Williams-Turk v. Bazzy et al

Filing 43

ORDER granting in part and denying in part 35 Defendant's Motion for Summary Judgment. Signed by District Judge Nancy G. Edmunds. (KHil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Mary Williams-Turk,
Case No. 09-14786
Plaintiff,
Honorable Nancy G. Edmunds
v.
Van Buren Township Sergeant Charles
Bazzy, et al.
Defendants.
/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [35]
This action, alleging a Fourth Amendment violation for excessive force against
Defendant John Kapchus, is brought pursuant to 42 U.S.C. § 1983. It arises from an
incident that occurred in the early morning hours of January 21, 2008. Plaintiff Mary
Williams-Turk alleges that Defendant John Kapchus, along with Co-Defendants Bazzy
and Hamblin, violated her Fourth Amendment rights by using excessive force after she
was handcuffed.1 Specifically, Plaintiff alleges that Defendant Kapchus put her
handcuffs on too tight, pulled her to her feet by her handcuffs when she fell, and pulled
on her arms, handcuffs, or both while walking Plaintiff to a vehicle. Plaintiff further
alleges that Defendant’s excessive force caused her to suffer a fractured right wrist that

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Defendant Kapchus’s summary judgment motion is the second such motion in the instant case. The first
motion involved original Co-Defendants Bazzy and Hamblin, which this Court denied. Williams-Turk v.
Bazzy, No. 09-14786, 2010 WL 5071310 at *1 (E.D. Mich. Dec. 7, 2010). Defendant Kapchus was made
a party to this case following Co-Defendants’ first motion.

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required casting, physical therapy, and surgery. This matter is now before the Court on
Defendant’s motion for summary judgment arguing that there was no Fourth
Amendment violation and Defendant is entitled to qualified immunity from Plaintiff’s
constitutional claims. For the reasons set for below, Defendant’s motion is GRANTED
IN PART and DENIED IN PART. The motion is GRANTED as to Plaintiff’s Fourth
Amendment excessive force claim that her handcuffs were too tight and DENIED as to
the rest of her claims alleging excessive force after she was handcuffed.
I.

Facts
The Court is familiar with the facts of this case, having recently issued an opinion

denying Co-Defendants Bazzy and Hamblin’s motion for summary judgment [29]. The
relevant facts are reiterated here.
On January 20, 2008, Plaintiff was hosting a party at her house in Belleville.
(Def.'s Mot. for Summ. J., Ex. 1, Pl.’s Dep. at 14.) The party lasted from 2:00 p.m. to late
into the evening. (Id. at 15.) It was a going away party in honor of Plaintiff’s son,
nineteen year-old Dominique Williams, who was leaving for military service. (Id. at 14.)
At the time the party ended with Plaintiff’s arrest, there were between eight and ten
guests at her house. (Id. at 19.) Plaintiff testified that she drank two glasses of wine
between 2:00 p.m. and 9:00 p.m. (Id. at 20.)
Around 12:45 a.m., on the morning of January 21, 2008, Co-Defendant Officers
Bazzy and Hamblin arrived at Plaintiff’s house. (Id. at 21.) They were responding to a
call from Plaintiff’s neighbor who reported seeing a young woman upset in the street.
(Pl.'s Resp., Ex. 3, Hamblin’s Report at 1.) Officer Hamblin found the young woman,
identified as Lori McGlone (age 17), and brought her to Plaintiff’s house. (Id.)
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Plaintiff met Officers Bazzy and Hamblin, greeted them, told them her name, and
identified herself as the homeowner. She asked the officers for their identification and
who let them into the home and what was going on. The officers explained that they
were dispatched to the area and that they found an upset Lori on the street without a
coat appearing intoxicated.2 (Pl.’s Dep. at 24.) Although the officers claim that Tommy
Williams III (age 21), Lori’s boyfriend and Plaintiff’s son, let them into Plaintiff’s house,
Lori testified that she opened the door to the house, went in herself, and the officers
followed her inside. (Id. at 22-23; Def.'s Mot. for Summ. J., Ex. 5, McGlone-Williams
Dep. at 22.)
Officers Bazzy and Hamblin began interrogating Plaintiff because Lori had been
drinking. Plaintiff told them that if Lori had been drinking, she “stole it” from Plaintiff;
Plaintiff did not serve her or anyone underage. (Pl.’s Dep. at 23-24.) In response to the
officers’ request, Plaintiff went to get her ID from her purse which was in a kitchen
cupboard. At this time, the officers were tracking snow and mud throughout Plaintiff's
home, and Sgt. Bazzy, without permission, started going through Plaintiff's cupboards
and other possessions in Plaintiff's great room. Plaintiff told him to quit. She was upset
that officers were in her home without her permission, were tracking mud and snow
throughout her home, and were ignoring her questions. Plaintiff returned to the foyer
and gave Officer Hamblin her ID. (Id. at 24-27.)
At this point, Defendant Kapchus opened the front door and stood in the
doorway. (Id. at 27-28.) Defendant Kapchus, an employee of the Belleville Police

