                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0583n.06
                             Filed: July 11, 2005

                                             No. 03-2421

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


KEVIN L. ADAMS; BOBBIE                 )
ADAMS,                                 )
                                       )                    ON APPEAL FROM THE
      Plaintiffs-Appellants,           )                    UNITED STATES DISTRICT
                                       )                    COURT FOR THE EASTERN
v.                                     )                    DISTRICT OF MICHIGAN
                                       )
CITY OF AUBURN HILLS et al.,           )
                                       )                            OPINION
      Defendants-Appellees.            )
_______________________________________)


Before: MOORE and COOK, Circuit Judges, and GWIN,* District Judge.

        KAREN NELSON MOORE, Circuit Judge. This is a 42 U.S.C. § 1983 case asserting

excessive force and illegal search in violation of the Fourth Amendment. Following our reversal

of a portion of the district court’s decision on interlocutory appeal, Adams v. City of Auburn Hills,

336 F.3d 515, 520 (6th Cir. 2003) (“Adams I”), the district court entered an order denying all relief.

As we have previously concluded that Plaintiff-Appellant Kevin L. Adams (“Mr. Adams”) did not

suffer a violation of his right to be free from excessive force, and as neither Mr. Adams nor Plaintiff-

Appellant Bobbie Adams (“Mrs. Adams”)1 challenges the district court’s conclusion that none of




        *
        The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
        1
         Mrs. Adams is Mr. Adams’s mother.
the named defendants participated in the alleged illegal search of their home, we AFFIRM the

judgment of the district court.

                                      I. BACKGROUND

       We have previously set forth the background to this case:

       This case arises from a domestic dispute that resulted in Officer Backstrom’s
       shooting at the car Kevin Adams was driving. On the evening of March 8, 1999,
       Kevin Adams rented a room at the Motel 6 in Auburn Hills, Michigan, with an old
       girlfriend. Adams drove a Ford Taurus to the motel. Earlier that year, Geisha
       Breckenridge, Adams’s ex-girlfriend, agreed to sell the Taurus to Adams.
       Breckenridge allowed Adams to use the car while he purchased it.

       In the early morning hours of March 9, 1999, Breckenridge spotted the Taurus at the
       motel. Using a tire iron, she smashed in the window of the room in front of the
       Taurus. Unbeknownst to Breckenridge, it was not the room occupied by Adams.
       Adams heard the commotion, however, and stayed in his rented room.

       Motel 6 employees called the Auburn Hills police department. Sergeant Glenn
       Heath and Officer Brian Martin responded to the call. They found Breckenridge in
       the back seat of her car in the motel parking lot. Breckenridge admitted breaking the
       window, and she told the officers she was there because Adams was with another
       woman. Breckenridge also said she wanted to retrieve her keys to the Taurus,
       although she admitted allowing Adams to use the Taurus.

       After Breckenridge was in police custody, Officer John Backstrom arrived at the
       scene. Sgt. Heath, as the higher-ranking officer, told Backstrom that his presence
       was not needed and that he could leave. As Backstrom was leaving, a motel guest
       asked the officer for assistance unlocking his car.

       Shortly thereafter, Sgt. Heath noticed that Adams was attempting to leave the motel
       in the Taurus. Sgt. Heath yelled to Officer Backstrom — who was across the parking
       lot near the exit — to stop the Taurus and retrieve Breckenridge’s keys.

       According to Adams, as he drove towards the motel exit, Officer Backstrom walked
       in front of the Taurus with his gun in one hand and his other hand up for Adams to
       stop. Adams stopped the vehicle and stood halfway outside the vehicle with his left
       hand on the top of the door and his right hand on top of the car. Adams asked
       Backstrom if he had broken any law and the officer replied that he had not. Adams
       then told Backstrom that because he had not broken any laws, he was leaving.
       Backstrom yelled for Adams to get out of the car three times and held his gun near
       the driver’s side window. When Adams did not move, Adams claims Officer

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         Backstrom fired two shots into the driver’s side door. As Adams drove away,
         Backstrom fired two more shots at the Taurus’s left rear wheel and mud flap.

         Though Officer Backstrom’s shots had struck the Taurus, Adams was able to drive
         to the home of his mother, Bobbie Adams. Auburn Hills police issued a report
         regarding the Taurus. Pontiac, Michigan, police spotted the Taurus in front of
         Bobbie Adams’s home. When police officers came to the back door of the home,
         Kevin Adams ran out the front door. Bobbie Adams told the officers that she had not
         seen her son, and she would not allow the officers to search the home. The officers
         set up surveillance at the house. Later that morning, Bobbie Adams allegedly
         consented to a search of her home. A yellow jacket that Kevin Adams reportedly
         wore at the motel was found inside the home. The police impounded the Taurus.
         Kevin Adams subsequently surrendered with his attorney.

         The Oakland County Prosecutor’s Office charged Adams with driving with a
         suspended license and assault with intent to do great bodily harm for attempting to
         run down Officer Backstrom. A jury convicted Adams on the suspended license
         charge but acquitted him on the assault charge.

Adams I, 336 F.3d at 516-17 (footnote omitted). The Adamses initially asserted claims against

multiple parties for violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United

States Constitution. Ruling from the bench, the district court dismissed2 the Fifth and Eighth

Amendment claims, as well as the Fourteenth Amendment Due Process Clause claims, for failure

to state a claim on which relief could be granted. As to the Fourth Amendment excessive-force and

illegal-search claims, the district court dismissed those against the Auburn Hills Police Department

for failure to state a claim on which relief could be granted. After concluding that the Adamses had

not established a genuine issue of material fact as to either of two alleged official policies or customs

(failure to train and inadequate screening), the district court granted summary judgment on the

official-capacity claims against the various Auburn Hills officials. As to the individual-capacity

excessive-force claims, the district court granted summary judgment to Chief of Police Doreen E.


