Brown v. Lewis et al

Filing 50

Opinion and ORDER denying 47 and 48 Motions for Reconsideration ; denying 49 Motion to Adjourn. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
KISHNA BROWN,
Plaintiff,

Case No. 12-14953
Honorable Thomas L. Ludington

v.
BRADLEY LEWIS, NATHANIEL
KAMP, JASON RICHNAK,
DISPATCHER #1,
Defendants.
/
ORDER DENYING DEFENDANTS’ MOTIONS FOR RECONSIDERATION AND
DENYING PLAINTIFF’S EX-PARTE MOTION TO ADJOURN
Kishna Brown alleges that on April 28, 2011, three Bay City police officers (Bradley
Lewis, Nathaniel Kamp, and Jason Richnak), along with an unnamed dispatcher (collectively,
the Defendants), violated her rights.

The Defendants acknowledge that on April 28 they

conducted a high-risk, felony stop of Brown’s vehicle. Brown argues that a felony stop was not
warranted, and even if it was, there were justifications for discontinuing the stop once it had
begun. Brown also challenged the particular opinions Defendants sought to introduce through
expert testimony. The Defendants filed a motion for summary judgment, which the Court denied
in part, and Brown filed a motion to strike the Defendants’ expert, which the Court granted. On
February 14, 2014, the Defendants filed motions to reconsider both decisions. Subsequently,
Brown filed an ex-parte motion to adjourn the remaining dates contained in the Court’s January
2013 case management and scheduling order. Based on what follows, the motions will be
denied.

I
On April 28, 2011, at approximately 8:50 p.m., Robert Surgeson (Surgeson) called 911
from his sister’s home located at 305 Marsac Street in Bay City, Michigan. At the time,
Surgeson was highly intoxicated.

Because of the call, during which Surgeson said some

alarming things, Bay City Police Officers responded to the 305 Marsac residence.
Meanwhile, Brown and Surgeson’s sister, Leslie, returned to the home after visiting a
friend. Brown parked in the driveway, helped Leslie carry some things inside, and then drove
away. Bay City Police Officers—including Lewis, Kamp, and Richnak—then followed Brown
and conducted a felony-traffic stop a short distance from the residence. Their intention was to
find out what was going on inside 305 Marsac.
When Brown noticed the Officers’ lights, she pulled into a BP gas station. She claims
that the Officers then swarmed her car with rifles aimed at her head, pulled her from the car and
threw her to the ground, then kneeled on her back and handcuffed her. Brown claims that all the
while, the Officers told her to “shut up” despite her repeated questions as to what was going on.
Brown filed a complaint asserting various Fourth Amendment claims as well as state law
claims for assault and battery against Lewis, Kamp, Richnak, Dispatcher #1, and Bay City. The
Defendants filed a motion for summary judgment arguing that, among other things, Brown’s
claims were barred by qualified immunity. Brown then filed a motion to strike the Defendants’
expert, Police Chief Daniel J. Grant.
The Court denied the motion for summary judgment as to all Defendants save Bay City,
as a genuine issue of material fact precluded the application of qualified immunity or judgment
as a matter of law. Indeed, the Court concluded that if the traffic stop occurred as Brown
suggests, her Fourth Amendment rights were violated. The Court then granted Brown’s motion

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to strike after determining that Chief Grant’s opinions constitute impermissible legal conclusions
and are not based on sufficient evidence to be reliable.
The Defendants filed a motion for reconsideration as to both conclusions. They argue
that qualified immunity should bar Brown’s claims, that Chief Grant’s opinions are admissible,
and that the contrary holdings should be reversed.
The Defendants filed their motions for reconsideration on February 14, 2014.
Nevertheless, their joint final pretrial order and jury instructions were due on February 18, 2014.
See Jan. 18, 2013 Case Mgmt. & Sched. Order 1, ECF No. 13. The relevant Local Rule provides
that if “a timely-filed dispositive motion” is pending “on the seventh day before the date for
submitting the final pretrial order,” that date will automatically be “postponed and rescheduled to
a date no earlier than 7 days after the date of decision on the motion . . . .” E.D. Mich. LR
16.1(f). But, as indicated above, the Defendants’ motions were not pending on February 11,
2014 (seven days before the date for submitting the pretrial order). And even if they were,
motions for reconsideration do not constitute “dispositive motions” under the Local Rule. See id.
(“For purposes of this rule, ‘dispositive motion’ means a motion for judgment on the pleadings,
for summary judgment, to certify or decertify a class, to dismiss for failure to state a claim upon
which relief can be granted, or to involuntarily dismiss an action, including such a motion
directed to fewer than all claims, issues, or parties.”).
Under the case management and scheduling order, “Counsel for plaintiff” has the duty of
preparing a draft joint final pretrial order and submitting it to opposing counsel, “after which all
counsel will jointly submit the final draft of the proposed joint pretrial order to the Judge’s
chambers . . . .” Jan. 18, 2013 Case Mgmt. & Sched. Order 5. The parties are also responsible
for meeting to confer “prior to trial to discuss jury instructions” and “to (1) reach any possible

