Jockquez Scott v. Kent County, et al

Filing

OPINION filed: We AFFIRM the district court s grant of summary judgment to the defendants; decision not for publication. Gilbert S. Merritt, Karen Nelson Moore (dissenting), and Jane Branstetter Stranch (authoring), Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0111n.06
No. 16-1587

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
)
)
Plaintiff-Appellant,
)
v.
)
)
KENT COUNTY; SHERIFF DEPUTY BRAD )
)
LYONS, in his individual and official capacity,
)
)
Defendants-Appellees.
)
JOCKQUEZ SCOTT,

BEFORE:

FILED
Feb 17, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION

MERRITT, MOORE, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Following his arrest for creating a disturbance,
Jockquez Scott was detained at the Kent County Correctional Facility, which maintains video
recordings of activities in its cells. Due to Scott’s disruptive behavior in the communal holding
cell, police officers decided to move him to another cell. In response to Sheriff Deputy Brad
Lyons’s requests that he exit the cell, Scott did so with clenched fists that Lyons pointed out to
him and requested him to unclench. Scott responded by taking a slight step toward Lyons, who
then took Scott to the ground. Scott brought suit against Lyons and Kent County, alleging claims
for excessive force in violation of the Fourth Amendment and Fourteenth Amendment, under
42 U.S.C. § 1983.

The district court granted summary judgment for defendants.

following reasons, we AFFIRM the judgment of the district court.

For the

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No. 16-1587, Scott v. Kent County
I.

BACKGROUND

Scott was arrested on October 31, 2012, for engaging in a disturbance at a store in Grand
Rapids, Michigan. According to the police incident report, an officer observed Scott in the
parking lot of the store yelling at another man. When the officer got their attention, Scott “acted
as if the confrontation was no big deal” turned and went into the store. The officer then observed
Scott inside the store, “engaged in obvious trouble with the store employees,” who appeared to
be trying to eject him. The officer stated that he intervened after seeing Scott shove one of the
store clerks, arrested Scott outside the store, and wrote in his incident report that he was
“obviously intoxicated.” The store employees told the officer that Scott had asked to use the
bathroom and when told that there was no bathroom for customers, started swearing and refused
to leave. The employees declined to press charges for either trespassing or assault. Scott was
charged with creating a disturbance and taken to Kent County Correctional Facility. Scott
apparently also had an outstanding warrant for unpaid fines, but that charge was not referenced
in the officer’s incident report.
Scott arrived at the police station around 1 a.m. on October 31. Deputy Lyons, who has
worked as a corrections officer at the Kent County Sheriff’s Department since 2001, was at the
booking counter. Lyons placed Scott in a holding cell with other occupants. According to
Lyons, Scott was “yelling and screaming and throwing clothes around.” Scott asked to use the
restroom, and Lyons and Officer Matt Dziachan escorted him there without placing him in
handcuffs. Before returning Scott to the cell, the officers performed a pat down and did not find
any weapons
When Scott returned to the cell, he continued his disruptive behavior, prompting Lyons
and Dziachan to move him to another cell. Scott alleges that he was “not being physically
aggressive” when the police attempted to move him. Lyons testified that after Scott was asked to
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come out of the cell, he stayed inside and began to complain loudly, yelling and making
statements about beating other inmates in the cell, though Lyons did not believe he was targeting
any specific individuals. At that point, Lyons told him to come out. In his complaint and
deposition testimony, Scott claimed that after he came out of the cell, Lyons “tapped [his]
shoulder” from behind three times and then “struck [him] in the face.”
The video recording provided in the record contradicts these allegations and testimony.
Though there is no audio, the video shows Scott’s agitated actions prior to the move, including
large gestures with his arms and pacing around for several moments before responding to the
officers standing at the door. The video shows Lyons in front of Scott as Scott exits the cell,
without handcuffs; shows that Scott’s fists are clenched, that Lyons speaks to him and points to
his fists, and that Scott then takes a slight step towards Lyons, placing Scott very close to Lyons
as Scott exits the cell. Lyons testified that Scott started to cuss at him after exiting the cell,
which caused Lyons to tell him to relax and unclench his fists. At this point, Lyons states that
Scott stepped towards him, that Scott “was heading one way and he forty-fived [Lyons’s] way.”
Scott concedes that he took a “slight step towards . . . Lyons,” but states it was to talk to him.
Perceiving Scott’s posture as threatening, Lyons reached around Scott’s head and neck and took
him to the ground. Several officers quickly came to the scene and Scott was escorted away
shortly thereafter, leaving blood on a towel on the floor. It is unclear how Scott’s nose was
injured. Lyons testified that his hand did not touch Scott’s face, and that his nose could have
been injured from his face hitting the floor or Lyons’s shoulder.
During his deposition, Scott was shown still photos from the video. Scott testified that he
did not recall stepping towards Lyons, and if he turned towards him it was in response to Lyons
speaking to him. Scott maintained that he was not mistaken about being tapped on the shoulder

