacon Place, p. 4, In. 10-18, p. 4, p. 7, In. 1-18, p. 7, In. 20-22. • She heard the activity the night of the raid, and she stated that a neighbor named “Rita” told the police that the were raiding the wrong residence p. 7-8, p. 9, In. 2-20. • She stated that questionable activities were occurring at the 2080 N. 12th Street location, an apartment then occupied by a Zandra Williams, next door to Plaintiffs, for some time, activities going on at the apartment complex before the raid, including people going in and out of 2080 day and night; she could see it from her bedroom window, and that people would be in the apartment for 15 to 45 minutes, that there was a constant stream of men going in and out, that she thought it might be prostitution, but her daughter suggested to her it might be drugs, and that it was well known and a topic of conversation, p. 11, p. 12, In. 1-9, p. 12, In. 17-p. 13 In. 11, p 13, In. 18-23, p. 14, In. 18-19, p. 15, In. 5-18. p. 15 In. p. 19-16. In. 2, p. 16, In. 3-14.; p. 17 In. 6-p. 18 In. 1, p. 18 In. 14-23, p. 19, In. 15-24, p. 19,

Deposition of witness Steve A. Bankey (by Attorney Green) Docket No. 36, Attachment No. 5, September 9, 2011, pp. 1-29: • Bankey was employed by Beacon Place apartments for three years as the maintenance man, his regular hours were 8:30 am through 5:30 pm Monday through Friday, and his responsibilities included general maintenance work, which included periodic checks of the lighting system in the complex during the night, p. 4 In. 5-p. 5. In. 9, p. 5 In. 23-p 6 In. 22, p. 9 In. 1-11 • He was knowledgeable of the activities of both 2080 and 2082 N. 12th Street and believed that the raid should have been on 2080 because there was always questionable activity going on there, including guys going in and out and people sneaking out of the back window late at night, p. 8 In. 14-22. He observed this activity in 2010, p. 9, p. 10. • In December, 2009, as well as 2010 while doing late night light checks, he observed different people going in and out of Williams’s apartment, 2080 and they would stay up to 45 minutes, and he never saw those people there during the day, he believed it was suspicious, and he knew that Williams had a background of drug activity, including crack, p. 10 In. 12-17, p. 10 In. 19-22, p. 10 In. 23-25, p. 11, p. 12-13, p, 16 In. 18 p.-20 In. 5. • Bankey stated that he confronted Williams, although it was not part of his official duties, but did it out of concern for the property, p. 13-14 • Bankey knew Williams’s history because she told him p. 16, In. 9 • Concerning 2082, Bankey stated that “No, No, not late at night. There’s never been any activity going on there.” p. 22, In. 20-21 • Responding to questions from Plaintiffs’ counsel Tolliver; he stated that when he was on the grounds he never saw activity at 2082 similar to the activity observed at 2080, and never heard other tenants complaining about 2082. p. 25 In. 2-15, p. 25-26.

Deposition of witness Jackie L. Brady (by Attorney Green), Docket No. 36, Attachment No. 6, September 9, 2011, pp. 1-23: • Brady worked at Beacon apartments as the property manager since March, 2011, but was not employed there in March, 2010 p. 7, p. 9 • She provided records for the tenant of 2080 Beacon, Zandra Williams for sometime in March, 2010, which included two former signed leases and one complaint, and the records indicate that Williams vacated the apartment, and that she had received warnings from the management on March 24, 2010. p. 11-12, p. 13-14, pp. 16-17, 19 • These records regarding Zandra Williams contain notations referring to loud and boisterous behavior, loitering and excessive hanging out and written comments about “Several complaints and concerns about your company hanging out in front of your apartment at all hours of the night being loud. This is not acceptable behavior ... I will not tolerate this behavior You have 72 hours to resolve this matter” p. 21 and p. 21 In. 15-20.

