2:08-cv-13213 | E.D. Mich. | Mar 30, 2010
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK RUSSELL,
Plaintiff, Case No. 08-13213
Honorable Denise Page Hood
v.
CITY OF ROSEVILLE, KURT LATOUR,
RYAN MONROE, THOMAS PFEIFER, DONALD
GLANDON,
Defendants.
______________________________________/
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND SCHEDULING
STATUS CONFERENCE
I. INTRODUCTION
This matter is before the Court on Defendants’ Motion for Summary Judgment, filed on May
11, 2009. Plaintiff filed a Response to Defendants’ Motion for Summary Judgment on June 1, 2009.
Defendants filed a Reply to Plaintiff’s Response on June 10, 2009. A hearing was held on June 17,
2009.
II. STATEMENT OF FACTS
On July 25, 2008, Plaintiff, Patrick Russell, initiated this action pursuant to 42 U.S.C. §
1983, alleging violations of his Fourth and Fourteenth Amendment rights, as well as state law
violations against Defendants, City of Roseville, Officers Joseph McLeod, Ryan Moore, Kurt
Latour, Thomas Pfeifer, and Donald Glandon. Plaintiff asserts the following claims in his nine count
Complaint: Assault and Battery, Count I; False Arrest/False Imprisonment, Count II; Malicious
Prosecution, Count III; Fourth Amendment/Excessive Force, Count IV; Fourth
1
Amendment/Warrantless Search and Seizure, Count V; Fourth Amendment/Malicious Prosecution,
Count VI; Fourteenth Amendment/Deliberate Indifference to a Serious Medical Need, Count VII;
Gross Negligence, Count VIII; and Monell/Failure to Train, Count IX.
The facts giving rise to this action are, for the most part, entirely contested by the parties.
Plaintiff asserts that in the early morning hours of October 15, 2006, he was driving his vehicle
eastbound on Garfield Road in the City of Roseville when he noticed a police car following behind
him with its sirens activated, but he did not initially stop. See Plf.’s Resp., Ex. A, Dep. Tr. of P.
Russell, pgs. 39, 64. Plaintiff asserts that he did begin to stop once he saw Defendant LaTour, who
was standing outside his squad car.1 Id., pgs. 42-43. Plaintiff claims that despite significantly
slowing his vehicle down in order to come to a stop, Defendant LaTour deployed his “stop stick”
which caused Plaintiff’s car’s rear tires to deflate. Id., p. 26, Ex. D, Dep. Tr. of Joseph McLeod,
pgs. 24-25.
Conversely, Defendants argue that Defendants McLeod and Monroe were on patrol the night
of October 15, 2006, when they observed Plaintiff’s vehicle, a blue Cadillac, driving at fifty six (56)
miles per hour (mph) in a posted thirty five (35) mph zone. The officers were unable to catch up
with Plaintiff, so they called for backup. The officers claim that Plaintiff continued to flee even after
they had engaged their overhead lights and sirens. A high speed pursuit ensued through the
neighborhoods of Roseville. At various times throughout the chase, Plaintiff’s vehicle’s speed
exceeded sixty (60) mph on streets with a posted speed limit of thirty (30) mph. Plaintiff’s flight
1
Plaintiff claims that he did not hear Defendant LaTour order him out of his vehicle at
this time; however Defendant LaTour claims that he did order him out of the vehicle. Defendant
LaTour acknowledged during his deposition that Plaintiff may not have heard his order as the
sirens were so loud.
2
ended on Grant Street where Defendants LaTour and Pfeifer were able to block off the street with
their police vehicle.2 Officer LaTour ordered Plaintiff out of his vehicle and employed his stop stick
to deflate Plaintiff’s tires so that he could not continue in his flight from police.
Plaintiff asserts that Defendants LaTour and McLeod immediately ran to Plaintiff’s vehicle
and LaTour shattered the driver’s side window with his flashlight. Id., Ex. A at 44; Ex. D, pgs. 32-
33. Plaintiff asserts that he was never ordered to exit his vehicle until after Defendant LaTour
shattered his window.3 Both Defendants LaTour and McLeod violently yanked Plaintiff from his
vehicle, and tackled him to the pavement. According to Plaintiff, he was fully compliant with the
officers’ orders. The officers then dragged Plaintiff several feet across the pavement and over the
shattered window glass, causing Plaintiff to suffer severe pain and multiple abrasions to his arms
and upper body. Id., Ex. A at 49.
Plaintiff claims that as he lay face first on the pavement with his hands underneath him, two
of the Defendants ground their knees into his back while one of the Defendants struck him from
behind with a hard object that caused Plaintiff to lose consciousness. Then Defendant McLeod gave
ten knee strikes to his upper body and head. At no time during Defendant McLeod’s multiple knee
strikes to Plaintiff did Defendants LaTour, Monroe, and Pfeifer make any attempt to intervene and
stop McLeod’s actions. Plaintiff contends that Defendant LaTour attempted to tase him twice but
was unsuccessful while Defendant Monroe hurled insults at Plaintiff, such as “fucking dumb ass.”
Id., Ex. E, Dep. Tr. of Ryan Monroe, pgs. 30-31) Defendant Pfeifer then placed his foot on top of
2
It appears that the chase was approximately five minutes in duration. See Plf.’s Resp.,
Ex. N.
3
A review of the videotape of the incident appears to support Plaintiff’s contention.
3
Plaintiff and began to excessively apply pressure to Plaintiff’s wrist.