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from behind and punched in the face, and stated that he could not tell what the images from the
video depicted and they did not refresh his recollection of the incident.
According to notes made by Nurse James McFadden at 1:55 a.m., Scott had a small,
bleeding laceration on the right side of his nose. His notes also indicated that Scott had been
loud and argumentative while in the holding cell, uncooperative while being moved, yelled at
deputies while he was on the floor, and that his vitals were not taken because he would not
cooperate. The report also stated that Scott appeared intoxicated, but “alert [and] oriented.”
Following his examination, Scott was handcuffed and taken to a solo cell where he remained
until his release later that day. A subsequent medical screening report, written at 10 a.m. on
October 31, indicated that Scott had been hit in the nose and that his nose was swollen. After his
release, Scott sought treatment at Spectrum Hospital and a medical report noted that he had a
“superficial abrasion” on the bridge of his nose, which was “tender to palpation.” The report
recorded his diagnosis as “[n]asal fracture versus contusion.” He was given pain medication and
discharged.
Scott filed suit in district court, alleging excessive force claims against Lyons under
42 U.S.C. § 1983 for violation of his Fourth Amendment and Fourteenth Amendment rights, and
a claim against Kent County for constitutional violations. The defendants filed a motion for
summary judgment, which the district court granted. Scott timely appealed.
II.
A.

ANALYSIS

Standard of Review

We review a district court’s grant of summary judgment de novo. Brown v. Lewis,
779 F.3d 401, 410 (6th Cir. 2015). Summary judgment is only appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In reviewing a summary judgment motion, we view all
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facts and draw all reasonable inferences in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B.