Deposition of police officer TPD Sergeant Steven Harrison (by Attorney Tolliver), Docket No. 36, Attachment No. 7, February 15, 2012, pp. 1-58: • Sgt. Harrison was present at the premises during the raid of March 24, 2010, which was conducted with members of the SED, Special Enforcement Division, who wore protective vests and masks and were armed, and raid was initiated with entry being facilitated by the use of a battering ram to break open the front door. p. 8, p. 9, In. 13-15, p. 9 In. 11-23, p. 10, p. 10 In. 21-p. 11 In. 7 • The raid lasted about 45 minutes. p. 12 In. 21-p. 13 In. 3 • He participated in pre raid surveillance two to three times with Det. Sweat, doesn’t remember precise dates, but it commenced between two weeks to a month before the raid, these surveillances would last from 5 to 30 minutes, every time he was there Sweat was there, but Sweat may have done a surveillance without him. p. 13 In. 4-13, p. 14 In. 11-p. 17 In. 16. Q. “Okay. And do you have knowledge that the gun found at the location of the Hunts was returned to the Hunts after the court matters were over?” A. “I don’t know if it was or not” • Q. “Okay. If such a gun was returned to the Hunts, and they were alleged to be involved in drug trafficking of crack cocaine, would you return such a gun to such a person?” 18 A. “No, sir”, p. 37, In. 10-18 Affidavit of Sgt. Steven Harrison, Docket No. 39, Attachment No. 3, May 7, 2012, pp. 1-2: • “Whenever a confidential informant is used in an investigation, Det. Sweat and I were trained to not keep written notes so as to protect the identify (sic) of the confidential informant.” ¶ 8

V. Standard of Review for Summary Judgment

Motions for summary judgment are governed under Rule 56 of the Federal Rules of Civil Procedure. The standard for summary judgment is set forth in Rule 56(a):

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

Fed.R.Civ.P. 56(a).

Rule 56 compels summary judgment when it can be shown that a party, who will bear the burden of proof as to an issue at trial, cannot establish an essential element of that issue. Celotex v. Catrett, (1986) 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Conversely, the party moving for summary judgment is obligated to specifically identify the basis upon which the motion is brought and to reference those parts of the record that establish that there is no dispute regarding a genuine issue of material fact. Id.

The reviewing court shall not weigh evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir.2010). Rather, the court is to peruse such evidence as has been presented with an eye toward drawing all reasonable inferences and construe the evidence and reasonable inferences in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir.2009).

If the party moving for summary judgment has met (or appears to have met) that burden, the party against whom the motion was sought is then responsible for adducing particular facts which show the existence of a genuine dispute of material. For the non-moving party to meet this burden it must produce more than a “mere scintilla” of evidence to support its claim. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255-56, 106 S.Ct. 2505. An opposition to a properly supported summary judgment motion may not rely exclusively on mere pleading allegations to show the existence of a genuine dispute of material fact. Fed.R.Civ. P. 56(e); Anderson, 477 U.S. at 248, 251, 106 S.Ct. 2505.

A plaintiff must, however, provide more than the claims asserted in the pleadings, and must identify more than just a “metaphysical doubt” or a hypothetical “plausibility” that may emerge from a murky reference to an absence of evidence. Rather a plaintiff is obliged to come forward with “specific facts,” based on “discovery and disclosure materials on file, and any affidavits,” showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir.2009). See also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (“The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict — whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” (emphasis in original) (internal quotations omitted)).

Summary Judgment and § 1983 Claims, the Immunity Defense

In the instant case Defendants assert that summary judgment should be granted in their favor because “Defendants are immune under 42 U.S.C. § 1983 and RC §§ 2744.02(B) and 2744.03(A)(6).” (Docket No. 28, 6). In the context of a 42 U.S.C. § 1983 action, where a defendant has, as in the instant case, raised the defense of qualified immunity, the Sixth Circuit has held that:

[s]ummary judgment ... is proper if the law did not put the officer on notice that his conduct would be clearly unlawful. However, if genuine issues of material fact exist as to whether the officer committed acts that would violate a clearly established right, then summary judgment is improper.

Vakilian v. Shaw, 335 F.3d 509, 515 (6th Cir.2003). (citing Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002); Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988)). “Summary judgment is also improper where the reasonableness of an officer’s action depends on a disputed issue of fact.” Scozzari v. Miedzianowski, 454 Fed.Appx. 455, 462 (6th Cir.2012). See also Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir.2007).

VI. Plaintiffs Causes of Action

Although not specifically denominated as such in Plaintiffs’ Complaint, a reasonable construction of that Complaint shows that Plaintiff has asserted the following six causes of action. Pursuant to its review of Plaintiffs’ Complaint, this Court finds itself in essential agreement with Defendants and recognizes five of the six Causes of Action outlined by Defendants extant in Plaintiffs’ Complaint. However, this Court disagrees with Cause of Action No. 2 identified by Defendants, i.e. that Plaintiffs alleged Defendants Sweat and John Does subjected them cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution, and finds that such Cause of Action is not present in the Complaint.

