Schilling v. Swick

868 F. Supp. 904, 1994 U.S. Dist. LEXIS 15652, 1994 WL 668196
CourtDistrict Court, W.D. Michigan
DecidedOctober 7, 1994
DocketNo. 1:93-CV-953
StatusPublished
Cited by1 cases

This text of 868 F. Supp. 904 (Schilling v. Swick) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schilling v. Swick, 868 F. Supp. 904, 1994 U.S. Dist. LEXIS 15652, 1994 WL 668196 (W.D. Mich. 1994).

Opinion

OPINION

QUIST, District Judge.

Plaintiffs Jeffrey Schilling and his son, Kyle Schilling, initiated this action under 42 U.S.C. § 1983 and pendent state law claims. The state law claims were dismissed on February 4, 1994. Defendants filed a Motion for Summary Judgment (docket no. 34) , and a Motion for Summary Disposition pursuant to Fed.R.Civ.P. 12(b)(6) (docket no. 35) . The Federal Rules of Civil Procedure do not recognize motions for “summary disposition.” Motions to dismiss under Fed.R.Civ.P. 12(b)(6) are to be treated as motions for summary judgment under Fed.R.Civ.P. 56 if the Court considers matters outside of the pleadings. Fed.R.Civ.P. 12(b). In deciding the defendants’ motions, this Court considered matters outside of the pleadings. Therefore, both of defendants’ motions are decided under Rule 56 standards.

Plaintiffs have filed a “Motion to Strike Defendants’ 12B6 Pleading” which this Court will treat as a response to defendants’ motions.

BACKGROUND FACTS

On November 23, 1993, defendant, Officer Lon Swick, was on duty with the Wyoming Police Department when he states he observed plaintiff Jeffrey Schilling driving westbound on 32nd Street in the City of Wyoming at a very fast speed. Plaintiff Kyle Schilling was in the passenger seat of the vehicle at the time.1

Officer Swick submitted an affidavit stating that while he was traveling eastbound on 32nd Street he obtained a radar reading which indicated that Jeffrey Schilling’s vehicle was traveling 50 miles per hour in a 35 mile per hour zone.2 Plaintiffs and defendants agree that Officer Swick made a U-[906]*906turn and began following plaintiffs. Plaintiff Jeffrey Schilling drove into a parking lot and parked. Officer Swick followed, and parked his cruiser directly behind plaintiffs’ vehicle. Officer Swick claims that plaintiff Jeffrey Schilling attempted to maneuver his vehicle around the police cruiser and started to proceed westbound. However, Mr. Schilling stopped when Officer Swick ordered him to do so.

Officer Swick stated in his affidavit that he asked Jeffrey Schilling to produce his driver’s license, registration and proof of insurance. Mr. Schilling refused to identify himself or produce the requested items. Mr. Schilling does not refute this assertion. In fact, he indicates in his reply brief that he stated to Officer Swick, “Do you have any proof that I am operating in commerce at this time?” Mr. Schilling admits that Officer Swick repeated his request that plaintiff produce his driver’s license, however, Mr. Schilling claims that Officer Swick used profanity in his second request. Mr. Schilling did not produce a driver’s license. In his response to defendants’ motions, plaintiff Jeffrey Schilling claims that he has the “absolute right to travel without the state granted privilege of a driver’s license ...” and that “the private conveyance in which he was traveling is not required to be registered within the corporate State of Michigan.”

Officer Swick states that he advised Jeffrey Schilling that he was under arrest when he refused to produce the requested items. According to the affidavit Officer Swick submitted, when Mr. Schilling was informed that he was under arrest, Mr. Schilling stated that he did not have a license and he drove away. Mr. Schilling asserts that when he asked if he was under arrest Officer Swick said no, and Mr. Schilling left the scene. Officer Swick asserts that as Mr. Schilling left the parking lot he made repeated commands for him to stop his vehicle, but that Mr. Schilling continued to accelerate. Mr. Schilling does not deny these assertions. Mr. Schilling left the parking lot and proceeded down Jefferson Avenue. Officer Swick got back into his car and chased Mr. Schilling; Officer Swick activated his cruiser lights and siren and eventually Mr. Schilling stopped and exited his vehicle. Officer Swick took Mr. Schilling into custody.

Officer Swick states that at first Jeffrey Schilling refused to tell him who could come and get his son Kyle. After repeated requests, Mr. Schilling told officer Swick that Dana Garbo could be contacted to pick up Kyle.3

Officer Swick ran a cheek on Mr. Schilling’s license plate through the Law Enforcement Information Network (“LEIN”), and learned that the license plate was registered to a Honda in the names of Jeffrey and Dana Schilling, not an AMC, which is the vehicle Mr. Schilling was driving. Since the vehicle had improper plates and no proof of ownership or insurance was provided, the vehicle was impounded. Officer VanderBaan conducted a vehicle inventory search, and the vehicle was towed.

DISCUSSION

Summary Judgment Standard

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. The summary judgment standard mirrors the standard for a directed verdict. The only difference between the two is procedural. Summary judgment is made based on documentary evidence before trial, and directed verdict is made based on evidence submitted [907]*907at trial. 477 U.S. at 250-51, 106 S.Ct. at 2511.

A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with “concrete evidence” that there is a genuine issue of material fact for trial. Id.; Frank v. D’Ambrosi, 4 F.3d 1378, 1384 (6th Cir.1993). The court must draw all inferences in a light most favorable to the non-moving party, but the court may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”

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Bluebook (online)
868 F. Supp. 904, 1994 U.S. Dist. LEXIS 15652, 1994 WL 668196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schilling-v-swick-miwd-1994.