Claims against Lyons

To establish a claim under 42 U.S.C. § 1983, “a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws
of the United States (2) caused by a person acting under the color of state law.” Burley v.
Gagacki, 729 F.3d 610, 619 (6th Cir. 2013). Scott alleges that Lyons used excessive force in
violation of his rights under the Fourth and Fourteenth Amendments. Lyons maintains that Scott
was not deprived of his constitutional rights and raises the defense of qualified immunity.
Qualified immunity generally protects government officials performing discretionary
functions “from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional law of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts use a two-prong analysis to determine
whether qualified immunity applies. Pearson v. Callahan, 555 U.S. 223, 236 (2009). We may
discuss the prongs in either order, and the officer is entitled to qualified immunity if the plaintiff
cannot establish both prongs in our inquiry. Id. For the first prong, the plaintiff must show that a
constitutional violation occurred based upon applicable law and viewing the facts in the light
most favorable to the plaintiff. Brown, 779 F.3d at 411 (citing Sample v. Bailey, 409 F.3d 689,
695 (6th Cir. 2005)); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). To satisfy the second
prong, the plaintiff must show that “the right was clearly established at the time of the incident.”
Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). A right is “clearly established” when its
“contours” are “sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Saucier, 533 U.S. at 202. The court makes this inquiry “in light of the
specific context of the case, not a broad general proposition.” Id. at 201.
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“In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged application of
force.” Graham v. Connor, 490 U.S. 386, 394 (1989). Before the district court, the parties
disagreed as to the standard applicable to Scott’s excessive force claims. Scott argued for the
Fourth Amendment’s reasonableness standard, while Lyons argued that the Fourteenth
Amendment “shock the conscience” standard should apply. The district court determined that
Lyons was entitled to qualified immunity under either because Scott could not make the
necessary showing for either claim under the second prong of the qualified immunity analysis.
Because Scott does not address his Fourteenth Amendment claim in his appellate briefing, we
affirm the district court’s grant of summary judgment on that claim and evaluate Scott’s Fourth
Amendment claim on appeal.
We thus apply “an objective reasonableness test, looking to the reasonableness of the
force in light of the totality of the circumstances confronting [Lyons], and not to [his] underlying
intent or motivation,” and balance “the nature and quality of the intrusion on [Scott’s] Fourth
Amendment interests against the countervailing governmental interests at stake.” Burgess, 735
F.3d at 472 (quoting Ciminillo v. Streicher, 434 F.3d 461, 466-67 (6th Cir. 2006)). This
balancing is guided by three factors: “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or others, and whether he is actively
resisting or attempting to evade arrest by flight.” Martin v. City of Broadview Heights, 712 F.3d
951, 958 (6th Cir. 2013) (quoting Graham, 490 U.S. at 396). The use of force is “judged from
the perspective of a reasonable officer on the scene, rather with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. “This standard contains a built-in measure of deference to the
officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of

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the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002). Scott argues that
Lyons’s use of force was objectively unreasonable in violation of the Fourth Amendment. He
states that he was arrested for creating a disturbance—a non-violent crime—and did not pose a
significant threat to Lyons or anyone else at the time he exited the cell.
As an initial matter, we must address the appropriate facts to use in our inquiry. In
granting summary judgment to Lyons, the district court did not adopt the facts as alleged by
Scott in his complaint or deposition testimony because those allegations were clearly
contradicted by the video recording of the incident. Though Scott was shown stills from the
video during his deposition, he maintained that he was not mistaken about being tapped on the
shoulder and punched, and stated that he could not determine what the images depicted of the
incident. Scott now acknowledges that the video is at odds with his complaint and his original
deposition testimony that Lyons tapped him on the shoulder from behind and then punched him
in the face, but asserts that his “testimony does not blatantly contradict the record so that no
reasonable jury could believe, [by watching] the video, excessive force was applied.” He
contrasts this to Scott v. Harris, 550 U.S. 372, 378-79 (2007), where the Supreme Court
determined that the video evidence of the plaintiff driving contradicted his testimony that his
driving was not a threat to others, that the roads were empty, and that he was in control of his
vehicle. Scott argues that the video footage supports his claim that he was non-violent and nonaggressive when leaving the cell, and that “even if part of [his] testimony is blatantly
contradicted by the [video] recording, that does not permit the district court to discredit his entire
version of events.” Coble v. City of White House, 634 F.3d 865, 870 (6th Cir. 2011).
Though the district court found that the video did “not in and of itself resolve the
[summary judgment] motion,” it did establish that there was “clearly an issue with [Scott], to