Defendants’ account of the circumstances are quite different than Plaintiff’s version of
events. Defendants submit that instead of complying with their orders to exit the vehicle, Plaintiff
began leaning toward the middle of his vehicle. See Def.’s Mot. for Summ. J., Exs. E and D. This
is the point at which Defendant LaTour broke the window to Plaintiff’s vehicle. Defendant LaTour
claims that he was concerned that Plaintiff was reaching for a weapon. Additionally, Defendant
LaTour maintains that, contrary to Plaintiff’s allegations, as he was removing Plaintiff from the
vehicle, Defendant LaTour tripped, causing both Plaintiff and Defendant LaTour to fall to the
ground. Id., Ex. G, Dep. Tr. of Kurt LaTour, pg 29.
Defendants assert that once on the ground, Plaintiff continued to resist arrest. Plaintiff
refused to place his arms behind his back despite being ordered to do so by the officers on the
scene.4 After a brief struggle, Defendants LaTour, McLeod, and Pfeifer were able to put handcuffs
on Plaintiff. Lieutenant Donald Glandon arrived on the scene shortly after Plaintiff was placed in
handcuffs. Defendants recognized that Plaintiff had sustained a laceration under his right eye during
the struggle and an ambulance was called to the scene almost immediately after Plaintiff was placed
in handcuffs.
Plaintiff claims he remained handcuffed and was bleeding for approximately twenty minutes
before EMS arrived. All of the Defendants admitted that Plaintiff’s face was covered in blood due
to injuries to his eye and lacerations to his face. EMS transported Plaintiff to St. John Macomb
Hospital. As a result of Defendants’ actions, Plaintiff asserts that he sustained a fractured right eye
4
Plaintiff maintains that the reason he did not give the officers his hands was due to the
fact that they were on top of him and could not bring his arms out from underneath him, as well
as the fact that he was unconscious for part of this time.
4
socket, a right eye hematoma, damage to his nose and eardrum, bruised ribs, and several abrasions.
Plaintiff further asserts that three months after this incident he was again treated because he was
unable to hear due to the damage done to his eardrum. Plaintiff claims that he still suffers from
periodic headaches and blurred vision in his right eye as a result of this incident.
Plaintiff was subsequently charged with fleeing and eluding, operating while intoxicated, and
resisting and obstructing. The resisting and obstructing charge was dismissed, although the parties
disagree as to the reason for its dismissal. Plaintiff asserts the resisting and obstructing charge was
dismissed at the preliminary examination hearing after the trial court judge viewed the videotape of
the incident. Defendants submit that Plaintiff pled guilty to fleeing and eluding third degree and
operating while intoxicated third offense in exchange for dismissal of a habitual fourth and the
resisting and obstructing charge. Defendants’ explanation misrepresents the reason for the dismissal
and the Court concludes that Plaintiff is correct that the resisting and obstructing charge was
dismissed for lack of probable cause. The Court bases this conclusion upon the preliminary
examination and the August 25, 2008 police report. The following exchange occurred between the
trial court judge and Plaintiff’s defense counsel at the preliminary examination:
MR. FLEMMING: With respect to count two, I note for the record that
we watched the copy of the video tape in chambers
from the incident. And my understanding is that the
Court is going to dismiss that charge for lack of
probable cause.
THE COURT: The record should reflect that the Court did watch the
videotape . . . . It appears that based upon that–
although there was some attempt on Mr. Russell’s
part to try and move his arms around, I believe they
may have been because of the fact that the officers
were trying to subdue him and they had three or four
officers around him; so I’m satisfied that that Count
should be dismissed especially since there is a much
5
more serious charge against him that has been
established. So count two then is dismissed.
See Plf.’s Resp., Ex. K, pgs. 3-4; See also, Def.’s Mot. for Summ. J., Ex. L, Roseville Arrest Report
0690006861.9 (“The prosecutor . . . took a copy of the tape and after review from her superiors, they
decided to dismiss the R & O charge and pursue the OWI III and the fleeing and eluding.”)
III. APPLICABLE LAW & ANALYSIS
A. Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is to be entered if the moving
party demonstrates there is no genuine issue as to any material fact. The Supreme Court has
interpreted this to mean that summary judgment should be entered if the evidence is such that a
reasonable jury could find only for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242" date_filed="1986-06-25" court="SCOTUS" case_name="Anderson v. Liberty Lobby, Inc.">477 U.S. 242,
249 (1986). The moving party has “the burden of showing the absence of a genuine issue as to any
material fact.” Adickes v. S.H. Kress & Co., 398 U.S. 144" date_filed="1970-06-01" court="SCOTUS" case_name="Adickes v. S. H. Kress & Co.">398 U.S. 144, 157 (1970); see also Lenz v. Erdmann
Corp., 773 F.2d 62" date_filed="1985-09-16" court="6th Cir." case_name="Otto P. LENZ, Plaintiff-Appellant, v. ERDMANN CORPORATION, Walter Laun, Defendants-Appellees">773 F.2d 62 (6th Cir. 1985). In resolving a summary judgment motion, the Court must view
the evidence in the light most favorable to the non-moving party. See Duchon v. Cajon Co., 791
F.2d 43, 46 (6th Cir. 1986); Bouldis v. United States Suzuki Motor Corp., 711 F.2d 1319" date_filed="1983-06-27" court="6th Cir." case_name="Pete Bouldis v. U.S. Suzuki Motor Corp.">711 F.2d 1319 (6th Cir.
1983). But as the Supreme Court wrote in Celotex Corp. v. Catrett, 477 U.S. 317" date_filed="1986-06-25" court="SCOTUS" case_name="Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett">477 U.S. 317, 322-23 (1986):
[T]he plain language of Rule 56(c) mandates the entry to summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial. The moving party is “entitled to a
judgment as a matter of law” because the nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which she has
the burden of proof.