Cause of Action No. 1: Plaintiffs allege Defendants Sweat, and John Does subjected them to illegal search and seizure in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution and the provisions of the Ohio Constitution.

Cause of Action No. 2: Plaintiffs allege Defendants Sweat and John Does subjected them to excessive force in violation of the Fourth Amendment to the U.S. Constitution

Cause of Action No. 3: Plaintiffs assert a “negligent training” claim against Defendant “City of Toledo Law Department” and City of Toledo.

Cause of Action No. 4: Plaintiffs assert a state claim for Assault and Battery against Defendants Sweat and John Does.

Cause of Action No. 5: Plaintiffs assert a state claim for Infliction of Emotional Distress against Defendants Sweat and John Does

Cause of Action No. 6: Plaintiffs allege a conspiracy claim against Defendants Sweat and John Does to cover up the violations of Plaintiffs’ constitutional rights.

VII. Discussion

§ 1983 Liability Generally

This lawsuit arises under 42 U.S.C. § 1983 as well as state law. The Plaintiffs assert that the Defendants have, under color of law, deprived Plaintiffs of clearly established rights, privileges and immunities secured by the Fourth and Fourteenth Amendments to the United States Constitution of which a reasonable person would have known. These rights include, but are not limited to, the right to due process of law and the right to be free of unreasonable searches and seizures

To prove liability under § 1983 a plaintiff must “establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006) (citations omitted).

The Defendants in this action do not dispute the assertion that from the initial undertaking of the surveillance that lead to the raid of Plaintiffs’ residence through the time of Plaintiffs’ arrest and including all other relevant events that occurred during the execution of the search warrant that they were acting under the color of state law. This being so, the remaining question is simply whether Defendants caused the Plaintiffs to suffer a deprivation “of a right secured by the Constitution or laws of the United States” and were harmed thereby. Id.

A general principle in evaluating § 1983 claims is that not all unfair, unwise, or imprudent actions of persons or entities acting under the color of state law are, necessarily, constitutionally unreasonable. See Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.2001). Courts routinely acknowledge that police and other law enforcement officials are allowed “latitude for honest mistakes,” even when those mistakes may seem implausible or at least difficult to understand when viewed through the rear view mirror of time and from the unadorned narrative of the written record. See Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987).

Yet, there is a countervailing principle that also serves to guide courts in their review of these cases: that the Constitution was not created to inflate the authority of the state and its police powers over the individual, and that each and every citizen is guaranteed meaningful, constitutional rights that the state, through its police powers, and law enforcement officials, individually, may not violate. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004). See, e.g., Holland v. Harrington, 268 F.3d 1179, 1194-95 (10th Cir.2001) (“At all times, SWAT officers no less than others ... must keep it clearly in mind that we are not at war with our own people.”)

Lawsuits under § 1983 frequently provide “the only realistic avenue for vindication of constitutional guarantees,” Champion, 380 F.3d at 901 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Yet, it is also true that such suits impose a cost on society, “including ‘the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.’ ” Id. In this regard it is well acknowledged that governmental officials, including, and maybe especially, law enforcement officers, will not be able to perform their jobs safely or effectively, if they are compelled to consider that their every momentary decision may be analyzed and dissected with knowledge obtained only through hindsight. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Kostrzewa, 247 F.3d at 639. See also Cline v. City of Mansfield, 745 F.Supp.2d 773, 788-89 (N.D.Ohio, E.D.2010).

Individual Liability

For a plaintiff to show that such a violation occurred, they must be able to establish the propriety of recovery from any particular party. See Petty v. County of Franklin, Ohio, 478 F.3d 341, 349 (6th Cir.2007). Accordingly, the analysis of a § 1983 claim commences with the preliminary requirement that a plaintiff must establish that a particular defendant proximately caused the claimed constitutional deprivation. It is also true, however, that the proximate cause issue in the context of § 1983 can, sometimes, be quite “murky.” Wright v. City of Canton, 138 F.Supp.2d 955, 965 (N.D.Ohio 2001). Additionally, even where it can be shown that a law enforcement official proximately caused the deprivation of a constitutional right, that official will not be held liable unless that right was “clearly established” and the official has caused the deprivation in an “objectively unreasonable manner.” See Champion, 380 F.3d at 901. See also Cline v. City of Mansfield, 745 F.Supp.2d 773, 788 (N.D.Ohio, E.D.2010); Rush v. City of Mansfield, 771 F.Supp.2d 827, 834 (N.D.Ohio, E.D.2011). With this concern in mind, the courts have acknowledged that the conduct and actions of law enforcement personnel may not necessarily have been unreasonable to the officer acting in the immediacy of those moments under what, at that time, may have been the reasonable perception of threat to life and safety. See Kostrzewa, 247 F.3d at 639.

