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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NIKITA SMITH AND
KEVIN THOMAS

)
)
)
Plaintiffs,
)
)
v.
)
Case No.
)
CITY OF DETROIT, AND
)
POLICE OFFICER JOHN GAINES,
)
POLICE OFFICER JOHN MORRISON,
)
POLICE OFFICER JOHN PAUL,
)
POLICE OFFICER JOHN DOE NO. 1,
)
POLICE OFFICER JANE DOE NO. 1,
)
Defendants.
)
____________________________________________________________/
COMPLAINT
Plaintiffs Nikita Smith and Kevin Thomas, by and through his
attorney, Olson PLLC, states the following for her Complaint against
Defendant City of Detroit (“Defendant City”) and Defendant Police Officer
John Gaines (“Gaines”), Police Officer John Morrison (“Morrison”), Police
Officer John Paul (“Paul”), Police Officer John Doe No. 1 and Police
Officer Jane Doe No. 1:
1.

This is a civil action arising under 42 U.S.C. § 1983 and

common law avenues of recovery for deprivations of Plaintiff’s rights.

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Plaintiffs sue the individual Defendants in their individual

capacities.
JURISDICTION
3.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §

1331, 1367(a) and § 1341.
VENUE
4.

Venue is proper under 28 U.S.C. § 1391(b).

5.

At all times relevant herein, Plaintiffs resided in and were

citizens of Detroit, Michigan.
6.

Defendant City is a political subdivision of the State of

Michigan acting under color of State law, and is a person for purposes of a
42 U.S.C. § 1983 action.
7.

Defendants Gaines, Morrison, Paul, John Doe No. 1 and Jane

Doe No. 1 were at all relevant times police officers employed by Defendant
City.
COLOR OF STATE LAW
8.

At all times relevant herein, Defendants Gaines, Morrison,

Paul, John Doe No. 1 and Jane Doe No. 1 acted under color of state law.
9.

Particularly, Defendants Gaines, Morrison, Paul, John Doe No.

1 and Jane Doe No. 1 acted under color of the laws, statutes, ordinances,

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regulations, policies, customs and usages of the State of Michigan, and its
political subdivisions, including the City of Detroit.
FACTUAL BACKGROUND
10.

On or about January 14, 2016, Plaintiffs owned three dogs,

Debo, Mama who was pregnant at the time and Smoke.
11.

On or about January 14, 2016, Plaintiffs and their three dogs

resided at 18488 Sussex, Detroit, Michigan 48235.
12.

On or about January 14, 2016 at approximately 12:30 p.m., a

large number of Defendant City’s police officers arrived at the residence,
including Defendants Gaines, Morrison, Paul, John Doe No. 1 and Jane Doe
No. 1 to execute a search warrant.
13.

Only Plaintiff Nikita Smith was present at the residence at that

14.

When Detroit Police officers knocked on the door, Plaintiff

time.

Nikita Smith said to the police officers, “let me put my dogs down in the
basement.”
15.

Thus, Defendants knew prior to entry that Plaintiffs’ dogs were

present on the property and that Plaintiff Nikita Smith was going to
sequester them.

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Therefore, Defendants’ dogs were no surprise to Defendants

because Plaintiff Nikita Smith told them she was going to “put my dogs in
the basement.”
17.

Next, Plaintiff Nikita Smith placed two of her dogs, Debo and

Mama, in the basement and blocked the entryway to the basement.
18.

Plaintiffs other dog, Smoke, was sequestered in the bathroom

with the door closed.
19.

Defendant police officers next entered the residence without

permission.
20.

Plaintiffs’ dog Debo got past the obstruction from the basement

and sat next to Plaintiff Nikita Smith.
21.

As Plaintiff Nikita Smith reached down to her dog Debo,

Defendant police officers shot Debo multiple times.
22.

Plaintiff Nikita Smith was down range from the gunfire and in

close proximity to it.
23.

Plaintiff Nikita Smith watched her dog, Debo, die on the floor

next to her.
24.

Next, with advance knowledge of a dog in the basement, three

Detroit police officers stormed down into the basement where the police
officers shot to death Plaintiffs’ dog Mama, a pregnant female dog.

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25.

Mama was not barking or attacking the police at any time.

26.

Mama died in a pool of blood in the corner of the basement.

27.

Next, Defendant Gaines and Paul made their way to the

bathroom where Plaintiff’s dog Smoke was sequestered behind the closed
bathroom door.
28.

A police officer exclaimed that “there is a dog in the

bathroom.”
29.

Plaintiff Smith next witnessed a police officer open the

bathroom door and verify that Smoke was in the bathroom by cracking the
door open and then closing it again.
30.

A police officer then asked, “should we do that one, too?”

31.

Another officer responded, “yes.”

32.