6
To create a genuine issue of material fact, the nonmovant must do more than present “some
evidence” of a disputed fact. “If the [nonmovant’s] evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. 242" date_filed="1986-06-25" court="SCOTUS" case_name="Anderson v. Liberty Lobby, Inc.">477 U.S. at 249-50
(citations omitted). Accordingly, a nonmovant “must produce evidence that would be sufficient to
require submission to the jury of the dispute over the fact.” Mathieu v. Chun, 828 F. Supp. 495" date_filed="1993-08-27" court="E.D. Mich." case_name="Mathieu v. Chun">828 F. Supp. 495, 497
(E.D. Mich. 1993) (citations omitted).
B. Fourth Amendment
1. Excessive Force (Count IV)5 and Qualified Immunity
Defendants assert that their conduct was objectively reasonable because Plaintiff led them
on a high-speed chase, at times driving at speeds over sixty miles an hour, through the
neighborhoods of Roseville6 and, once removed from his vehicle, he actively resisted arrest and kept
his arms under his body despite the Defendants’ orders to give them his arms. Defendants assert that
they were concerned about their safety as they did not know why he led them on the chase and
whether or not he had a weapon. Defendants also argue that they are entitled to qualified immunity.
Plaintiff counters that the amount of force used against Plaintiff was not objectively reasonable
under the circumstances and Defendants are liable for either their direct participation or their breach
of the duty to intervene and stop such use of unreasonable, excessive force. Plaintiff argues that
Defendants are not entitled to qualified immunity.
The Fourth Amendment’s prohibition against unreasonable searches and seizures
5
At the hearing on this matter, Plaintiff indicated to the Court that he would dismiss this
claim against Defendant Glandon as he was not on the scene until after Plaintiff had been
handcuffed. As such, count IV is dismissed as to Defendant Glandon.
6
At times during the chase, the Plaintiff entered the city of St. Clair Shores.
7
encompasses the right to be free from excessive force in the course of an arrest. See Graham v.
Connor, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. 386, 394 (1989). The Court’s “inquiry turns on the objective reasonableness of
the officer’s conduct in view of the facts and circumstances facing the officer[,]” without inquiry
into the officer’s motivations and intent. Lyons v. City of Xenia, 417 F.3d 565" date_filed="2005-08-04" court="6th Cir." case_name="Cheryl D. Lyons v. City of Xenia, Christine Keith, Officer Matthew Foubert, Officer">417 F. 3d 565, 575 (6th Cir. 2003).
The reasonableness inquiry is an objective one, evaluated from a reasonable officer’s perspective
on the scene, and not the 20/20 vision of hindsight. Graham, 490 U.S. 386" date_filed="1989-05-15" court="SCOTUS" case_name="Graham v. Connor">490 U.S. at 396. “Not every push or
shove, even if it may later seem unnecessary in the peace of a judge chambers violates the Fourth
Amendment.” Id. (Internal citation omitted). “Whether an officer’s use of force was reasonable
turns on the facts of the case. Relevant to the inquiry are (1) the severity of the crime at issue, (2)
the immediate threat the suspect poses to the safety of the officers and others, (3) the suspect’s
resistance, if any, and (4) the possibility of flight. Id. at 396. The Sixth Circuit has found that the
fact that a suspect “was not handcuffed at the time he was struck” does not “preclude a finding of
unreasonableness.” Baker v. City of Hamilton, 471 F.3d 601" date_filed="2006-12-18" court="6th Cir." case_name="Troy Baker, and Glenn Snader, as Father and Next Friend of Jesse Snader v. City of Hamilton, Ohio, and Eric Taylor">471 F. 3d 601, 607 (6th Cir. 2006). The Baker court
also concluded that the fact that “[the plaintiff] had attempted to evade arrest does not preclude his
claim of excessive force . . . .” Id.
Under certain circumstances, public officials are shielded from liability under the doctrine
of qualified immunity, which insulates “government officials performing discretionary functions .
. . from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800" date_filed="1982-06-24" court="SCOTUS" case_name="Harlow v. Fitzgerald">457 U.S. 800, 818 (1982). Qualified immunity is generally a threshold defense whose
applicability is to be determined by the trial judge. Garvie v. Jackson, 845 F.2d 647" date_filed="1988-04-27" court="6th Cir." case_name="Peter M. Garvie v. Charles O. Jackson and George W. Wheeler">845 F.2d 647, 649 (6th Cir.
1988). The Supreme Court has set forth a two-part test to determine whether qualified immunity
8
should attach. First, the court must decide whether, in the light most favorable to the party asserting
the injury, the facts alleged show the official’s conduct violated a constitutional right. Saucier v.
Katz, 533 U.S. 194" date_filed="2001-06-18" court="SCOTUS" case_name="SAUCIER v. KATZ Et Al.">533 U.S. 194, 121 (2001). If there is no such violation, the inquiry ends here. Id.
If a violation can be adequately stated, the court next asks whether the right was clearly
established. 7 Id. Providing guidance in determining whether a right was clearly established, the
Court stated, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable offic[ial] that his conduct was unlawful in the situation
he confronted.” Id. Saucier also provides that an official’s reasonable mistake is still cloaked with
immunity. Id.; See also, Pearson, 129 S. Ct. at 823 (“The principles of qualified immunity shield
an officer from personal liability when an officer reasonably believes that his or her conduct
complies with the law.”) Plaintiff must show that the officers violated a right so clearly established
that any official in Defendants’ position would have understood that they were under an affirmative
duty to refrain from such conduct. Poe v. Haydon, 853 F.2d 418" date_filed="1988-07-28" court="6th Cir." case_name="Patsy Carolyn POE, Plaintiff-Appellee, v. Donnie HAYDON, Et Al., Defendants-Appellants">853 F.2d 418, 426 (6th Cir. 1988), cert. denied,
488 U.S. 1007" date_filed="1989-01-09" court="SCOTUS" case_name="Stapleton v. Ohio">488 U.S. 1007 (1989). In other words, Plaintiff must demonstrate that Defendants’ conduct was
objectively unreasonable in light of Plaintiff’s clearly established rights. See Williams v. Mehra, 186
F. 3d 685, 691 (6th Cir. 1999).
a. Has Plaintiff Set Forth a Fourth Amendment Claim of Excessive Force?
