Case 1:20-cv-00777-HYJ-RSK ECF No. 50, PageID.593 Filed 02/19/21 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`ALBERT J. RADSPIELER II, et al.,
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`Plaintiffs,
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`v.
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`CITY OF OTSEGO, MICHIGAN, et al.,
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`Defendants.
`___________________________________/
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`Case No. 1:20-cv-777
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`Hon. Hala Y. Jarbou
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`OPINION
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`This is a civil rights action brought under 42 U.S.C. § 1983. Briefly, Plaintiff Albert J.
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`Radspieler II alleges that Otsego police officer Brandon Weber unlawfully pulled him over for
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`speeding and subsequently threatened him with a firearm. Radspieler’s efforts to complain about
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`and publicize his encounter with Weber allegedly resulted in a campaign of retaliation by Otsego
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`officials, particularly then-Police Chief Gordon Konkle. Before the Court is Radspieler’s motion
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`for leave to file an amended complaint. (ECF No. 30.)
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`The amended complaint would do six things: (1) provide Radspieler’s full legal name,
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`Albert J. Radspieler II; (2) add The Albert J. Radspieler II Revocable Trust No. 1 as a Plaintiff;
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`(3) remove the Otsego Police Department as a Defendant; (4) add City Assessor Kevin Harris as
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`a Defendant; (5) provide more allegations regarding the speed limit on the road where Weber
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`stopped Radspieler; and (6) provide more allegations regarding Konkle’s failure to discipline
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`Weber for prior misconduct. Defendants do not oppose the first three amendments, but argue that
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`the proposed amendments regarding the final three items are futile and should be denied. The
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`Court agrees that the proposed allegations relating to amendments 4 and 5 are futile, but the extra
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`allegations pertaining to Weber’s allegedly unchecked misconduct are not futile. Radspieler’s
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`motion will be granted in part.
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`A. Traffic Stop
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`I. Background
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`The following allegations are taken from Radspieler’s proposed amended complaint.
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`(Proposed Am. Compl., ECF No. 32-3.) On August 19, 2017, Radspieler, a seventy-six-year-old
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`man, was driving in the City of Otsego. While driving on River Street, near Watson Road, Weber
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`passed Radspieler in the opposite lane, then turned around and began to follow Radspieler.
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`Suspecting that the officer intended to pull him over, Radspieler stopped his car in the road, opened
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`his door, and yelled to Weber that he would pull into his driveway, just about four houses away
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`and within sight. Radspieler did not simply pull over because River Street is “a two-lane road with
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`insufficient space on the side of the road to accommodate a vehicle.” (Id., PageID.239.)
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`As Radspieler continued toward his property, Weber briefly sounded his siren while
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`following. Radspieler stopped and activated his left turn signal to indicate that he would turn into
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`the nearest driveway. Before executing the turn, Radspieler looked in his rearview mirror and
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`noticed Weber had exited his vehicle. Radspieler again opened his car door to communicate with
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`Weber and saw the officer “approaching . . . with gun drawn and pointed at Radspieler’s face.”
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`(Id.) Weber holstered his weapon and explained that he had drawn it “because he thought
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`Radspieler ‘might be an ISIS terrorist.’” (Id.) Weber told Radspieler he was being stopped for
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`driving forty-four miles per hour in a zone where the speed limit was twenty-five. Radspieler
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`received a speeding ticket. Radspieler later went to court regarding the ticket, where he admitted
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`to impeding traffic (for staying in the middle of the road when Weber stopped him) but did not
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`admit to speeding. The speeding charge was dismissed and Radspieler paid a fine.
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`B. Legal Battle
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`Shaken by the encounter with Weber, Radspieler met with Otsego Police Chief Konkle a
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`few days later to inquire when Otsego police are permitted to draw their weapons on citizens. The
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`conversation moved to the August 19 traffic stop. Konkle recited a report authored by Weber
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`regarding the incident (Weber Report). The Weber Report indicated that “Radspieler was fleeing
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`. . . and that Weber had ‘chased him at least three blocks.’” (Id., PageID.248.) Konkle stated that
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`the rest of the Weber Report was illegible. Radspieler disputed the Weber Report’s account and
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`gave Konkle his version of the facts. Radspieler requested a copy of the Weber Report, but Konkle
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`refused, saying that it was not a true police report but instead an “evaluative piece” that did not
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`have to be turned over. (Id., PageID.249.) Konkle did provide Radspieler with Weber’s dash cam
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`footage of the incident, which apparently contradicts the facts contained in the report. The police
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`chief concluded that Weber acted appropriately and refused to discipline him for his conduct
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`during the August 19 traffic stop.