Defendant Gaines and Paul then fired multiple shots through

the closed bathroom door, which killed Smoke. (Exhibit 1.)
33.

After the gunfire was over, Officer Gaines laughed and said to

another Detroit City police officer, “did you see that? I got that one good!”
34.

A police officer next said to Plaintiff Nikita Smith that, “I

should have killed you, too.”
35.

Later, the same Detroit police officer said to Plaintiff Nikita

Smith, “you could have been killed.”

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None of Plaintiffs’ dogs attacked or threatened and Defendant

in any way.
37.

It was objectively unreasonable to shoot Plaintiffs’ dogs.

38.

Indeed, Defendant police officers acted as dog death squad and

stormed through the house executing Plaintiffs’ dogs as they went.
39.

City of Detroit Animal Control removed the bodies of

Plaintiffs’ three dogs enclosed in plastic bags.
40.

Plaintiffs issued a FOIA Request to the City, in which the City

declined to identify further the police officers that shot Plaintiffs’ dogs.
(Exhibit 2.)
COUNT I
VIOLATION OF CIVIL RIGHTS
42 U.S.C. § 1983 AND FOURTH AMENDMENT
AGAINST THE INDIVIDUAL DEFENDANTS
FOR COMPENSATORY DAMAGES, PUNITIVE DAMAGES
AND ATTORNEY’S FEES
41.

Plaintiffs re-allege all of the preceding paragraphs.

42.

The Fourth Amendment of the United States Constitution, U.S.

Const. amend. IV, prohibits the government from unreasonably destroying
or seizing a citizen’s property.
43.

"The destruction of property by state officials poses as much of

a threat, if not more, to people's right to be 'secure . . . in their effects' as
does the physical taking of them." Fuller v. Vines, 36 F.3d 65, 68 (9th Cir.
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1994), overruled on other grounds, Robinson v. Solano County, 278 F.3d
1007, 1013 (9th Cir. 2002) (citation omitted).
44.

"The killing of [a] dog is a destruction recognized as a seizure

under the Fourth Amendment" and can constitute a cognizable claim under §
1983. Id.
45.

Dogs are more than just a personal effect. San Jose Charter of

the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th
Cir. 2005) (holding that defendant police’s shooting of plaintiff’s dogs was
an unreasonable seizure in particular where defendant police officers had
notice of the dog’s presence and were not surprised by them and had no plan
to deal with the dog other than by shooting it).
46.

The emotional attachment to a family's dog is not comparable

to a possessory interest in furniture. Id.
47.

Indeed, Plaintiffs’ Fourth Amendment interests involved are

substantial because "the bond between a dog owner and his pet can be strong
and enduring," and Plaintiffs think of their dogs “in terms of an emotional
relationship, rather than a property relationship." Altman v. City of High
Point, N.C., 330 F.3d 194, 205 (4th Cir. 2003).
48.

In circumstances where, as here, the dogs do not pose an

imminent threat, or the officer is not surprised by the dog and has had time

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to make alternate plans to control the dog, other than shooting, the shooting
of the dog has been found to be an unreasonable seizure. Dziekan v. Gaynor,
376 F. Supp. 2d 267, 270-71 (D. Conn. 2005). (citing cases and discussing
San Jose Charter of the Hells Angels Motorcycle Club, 402 F.3d at 975).
49.

Defendants’

acts

described

herein

were

objectively

unreasonable allowing for the fact that police officers are often forced to
make split-second judgments — in circumstances that are tense, uncertain,
and rapidly evolving — about the amount of force that is necessary in a
particular situation." Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct.
1865, 104 L. Ed. 2d 443 (1989).
50.

Indeed, Defendants’ acts described herein were intentional,

grossly negligent, amounted to reckless or callous indifference to Plaintiff’s
constitutional rights.
51.

Defendants’ premeditated shooting and killing of Plaintiffs’

dogs was unreasonable under the totality of the circumstances and therefore
constituted an unreasonable seizure under the Fourth Amendment in
particular because there was no exigency and police officers could have
conducted their business without killing Plaintiffs’ dogs.
52.

Defendants premeditated shooting and killing of Plaintiffs’

dogs was more intrusive than necessary. Florida v. Royer, 460 U.S. 491,

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504 (1983) (“A seizure becomes unlawful when it is 'more intrusive than
necessary”).
53.

No governmental interest justifies the intrusion involved in this

54.

Defendants’ shooting and killing of all of Plaintiffs’ dogs was

case.

objectively unreasonable because none of them surprised, threatened or
attacked any Defendant. Indeed, Debo sat next to Plaintiff Nikita Smith
when she was shot to death.

Mama cowered in the basement when

Defendants went down and shot her to death. Finally, Smoke was locked in
the bathroom when she was shot to death through the closed bathroom door.
55.