7
The Pearson court held that the two-step sequence laid out in Saucier is no longer
required, and the district courts are free to decide the second question prior to resolving the
constitutional issue where appropriate. See Pearson v. Callahan, 129 S. Ct. 808" date_filed="2009-01-21" court="SCOTUS" case_name="Pearson v. Callahan">129 S. Ct. 808, 818 (2009)
(“[W]hile the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded
as mandatory. The judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.”)
Id.
9
The Court concludes that, construing the facts as alleged by Plaintiff, under the
circumstances confronting the Defendants, factors two, three and four weigh in Plaintiff’s favor, and
against a finding of reasonableness on the part of Defendants. While speeding is not a severe crime
and was the original reason the Defendants sought to stop Plaintiff, fleeing and eluding is a felony
under Michigan law, punishable by no more than two years imprisonment and not more than
$2,000.00 or both.8 See MICH. COMP. LAWS 750.479a(2).
Despite the seriousness of Plaintiff’s crime, the Court concludes that Plaintiff has presented
sufficient evidence to raise a genuine issue of fact as to whether Defendants’ response was
unreasonable in light of the circumstances. Considering factors two and three -- whether Plaintiff
posed an immediate threat to the safety of the officers, and whether Plaintiff actively resisted arrest
– the evidence suggests that these questions may be answered in the negative. The Court is
cognizant that Defendants claim that Officer LaTour ordered Plaintiff to exit his vehicle several
times, and that Plaintiff refused to comply with his order before Officer LaTour administered the
‘stop stick’ to Plaintiff’s tires. A review of the videotape suggests otherwise, as it appears to the
Court that Defendant LaTour immediately, without any lapse of time, ran up to Plaintiff’s car and
shattered the driver’s side window. See Plf.’s Resp., Ex. N. Additionally, the Court notes that there
is no sound to the video at this point in time, so the Court cannot verify that Defendant LaTour was
ordering Plaintiff out of the car.
The Court also finds Defendant LaTour’s explanation of Plaintiff’s ‘accidental’ fall to the
ground raises a question of material fact based on the police reports submitted by the Defendant
8
While Plaintiff was also charged with, and pled guilty to, a charge of OWI at the time
of Plaintiff’s arrest, Defendants did not know whether Plaintiff was operating his vehicle beyond
the limit proscribed by law and did not observe him drinking open intoxicants while driving, as
such this crime is not part of the analysis.
10
officers wherein no mention of an accidental fall is indicated, as well as a review of the videotape,
which suggests that Plaintiff was forcibly yanked from his car, and dragged several feet across the
pavement, over the shattered glass from the broken window. See Defs.’ Mot. for Summ. J., Ex. E,
Roseville Police Report No. 0690006861.2 (“I then used my flashlight to break out the drivers (sic)
door window . . . Patrick was then forcibly removed from the vehicle and taken to the ground.”);
See also, Id., Ex. D, Roseville Police Report No. 0690006861.1 (“We grabbed the uncooperative
suspect and removed him from the car. He was forcibly taken to the ground and ordered to place
his hands behind his back.”)
It is Defendants’ contention that they were concerned about their safety, believing that
Plaintiff may have had a weapon, and because he was resisting arrest by failing to comply with
their orders to remove his hands out from underneath him as he lay face down on the pavement.
However, all of the Defendants testified that Plaintiff never hit, kicked, or punched the Defendants,
or attempted to do so. Conversely, Plaintiff argues that he lost consciousness around this time
because one of the Defendants hit him with a hard object. Plaintiff also submits that the reason
he could not give them his hands and arms was due to the fact that so many of them were on top
of him, preventing him from complying with their orders, a contention that is supported by the
preliminary examination wherein the trial judge suspected this to be the circumstance, rather than
Plaintiff resisting the officers’ commands. A review of the videotape also supports Plaintiff’s
version of events, and provides no support for Defendants’ theory that they thought he had a
weapon because he leaned toward the center of the car. It was mere seconds between the time that
Officer LaTour administered his stop stick, ran up to the driver’s side of the vehicle, smashed out
the window, yanked Plaintiff from the vehicle, dragged him to the ground and into the middle of
11
the street. That the officers had no time to witness Plaintiff’s alleged suspicious movements in the
car is a question of fact based on this Court’s review of the videotape. Neither Plaintiff nor
Defendant McLeod disagree as to the fact that McLeod administered ten knee strikes to Plaintiff’s
back. While Defendants claim that Plaintiff was continuing to resist arrest, Plaintiff maintains that
he was under control, not resisting and posed no threat to their safety. This Court does not discern
any indication that Plaintiff was resisting arrest and again finds this is a question of fact. While not
controlling, the Court finds it persuasive that the prosecutor and the Court determined that the
resisting and obstructing charge should be dismissed for lack of probable cause. Additionally,
while Defendant McLeod was administering the ten knee strikes, Defendant Pfeifer applied a goose
neck, placed his foot on top of Plaintiff, and began to apply pressure to Plaintiff’s wrist. Based on
the circumstances confronting the Defendants at the time of Plaintiff’s arrest, the Court cannot
conclude as a matter of law that their use of force was reasonable.