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which Deputy Lyons responded.” The court found that the video contradicted Scott’s assertion
that his manner was non-threatening, as it showed him exit the cell with his hands in fists and
that he took a step toward Lyons.
Scott himself testified that he was yelling and cursing while in his cell prior to the
incident. Lyons also stated that Scott was shouting and throwing clothes around, and the notes
made by Nurse McFadden indicate that Scott had been loud and argumentative while in the
holding cell. The video confirms that prior to being removed from the cell holding other
detainees, Scott was pacing, clearly agitated, and gesturing wildly. McFadden’s notes also
indicate that Scott appeared intoxicated, and the incident report written at the time of Scott’s
arrest stated that he was “obviously intoxicated.” Scott’s intoxication and his unruly behavior
prior to his exit from the cell were part of the factual context known to Lyons. When Scott
walked out, the video shows that his fists are clenched and that Lyons looked at and then pointed
to Scott’s fists. The video then shows, as Scott concedes on appeal, Scott step toward Lyons,
with his fists still clenched and within swinging distance.
Under Pearson, we need not determine whether a constitutional violation occurred under
these facts as this case can be resolved on the second prong of the qualified immunity test. See
555 U.S. at 236. Under the second prong, Scott must point to clearly established law that would
have put a police officer on notice that a takedown in such close quarters, under these
circumstances, was an unlawful use of force. A right is clearly established when its contours are
sufficiently clear that a reasonable official would understand that his conduct violates that right.
Wheeler v. City of Lansing, 660 F.3d 931, 938 (6th Cir. 2011) (quoting Anderson v. Creighton,
438 U.S. 635, 640 (1987)). A right may be clearly established “even if there is no case involving
‘fundamentally similar’ or ‘materially similar’ facts.” Burchett, 310 F.3d at 945 (quoting Hope

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v. Pelzer, 536 U.S. 730, 740 (2002)). Rather, the question is whether Lyons had “fair warning”
that his actions were unconstitutional. Hope, 536 U.S. at 741. The Supreme Court has clarified
that the “dispositive question is whether the violative nature of particular conduct is clearly
established,” examined “in light of the specific context of the case, not as a broad general
proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). In order to meet the clearly
established prong, a plaintiff must “identify a case where an officer acting under similar
circumstances . . . was held to have violated the Fourth Amendment.” White v. Pauly, 137 S. Ct.
548, 552 (2017).
Scott cites only to Griffith v. Coburn, 473 F.3d 650, 658-59 (6th Cir. 2007), where we
determined that an officer’s use of a choke hold on a suspect sitting on his couch at home,
passively resisting the officer’s commands, was objectively unreasonable. The circumstances
presented in this case are not analogous to those in Griffith. While Scott was being removed from
a cell for disruptive conduct, he stepped towards Lyons in close quarters, unhandcuffed and with
clenched fists. We have not found other Supreme Court or Circuit precedent that would have put
Lyons on notice that his takedown was an excessive use of force in this situation.
Because Scott has not met his burden on this inquiry, we affirm the district court’s grant
of summary judgment to Lyons on the basis of qualified immunity.
C.

Claim Against Kent County

Scott also alleges a claim against Kent County for its failure to supervise corrections
officers, which he argues allows the officers to continuously violate inmates’ constitutional
rights. See Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91 (1978)
(holding that municipalities and local governments can be sued under § 1983 for constitutional
deprivations made pursuant to governmental customs or policies). The district court determined
that because Scott had not established that a constitutional violation occurred with respect to his
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claims alleged against Lyons, his claim against the County must be dismissed. See Blackmore v.
Kalamzoo Cty., 390 F.3d 890, 900 (6th Cir. 2004) (“A municipality or county cannot be liable
under § 1983 absent an underlying constitutional violation by its officers.”) (citing City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986)).
The district court also determined, in the alternative, that Scott’s claim against Kent
County failed for lack of evidence, and we affirm its judgment on this basis. A plaintiff making
a “failure to supervise” claim must establish that “(1) the training or supervision was inadequate
for the tasks performed; (2) the inadequacy was the result of the municipality’s deliberate
indifference; and (3) the inadequacy was closely related to or actually caused the injury.” Ellis
ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006). To support
his failure to supervise claim, Scott only offers evidence that Kent County does not conduct
yearly performance evaluations on its corrections officers. This is not sufficient to prevail under
a failure to supervise theory. We affirm the district court’s grant of summary judgment to Kent
County in Scott’s municipal liability claim.
III.

CONCLUSION

For the reasons discussed above, we AFFIRM the district court’s grant of summary
judgment to the defendants.