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`Dissatisfied, Radspieler tried to obtain the Weber Report through other channels. A few
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`days after meeting with Konkle, Radspieler went to the city clerk and requested a copy of the
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`Weber Report. The clerk refused. Radspieler made a series of requests under the Michigan
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`Freedom of Information Act, Mich. Comp. Laws § 15.231 et seq (FOIA). These requests were
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`denied for varying reasons. So Radspieler went to court. He filed a complaint in the 48th Judicial
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`Circuit Court to appeal the denial of the FOIA requests. The City of Otsego moved for summary
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`disposition. Various city officials, including the mayor and her husband, Konkle, the city manager,
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`and the city clerk, attended the summary disposition hearing. At the hearing, Radspieler stated
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`that he wanted the Weber Report “(1) to show the public that Weber had acted wrongfully, (2) to
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`show that the City officials were corrupt and were covering up Weber’s wrongdoing, and (3) to
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`show that Weber lied when he said that Radspieler fled and eluded Weber for over three blocks.”
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`(Id., PageID.250.)
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`C. Retaliation
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`According to Radspieler, Otsego officials did not appreciate the lawsuit.1 He says that
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`“Konkle orchestrated a campaign of harassment and discrimination against Radspieler in
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`retaliation for Radspieler speaking out publicly about Weber’s illegal stop and use of excessive
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`force, about Konkle’s refusal to impose any consequences on Weber, and about the City’s refusal
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`to release [the Weber Report].” (Id., PageID.251.) The alleged retaliation primarily took the form
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`of selective enforcement of city ordinances against Radspieler.
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`Through his trust, Radspieler buys old and run-down houses in Otsego to repair and resell
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`them. The properties he purchased often had miscellaneous junk lying around the yard. Radspieler
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`occasionally leaves construction materials out while working on a home refurbishment.
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`Technically, such things violated the City’s Blight Code, but Radspieler never got written up.
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`After the Weber Report litigation, however, Radspieler started to receive many written infractions
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`for Blight Code violations. Radspieler says only his properties were written up, even though
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`adjacent lots also had rubbish and other objects strewn about their yards. Even though Otsego
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`hired building inspectors to enforce the Blight Code, Radspieler alleges that Konkle began
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`personally inspecting his properties. Radspieler received many infractions; his neighbors received
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`none. A building inspector told Radspieler that “he disagreed with how the City was treating
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`Radspieler and his restoration of the houses in the City” and warned him that “‘[t]hey are out to
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`get you.’” (Id., PageID.256.)
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`1 It is not clear whether Radspieler succeeded in his efforts to obtain the Weber Report.
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`Radspieler alleges that City Assessor Harris also participated in the retaliation campaign.
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`In September 2017, Radspieler bought a property slated for demolition for $2,500. Some time
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`before the August traffic stop, Konkle told Radspieler that “‘[t]here should not be any [expletive]
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`taxes [on the property] at all, because it is in so bad a condition.’” (Id., PageID.254.) But later,
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`after the legal fight over the Weber Report, Radspieler alleges that Harris “would not decrease the
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`value even though the house was in terrible shape.” (Id.) Shortly after Radspieler purchased
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`another derelict property for $29,000, Harris raised the assessed value from $20,000 to $27,000.
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`Radspieler appealed to the City’s board of review, which reversed Harris. Harris then raised the
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`assessed value to $29,200.
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`D. Supervision of Weber
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`Radspieler also alleges that Weber had a history of questionable interactions with citizens
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`but was never disciplined by Konkle. In August 2016, Weber and a public safety officer with the
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`Plainwell Police Department were dealing with “a female citizen who was being combative in the
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`back of a patrol car.” (Id., PageID.261.) Weber “placed a tazer in the small of [her] back/shoulder
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`region and threatened to kill [her].” (Id.) The public safety officer reported the incident to his
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`sergeant, who forwarded the report to Konkle. Weber denied making the threat. Konkle did not
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`discipline him.