Additionally, the Court concludes that a question of fact remains as to whether Defendants
LaTour, Monroe, and Pfeifer are also liable under the Fourth Amendment for failing to prevent or
stop the use of force against Plaintiff. An officer can be liable for failing to prevent the use of
excessive force when (1) the officer observed or had reason to know that excessive force would be
or was being used, and (2) the officer had both the opportunity and the means to prevent the harm
from occurring. Turner v. Scott, 119 F.3d 425" date_filed="1997-07-16" court="6th Cir." case_name="Eva Turner v. Michael Scott">119 F. 3d 425, 429 (6th Cir. 1997); see also, Bruner v. Dunaway,
684 F.2d 422" date_filed="1982-08-11" court="6th Cir." case_name="Gerald C. Bruner, Cross-Appellant v. Wade Dunaway, Cross-Appellees, James Bates, Gregory Taylor, Christian Castellaw">684 F. 2d 422 (6th Cir. 1982) (the plaintiff was struck and kicked by an officer in an alley while
another officer watched).
Defendants argue that Plaintiff has failed to present evidence that Officers Monroe, Pfeifer
and LaTour would have been able to both glean the nature of Officer McLeod’s ten knee strikes
12
and implement preventative measures within the short time frame that unfolded. Defendants rely
on the unpublished decision of Ontha v. Rutherford County, Tenn., 222 Fed. Appx. 498, 506 (6th
Cir. 2007) in support of their argument. Ontha is distinguishable, however as there was insufficient
time, six to seven seconds, in which the officer, the passenger, could have determined that his
fellow officer, the driver, was intentionally trying to hit the suspect with the police vehicle when
the suspect got out of his car and ran on foot. Id. at 501, 506. Here, there is a question of fact as
to whether Officers LaTour, Monroe, Pfeifer had sufficient time to implement preventative
measures. Certainly the infliction of ten knee strikes could not occur in a matter of six to seven
seconds. Instead of coming to Plaintiff’s aid, Defendant LaTour attempted to tase Plaintiff twice,
and Defendant Monroe hurled insults at Plaintiff such as “fucking dumbass.” Defendants Monroe,
Pfeifer and LaTour, in addition to their direct participation in the force used on Plaintiff, may also
be liable for their failure to intervene on his behalf while their fellow officer used excessive force.
b. Was the Right Clearly Established?
After review of the record, the Court concludes that summary judgment in favor of
Defendants McLeod, LaTour, Monroe, and Pfeifer is inappropriate as Plaintiff has presented
sufficient evidence on this claim to create a genuine issue of fact as to whether Defendants used
excessive force during the course of Plaintiff’s arrest. The Court further finds that Defendants are
not entitled to qualified immunity. The right to be free from excessive force is a clearly established
right. Champion v. Outlook Nashville, 380 F.3d 893" date_filed="2004-08-19" court="6th Cir." case_name="Calvin B. Champion v. Outlook Nashville, Inc., Debbie Miller">380 F. 3d 893, 901 (6th Cir. 2004). At the time of the
incident, Plaintiff’s Fourth Amendment rights were so clearly established that a reasonable officer
would know that the conduct in question was unlawful under the Constitution. Defendants
LaTour, McLeod, Pfeifer and Monroe are not entitled to summary judgment on Plaintiff’s excessive
13
force claim.
2. Warrantless Search and Seizure (Count V)
Defendants argue that Plaintiff cannot succeed on his warrantless search and seizure claim.
In order to prevail on his claim, Plaintiff must prove that the police lacked probable cause to make
the arrest. See Painter v. Robertson, 185 F.3d 557" date_filed="1999-07-20" court="6th Cir." case_name="Robert Painter v. Bill Robertson Robert Tush">185 F. 3d 557, 569 (6th Cir. 1999); see also, Darrah v. City
of Oak Park, 255 F.3d 301" date_filed="2001-06-22" court="6th Cir." case_name="Lucinda Darrah v. City of Oak Park, Russell Bragg, a Troy Police Officer">255 F. 3d 301 (2001). A police officer has probable cause if there is a “‘fair
probability’ that the individual to be arrested has either committed or intends to commit a crime.”
Northrup v. Trippett, 265 F.3d 372" date_filed="2001-09-07" court="6th Cir." case_name="Charles Northrop v. David Trippett, Warden">265 F. 3d 372, 379 (6th Cir. 2001). Here, a fair probability existed that
Plaintiff had committed the crime of fleeing and eluding under MICH. COMP. LAWS § 750.479a.
The videotape demonstrates that the circumstances leading up to Plaintiff’s arrest included a high
speed pursuit through the residential neighborhoods of the City of Roseville with Plaintiff failing
to pull over despite the fact that the officers had engaged their sirens.
Plaintiff argues that the basis for this claim is the Defendants’ lack of probable cause to
arrest Plaintiff for resisting and obstructing. While this may be true, Defendants had probable cause
to arrest Plaintiff for fleeing and eluding. Whether or not they had probable cause for a resisting
and obstructing charge is of no consequence as to Plaintiff’s state and federal warrantless search
and seizure claims. These claims are dismissed as to all Defendants.
3. Malicious Prosecution (Counts III and VI )
A malicious prosecution claim brought pursuant to section 1983 must be based upon the
Fourth Amendment. See Spurlock v. Satterfield, 167 F.3d 995" date_filed="1999-02-11" court="6th Cir." case_name="Robert Spurlock v. Danny Satterfield">167 F. 3d 995, 1006 n. 19 (6th Cir. 1999).9 A
9
The Court notes that there appears to be some conflict within this circuit regarding the
state of section 1983 malicious prosecution claims. Id. (finding that the Supreme Court’s
decision in Albright v. Oliver, 510 U.S. 266" date_filed="1994-01-24" court="SCOTUS" case_name="Albright v. Oliver">510 U.S. 266 (1994) authorizes a Fourth Amendment malicious
prosecution claim); See also, Frantz v. Village of Bradford, 245 F.3d 869" date_filed="2001-04-18" court="6th Cir." case_name="Jack Frantz v. Village of Bradford, Shane Duffey">245 F. 3d 869 (6th Cir. 2001)
14
police officer cannot be liable for alleged malicious prosecution when the officer did not make the
decision to bring charges. See Skousen v. Brighton High Sch., 305 F.3d 520" date_filed="2002-09-26" court="6th Cir." case_name="Deborah Audra Skousen v. Brighton High School, Paul Rambo, a Michigan State Trooper">305 F. 3d 520, 529 (6th Cir. 2002).