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  The  police  report  reveals  that  a  preliminary  breath  test  performed  on  Lori  that  night  in  the police  car  showed 
.056% alcohol. (Hamblin’s Report at 2.)  

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Department, arrived at Plaintiff’s house to assist the other officers. (Def.'s Mot. for
Summ. J., Ex. 3, Kapchus Report at 1.) Plaintiff identified herself to this officer and
asked for his identification because his jacket was zipped up and his identification was
covered up. (Pl.’s Dep. at 27-28.) He replied, “I don’t have to tell you shit.” (Id.)
Defendant Kapchus’s report filed at the time stated that he did provide Plaintiff with a
business card. (Kapchus Aff. at 1.) It was a bitterly cold night so Plaintiff asked
Defendant to either come in or stay out but close the door. (Pl.’s Dep. at 28.)
Defendant Kapchus and Sgt. Bazzy then pulled Tommy out the door and threw
him on the ground. He was bloody and lying face down with police surrounding him.
Plaintiff had no idea why her son was being dragged out of the house and tackled on
the front lawn. The officers did not tell her that he was being arrested. (Id. at 29, 32-33,
40.) Officer Hamblin’s incident report states that after Tommy Williams provided the
officers with his identification, they ran a lien check on him that revealed several
misdemeanor warrants, and they arrested him on those outstanding misdemeanor
warrants. (Hamblin’s Report at 2.)
After seeing her son pulled out of the house and thrown to the ground, Plaintiff
called her sister who is a retired police officer and asked her if the police could just walk
into her home, pull her son out, and tackle him to the ground. Plaintiff told her son
Tommy that she was going to call an attorney. She walked out of her home, down two
porch steps, and attempted unsuccessfully to reach an attorney she knew. (Pl.’s Dep. at
32-34.)
Plaintiff then attempted to reenter her house. Defendant Kapchus had returned to
the porch and was leaning on the doorknob. Plaintiff asked to be let into her house so
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she could get a jacket. Defendant Kapchus refused to let Plaintiff into the house and
said that “You’re not going anywhere.” (Id. at 34.) Plaintiff’s son Dominique tried to give
Plaintiff her jacket by opening the door but Defendant Kapchus closed the door with his
body. Plaintiff asked Defendant Kapchus again to let her get a jacket. (Id. at 34-36.)
Defendant Kapchus then began yelling, “Ouch, she’s hurting me. She’s hurting me.” (Id.
at 36.) Plaintiff replied, “Stop it. I’m not hurting you.” (Id.) Plaintiff testified that she was
across the porch at the time and denies striking Defendant Kapchus. (Id. at 36-37.)
Plaintiff’s son Dominique testified that he saw Plaintiff attempt to open the door and
Defendant Kapchus close it. (Def.'s Mot. for Summ. J., Ex. 4, D. Williams Dep. at 31.)
At this point Plaintiff was placed under arrest. The parties agree that three
officers placed Plaintiff in handcuffs but dispute which three officers did so. Defendant
Kapchus avers that he did not participate in the handcuffing but did walk the thenhandcuffed Plaintiff to a patrol car. (Def.'s Mot. for Summ. J., Ex. 6, Kapchus Aff. at ¶¶
9-10.) Officer Herrick denies involvement in Plaintiff’s handcuffing. (Def.'s Mot. for
Summ. J., Ex. 8, Herrick Dep. at 24.)
The DVD provided by Co-Defendants Bazzy and Hamblin suggests that Officer
Herrick was not the third officer involved in Plaintiff’s handcuffing. The DVD has three
tracks; each track has a video and two audio tracks. One audio track recorded the
officers themselves and the other was an in-car recording. At approximately 1:00:45
a.m., Plaintiff’s son Tommy appears to have been placed in Sgt. Bazzy’s vehicle.