Qualified Immunity

It is the foregoing perspective that informs and justifies the doctrine of qualified immunity, which provides a balancing point to the inevitable clash of competing, fundamental interests that are invariably brought to the fore in the context of 1983 claims. This balancing principle holds that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Champion, 380 F.3d at 901.

Qualified immunity is a defense not just against liability, but against suit itself. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Hence, the immunity questions should be resolved as early in the litigation as possible. Id. Qualified immunity “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir.2009) (citing Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (internal quotations omitted)). Ward v. County of Cuyahoga, 721 F.Supp.2d 677, 688 (N.D.Ohio, E.D. 2010).

Qualified immunity will serve to shield a defendant law enforcement officer from liability regardless of “whether the official’s error [was] ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’ ” Pearson, 129 S.Ct. at 818. (citing Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004)). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court established a two part test for determining the applicability of qualified immunity in § 1983 actions. First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. at 201, 121 S.Ct. 2151. Second, “if a violation could be made out on a favorable view of the parties’ submissions, the next ... step is to ask whether the right was clearly established.” Id.

In a § 1983 action, it is the plaintiffs burden to show that the defendants are not entitled to qualified immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir.2005). That is, viewing the evidence in the light most favorable to him, the plaintiff must establish both that (1) a constitutional right was violated and (2) that the right was clearly established at the time of the violation. Scott, 550 U.S. at 377, 127 S.Ct. 1769; Harrison v. Ash, 539 F.3d 510, 517 (6th Cir.2008).

The Supreme Court and the Sixth Circuit have rejected the argument that a right is only clearly established where a plaintiff can show the existence of a “fundamentally similar” or “materially similar” case. Grawey v. Drury, 567 F.3d 302, 313-14 (6th Cir.2009) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), explaining that the determining issue is whether the defendant law enforcement officer had fair warning that his actions were unconstitutional).

This interpretation of the requirements for proving that the right in question was clearly established entails that law enforcement officials are to be cognizant that their conduct may violate established law even in novel factual circumstances, i.e., where no precedent exists. The crucial dispositive consideration in making the assessment of whether “a right is clearly established” is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. See Champion, 380 F.3d at 902 (“[T]he fact that various courts have ‘not agreed on one verbal formulation of the controlling standard’ does not by itself entitle an officer to qualified immunity.” (quoting Saucier, 533 U.S. at 203, 121 S.Ct. 2151)). Because the emphasis of this analysis is on whether the officer had fair notice, at the time of the events under consideration, that his conduct was lawful (or otherwise), reasonableness is to be judged against the backdrop of the law that was current at the time of the conduct under examination. See Cline v. City of Mansfield, 745 F.Supp.2d 773, 798-90 (N.D.Ohio, E.D.2010), Rush v. City of Mansfield, 771 F.Supp.2d 827, 834-86 (N.D.Ohio, E.D.2011).

As a general rule, the default position is that qualified immunity applies. However, qualified immunity will not shield the officer from liability where it is obvious that no reasonably competent official would have concluded that the actions taken were lawful. Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir.2002). See also Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992) (“For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right’ ” (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

Municipal Liability

In a § 1983 action, when a plaintiff seeks to recover damages from a municipality, it is not necessary that a particular right the plaintiff claims was violated be “clearly established,” as is the case in 1983 claims against individuals. However, in an action against a municipality, the plaintiff must establish that the municipality itself was the proximate cause of the alleged deprivation. See Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992); Ford v. County of Grand Traverse, 535 F.3d 483, 495-96 (6th Cir.2008).

Concerning the municipal defendant, there is no vicarious liability for the alleged tortious acts of the municipality’s agents in a 1983 action, rather:

It is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Board of County Commis. v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.”) (citation omitted).