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stipulations narrowing the issues of law and fact, (2) deal with non-stipulated issues in the
manner stated in this paragraph, and (3) exchange documents that will be offered in evidence at
the trial.” Id. Notably, “[i]t shall be the duty of counsel for plaintiff to initiate that meeting and
the duty of other counsel to respond to plaintiff’s counsel and to offer their full cooperation and
assistance.” Id. (emphasis added).
Brown’s counsel filed a motion to adjourn the final pretrial conference, alleging that the
Defendants’ counsel did not supply the input necessary for preparation of the proposed final
pretrial order.

Indeed, a February 17, 2014 email attached to Brown’s motion to adjourn

indicates that Brown’s counsel sent “rough drafts of the proposed joint final pre-trial order and
proposed jury instructions” to Defendants’ counsel and communicated that “[t]hey both need
more work,” requesting “input” so the parties could “finalize.” Pl.’s Mot. Adjourn Ex. 1. The
Defendants’ counsel responded “I filed a motion for reconsideration last week and I am on
vacation this week. I will talk to you next Monday.” Id. As a result, the parties did not submit a
joint pretrial order or proposed jury instructions by February 18, 2014.
II
A motion for reconsideration will be granted if the moving party shows: “(1) a ‘palpable
defect,’ (2) the defect misled the court and the parties, and (3) that correcting the defect will
result in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F.
Supp. 2d 731, 733–34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable
defect” is “obvious, clear, unmistakable, manifest, or plain.” Michalec, 181 F. Supp. 2d at 734
(citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich.
1997)). “Motions for rehearing or reconsideration which merely present the same issues ruled
upon by the Court, either expressly or by reasonable implication, shall not be granted.”
Michalec, 181 F. Supp. 2d at 734 (brackets omitted) (quoting E.D. Mich. LR 7.1(h)(3)).
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As to Brown’s motion to adjourn, “[a] schedule may be modified only for good cause and
with the judge’s consent.” Marcilis v. Twp. of Redford, 693 F.3d 589, 597 (6th Cir. 2012)
(quoting Fed. R. Civ. P. 16(b)(4)). A court asked to modify a scheduling order “may do so only
if a deadline cannot reasonably be met despite the diligence of the party seeking the extension.”
Marcilis, 693 F.3d at 597 (brackets and citation omitted).
III
The Defendants request that the Court reconsider its decision to partially deny their
motion for summary judgment and its decision to grant Brown’s motion to strike their expert. In
addition, Brown alleges that the noncompliance of the Defendants’ counsel necessitates the
adjournment of the final pretrial conference and the current trial date. All three issues are
addressed in turn.
A
The Defendants first take exception to the Court’s conclusion that summary judgment
was not warranted. They begin by arguing that Brown’s unreasonable seizure claim is barred by
qualified immunity because “a constitutional prohibition against the display of weapons during a
traffic stop” was not “clearly established” by Smoak v. Hall, 460 F.3d 768 (6th Cir. 2006). See
Defs.’ Mot. Recon. Summ. J. 4, ECF No. 47. To be clear, this is not a new argument presented
by the Defendants, but simply the reassertion of the arguments that were previously addressed.
See Defs.’ Mot. Summ. J. 19 (“The ‘display of weapons’ and ‘use of handcuffs’ to secure
[Brown] was appropriate”), ECF No. 18. Accordingly, a motion for reconsideration will not be
granted. See E.D. Mich. LR 7.1(h)(3).
Moreover, the Defendants’ argument remains without merit. In Smoak, the Sixth Circuit
concluded that the “manner in which th[e] investigatory stop was conducted . . . far exceeded the
reasonable suspicion of an objective THP trooper.” Smoak, 460 F.3d at 782. This was, in large
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part, a result of the fact that the officers used guns and handcuffs—which under the
circumstances constituted an arrest that was not justified by probable cause. Id. at 781–82.
The Court’s conclusions here, giving deference to Brown’s explanation of the facts (as
required on summary judgment) were the same: “the Officers violated Brown’s Fourth
Amendment rights because the seizure of her person was an arrest without probable cause.” Jan.
31, 2014 Op. & Order 20 (citation omitted), ECF No. 44. The use of guns and handcuffs, under
the circumstances as explained by Brown, exceeded any reasonable suspicion the Defendant
Officers may have had to stop her car in the first instance. Thus, the stop became an arrest, but
probable cause justifying the Defendant Officers’ belief that Brown had committed a crime was
lacking. Smoak established beyond argument that an investigatory stop that becomes an arrest—
due to the use of guns and handcuffs—absent probable cause is unconstitutional. See Smoak,
460 F.3d at 782 (“Caselaw from this circuit has endorsed the use of guns and handcuffs during a
felony stop, even if only as a part of an investigatory seizure. Although the use of guns and
handcuffs in the present case was unreasonably intrusive, prior decisions had not made this
clear.”).
The Defendants consistently assert in their motion for reconsideration that this Court
concluded the use of handcuffs and guns during an investigatory stop violated Brown’s rights.
See Defs.’ Mot. Recon. Summ. J. 5–7. But this is not the case. Indeed, it was the use of guns,
knees in Brown’s back, and handcuffs that elevated the initial stop into an arrest, and it was this
arrest—absent probable cause—that violated Brown’s rights. See Jan. 31, 2014 Op. & Order 20.
Such a constitutional violation is clearly established. Thus, the Defendants are not entitled to
qualified immunity on Brown’s unreasonable seizure claim.