Plaintiff appears to have been placed under arrest at approximately 1:01:17 a.m. and
can be heard screaming at 01:01:25. At that time, Sgt. Bazzy’s in-car recording and
Officer Herrick’s on-person recording suggest that Officer Herrick is speaking to Tommy
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who is in Sgt. Bazzy’s vehicle. At approximately 1:02:00, Officer Herrick introduces
himself to Tommy as “Chris” (Officer Herrick’s first name). (Co-Defs.' Mot. for Summ. J.,
Ex. 3, DVD.)
Plaintiff testified that her handcuffs were too tight. More importantly, she testified
that after she was handcuffed, she was led off of her porch, and she began to fall. The
officers then “pulled,” “yanked,” or “scooped” Plaintiff back into a standing position by
the handcuffs. (Pl.’s Dep. at 42-43.) On the DVD, Plaintiff can be heard screaming in
pain at this time. (DVD at 1:01:25.)
Defendant Kapchus and another officer walked Plaintiff away from the porch
towards the parked police cars. (Def.'s Mot. for Summ. J., Ex. 8, Herrick Dep. at 10.)
Plaintiff told the officers that her handcuffs were too tight, that her arm was hurting, and
that they were hurting her. (Pl.’s Dep. at 45.) At 1:02:43 a.m., the video shows Plaintiff
asking to have her handcuffs loosened. At approximately 1:03:18 a.m., Plaintiff stops in
front of a parked police car and an officer loosens her cuffs. Officer Herrick’s on-person
audio track suggests that he was the one who loosened them.
Defendant Kapchus then led Plaintiff to Officer Herrick’s car. Plaintiff testified that
the officer who was leading her was “yanking [her] around by the handcuffs.” (Pl.’s Dep.
at 46.) Plaintiff testified that this jerking caused her further injury. Defendant denies that
he pulled Plaintiff by the handcuffs and avers that he held Plaintiff by her biceps as he
was trained to do. (Kapchus Aff. at ¶¶ 14-15.)
The video shows Plaintiff and Defendant walking around the front of the car. It is
unclear whether Defendant Kapchus’s left arm is on the handcuffs but his right arm
appears to be on her arm. (DVD.) Officer Herrick can be heard saying “put her in my car
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John [Kapchus].” At 1:04:00-1:04:45 a.m., Plaintiff can then be heard on the video
telling Defendant to “quit pulling on me like that…you’re hurting my arm.” Plaintiff
testified that Defendant Kapchus had a difficult time placing her in the car. (Pl.’s Dep. at
48.) As Plaintiff is placed in the car, she can be heard complaining about how roughly
Defendant is handling her. (DVD.)
Officer Hamblin transported Lori and Sgt. Bazzy transported Plaintiff’s son
Tommy to the police station. (DVD.) Officer Herrick transported Plaintiff to the police
station, and she spent the rest of evening there. She was booked on the following
misdemeanor charges: (1) assault and battery of a police officer; (2) furnishing alcohol
to a minor; and (3) obstructing justice. She requested medical attention but no one
attended to her. The police released Plaintiff between seven and nine in the morning.
(Pl.’s Dep. at 53-56.)
On January 21, 2008 at 9:29 a.m., Plaintiff was treated at Western Wayne Urgent
Care for injuries to her right wrist. An orthopedic surgeon diagnosed a fractured right
wrist. Plaintiff's right wrist was casted twice during a four and one-half week period.
Plaintiff then had aggressive physical therapy at her surgeon's recommendation. During
a recheck in mid-April 2008, Plaintiff's surgeon diagnosed her with cubital tunnel of the
right hand and a right wrist ligament tear. Plaintiff ultimately had surgery for cubital
tunnel release on July 6, 2010. (Pl.'s Resp., Ex. 2, Pl.'s Medical Records; Pl.’s Dep. at
58-64, 71-72.)
Defendant commissioned an independent medical examination of Plaintiff by Dr.
Jeffrey E. Gorosh. (Def.'s Reply, Ex. 12, Gorosh’s Independent Medical Evaluation at

