               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0157n.06
                           Filed: March 20, 2008

                                          No. 07-1274

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT




ROBERT EUBANKS,                                       )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR
ADAM BAYLIS, INDIVIDUALLY, and THE                    )    THE WESTERN DISTRICT OF
CITY OF GRAND RAPIDS, MICHIGAN,                       )    MICHIGAN
                                                      )
       Defendants-Appellees.                          )


Before: SILER, CLAY, and COOK, Circuit Judges.

       SILER, Circuit Judge. Robert Eubanks appeals the district court’s grant of summary

judgment in favor of Adam Baylis and the City of Grand Rapids (collectively “Defendants”) on all

claims. Eubanks brought claims under 42 U.S.C. §§ 1983 and 1985 and state law based on an

alleged incident where Baylis, a Grand Rapids police officer, pointed his weapon at Eubanks’s head

after finding that Eubanks’s car was blocking a driveway. The district court granted Defendants

summary judgment after finding that there was no evidence that Baylis was at the scene. We affirm

the grant of summary judgment in favor of Defendants on Eubanks’s § 1985 conspiracy claim, and

reverse the grant of summary judgment in favor of Defendants on all other claims and remand for

further proceedings.

BACKGROUND
       Eubanks was a Kent County law enforcement officer. According to him, he left his car in

a position blocking a driveway on Union Street in Grand Rapids while visiting the home of retired

deputy sheriff Charles Assenco on September 16, 2002. He left Assenco’s residence and walked

toward his vehicle in the dark around 9:30 p.m. He saw a police officer shining his lights on several

residences. As Eubanks approached his vehicle, the officer pulled up and boxed his car in position.

       Eubanks alleged that the officer exited his vehicle with his gun drawn and pointed it at him.

He recognized the officer as Baylis based on his name tag and from the times when Baylis would

bring inmates to the Kent County Sheriff’s Department, where Eubanks occasionally handled intake

duty. Baylis told Eubanks that someone had called in complaining about a car blocking a driveway

at a residence in the area. With his gun drawn and trained on Eubanks, Baylis asked him for his

identification and registration. Eubanks identified himself as a deputy sheriff. Baylis held the gun

close to his head and demanded that he retrieve identification from his car. Baylis held the gun on

Eubanks while he opened the car, picked up his wallet, and showed Baylis his identification badge.

After seeing the badge, Baylis told Eubanks never to block a driveway again, holstered his gun, and

drove away.

       Eubanks complained to police internal affairs. Thereafter, Sergeant Charlotte Mason

conducted an investigation into the alleged incident and determined that pay records for the

department showed that Baylis was not on duty and was not paid for work on September 16, the

night of the alleged incident. She also found that the record of radio traffic did not show any parking

calls for the relevant time and place.

       Eubanks filed a complaint, alleging that Baylis violated his Fourth, Fifth, and Fourteenth

Amendment rights by applying excessive force. He alleged that the same rights were violated by the


                                                 -2-
City of Grand Rapids because it had a custom, policy, and practice of failing to discipline, train,

screen, supervise, transfer, counsel, or otherwise direct or control its police officers. He also claimed

a conspiracy to deprive him of his civil rights, pursuant to § 1985, based on Defendants’ alleged

conspiracy to cover up Baylis’s actions. He included state law claims of gross negligence and

intentional infliction of emotional distress.

        The district court granted Defendants’ motion for summary judgment and dismissed all of

Eubanks’s claims with prejudice. It concluded that Baylis could not have committed any misconduct

on September 16 based on two key findings. First, Baylis could not have been on duty that night

based on police records. Second, radio traffic did not indicate any parking complaint calls at the

relevant time and place.

ANALYSIS

        We review a district court’s grant of summary judgment de novo. Ciminillo v. Streicher, 434

F.3d 461, 464 (6th Cir. 2006). We “must assume the truth of the non-moving party’s evidence and

construe all inferences from that evidence in the light most favorable to the non-moving party.” Id.