In Skousen, the court held that the plaintiff’s malicious prosecution claim failed because the
plaintiff “offered no evidence . . . supporting her claim that [the defendant] caused her to be
prosecuted,” and there was “no evidence that [the defendant] made or even was consulted with
regard to the decision to prosecute [the plaintiff].” Id. at 529. Plaintiff has not provided this Court
with any evidence that any of the Defendants made or were consulted with in regard to the charges
brought against Plaintiff. Plaintiff’s Fourth Amendment malicious prosecution claim is dismissed.
Plaintiff likewise cannot establish a state claim of malicious prosecution. To sustain a claim
of malicious prosecution of a civil proceeding the plaintiff must show: (1) the prior proceedings
terminated in favor of the present plaintiff; (2) the absence of probable cause for the prior
proceedings; (3) malice or showing that the proceedings were filed for a purpose other than to
secure the proper adjudication of the claim; and (4) special injury stemming directly from the prior
proceedings. Dupis v. Kemp, 2006 WL 401125 *1 (Mich.App. Feb. 21, 2006), see also Young v.
Motor City Apartments Limited Dividend Housing Association No. 1 and No. 2, 133 Mich.App.
671, 675 (1984). Similar to Plaintiff’s federal malicious prosecution claim, because he cannot
demonstrate that the Defendants were involved in bringing the charge of resisting and obstructing,
he cannot prove that they acted with malice in bringing the charge against him. Plaintiff’s state law
(holding that Albright does not authorize a separate claim of malicious prosecution independent
of the underlying illegal seizure claim). The Sixth Circuit in Darrah v. City of Oak Park, noted
that “when a later decision of this court conflicts with one of our prior published decisions, we
are still bound by the holding of the earlier case.” 255 F.3d 301" date_filed="2001-06-22" court="6th Cir." case_name="Lucinda Darrah v. City of Oak Park, Russell Bragg, a Troy Police Officer">255 F. 3d 301, 310 (6th Cir. 2002) (“We are
not bound by the Frantz court’s interpretation of Spurlock . . .[n]o new Supreme Court case
justified the Frantz court’s decision to disregard Spurlock.” Id. at 312 n. 4. As such, this Court
concludes that Albright authorizes a Fourth Amendment malicious prosecution claim.
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claim for malicious prosecution is also dismissed.
C. Fourteenth Amendment Deliberate Indifference (Count VII)
To state a § 1983 claim based upon a denial of medical care, the plaintiff is required to
demonstrate a subjective component and an objective component. Farmer v. Brennan, 511 U.S.
825, 834, 128 L. Ed. 2d 811" date_filed="1994-06-06" court="SCOTUS" case_name="Farmer v. Brennan">128 L.Ed. 2d 811, 114 S. Ct. 1861 (1994); Brown v. Bargery, 207 F.3d 863" date_filed="2000-03-27" court="6th Cir." case_name="Forrest Zayne Brown, Stephen Michael Richmond, Christopher Michael Croft, and Tony Lynn Meadows v. Alan Bargery">207 F. 3d 863, 867 (6th Cir.
2000). To establish the subjective component, Plaintiff must demonstrate that each Defendant
possessed a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834; Blackmore v.
Kalamazoo County, 390 F.3d 890" date_filed="2004-12-07" court="6th Cir." case_name="Tjymas Blackmore v. Kalamazoo County">390 F. 3d 890, 895 (6th Cir. 2004). The defendant “must be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Blackmore, 390 F.3d 890" date_filed="2004-12-07" court="6th Cir." case_name="Tjymas Blackmore v. Kalamazoo County">390 F. 3d at 896 (quoting Farmer, 511 U.S. at 837). A
“sufficiently culpable state of mind” is demonstrated when officers act with deliberate indifference
to a suspect’s serious medical needs. Farmer, 511 U.S. at 834. Intentionally delaying or denying
a detainee, who is suffering from a serious medical illness, access to medical care is deliberate
indifference. Estelle, 429 U.S. at 104-05. Mere negligence is insufficient to establish the existence
of the requisite mental state. Blackmore, 390 F.3d 890" date_filed="2004-12-07" court="6th Cir." case_name="Tjymas Blackmore v. Kalamazoo County">390 F. 3d at 895-96. Conversely, proof that the police
officer intended the harm to occur, or knew that harm would most likely result is not required to
establish that the official acted with deliberate indifference. Id.
In order to establish the objective component, a plaintiff must demonstrate a “sufficiently
serious” medical need. Farmer, 511 U.S. at 834; Blackmore, 390 F.3d 890" date_filed="2004-12-07" court="6th Cir." case_name="Tjymas Blackmore v. Kalamazoo County">390 F. 3d at 895. The plaintiff need
not demonstrate that his illness worsened due to the delay in medical treatment, where the “illness
is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention .
. . .” Blackmore, 390 F.3d 890" date_filed="2004-12-07" court="6th Cir." case_name="Tjymas Blackmore v. Kalamazoo County">390 F. 3d at 899- 900. A plaintiff need only to establish that “he actually
16
experienced the need for medical treatment, and that the need was not addressed within a
reasonable time frame.” Id.