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Neither are the Defendants entitled to qualified immunity on Brown’s excessive force
claim. Here, the Defendants consistently ignore Brown’s assertion that she was “grabbed” by
her shirt and shoulders and thrown to the ground. Brown Dep. 155, 157, attached as Defs.’ Mot.
Summ. J. Ex. G. It was not simply the use of handcuffs and a knee in Brown’s back that
constituted excessive force, but as she explains the events, the manner in which the Defendant
Officers flung her through the air. It is well-established that the use of physical force against a
suspect who is compliant and poses no danger to herself or others is excessive. See Harris v.
City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009); Grawey v. Drury, 567 F.3d 302, 314 (6th
Cir. 2009) (“The general consensus among our cases is that officers cannot use force . . . on a
detainee who . . . is not resisting arrest.”). So qualified immunity is not applicable.
Next, the Defendants contend that at least Defendants Kamp and Richnak are entitled to
qualified immunity on the excessive force claim: they argue Brown “has provided no evidence”
that Defendants “Kamp and Richnak . . . made physical contact or were in a position to prevent
physical contact with her.” Defs.’ Mot. Recon. Summ. J. 10. But Brown testified that she was
grabbed from her car and thrown to the ground by two officers; she simply did not know which
two. Brown Dep. at 155. As the Court previously concluded, because there is a genuine dispute
of material fact as to which officers grabbed and threw Brown (at least according to her version
of events), summary judgment is not warranted as to any of them. Jan. 31, 2014 Op. & Order 23;
see also Durham v. Nu’Man, 97 F.3d 862, 866 (6th Cir. 1996); Bruner v. Dunaway, 684 F.2d
422, 426 (6th Cir. 1982) (per curiam).
Finally, the Defendants are not entitled to governmental immunity on Brown’s state law
claims. As the Michigan Supreme Court established in Odom v. Wayne Cnty., 760 N.W.2d 217
(Mich. 2008), “to be immune from liability for intentional torts, the governmental employee

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must” establish that (1) he was acting during the course of employment; (2) he was acting, or
reasonably believed he was acting, within the scope of his authority, and (3) he was acting in
good faith. Id. at 224. Indeed, the Odom court made clear that governmental immunity “protects
a governmental employee who reasonably believes that he was authorized to take certain actions,
but later learns that he was mistaken.” Id.
The Defendants argue that they are entitled to immunity because “[a]n Officer exceeds
the scope of this authority only where he engaged in an ultra vires activity.” Defs.’ Mot. Recon.
Summ. J. 11. They continue to explain that “[a]n arrest, by definition, falls within the scope of a
Police Officer’s authority. Therefore, governmental immunity applies.” Id. The Defendants’
argument, summarized of course, is that officers are entitled to governmental immunity for any
conduct taken during the course of an arrest because an arrest is not an “ultra vires” activity.
But as established by Tounes v. Pellerito, 739 F.3d 885 (6th Cir. 2014), it is proper to
deny governmental immunity if a plaintiff asserts claims for excessive force and unreasonable
seizure but genuine issues of material fact remain. See id. at 890. Because there are disputed
facts here—such as whether Brown was thrown by the Defendant Officers after they removed
her from her car—the Court cannot determine whether those Defendant Officers acted in good
faith, and immunity is not appropriate under the Ross test. See Odom, 760 N.W.2d at 224.
Because all of the Defendants’ claims concerning the motion for summary judgment
remain without merit, their motion for reconsideration will be denied.
B
The Defendants also filed a motion for reconsideration concerning the Court’s conclusion
that their expert’s opinions constituted legal conclusions and were not based upon sufficient facts
or data because he did not consider Brown’s version of events (among other notable omissions).