Succinctly stated, a plaintiff must show that the municipality itself was the wrongdoer to impose § 1983 liability upon a local governmental body. Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

A plaintiff can establish that a municipality is the proximate cause of a violation under any of five theories: (1) express municipal policy, Monell, 436 U.S. at 660-61, 98 S.Ct. 2018, (2) “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,” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quotation omitted), (3) the decision of a person with final policy making authority, Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), (4) the failure to act where the “inadequacy [of the existing practice is] so likely to result in the violation of constitutional rights, that the policymaker ... can reasonably be said to have been deliberately indifferent to the [plaintiffs rights],” City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), or (5) ratification by a municipality of its employee’s unconstitutional acts by failing to investigate and punish meaningfully allegations of unconstitutional conduct, Fuller v. City of Oakland, 47 F.3d 1522, 1535 (9th Cir.1995); see also Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir.1989); Wright, 138 F.Supp.2d at 966 (“[Plaintiff] can establish his municipal liability claim by showing ... [that] a final municipal policymaker approved an investigation ... that was so inadequate as to constitute a ratification of their alleged use of excessive force.”). See Cline v. City of Mansfield, 745 F.Supp.2d 773, 790 (N.D.Ohio, E.D. 2010). See also Rush v. City of Mansfield, 771 F.Supp.2d 827, 836-37 (N.D.Ohio, E.D. 2011).

In the instant case, regarding all the causes of action asserted by Plaintiffs, and having reviewed the record evidence presently before it, this Court has found no evidence that creates a genuine dispute of material fact regarding the liability of the City of Toledo as to any of Plaintiffs’ claims.

Cause of Action No. 1: Search and Seizure, Validity of Search Warrants, Affidavits and Source Information, and Surveillance

Plaintiffs assert that the search warrant that lead to the raid of March 24, 2010, was invalid due to allegedly erroneous information contained in the warrant and the associated affidavit. If the warrant were invalid, then Plaintiffs were subjected to an unconstitutional search. See, e.g., Cline v. City of Mansfield, 745 F.Supp.2d 773, 800 (N.D.Ohio, E.D.2010).

" When analyzing the soundness of a warrant a court will look to the affidavit for search warrant that supported the issuance of the warrant. See United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005). (“To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate ‘a fair probability that evidence of a crime will be located on the premises of the proposed search.’ ” (quoting United States v. Jenkins, 396 F.3d 751, 760 (6th Cir.2005))).

Where a search warrant is issued on the basis of an invalid affidavit the warrant will, too, be invalid, and law enforcement officers may not execute a search warrant when the supporting affidavit is “so lacking in probable cause as to render official belief in its existence entirely unreasonable’ or ... where the officer’s reliance on the warrant was neither in good faith nor objectively reasonable.” United States v. McPhearson, 469 F.3d 518, 522 (6th Cir.2006) (quoting United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). See also United States v. Hodson, 543 F.3d 286, 293 (6th Cir.2008) (“[A] reasonably well trained officer in the field, upon looking at this warrant, would have realized that the search described ... did not match the probable cause described .... ”); cf. United States v. Washington, 380 F.3d 236, 241 (6th Cir.2004) (“[I]t is entirely possible that an affidavit could be insufficient for probable cause but sufficient for ‘good-faith’ reliance.”). “When determining whether an affidavit establishes probable cause, we look only to the four corners of the affidavit; information known to the officer but not conveyed to the magistrate is irrelevant.” United States v. Brooks, 594 F.3d 488, 492 (6th Cir.2010) (citing United States v. Pinson, 321 F.3d 558, 565 (6th Cir.2003)).

The courts have also acknowledged that, even with the best efforts of law enforcement, mistakes can happen, but not all mistakes will render a warrant invalid. See United States v. Johnson, 558 F.Supp.2d 807, 812 (E.D.Tenn.2008) (“The Supreme Court and the Sixth Circuit have recognized that despite best efforts, inaccurate information, such as a wrong address, may get into the affidavits for search warrants ... ”) (citing United States v. Pelayo-Landero, 285 F.3d 491 (6th Cir.2002)). However, this principle does not apply to major discrepancies. See Knott v. Sullivan, 418 F.3d 561, 569 (6th Cir.2005) (“[I]n this case, the errors in the search warrant and affidavit were so extensive that there was a reasonable probability that the wrong vehicle could have been mistakenly searched.”). See Cline v. City of Mansfield, 745 F.Supp.2d 773, 800, 804 (N.D.Ohio, E.D.2010).

The Sixth Circuit’s decision in United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) is instructive. In Laughton, the Sixth Circuit found that police were not entitled to rely upon an affidavit that did not “turn[ ] up some modicum of evidence, however slight, to connect the criminal activity described in the affidavit to the place to be searched.” Laughton, at 749. The affidavit did not contain any specific reference to the particular address identified on the face of the warrant, using only generic references to a “home” and a “residence.” The Court found that such a “warrant fail[s] to establish any nexus whatsoever between the residence to be searched and the criminal activity attributed to the defendant in the affidavit.” Laughton, at 746. See Cline v. City of Mansfield, 745 F.Supp.2d 773, 800, 806 (N.D.Ohio, E.D. 2010).