Assuming that Plaintiff has established the objective component, a serious medical need,
he cannot demonstrate that Defendants acted with a sufficiently culpable state of mind. Here,
Defendants were aware that Plaintiff had lacerations on his face and was bleeding. Defendants did
not ignore these facts and called for an ambulance. While there is some conflict as to the amount
of time it took for EMS to arrive, this is of no consequence. There is no evidence that Defendants
intentionally delayed or denied medical treatment to Plaintiff. While Plaintiff takes issue with the
fact that Defendants left Plaintiff in the middle of the street while waiting for EMS to arrive, this
does not rise to the level of a sufficiently culpable state of mind. Plaintiff has failed to advise this
Court of what medical treatment Defendants should have performed themselves at the scene. While
the Court disapproves of Defendants’ concern for the blood on their clothing and hands rather than
having any concern for Plaintiff as he lay bleeding in the middle of the street, such conduct does
not rise to deliberate indifference. If Defendants had not called EMS immediately, and instead
fussed over the blood on their clothing and hands, the outcome of this claim may be different.
Defendants are entitled to summary judgment on this claim.
D. Remaining State Law Claims (Counts I, VIII)
1. Assault and Battery (Count I)
Under Michigan law, governmental employees are not immune from their intentional torts,
like assault and battery, unless the action constituting the intentional tort is justified. Brewer v.
Perrin, 132 Mich. App. 520" date_filed="1984-03-05" court="Mich. Ct. App." case_name="Brewer v. Perrin">132 Mich. App. 520, 349 N.W.2d 198, 202 (1984); see also, Burns v. Malak, 897 F. Supp.
985 (E.D. Mich. 1995)(“[I]f a governmental employee, e.g. a police officer, ‘commits’ an ‘assault
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and battery,’ then such conduct would not be protected by the immunity provisions of M.C.L.A.
§ 691.1407.”) In Brewer, the Michigan Court of Appeals noted that:
[A] police officer may use reasonable force when making an arrest. Therefore, the
measure of necessary force is that which an ordinarily prudent and intelligent
person, with the knowledge and in the situation of the arresting officer, would have
deemed necessary.
Id. at 528 (Internal citations and quotations marks omitted). Additionally, whether the officer
“could have used less painful, less injurious, or more effective force in executing an arrest is simply
not the issue.” People v. Hanna, 223 Mich. App. 466" date_filed="1997-08-06" court="Mich. Ct. App." case_name="People v. Hanna">223 Mich. App. 466, 474; 567 N.W.2d 12 (1997).
Under Michigan law, a criminal assault is committed where an actor engages in some form
of threatening conduct designed to put another in apprehension of an immediate battery; whether
there was an apprehension of an immediate battery depends on what the victim perceived; and
whether the apprehension of imminent injury was reasonable. People v. Reeves, 458 Mich. 236" date_filed="1998-07-21" court="Mich." case_name="People v. Reeves">458 Mich. 236;
580 N.W.2d 433, 436 (1998). Whether there was an “apprehension of an immediate battery”
depends “on what the victim perceived, and whether the apprehension of imminent injury was
reasonable.” Id.; Hinchman v. Moore, 312 F.3d 198" date_filed="2002-12-02" court="6th Cir." case_name="Bonnie Lee Hinchman v. Edwin L. Moore Jr. And Robert A. Dombrowski">312 F.3d 198 (6th Cir. 2002). Under Michigan law, a battery
is the consummation of an assault. Klein v. Long, 275 F.3d 544" date_filed="2001-12-21" court="6th Cir." case_name="David B. Klein v. Paul Long, Blackman Township Police Officer Phillip Rogers, Blackman Township Police Sergeant">275 F.3d 544 (6th Cir. 2001).
The Court cannot conclude as a matter of law that Defendants’ actions were justified.
Defendant LaTour immediately ran up to Plaintiff’s vehicle and shattered the driver’s side window,
then with the help of Defendant McLeod, yanked Plaintiff from the car, and dragged him across the
street. As Plaintiff lay face down on the pavement, the Defendants ground their knees into him,
struck him with a hard object, then Defendant McLeod employed ten knee strikes to Plaintiff’s
upper body while Defendant Pfeifer placed his foot on top of Plaintiff and applied pressure to his
wrist. All of this conduct occurred at a time when Plaintiff was not actively resisting arrest, was
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not kicking or hitting Defendants, but was in a passive state on the ground. Because Defendant
Glandon did not arrive on the scene until after Plaintiff was in handcuffs, Plaintiff’s claim of assault
and battery is dismissed as to Defendant Glandon. Plaintiff’s claim against Defendant Monroe is
also dismissed as the only facts regarding Defendant Monroe is that he attempted to touch
Plaintiff’s hand but pulled away. See Defs.’ Mot. for Summ. J., Ex. H, Dep. Tr. of Ryan Monroe
at 20, 32. Defendants McLeod, LaTour, and Pfeifer’s Motion for Summary Judgment as to
Plaintiff’s assault and battery claim is denied.
2. Gross Negligence (Count VIII)
The Michigan Governmental Immunity Act provides:
(1) Except as otherwise provided in this act, a governmental agency is immune from
tort liability if the governmental agency is engaged in the exercise or discharge of
a governmental function....
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort liability
for an injury to a person or damage to property caused by the officer, employee, or
member while in the course of employment or service or caused by the volunteer
while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or
damage.
MICH. COMP. LAWS § 691.1407(1)-(2)(c). The Act defines gross negligence as “conduct so reckless
as to demonstrate a substantial lack of concern for whether an injury results.” MICH. COMP. LAWS
§ 691.1407(2); See also, Tarlea v. Crabtree, 263 Mich. App. 80" date_filed="2004-09-29" court="Mich. Ct. App." case_name="Tarlea v. Crabtree">263 Mich. App. 80, 82; 687 N.W.2d 333 (2004). No
19
liability attaches unless the Defendants’ actions were the proximate cause of the Plaintiff’s injury.