§ 1983 Excessive Force Claim and State Law Claims

        The district court erred by granting summary judgment in favor of Defendants on Baylis’s

§ 1983 excessive force claim and his state law claims. The district court concluded that police time

sheets showed that Baylis was not working on the night of Monday, September 16, because there was

an X next to his name on the time sheet. Additionally, evidence in the record showed that Baylis

normally did not work on Mondays. However, he worked on Monday, September 23, a week after

the alleged incident, as indicated by overtime sheets, and there was an X next to his name on the time




                                                  -3-
sheet for that night. Therefore, the fact that he normally did not work on Mondays and the X entry

on the time sheet are not conclusive proof that he was off duty on September 16.

       There is a genuine issue of material fact as to whether there was a call to the police regarding

a car blocking a driveway at the relevant time and place. The district court concluded that the record

of radio traffic did not show any relevant calls, and cited this fact in support of its conclusion that

Baylis could not have applied excessive force to Eubanks on the night in question. Sergeant Mason

reviewed dispatch tapes for September 16, 2002, from 10:00 p.m. until 12:00 a.m. and found no

evidence of a parking complaint near Union Avenue, where Assenco lived. However, Eubanks’s

complaint stated that the incident occurred “at approximately 9:30 p.m.” Therefore, Sergeant Mason

did not review all of the dispatch tapes within the relevant time frame.

       Grand Rapids Chief of Police Harry Dolan sent a letter to Eubanks stating that “[t]here was

one parking complaint at 2146 [9:46 p.m.]- a female caller called about a vehicle blocking at 428

Union, SE.” Eubanks had left his car nearby while visiting Assenco’s residence at 532 Union, SE.

While Dolan’s letter reasserted that there was no air traffic from an officer responding to a complaint

on Union Avenue, it admitted that there was a call to the police about a car blocking a driveway in

the area. Sergeant Mason’s investigatory notes confirm the existence of this call. The 500 block of

Union Avenue was within Baylis’s assigned patrol area.

       Because it is possible that Baylis was on patrol in the area on September 16, Eubanks’s

affidavit is sufficient to create a genuine issue of material fact precluding summary judgment. His

affidavit was on file with the district court at the time of the summary judgment motion. Eubanks

provided consistent and plausible details of the alleged altercation, thus distinguishing this case from

Stegall v. Audette, 212 Fed. App’x 402 (6th Cir. 2006) (affirming summary judgment in favor of an


                                                 -4-
officer after the plaintiff identified her car as marked tactical 003419 when her car was marked

003297). Viewed in the light most favorable to Eubanks, his affidavit created a genuine issue of

material fact that precludes summary judgment.

§ 1983 Claim Against City of Grand Rapids

       Eubanks submitted evidence to create a genuine issue of material fact on his claim against

the City of Grand Rapids. He alleged that the City of Grand Rapids had an unconstitutional custom

or practice of failing to discipline, train, and screen its police officers, which contributed to the

unconstitutional actions of Baylis. Because the district court did not address this argument directly

and granted summary judgment in favor of Defendants on all claims, reasoning that Baylis could not

have been involved in the alleged incident, we remand this claim for further consideration.

§ 1985 Conspiracy Claim

       Eubanks alleged in his complaint that Baylis and his coworkers at the Grand Rapids Police

Department conspired to obstruct justice and to deprive Eubanks of his constitutional rights in

violation of 42 U.S.C. § 1985. However, he failed to point to any evidence that would create a

genuine issue of material fact that would support this claim of a conspiracy. We affirm the district

court’s grant of summary judgment to Defendants on this claim.

Unknown Officer

       We need not address extensively the district court’s conclusion that Eubanks’s claims fail

because an unknown officer accosted him. Eubanks has consistently and unequivocally alleged that

Baylis was the officer who held the gun to his head. He identified Baylis as the officer who accosted

him based on seeing Baylis’s name tag that night and from his previous acquaintance with Baylis.




                                                -5-
His § 1983 claim and his state law claims turn on the fact finder’s resolution of the allegation that

it was Officer Baylis who accosted him. He has never alleged that an unknown officer was involved.

CONCLUSION

       We AFFIRM the district court’s grant of summary judgment in favor of Defendants on

Eubanks’s § 1985 conspiracy claim. We REVERSE the grant of summary judgment in favor of

Defendants on all other claims and REMAND to the district court for further proceedings consistent

with this opinion.




                                                -6-