As to the validity of a warrant the question is whether (“a reasonably well trained officer in the field, upon looking at this warrant, would have realized that the search described ... did not match the probable cause described .... ”). See United States v. Hodson, 543 F.3d at 293 In determining whether a police officer’s reliance on the warrant was objectively reasonable, the court must decide “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir.1996). See Cline v. City of Mansfield, 745 F.Supp.2d 773, 800, 807 (N.D.Ohio, E.D.2010). (“In this case, by contrast, it is clear that any reasonable officer who: (a) read the affidavit, and (b) happened to discover that it referred exclusively to 618 Burns Street would know that the affidavit did not reflect probable cause to search 347 South.”).

Addressing the veracity of search warrants the Supreme Court has stated:

Judge Frankel, in United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966), aff'd, Docket No. 31369 (CA2, June 12, 1967) (unreported), put the matter simply: “[W]hen the Fourth Amendment demands a factual showing sufficient ■ to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law, see Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933); Giordenello v. United States, 357 U.S. 480, 485-486, 78 S.Ct. 1245, 1249-1250, 2 L.Ed.2d 1503 (1958); Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723 (1964),.... Because it is the magistrate who must determine independently whether there is probable cause, Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436 (1948); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 735-736, 4 L.Ed.2d 697 (1960), it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment.

Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978).

While the Fourth Amendment commands that no warrant may issue but upon ‘probable cause,’ the Supreme Court has long held that “the term ‘probable cause’ ... means less than evidence which would justify condemnation,” Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (1813). Thus a determination that a warrant satisfies the ‘probable cause’ requirement could possibly rest upon evidence which would not be legally sufficient at a criminal trial. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (1959). As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1949), “There is a large difference 'between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them” Thus hearsay may be the basis for issuance of the warrant so long as there ... (is) a substantial basis for crediting the hearsay. See Jones v. United States, supra, 362 U.S. at 272, 80 S.Ct. at 736.

Regarding the nature and sufficiency of the evidence necessary to satisfy the “quanta” of evidence and truth required to establish the validity of a warrant, the Supreme Court recognized that “an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,” as long as the magistrate is “informed of some of the underlying circumstances” that provide support for the conclusions reached by the affiant as set forth in the warrant and as well as the affiant’s belief that the informant “whose identity need not be disclosed ... was ‘credible’ or his information ‘reliable.’ ” Aguilar v. State of Texas, supra, 378 U.S. at 114, 84 S.Ct. at 1514.

What is revealed by the foregoing is the recognition by the Supreme Court that

... the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts.toward warrants .will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

U.S. v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)

The Sixth Circuit has held that the fact that an affidavit and a warrant contain an incorrect address does not in and of itself render the search warrant invalid. The Fourth Amendment only mandates that a warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV; see United States v. Blakeney, 942 F.2d 1001, 1026 (6th Cir.1991).

When evaluating whether, a warrant had described with the requisite degree of particularity the place to be searched, the Sixth Circuit has looked to “(1) whether the place to be searched is described with sufficient particularity as to enable the executing officers to locate and identify the premises with reasonable effort; and (2) whether there is reasonable probability that some other premises may be mistakenly searched.” Knott v. Sullivan, 418 F.3d 561, 568 (6th Cir.2005). Yet, the Court has acknowledged that a search warrant is not automatically invalidated due to an error in description. United States v. Pelayo-Landero, 285 F.3d 491, 496 (6th Cir.2002). “The test for determining whether a search warrant describes the premises to be searched with sufficient particularity ‘is not whether the description is technically accurate in every detail ... ’ ” Id. (citing U.S. v. Prout, 526 F.2d 380, 387-88-(5th Cir.1976)). See also U.S. v. Hang Le-Thy Tran, 433 F.3d 472, 479-80 (6th Cir.2006).

Several Sixth Circuit cases have stood for the proposition that a search warrant is not necessarily invalid despite containing an erroneous address. See Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999); Wheeler v. City of Lansing, 677 F.Supp.2d 965, 979-80 (W.D.Mich, S.D. 2010). See also United States v. Pelayo-Landero, 285 F.3d 491, 496 (6th Cir.2002); Knott v. Sullivan, 418 F.3d 561, 568-69 (6th Cir.2005)

The test for determining whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description is technically accurate in every detail, but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched.