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`In April 2016, a female citizen complained that, during a dispute about her dog, Weber
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`“said she was being ‘a little pain in the ass.’” (Id.) The woman objected, and Weber responded
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`in a condescending manner. He also stated “‘[w]ho’s to say that something didn’t just slip out
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`when I was talking to you.’” (Id.) Konkle later met with Weber regarding the incident, and Weber
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`denied using profanity. Weber was not disciplined.
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`In July 2020, Weber “chased a man on an ATV for a petty civil infraction over five miles,
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`off-road, over a residential yard and a farmer’s field. Weber pursued the driver at speeds of up to
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`65 [miles per hour] with citizens and vehicular traffic in the vicinity.” (Id., PageID.261-262.) He
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`allegedly shouted profanities at the ATV driver through his patrol car’s PA system. By this time,
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`Konkle retired and Otsego had a new police chief. The new chief asked Weber why he would
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`engage in a high-speed chase over a petty civil infraction. Weber replied that he “‘wanted to catch
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`that motherfucker.’” (Id., PageID.262.) Weber received a written reprimand.
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`A. Leave to Amend
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`II. Standards
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`“A party may amend its pleading once as a matter of course” within 21 days of service.
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`Fed. R. Civ. P. 15(a)(1)(A). Where the 21-day period has elapsed, “[t]he court should freely give
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`leave” to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A “district court
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`may weigh the following factors when considering a motion to amend: undue delay or bad faith in
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`filing the motion, repeated failures to cure previously-identified deficiencies, futility of the
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`proposed amendment, and lack of notice or undue prejudice to the opposing party.” Knight Capital
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`Partners Corp. v. Henckel AG & Co., 930 F.3d 775, 786 (6th Cir. 2019). Futility exists where “the
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`pleading as amended could not withstand a motion to dismiss.” Hoover v. Langston Equip.
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`Assocs., Inc., 958 F.2d 742, 745 (6th Cir. 1992) (internal quotations omitted).
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`B. Failure to State a Claim
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`To determine whether a pleading fails to state a claim, courts must ask whether the plaintiff
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`has alleged “facts that, if accepted as true, are sufficient to raise a right to relief above the
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`speculative level,’ and . . . ‘state a claim to relief that is plausible on its face.’” Hensley Mfg. v.
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`ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550
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`U.S. 544, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw a reasonable inference that the defendant is liable for the misconduct
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`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausible does not mean probable, but the
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`standard “asks for more than a sheer possibility that a defendant has acted unlawfully . . . . Where
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`a plaintiff pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
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`the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550
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`U.S. at 557).
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`On a motion to dismiss, courts must accept factual allegations as true, but will reject
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`conclusory statements as “not entitled to the assumption of truth.” Id. (citing Twombly, 550 U.S.
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`at 555-56). Hence, courts will ignore conclusory assertions and, accepting well-pleaded factual
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`allegations as true, determine whether the allegations “plausibly give rise to an entitlement to
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`relief.” Id. Determining the plausibility of a claim is a “context-specific” inquiry, “requiring the
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`reviewing court to draw on its experience and common sense.” Id. If the Court decides that there
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`is no plausible claim to relief, then the plaintiff has failed to state a claim.
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`III. Analysis
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`Defendants challenge three broad purposes of the proposed amendments: (1) adding Harris
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`as a Defendant; (2) the expansion of Radspieler’s claims against the City “based upon a lack of a
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`traffic control order”; and (3) the expansion of Radspieler’s claims against the City and Konkle
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`for failing to discipline Weber for alleged misconduct prior to the August 2017 traffic stop. (Defs.’
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`Opp. Br., ECF No. 36, PageID.333.) The proposed amendments with respect to Harris and the
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`lack of a traffic control order are futile. The new allegations regarding Weber’s prior misconduct
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`are not.
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`A. Adding Harris as a Defendant
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`Radspieler wishes to sue Harris both as an individual and in his official capacity as City
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`Assessor. (Proposed Am. Compl., PageID.237.) Defendants argue that Harris cannot be sued in
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`his official capacity because such a claim ultimately flows against the City and is therefore
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`duplicative. (Defs.’ Opp. Br., PageID.334.) However, it is not clear to the Court where Harris is
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`even being sued in his official capacity.