There was no exigency and Defendants were not in any

immediate danger that would have justified the use of deadly force. Fuller v.
Vines, 36 F.3d 65 (9th Cir. 1994).
COMPENSATORY DAMAGES
56.

Under 42 U.S.C. § 1983 Plaintiffs are entitled to an award of

compensatory damages against each individual Defendant in their individual
capacity.
57.

Compensatory damages include mental anguish and suffering.

Moreno v. Hughes, 2016 U.S. Dist. LEXIS 5697 ( E.D. Mich. Jan. 19,
2016).

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PUNITIVE DAMAGES
58.

The individual Defendants’ actions were:
a.

Reckless;

b.

Showed callous indifference toward the rights of
Plaintiffs; and

c.

Were taken in the face of a perceived risk that the actions
would violate federal law.

59.

Plaintiffs are entitled to an award of punitive damages against

each individual police officer in their individual capacity, in order to punish
them and to deter others.
60.

Apparently, such deterrence is necessary in light of the fact that

Detroit Police Officer Darrell Dawson unreasonably shot and killed Detroit
citizen Darryl Lindsay’s dog, Babycakes, which culminated in a November
18, 2015 settlement by the City of $100,000 that was apparently insufficient
to deter Defendant police officers from the January 14, 2016 shooting of
dogs in violation of the Fourth Amendment.
ATTORNEY’S FEES
61.

Under 42 U.S.C. § 1988 if Plaintiffs are the prevailing party in

this litigation, then they will be entitled to receive an award of reasonable
attorney’s fees, non-taxable expenses and costs.

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WHEREFORE, Plaintiffs request a judgment under 42 U.S.C. § 1983
and 1988 against the individual Defendants in their individual capacity, for
compensatory damages in a fair and reasonable amount, for punitive
damages, for reasonable attorney’s fees, for and non-taxable expenses, for
costs, and Plaintiffs pray for such other relief as may be just under the
circumstances and consistent with the purpose of 42 U.S.C. § 1983.
COUNT II
VIOLATION OF CIVIL RIGHTS
42 U.S.C. § 1983 AND FOURTH AMENDMENT
AGAINST DEFENDANT CITY
FOR COMPENSATORY DAMAGES AND ATTORNEY’S FEES
62.

Plaintiffs re-allege their prior allegations.
COMPENSATORY DAMAGES
1ST ALTERNATIVE BASIS OF MUNICIPAL LIABILITY
DELEGATION TO INDIVIDUAL DEFENDANT

63.

As the first alternate basis for liability against Defendant City,

the policy maker for Defendant City, the mayor, or someone else, and that
person delegated full authority and/or empowered

the individual

Defendant’s policy.
64.

That delegation of authority by the actual policy maker of

Defendant City placed the individual Defendant in a policy making position,
and the acts of the individual Defendant may fairly be said to be those of the

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municipality. Id. at 483, and Kujawski v. Board of Com’rs of Bartholomew
County, Ind., 183 F.3d 734, 737 (7th Cir. 1999).
65.

Those acts therefore subject Defendant City to liability for the

constitutional violations of the individual Defendant. Id. at 483; Kujawski v.
Board of Com’rs of Bartholomew County, Ind., 183 F.3d 734, 737 (7th Cir.
1999).
2ND ALTERNATIVE BASIS OF MUNICIPAL LIABILITY – FAILURE TO TRAIN,
SUPERVISE, CONTROL
66.

As the second alternative basis for liability against Defendant

City, Defendant City failed to properly hire, train, supervise, control and/or
discipline the individual Defendant with respect to dogs such as Plaintiffs’
dogs, who live throughout the City.
67.

Defendant City was thus deliberately indifferent to the rights of

others in adopting its hiring and training practices, and in failing to
supervise, control and/or discipline the individual Defendant such that those
failures reflected a deliberate or conscious choice by Defendant City made
from among various alternatives. City of Canton v. Harris, 489 U.S. 378,
389 (1989).
68.

Those deficiencies were the moving force that caused Plaintiffs

damages. Larson By Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996).

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In light of the fact that it was the individual Defendant who

engaged in the constitutional violations, the need to correct the deficiencies
is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of Defendant City can reasonably
be said to have been deliberately indifferent to the need. Andrews v. Fowler,
98 F.3d 1069, 1076 (8th Cir. 1996).
70.

If Defendant City had properly hired, trained, supervised,

controlled and/or disciplined the individual Defendant, the constitutional
violations committed by the individual Defendant would not have occurred.
71.

These failures by Defendant City to hire, train, supervise,

control and/or discipline the individual Defendant subject Defendant City to
liability for the constitutional violations committed by the individual
Defendant.
72.

On information and belief, Defendant City had no policy or

training in place in how to handle a dog chained to the side of the house,
which was evident in Defendants’ actions alleged herein.
73.

Such training was at all relevant times available online at no

cost to Defendant City.