See United States v. Durk, 149 F.3d 464, 465 (6th Cir.1998). (internal quotation marks and citations omitted).

In the present case the affidavit for search warrant, which was attached to the search warrant, contained the following relevant facts: it identified, with specificity, the location where the alleged criminal activity was believed to have been taking place, 2082 N. 12th Street, Toledo, Ohio; it also identified the premises by its location within the Beacon Place apartment complex (i.e., eleventh apartment from the corner), and described its outward physical appearance; it stated that a confidential informant had made a controlled purchase of crack cocaine within that premises; it stated that the affiant, Detective Sweat, had observed the Cl enter and leave the premises at the time the controlled purchase was made, and it stated that Det. Sweat had independently observed what appeared to be conduct, i.e., foot traffic, indicative of criminal activity happening within the premises on other occasions. The search warrant identified the same premises as the premises identified in the affidavit. A review of the warrant and affidavit shows that the warrant and affidavit, were, on their face, valid, and provided a reasonable basis for the officers who executed the search warrant to have believed that there was criminal activity occurring within the premises identified therein.

Plaintiffs have presented no evidence that creates a genuine dispute of material fact concerning the facial validity of the affidavit or the search warrant. Accordingly, as to the John Doe police officer Defendants, this Court finds that there is no genuine dispute of material fact on the issue of whether they violated Plaintiffs’ Fourth Amendment rights in executing the search warrant, and Defendants’ Motion for Summary Judgment is granted as to these Defendants on this issue. Surveillance, Information Gathering and the Formation of the Affidavit and Warrant: Liability of Detective Eric Sweat

A crucial consideration in this case is the issue of the manner in which Detective Sweat obtained the information that informed and was included in the affidavit and warrant. Instructive on how the Sixth Circuit has addressed the issues of surveillance, information gathering and affidavit/warrant formation in § 1983 cases are Williams v. City of Detroit, 843 F.Supp. 1183 (E.D.Mich, S.D.1994) and Hill v. McIntyre, 884 F.2d 271 (6th Cir.1989).

In Williams Detroit police officers broke into and raided the home of Plaintiffs Elias and Betty Williams in a search for evidence of drug trafficking. It was the wrong house. The raid was based on a search warrant and supporting affidavit that was obtained by one of the Defendant police officers, Sergeant Murphy. Three days prior to the raid Murphy sent a confidential informant to the make a drug buy. The salient circumstances of the buy, as described in Murphy’s affidavit, are that Murphy instructed the CI to go to a particular location, Murphy observed the CI enter that location and return to Murphy shortly thereafter. Murphy’s affidavit also stated that the CI told him that he/she went to the identified location and purchased cocaine. Williams, 843 F.Supp. at 1184.

However, in addition to the information provided in the affidavit of Murphy, summarized above, discovery also included a deposition of the CI. According to that deposition and other information, the police were investigating reports of foot traffic in the area that was suggestive of illegal drug activity. Contrary to what Murphy stated in his affidavit, the CI indicated that he was sent down an alley that ran parallel to the Williams’s residence and, following the path of the foot traffic, came upon a house where a person was peering out a window behind some drapes. That individual then came outside into the back yard and sold drugs to the CI. The CI apparently never entered the location to which he had been instructed to go by Murphy. According to the CI, Murphy could not have seen him enter the residence, since that never happened. Murphy then picked up the CI after he returned from his trip down the alley. Murphy and the CI then drove down the street and the CI pointed to the location where he had been instructed to go, as the house from which the individual who had sold him cocaine had exited. Williams, 843 F.Supp. at 1184

In any event, when the Williams’s house was searched it contained only the Williamses but no evidence of any drug activity. Williams v. City of Detroit, 843 F.Supp. 1183, 1184 (E.D.Mich., S.D.1994)

The Sixth Circuit has held that “[a]n action under § 1983 does lie against an officer who obtains an invalid search warrant by making in his affidavit, material false statements either knowingly or in reckless disregard for the truth.” Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989) (citing Donta v. Hooper, 774 F.2d 716, 718 (6th Cir.1985) (per curiam), cert. denied, 483 U.S. 1019, 107 S.Ct. 3261, 97 L.Ed.2d 760 (1987)). See also Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir.2000); Hervey v. Estes, 65 F.3d 784, 789 (9th Cir.1995); Packer v. City of Toledo, 1 Fed.Appx. 430, 434 (6th Cir.2001) (unpublished opinion) (noting that the materiality of the false information used to procure a search warrant was a key issue in deciding whether to grant qualified immunity). See also Vakilian v. Shaw, 335 F.3d 509, 517-18 (6th Cir.2003) (finding no genuine dispute of material fact, officer protected by qualified immunity)