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KAREN NELSON MOORE, Circuit Judge, dissenting. I disagree with the majority
that Lyons is entitled to qualified immunity. There is ample evidence that “the right which was
violated was clearly established” in our circuit. Bultema v. Benzie County, 146 F. App’x 28, 37
(6th Cir. 2005). We have held that an officer’s conduct is not objectively reasonable where he
performs a “takedown” of an individual already in custody, who, despite being argumentative
and possibly intoxicated, was not actually aggressive against any officers. Laury v. Rodriguez,
659 F. App’x 837, 843–44 (6th Cir. 2016); see Bonner-Turner v. City of Ecorse, 627 F. App’x
400, 412 (6th Cir. 2015) (holding that a jury could find that an officer was unreasonable when he
shoved an individual face-first into a wall after the individual verbally threatened and spat on
officers, but never physically resisted arrest). Although Laury and Turner post-date Scott’s
arrest, our cases prior to his arrest made clear that “there undoubtedly [was] a clearly established
legal norm precluding the use of violent physical force against a criminal suspect who already
has been subdued and does not present a danger to himself or others.” Harris v. City of
Circleville, 583 F.3d 356, 367 (6th Cir. 2009). This does not require that in order to be free from
violent force a suspect must be handcuffed at the time such force was used. Baker v. City of
Hamilton, 471 F.3d 601, 607 (6th Cir. 2006) (holding that the fact that plaintiff “was not
handcuffed at the time he was struck does not preclude a finding of unreasonableness” even
where he had earlier attempted to evade arrest). In Malory v. Whiting, 489 F. App’x 78, 79–80
(6th Cir. 2012), we held that officers were not entitled to qualified immunity where they
“grabbed Plaintiff’s neck and shoved him into the booking counter” while the plaintiff was not
handcuffed. At the time of the incident, plaintiff had gotten into a minor dispute with the
booking officers, and had begun to undress so that he could be searched. Id. at 80. The
takedown began when an officer “apparently became concerned when Plaintiff put his belt over

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his shoulder.” Id. Although the officer perceived this as threatening, we nonetheless held that
“[i]n light of [plaintiff’s] conduct, reasonable officers would have understood that an obvious
legal norm prohibited them from tackling a suspect who made only a mild show of resistance.”
Id. at 86.
When we view the facts in the light most favorable to Scott, even taking into account the
video evidence that contradicted his testimony, it is clear that a reasonable jury could dispute
whether Lyons was objectively reasonable in violating a clearly established right. Scott was
arrested for creating a disturbance, which is “not a severe offense that would support a greater
use of force.” Lustig v. Mondeau, 211 F. App’x 364, 370 (6th Cir. 2006). Defendants do not
claim that Scott ever attempted to evade arrest. See Malory, 489 F. App’x at 83. Before the
incident, the officers performed a pat down on Scott and did not find any weapons. R. 54–3
(Lyons Dep. at 56) (Page ID #339). Although the video confirms that Scott was unruly and
yelling in the holding cell, there is no indication that he was being physically aggressive toward
any officers. In fact, Lyons testified that Scott was “cooperative with us,” that Scott did not
threaten Lyons, and that Lyons did not perceive Scott as a threat. Id. at 53–56, 69–71 (Page ID
#339–40). The officers even permitted Scott to use the restroom “unhandcuffed,” and Lyons
confirmed that if Scott had been perceived as a threat, they would have kept the handcuffs on.
Id. at 55–56 (Page ID #339); see Laury, 659 F. App’x at 843 (“[t]hat [defendant] took
[plaintiff’s] handcuffs off after [plaintiff made a verbal threat] suggests a reasonable officer
would not necessarily have viewed this comment as a threat.”) Although Defendants claim that
Lyons believed that Scott was taking a step to hit him, Scott on appeal argues that he took that
step in order to talk to Lyons. Appellant’s Br. at 5.

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On the basis of these facts, I do not believe that Lyons is entitled to qualified immunity.
Because I believe that there are genuine issues of fact regarding Scott’s excessive-force claim, I
respectfully dissent.

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