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COMPENSATORY DAMAGES
74.

Under 42 U.S.C. § 1983, Plaintiffs are entitled to an award of

compensatory damages against Defendant City.
ATTORNEY’S FEES
75.

Under 42 U.S.C. § 1988 if Plaintiffs are the prevailing party in

this litigation, then they will be entitled to receive an award of reasonable
attorney’s fees, non-taxable expenses and costs.
THEREFORE, Plaintiffs request a judgment under 42 U.S.C. § 1983
and 1988 against Defendant City for compensatory damages in a fair and
reasonable amount, for reasonable attorney’s fees, and non-taxable expenses,
for costs and such other relief as may be just under the circumstances and
consistent with the purpose of 42 U.S.C. § 1983.
COUNT III
VIOLATION OF CIVIL RIGHTS
42 U.S.C. § 1983, RESPONDEAT SUPERIOR
AGAINST DEFENDANT CITY
FOR COMPENSATORY DAMAGES AND ATTORNEY’S FEES
76.

Plaintiffs re-allege their prior allegations.

77.

At all relevant times the individual Defendants were:
a.

Serving as an employee of Defendant City as a police
officer;

b.

Engaging in a government function; and

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Acting within the course and scope of that employment.

78.

Defendant City is liable under a theory of respondeat superior.

79.

The actions of the individual Defendant caused Plaintiffs to

suffer the damages outlined herein.
COMPENSATORY DAMAGES
80.

Under 42 U.S.C. § 1983, Plaintiffs are entitled to an award of

compensatory damages against Defendant City.
ATTORNEY’S FEES
81.

Under 42 U.S.C. § 1988 if Plaintiffs are the prevailing party in

this litigation, then he will be entitled to receive an award of reasonable
attorney’s fees, non-taxable expenses and costs.
THEREFORE, Plaintiffs request a judgment under 42 U.S.C. § 1983
and 1988 against Defendant City for compensatory damages in a fair and
reasonable amount, for reasonable attorney’s fees, and non-taxable expenses,
for costs and such other relief as may be just under the circumstances and
consistent with the purpose of 42 U.S.C. § 1983.
COUNT IV
CONVERSION
82.

Plaintiffs repeat their prior allegations.

83.

"Conversion is any distinct act of dominion wrongfully exerted

over another's personal property in denial of or inconsistent with his rights
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therein." Thoma v. Tracy Motor Sales, Inc., 360 Mich. 434, 438, 104
N.W.2d 360 (1960)(quoting Nelson & Witt v. Texas Co., 256 Mich 65, 70)).
84.

Defendants’ execution of Plaintiffs’ three dogs was a distinct

act of dominion wrongfully exerted over Plaintiffss dog in denial of or
inconsistent with Plaintiffs’ rights.
THEREFORE, Plaintiffs request relief under applicable law or in
equity, including, without limitation, a judgment and an award of statutory
treble damages and all reasonable costs, interest and attorney fees. M.C.L. §
600.2919a.
COUNT V
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
85.

Plaintiffs incorporate their prior allegations.

86.

Defendants’ conduct described herein was extreme and

outrageous conduct because it was beyond all possible bounds of decency
and could be regarded as atrocious and utterly intolerable in a civilized
community and would (and in fact has) cause an average member of the
community would . . . exclaim, “Outrageous!”
87.

Defendants’ actions described herein were intentional or

reckless.

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Defendants’ actions caused Plaintiffs severe emotional distress

so severe that no reasonable person could be expected to endure it, including
without limitation, severe horror, grief and anger over the loss of Plainitffs’
dogs, nausea, inability to eat, loss of sleep, inability to concentrate, concern
and fear for his safety. Haverbush v. Powelson, 217 Mich. App. 228, 234-35
(1996).
THEREFORE, Plaintiffs request a judgment for damages, exemplary
damages, reasonable attorneys’ fees and costs and any other relief that the
Court deems just and equitable.
Respectfully submitted,
Olson PLLC

s/Christopher S. Olson_______
Christopher S. Olson (P58780)
32121 Woodward Avenue
Suite 300
Royal Oak, Michigan 48073
(248) 672-7368
(248) 415-6263 Facsimile
colson@olsonpllc.mygbiz.com
Attorneys for Plaintiffs
May 25, 2016
Detroit, Michigan

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DEMAND FOR JURY TRIAL
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs
demands trial by jury in this action of all issues so triable.
Respectfully submitted,
Olson PLLC

s/Christopher S. Olson_______
Christopher S. Olson (P58780)
32121 Woodward Avenue
Suite 300
Royal Oak, Michigan 48073
(248) 672-7368
(248) 415-6263 Facsimile
colson@olsonpllc.mygbiz.com
Attorneys for Plaintiffs
May 25, 2016
Detroit, Michigan

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