In Hill, as in Williams, police officers raided and searched the wrong house for narcotics. In Hill, the officer who had prepared the affidavit and obtained the warrant had misidentified the target location of the raid. That is in the warrant and supporting affidavit the officer had identified as the house (in which illegal drug activity was occurring) a house which was next door to the house where the drug dealing was actually occurring. The source of the mistake of the officer in Hill was information provided to the officer by an informant who had provided a description of the house to be searched. In Hill the district court a directed verdict after the close of the plaintiffs case as to the validity of the warrant. However, the Sixth Circuit reversed, determining that it was for a jury to decide whether the officer displayed a reckless disregard for the truth when he mistakenly identified the house. Hill v. McIntyre, 884 F.2d 271, 275.

The district court in Williams, supra, held that the circumstance of that case “presented] basically the same facts addressed by the Sixth Circuit in Hill” Williams, at 1185. That is, the Williams court concluded that Sgt. Murphy apparently replied on questionable information provided by an informant as did the affiant officer in the Hill case. As the court noted,

There are factual questions remaining regarding the way in which Murphy verified that information. Given the fact that it appears that Murphy never observed the informant go inside 2638 Buena Vista [the Williams’s home] as asserted in his affidavit, the reliability of the identification of the house is at issue. It is a question for the jury to decide if defendant Murphy acted with reckless disregard for the truth in obtaining a search warrant for 2638 Buena Vista. There exist material questions of fact concerning the care he took in identifying the house where the drug deal engaged in by his informant took place. The parties appear to agree that the deal did not take place in, or out of, 2638 Buena Vista. This false identification of the house in the affidavit in support of the search warrant is material. The question that remains is whether the misidentification of the house resulted from defendant Murphy’s reckless disregard for the truth. It is clear that an officer’s care, truthfulness, and intent at the time he applied for the warrant is one of fact for the jury. See, e.g., Hindman v. City of Paris, 746 F.2d 1063, 1067 (5th Cir.1984). As a result, the court will deny defendant Murphy’s motion for summary judgment.

Williams v. City of Detroit, 843 F.Supp. 1183, 1185-86.

In the instant case, there is evidence suggesting that Detective Sweat may have mis-identified 2082 N. 12th Street as the location within which the criminal activity was occurring as well as evidence that additional investigation could have shown that the offending location was actually 2080 N. 12th Street (see Deposition testimony of Feagins, Bankey and Brady, presented in detail, above as well as the crime report that identified the location of the March 22, 2010 buy as 525 Erie, not a 12th Street address). However, the record does not reveal any evidence that a jury could look to that would allow it to conclude that Detective Sweat either knowingly misidentified 2082 or was wanton or reckless in the manner in which he gathered evidence and reached the conclusion that 2082 was the site of the criminal activity. Unlike the Hill and Williams, supra, there is no evidence in the current case — either directly contradictory deposition testimony of the Cl or conflicting statements by Detective Sweat or Sgt. Harrison — that create the possibility of a genuine dispute of material fact as to whether Defendant Sweat was wanton or reckless with respect to his surveillance, information gathering, or preparation of the affidavit and warrant. However, as noted more fully in the discussion, above, that the record may suggest that there is a genuine dispute of material fact regarding Detective Sweat being negligent in this regard, the evidence does not establish a genuine dispute of material fact on the matter of whether Detective Sweat was wanton or reckless. Accordingly, Plaintiffs have not presented a sufficient evidentiary platform to allow this case to proceed beyond summary judgment on this aspect of Plaintiffs’ claim, and Defendants’ motion for summary judgment is, in this regard, granted.

Cause of Action No. 2: Excessive Force

Plaintiffs’ claim that the Defendants violated Plaintiffs’ Fourth Amendment rights by employing excessive force during the execution of the search. As previously noted in this Memorandum Plaintiffs asserted an excessive force claim in their Complaint. (See Plaintiffs’ Complaint, Docket No. 1, Attachment No. 1, p. 6, ¶ 16.) Defendants, in them Motion for Summary Judgment addre