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`Radspieler brings four counts. Count I alleges an illegal stop, use of excessive force, and
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`“constitutional violations” against Weber and the City. (Proposed Am. Compl., PageID.258.)
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`Count II seeks to impose municipal liability on the City for violations of the Fourth and Fourteenth
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`Amendments. (Id., PageID.263.) But the allegations in Count II make no mention of the allegedly
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`improper property value assessments. Count III alleges equal protection violations by Konkle and
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`Harris individually, but this claim is not brought against the City. (Id., PageID.269.) Count IV
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`asserts a First Amendment violation by Konkle alone. (Id., PageID.272.)
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`From these claims, the Court does not see where Radspieler seeks to hold any Defendant
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`liable for Harris’ actions in his official capacity. Under the notice-pleading standard, courts are
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`not to nitpick allegations or deny a plaintiff his day in court for an inelegant complaint. See
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`Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (The “‘basic objective’” of the Federal Rules of
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`Civil Procedure “‘is to avoid civil cases turning on technicalities.’” (quoting 5 C. Wright & A.
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`Miller, Federal Practice & Procedure § 1215 (2d ed. 1995))). But defendants must know how
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`they are to be held liable for their alleged misconduct. The Court cannot discern how an action
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`against Harris in his official capacity fits into any of the claims brought. The relevant proposed
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`amendments are thus futile and may not be added to the complaint.
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`Count III names Harris in his individual capacity. The scant allegations against him are
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`insufficient. Harris purportedly raised the assessed property values on several properties
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`purchased by Radspieler. Radspieler asserts that these actions were another facet of the City’s
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`retaliation campaign. But there is no indication that Harris raised property assessments for
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`malicious reasons. Radspieler also alleges that he was treated differently compared to previous
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`owners of the properties he purchased. However, unlike his allegations against Konkle, nothing
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`indicates that Radspieler was treated worse than other, contemporaneous property owners. He
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`says that blight ordinances were selectively enforced against him alone, but does not make such
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`allegations with respect to property value assessments. Radspieler has not stated a claim against
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`Harris and the proposed allegations against him will be denied.
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`B. The Speed Limit on River Street
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`Radspieler’s proposed amendments would add a slew of allegations speaking to the speed
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`limit on River Street when he was stopped by Weber in August 2017. The gravamen of these
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`allegations is that, though there was a posted speed limit of twenty-five miles per hour, the City’s
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`failure to enact proper laws meant that the posted speed limit was ineffective. Without such proper
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`laws in effect, the speed limit on River Street would be governed by Michigan’s “basic speed law,”
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`Mich. Comp. Laws § 257.627(1). The basic speed law states that:
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`[a] person operating a vehicle on a highway shall operate that vehicle at a careful
`and prudent speed not greater than nor less than is reasonable and proper, having
`due regard to the traffic, surface, and width of the highway and of any other
`condition existing at the time. A person shall not operate a vehicle upon a highway
`at a speed greater than that which will permit a stop within the assured, clear
`distance ahead.
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`Id.
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`The legal speed limit is vital to Radspieler’s claim against the City of Otsego.
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`Municipalities can be held liable if their policies or actions result in a violation of constitutional
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`rights. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). So-called
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`Monell claims can also be brought where a municipality’s failure to act “evidences a deliberate
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`indifference to the constitutional rights of its inhabitants.” City of Canton v. Harris 489 U.S. 378,
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`389 (1989). A successful deliberate indifference claim requires causation, i.e. the plaintiff must
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`prove that his constitutional rights would not have been violated if the municipality had acted. Id.
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`Here, therefore, Radspieler must show that he was illegally stopped by Weber and that the
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`illegal stop would not have occurred if the City had passed appropriate laws effectuating the posted
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`speed limit or instead instructed police that the basic speed law governed River Street. The
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`problem is that Radspieler has not shown that he was illegally stopped. Assuming the basic speed
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`law governed the relevant portion of River Street, Radspieler must show that he was driving at a
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`“reasonable and proper” speed under the circumstances. If Radspieler was driving at a speed that
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`violated the basic speed law, then the challenged traffic stop was not unlawful. This is true even
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`if Weber pulled him over on the false premise of violating the posted speed limit of twenty-five
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`miles per hour. Whren v. United States, 517 U.S. 806, 810 (1996) (traffic stop is reasonable,
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`regardless of subjective intent, where there is probable cause of violation); see Heien v. North
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`Carolina, 574 U.S. 54, 60 (2014) (only reasonable suspicion of traffic violation required to stop a
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`vehicle).