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The Defendants argue that “the Court’s reasoning in reaching this conclusion constitutes a
‘palpable defect’ . . . as it misapplied the law with respect to the reliability of expert witnesses.”
Defs.’ Mot. Recon. Expert 2, ECF No. 48.

They proceed, however, to suggest that their

proposed expert “can only testify to protocol, practices and training provided under similar
circumstances.” Id. at 12 (emphasis added).
Such testimony could be permissible from an expert in this case. But those are not the
proposed opinions the Defendants’ expert, Daniel J. Grant, plans to offer. As indicated in his
supplemental expert report, Chief Grant plans to provide four opinions: (1) that the Defendants’
response to the 911 call was tactically appropriate; (2) that the felony stop was tactically
appropriate; (3) that the use of weapons and handcuffs was tactically appropriate; and (4) placing
a knee in Brown’s back was consistent with accepted Police training and practice. See Grant
Supp. Report 4–7, attached as Pl.’s Mot. Strike Ex. 2. As the Court previously concluded, all
four opinions are impermissible legal conclusions. See Shahid v. City of Detroit, 889 F.2d 1543,
1547 (6th Cir. 1989) (indicating that proposed expert’s opinion—that defendant officers’
behavior amounted to negligence—amounted to a “legal conclusion” and was excludable on that
basis); Gorajczyk v. City of St. Clair Shores, No. 08-14764, 2010 WL 3245432, at *3 (E.D.
Mich. Aug. 17, 2010) (excluding expert’s conclusory opinion that “the Plaintiff was subjected to
excessive use of force”).
Importantly, Federal Rule of Civil Procedure 26 requires that an expert’s report include
“a complete statement of all opinions the witness will express and the basis and reasons for
them.” Fed. R. Civ. P. 26(a)(2)(B)(i). Chief Grant does not indicate in his supplemental report
that he plans to offer opinions concerning protocol, practices, and training provided to law
enforcement officers generally; he only identifies the four conclusions that the Court has already

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considered and determined to be impermissible.

Chief Grant may, of course, only testify

concerning the opinions included in his report. See R.C. Olmstead, Inc. v. CU Interface, LLC,
606 F.3d 262, 271 (6th Cir. 2010) (excluding expert’s report where it did not comply with Rule
26). Chief Grant cannot testify concerning the opinions in his supplemental report—those are
legal conclusions. And pursuant to Rule 26, he cannot testify concerning any opinions that are
not in his report.

Thus, he was appropriately excluded.

The Defendants’ motion for

reconsideration on this issue will be denied.
C
Brown filed an ex-parte motion to suspend the case management dates, indicating that
she sent a proposed final pretrial order and proposed jury instructions to Defendants’ counsel on
February 17, 2014, and that counsel responded “that he had filed a motion for reconsideration of
the trial court’s ruling . . . [and] that he was on vacation and would take up the matter on
Monday, February 24, 2014.” Pl.’s Mot. 1. These claims are borne out by an email chain
attached to Brown’s motion to adjourn. The emails indicate that Brown’s counsel attempted to
complete the pretrial disclosures and confer before the February 18 deadline. Counsel for
Defendants did not cooperate.
And yet, while Brown has clearly met the good cause standard allowing for an
adjournment, see Fed. R. Civ. P. 16(b)(4), the Court retains “broad discretion to enforce [its]
scheduling orders.” Estes v. King’s Daughters Med. Ctr., 59 F. App’x 749, 752 (6th Cir. 2003).
Brown’s motion to adjourn will be denied, and the deadlines for submitting the final pretrial
order and proposed jury instructions will be rescheduled during the February 25, 2014 final
pretrial conference.

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IV
Accordingly, it is ORDERED that the Defendants’ motions for reconsideration, ECF
Nos. 47 and 48, are DENIED.
It is further ORDERED that Brown’s ex parte motion, ECF No. 49, is DENIED.
Dated: February 25, 2014

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail on
February 25, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS

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