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1.) Dr. Gorosh did not find evidence of a fracture. (Id. at 2.) Dr. Gorosh did not find it
likely that Plaintiff’s injuries were the result of her being handcuffed too tightly.3
As to the three misdemeanor charges resulting from the January 21, 2008
incident, Plaintiff entered a nolo contendere plea to the furnishing of alcohol to a minor
on March 4, 2008. She was required to pay a fine and court costs, the matter was taken
under advisement for six months (delayed sentence); and at the end of that six-month
period, the charge was dismissed. (Co-Defs.’ Ex. 4, Register of Action 08-0407; Pl.’s
Dep. at 58.) The other two charges for assault and battery on a police officer and
obstructing justice were dismissed without a plea or payment of any fine or costs. (CoDefs.’ Ex. 5, Register of Action 08-0406; Co-Defs.’ Ex. 6, Register of Action 08-0405;
Pl.’s Dep. at 58.)

II.

Summary Judgment Standard
“The court shall grant summary judgment 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). A moving party may meet that burden “by

‘showing’ – that is, pointing out to the district court -- that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Revised Rule 56 expressly provides that:

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“Based on [sic] review of records, based on my interview of this patient, based on the clinical history that
I obtained and based on physical examination, I do not find that there is any significant evidence of wrist
pathology. In all likelihood, I find that the MRI findings or incidental findings do not represent any
significant pathology and are not the result of injury. Also, I do not feel within a reasonable degree of
medical certainty that the alleged injuries incurred when she was handcuffed had anything significant to
do with the development of cubital tunnel syndrome. In fact, it is more likely that this would be an
occupational hazard than a hazard of being handcuffed. There is no allegation of injury that would cause
compression of the ulnar nerve at the elbow.” (Gorosh’s Independent Medical Evaluation at 1.)

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A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to
properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the
court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials –
including the facts considered undisputed – show that the movant is
entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Ultimately a district court must determine whether the record as a whole presents a
genuine issue of material fact, id. at 587, drawing “all justifiable inferences in the light

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most favorable to the non-moving party,” Hager v. Pike County Bd. Of Education, 286
F.3d 366, 370 (6th Cir. 2002).
III.

Analysis
Defendant moves for summary judgment arguing that (1) the force used on

Plaintiff was reasonable because her handcuffs were loosened “as soon as practicable,”
(2) the video evidence conclusively shows that there was no excessive force and
therefore inconsistent testimony should be ignored, and (3) Defendant is entitled to
qualified immunity on Plaintiff's Fourth Amendment excessive force claim. (Def.’s Mot.
at 10.) The Court begins its analysis with Defendant’s qualified immunity arguments.
A.

Qualified Immunity

In a recent decision, the Sixth Circuit addressed qualified immunity in the context
of a § 1983 excessive force case. See Grawey v. Drury, 567 F.3d 302 (6th Cir. 2009). It
began, as this Court does, with a discussion of the doctrine of qualified immunity and
how the Court determines whether a defendant is entitled to the protection afforded by
that doctrine.
The doctrine of qualified immunity shields “‘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.’” Id. at 309 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
(1982)). On summary judgment, the Court is required to view the facts in the light most
favorable to the non-moving party, Plaintiff in this case. Viewing the facts in that light,
the Court must then determine “whether: 1) the violation of a constitutional right has
occurred; and 2) the constitutional right at issue ‘was clearly established at the time of
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defendant's alleged misconduct.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001), and citing Dunigan v. Noble, 390 F.3d 486, 491 (6th Cir. 2004)). Although the
Supreme Court, in Pearson v. Callahan, 555 U.S. 223 (2009), recently held that the
courts now have discretion to address the second step first when appropriate, this
Court, similar to the Sixth Circuit in Grawey v. Drury, will first examine whether Plaintiff
has presented evidence of a constitutional violation. Grawey, 567 F.3d at 309.
B.