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`In his reply brief, Radspieler states that he “was not travelling at an unsafe speed” in
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`violation of the basic speed law. (Pls.’ Reply Br., ECF No. 45, PageID.483.) But he makes no
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`such allegation in his proposed amended complaint. What matters is not what he asserts in briefs,
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`but what is contained in the complaint. Without any allegations regarding his speed or other indicia
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`of compliance with the basic speed law, Radspieler cannot say that he would not have been pulled
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`over by Weber if the City had properly enacted laws. Indeed, he cannot even say that he would
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`not have been pulled over if Weber had been applying the basic speed law rather than the posted
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`twenty-five mile per hour limit, as he was apparently required to do. The proposed allegations
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`regarding the true speed limit on River Street fall short of stating a claim and are therefore futile.
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`C. Supervision of Weber
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`Radspieler also asserts that Weber drawing his gun during the August traffic stop gives rise
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`to a deliberate indifference Monell claim against the City. The argument is as follows: (1) Weber
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`misbehaved in past police encounters, exhibiting overly aggressive behavior; (2) Konkle knew
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`about such incidents but declined to discipline Weber; (3) an unchecked Weber unjustifiably pulled
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`his gun on Radspieler during a routine traffic stop, another instance of overly aggressive behavior
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`and a violation of Radspieler’s constitutional rights; and (4) as evidenced by Weber’s reprimand
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`in 2020, if Konkle had properly scolded Weber prior to August 2017, he would not have pointed
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`a gun at Radspieler.
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`This argument is built on the allegations of Weber’s inappropriate behavior in April and
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`August 2016. Defendants say these incidents are unsubstantiated and irrelevant and therefore do
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`not belong in Radspieler’s complaint. Both arguments are meritless. For the purposes of the
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`present motion, Radspieler’s proposed allegations are treated as true. He says these incidents of
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`misconduct happened and so the Court assumes that they did.
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`They are also relevant. To show deliberate indifference in the Monell context, Radspieler
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`must show that the Defendants were on notice of Weber’s misconduct and realized that a failure
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`to act could result in future constitutional violations. Bd. of Cnty. Comm’rs of Bryan Cnty. v.
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`Brown, 520 U.S. 397, 410 (1997). Notice exists only where the past misconduct is sufficiently
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`similar to the alleged violation behind the Monell claim. Connick v. Thompson, 563 U.S. 51, 66-68
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`(2011). In the August 2016 incident, Weber allegedly threatened to kill a “combative” woman in
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`the back of a patrol car. (Proposed Am. Compl., PageID.261.) The exact circumstances are not
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`entirely clear, but apparently Weber’s actions were so out of bounds that another police officer
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`complained about it. Similarly, Weber threatened lethal force against Radspieler for seemingly
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`minor misconduct.
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`The April 2016 incident, where Weber allegedly swore at woman about her dog, is a closer
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`call. But this allegation is not as obviously futile as others addressed earlier in this opinion.
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`Drawing inferences in Radspieler’s favor, the July 2020 incident shows that disciplinary action
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`would have reigned in Weber’s alleged misbehavior. The Court will grant Radspieler leave to add
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`allegations relating to Defendants’ failure to supervise Weber.
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`IV. Conclusion
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`For the foregoing reasons, the Court will grant Radspieler’s motion for leave to amend in
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`part. He may amend the complaint to: (1) provide his full legal name; (2) add The Albert J.
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`Radspieler II Revocable Trust No. 1 as a Plaintiff; (3) remove the Otsego Police Department as a
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`Defendant; and (4) provide more allegations regarding Konkle’s failure to discipline Weber for
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`prior misconduct. The proposed amendments relating to Harris as a Defendant and the speed limit
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`on River Street are futile and Radspieler’s motion will be denied in those respects. An order will
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`enter consistent with this Opinion.
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`Dated: February 19, 2021
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`/s/ Hala Y. Jarbou
`HALA Y. JARBOU
`UNITED STATES DISTRICT JUDGE
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