         2
          We use the terms dismissal or summary judgment as we believe intended by the district
court.

                                                   3
Olko (“Olko”), Police Sergeant Glenn Heath (“Heath”), and Police Lieutenant David Chase

(“Chase”). However, the district court denied summary judgment (including a denial of summary

judgment on the basis of qualified immunity) on the individual-capacity excessive-force claim

against Police Officer John Backstrom (“Backstrom”). As to the individual-capacity illegal-search

claims, the district court granted summary judgment to all defendants.

       Backstom filed an interlocutory appeal of the district court’s denial of his assertion of

qualified immunity. We reversed the district court’s decision without reaching the issue of qualified

immunity, concluding instead that Backstom’s conduct did not constitute a Fourth Amendment

violation. Adams I, 336 F.3d at 520. As Adams “ha[d] not alleged a constitutional violation to

support a § 1983 claim,” we concluded that “the question of whether Backstrom is entitled to

qualified immunity is moot,” and remanded the case to the district court for further proceedings.

Id. On remand, the district court entered an order “dismiss[ing] this cause of action with prejudice.”

J.A. at 503 (Sept. 23, 2003 Order to Dismiss). In this appeal, the Adamses appear to contend that

(1) the district court erred in granting qualified immunity on the individual-capacity claims against

Olko, Heath, and Chase, and (2) the district court erred in granting qualified immunity to the officers

for the search of the Adamses’ home.3




       3
        This litigating position rests on a misunderstanding of the district court’s decision, which
granted summary judgment to Olko, Heath, and Chase on the excessive-force claim, and to all
defendants on the illegal-search claim, without reaching the issue of qualified immunity. See J.A.
at 498-500 (March 13, 2002 Summ. J. Hr’g).

                                                  4
                                          II. ANALYSIS

A. Jurisdiction

       The district court had jurisdiction over this 42 U.S.C. § 1983 action pursuant to the general

federal question statute, 28 U.S.C. § 1331. We have jurisdiction over the appeal pursuant to 28

U.S.C. § 1291.

B. Excessive-Force Claims

       The excessive-force claims can be easily resolved. A prior panel of this court, in a published

decision, concluded that Backstrom’s conduct did not constitute excessive force in violation of the

Fourth Amendment. Adams I, 336 F.3d at 520. The Adamses have not alleged any other instance

of excessive force, only theories by which other defendants might be held liable for Backstrom’s

conduct. As the Adams I decision binds subsequent panels of this court, see 6th Cir. R. 206(c)

(“Reported panel opinions are binding on subsequent panels. . . . Court en banc consideration is

required to overrule a published opinion of the court.”), we must affirm the district court’s decision

to dismiss the remaining excessive-force claims.

C. Illegal-Search Claims

       At the summary judgment hearing, the Adamses did not contest the City’s position —

repeated and clarified at the request of the district court — that none of the named defendants in this

case participated in the search of the Adamses’ home. See, e.g., J.A. at 458, 464, 468, 478 (March

13, 2002 Summ. J. Hr’g). Instead of disputing this assertion, counsel for the Adamses merely

responded:

               Oh, and with regard to these particular defendants and Bobbie Adams and
       what these particular defendants have to do with the search of Bobbie Adams’ home
       or consent to search and any issues with regard to that, [it] should be noted that on
       the information provided, Lt. Chase sent the officers, and you can examine his

                                                  5
         deposition testimony. He sent the officer to surveil and search Lt., I mean, excuse
         me, plaintiff Bobbie Adams’ home.
                 So we do contend that the defendants, as named in this complaint, as well as
         people who did supervise these particular defendants, as named in this complaint, did
         participate in constitutional violations where Bobbie Adams is concerned.

J.A. at 490-91 (March 13, 2002 Summ. J. Hr’g). The district court specifically noted that none of

the named defendants were involved in, or responsible for, the search of the Adamses’ house. J.A.

at 499 (March 13, 2002 Summ. J. Hr’g). On appeal, the entirety of the Adamses’ argument on this

issue reads as follows:

                 The Fourth Amendment provides for the right of people to be secure in their
         persons, houses, papers and effects against unreasonable searches and seizures, shall
         not be violated (sic) and no warrants shall issue, but upon probable cause, supported
         by oath or affirmation, and particularly describing the place to be searched, and the
         persons or things to be seized.
                 The police entered Bobbie’s home without consent or a warrant. The police
         outnumbered Bobbie and used tactics to intimidated (sic) and demean her. They
         searched her home twice and removed contents from her home without a warrant.
                 These acts are clearly a violation of Bobbie’s 4th amendment right and which
         (sic) the Defendants should not be granted immunity.

Adams Br. at 25-26. In its brief, the City again raised the absence of any direct involvement by any

named defendants in this search. Auburn Hills Br. at 27. The Adamses did not file a reply brief.

As it is clearly uncontested that no named defendants were directly involved in the search, and as

the Adamses have pointed to no evidence suggesting that Heath made any improper instruction to

those conducting the search, we must affirm the district court’s decision to dismiss the illegal-search

claim.

                                        III. CONCLUSION

         We AFFIRM the judgment of the district court.




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