Excessive Force

Defendant argues that, under prevailing Sixth Circuit precedent, there can be no
Fourth Amendment claim for excessive force under the facts presented here where
Plaintiff's handcuffs were immediately loosened after she complained to officers that
they were too tight. In support, Defendant relies on Burchett v. Kiefer, 310 F.3d 937,
945 (6th Cir. 2002) (holding that the defendant officer did not violate the plaintiff's
constitutional rights because the handcuffs were removed when the officer learned of
the plaintiff's complaints). Defendant’s argument ignores Plaintiff’s claims that
Defendant Kapchus violated her rights by pulling her up by her handcuffs when she fell
and gratuitously yanked her around the yard by her handcuffs or arm.
The Court's task is to evaluate Defendant’s conduct “under the Fourth
Amendment's ‘objective reasonableness' standard.” Roberts v. Manigold, 240 F. App'x
675, 677 (6th Cir. 2007) (quoting Brosseau v. Haugen, 543 U.S. 194, 197 (2004)).
Under the Fourth Amendment, a police officer may use only such force as is objectively
reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989).
Determining whether there has been a Fourth Amendment violation requires
consideration of “the severity of the crime at issue, whether the suspect poses an
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immediate threat to the safety of the officers or others, whether the suspect is actively
resisting arrest or attempting to evade arrest by flight.” Id. at 396. “The Court should
judge the lawfulness of the conduct from the ‘perspective of a reasonable officer on the
scene, rather than with 20/20 vision of hindsight.’” Morrison v. Bd. of Tr. of Green Twp.,
583 F.3d 394, 401 (6th Cir. 2009) (quoting Graham, 490 U.S. at 396).
Applying the above precedent and considering the undisputed fact that Plaintiff’s
handcuffs were loosened by the police immediately after she complained, this portion of
her Fourth Amendment excessive force claim is dismissed with prejudice.
Plaintiff also claims that Defendant used excessive force on her after she was
handcuffed – by pulling her off the porch by her handcuffs, by yanking and pulling her
up to her feet by her handcuffs as she started to fall, by pulling her by the arm and/or
handcuffs while leading her to the patrol car, and by roughly shoving her in the police
car. See Morrison, 583 F.3d at 401 (observing that “[a] reviewing court analyzes the
subject event in segments when assessing the reasonableness of a police officer’s
actions.”).
Viewing the facts in the light most favorable to Plaintiff and applying the above
three Graham factors, Defendant's use of force was not objectively reasonable. First,
Plaintiff was charged with three misdemeanors; not serious felony charges. Second,
Defendant presented no facts showing that, after Plaintiff was handcuffed, she posed an
immediate threat to the safety of the officers or others. Finally, Plaintiff testifies that she
was not actively resisting arrest or attempting to evade arrest by flight. It is objectively
unreasonable to use physical force on a person under these facts. See Morrison, 583
F.3d at 404 (observing that the Sixth Circuit “has consistently held in light of the
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reasonableness standard that ‘use of force after a suspect has been incapacitated or
neutralized is excessive as a matter of law.’”) (quoting Baker v. City of Hamilton, 471
F.3d 601, 607-09 (6th Cir. 2006)). See also Vance v Wade, 546 F.3d 774, 783-84
(concluding that the defendant officer's “pulling up on” the plaintiff's “handcuffs while his
hands were cuffed behind his back” and shoving and throwing the plaintiff into a police
car “could constitute an excessive use of force”); Polk v. Hopkins, 129 F. App'x 285,
287, 290-91 (6th Cir. 2005) (finding that “a jury question existed” as to whether the force
the defendant officer used on the plaintiff was reasonable and further determining that
the defendant officer was not entitled to qualified immunity when he “allegedly jerked
[the plaintiff] up by the handcuffs and pushed her into the police car” after she had
already been handcuffed). Taking the evidence in the light most favorable to Plaintiff but
viewing it from the perspective of a reasonable officer on the scene, Plaintiff's evidence
establishes an excessive force claim against Defendant.
The Court rejects Defendant Kapchus’s claim that the video evidence
conclusively shows there was no excessive force and that contradictory testimony
should be excluded. Scott v. Harris, 550 U.S. 372, 380 (2007). The DVD does not
establish that Defendant was not on the porch after Plaintiff was handcuffed and during
her possible fall. Despite Defendant’s claims to the contrary, a reasonable jury could
find support in the record for Plaintiff’s claim that she fell and was pulled back to her feet
by the handcuffs. The DVD does not show clearly whether Plaintiff fell and whether she
was pulled back up by the handcuffs, but it does capture Plaintiff screaming. Plaintiff
also testified that Defendant Kapchus used excessive force while leading her to the
patrol car and she can be heard on the DVD telling Defendant to “stop pulling on me like
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that.” (Pl.’s Dep. at 46; DVD.) There is no blatant contradiction of the sort that Scott
addresses.
C.