Id. Gross negligence will be found “if an objective observer watched the actor, he could conclude
reasonably, that the actor simply did not care about the safety or welfare of those in his charge.”
Tarlea, 263 Mich. App. 80" date_filed="2004-09-29" court="Mich. Ct. App." case_name="Tarlea v. Crabtree">263 Mich. App. at 90.
Similar to Plaintiff’s assault and battery claim, the Court cannot conclude that Defendants
McLeod, LaTour and Pfeifer’s conduct did not demonstrate a substantial lack of concern for
whether Plaintiff would be injured. The Court relies on the facts previously stated in its discussion
of Plaintiff’s Fourth Amendment excessive force, and assault and battery claims. Defendants
Glandon and Monroe are dismissed from this claim.
E. Municipal Liability (Count IX)
To establish municipal liability, a plaintiff first must establish that a constitutional violation
has occurred. Lewellen v. Metropolitan Gov’t of Nashville and Davidson County, Tennessee, 34
F.3d 345, 350 (6th Cir. 1994). After this is established, a municipality will be liable if the
constitutional violation was a result of the municipality’s custom or policy. Monell v. New York
City Dept. of Soc. Serv., 436 U.S. 658" date_filed="1978-06-06" court="SCOTUS" case_name="Monell v. New York City Dept. of Social Servs.">436 U.S. 658, 56 L. Ed.2d 611, 98 S. Ct. 2018 (1978). Liability can also
be premised on a municipality’s or county’s failure to train its officers demonstrates a risk that is
“so obvious as to constitute deliberate indifference to the rights of its citizens.” Gray v. City of
Detroit, 399 F.3d 612" date_filed="2005-03-01" court="6th Cir." case_name="Darryl Gray, Personal Representative of Estate of Mark Gray, Deceased v. City of Detroit and Police Officer Douglas Gross">399 F. 3d 612, 618 (6th Cir. 2005); See also City of Canton v. Harris, 489 U.S. 378" date_filed="1989-02-28" court="SCOTUS" case_name="City of Canton v. Harris">489 U.S. 378, 390
(1989)(“[T]he need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need.”).
A municipality can be liable under § 1983 only where “its policies are the moving force
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behind the constitutional violation.” Id. at 388 (1989). There must be “a direct causal link
between a municipal policy or custom and the alleged constitutional violation. Id. at 385. It is true
that,
“[w]hile officials may not be liable under section 1983 because their actions (or
failure to act) were not constitutional violations according to clearly established law
at the time the actions took place, a municipality may nevertheless be liable if the
actions complained of rise to the level of constitutional violations in light of present
law. Stated another way, it is possible that city officials may be entitled to qualified
immunity for certain actions while the municipality may nevertheless be held liable
for the same actions.
Barber v. City of Salem, 953 F.2d 232" date_filed="1992-01-07" court="6th Cir." case_name="Randy James Barber, Administrator of the Estate of Kenneth Robert Barber, Deceased v. City of Salem, Ohio">953 F. 2d 232, 237-38 (6th Cir. 1992)(Internal citations omitted). Further,
“[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”
Oklahoma City v. Tuttle, 471 U.S. 808" date_filed="1985-08-14" court="SCOTUS" case_name="City of Oklahoma v. Tuttle">471 U.S. 808, 823 (1985).
Here, Plaintiff has failed to establish municipal liability based on a failure to train or
supervise. While there is some evidence in the record to suggest that Defendant McLeod was never
trained on the use of knee strikes against a citizen, this is not enough to establish that the City of
Roseville’s policymakers were deliberately indifferent to the need for training on the appropriate
use of force. Plaintiff has not come forward with evidence that the incident in question was the
result of an existing, unconstitutional municipal policy which is attributable to a municipal
policymaker. Id. There is evidence that the City of Roseville does not conduct performance
evaluations on an annual or biannual basis. Id.; see also, Ex. D, Dep. Tr. of Joseph McLeod at 12;
Ex. F, Dep. Tr. of Thomas Pfeifer at 16-17. Additionally, Defendant Monroe testified that, “[w]e
don’t have a standardized system [of performance evaluations] if that’s what you’re asking.” See
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Plf.’s Resp., Ex. E, Dep. Tr. of Ryan Monroe at 12-13. However, standing alone, this is
insufficient to establish liability under Monell. Defendants are entitled to summary judgment on
Plaintiff’s Monell claim.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment is GRANTED IN PART
and DENIED IN PART [Docket No. 26, filed on May 11, 2009].
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment as to
Plaintiff’s excessive force claim (Count IV) is GRANTED as to Defendant Glandon and DENIED
as to Defendants McLeod, LaTour, Monroe, and Pfeifer.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment as to
Plaintiff’s state law claims of assault and battery and gross negligence (Counts I, VIII) is
GRANTED as to Defendants Glandon and Ryan Monroe, who are dismissed from these claims and
DENIED as to Defendants McLeod, LaTour, Monroe, and Pfeifer.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment as to
Plaintiff’s state and federal warrantless search and seizure claim (Count V) is GRANTED and this
claim is dismissed against all Defendants.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment as to
Plaintiff’s state and federal malicious prosecution claims is (Counts III and VI) is GRANTED and
these claims are dismissed against all Defendants.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment as to
Plaintiff’s claim of deliberate indifference to a serious medical need (Count VII) is GRANTED and
22
this claim is dismissed against all Defendants.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment as to
Plaintiff’s Monell claim (Count IX) is GRANTED. Defendant City of Roseville is dismissed.
IT IS FURTHER ORDERED that a Status Conference on this matter shall be held on May
3, 2010 at 2:00 p.m.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 30, 2010
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 30, 2010, by electronic and/or ordinary mail.
S/William F. Lewis
Case Manager
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