Violation of Clearly Established Right

The Court now considers Defendant’s argument that, even if he did violate
Plaintiff's Fourth Amendment right to be free from excessive force, he is entitled to
qualified immunity because a reasonable officer in his position would not have known
that yanking Plaintiff up to her feet by the handcuffs when she began to fall or pulling
her by the arm or handcuffs to and into the car despite her cries that Defendant
Kapchus was hurting her violated the Fourth Amendment of the Constitution.4 This
Court disagrees.
Viewing the facts in the light most favorable to Plaintiff, at the time of Defendant’s
challenged conduct, she was handcuffed and thus did not pose a risk to the safety of
Defendant or others. Plaintiff also testified that she was not resisting arrest and was not
attempting to flee. She had been neutralized, and there was no need for Defendant’s
gratuitous use of force when moving her off the porch or escorting her to and inside the
patrol car. As the Morrison court recently observed, “in this Circuit, the law is clearly
established that an officer may not use additional gratuitous force once a suspect has
been neutralized.” Morrison, 583 F.3d at 408 (internal quotation marks and citations
omitted). It is immaterial that the facts presented here differ somewhat from those in the

4

 Defendant Kapchus cites Gorajczyk v. City of St. Clair Shores in support of his argument. No. 08‐14764, 2010 WL 
3488646,  at  *5,  *6  (E.D.  Mich.  August  31,  2010)  (Cook,  J.).  This  case  is  distinguishable  from  the  instant  case.  In 
Gorajczyk, the defendant officer pulled the plaintiff up from the ground by his arm. (Id.) Plaintiff in this case alleges 
that she was pulled up by her handcuffs. (Pl.’s Dep. at 43.) Plaintiff also alleges that she was gratuitously yanked by 
the handcuffs or arm around the yard. (Id. at 45‐47.) Even if not distinguishable, this Court is not required to adopt 
the Gorajczyk court’s reasoning or result and declines to do so here. 

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decisions discussed above. “[T]here need not be a case with the exact same fact
pattern or even fundamentally similar or materially similar facts; rather, the question is
whether the defendants had fair warning that their actions were unconstitutional.”
Grawey, 567 F.3d at 313-14 (internal quotations marks and citations omitted).
Defendant is not entitled to qualified immunity, and his motion for summary judgment is
denied as to Plaintiff's Fourth Amendment claims alleging excessive force after she was
handcuffed. Material issues of fact remain for trial on Plaintiff's excessive force claims
concerning Defendant’s conduct after she was handcuffed.
IV.

Conclusion
For the above-stated reasons, Defendant’s motion for summary judgment is

GRANTED IN PART and DENIED IN PART.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: July 18, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of
record on July 18, 2011, by electronic and/or ordinary mail.
s/Karen M. Hillebrand
Case Manager

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