Parchman v. Taylor, City of et al

Filing 39

ORDER Granting 32 Defendants' Motion for Summary Judgment. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHENIKA PARCHMAN, INDIVIDUALLY
AND AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF BABY BOY PARCHMAN,
Plaintiff,

Civil No. 12-CV-13094
Honorable Denise Page Hood

v.
CITY OF TAYLOR POLICE OFFICER
MICHAEL TAYLOR, and CITY OF TAYLOR,
a Municipal Corporation,
Defendants.
____________________________________/
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Now before the Court is Defendants’ Motion for Summary Judgment
[Docket No. 32, filed November 13, 2013]. Plaintiff filed a response on
December 18, 2013, [Docket No. 35] to which Defendants filed a reply [Docket
No. 36, filed January 3, 2014]. Plaintiff filed this action in this Court on July 13,
2012, alleging a constitutional deprivation pursuant to 42 U.S.C. § 1983 against
Officer Michael Taylor and the City of Taylor, as well as gross negligence, willful
and wanton misconduct, assault, battery, and intentional infliction of emotional
distress against all Defendants.

I.

BACKGROUND
Plaintiff’s Complaint states that on May 19, 2011, upon leaving a Meijer

store in the City of Taylor, she was arrested by Defendant and accused of
committing retail theft. Plaintiff states that she was nine (9) months pregnant at the
time of arrest. As Defendant, Officer Taylor, attempted to take her into custody in
the parking lot of the store, Plaintiff alleges that he “violently struck and battered
her.” She further contends that Defendant was “violent, belligerent, unreasonable,
criminal and malicious” in his dealings with her and that she was “not resisting in
any fashion.” After her arrest, Plaintiff was taken to the City of Taylor Police
Department where she claims that she was not given any form of medical attention
for her injuries, though she was visibly in distress and visibly pregnant. Following
her release from the City of Taylor Police Department jail, Plaintiff states that she
was admitted to Garden City Hospital because she was suffering from internal
bleeding and pregnancy complications. On May 27, 2011, Plaintiff gave birth to a
baby boy who was stillborn. Plaintiff alleges that the Medical Examiner report
determined that Baby Boy Parchman died as a result of trauma.
In her Complaint, Plaintiff alleges three-counts for relief: Constitutional
Deprivation pursuant to 42 U.S.C. §1983 (Count I); Violation of 42 USC § 1983
Against the Municipality, City of Taylor (Count II); and Gross Negligence,
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Willful and Wanton Misconduct, Assault, Battery, and Intentional Infliction of
Emotional Distress against both Defendants (Count III). Plaintiff also brings
claims against Defendants on behalf of her decedent son, Baby Boy Parchment and
argues that “as a direct and proximate cause of the acts of Defendants, Plaintiff
suffered severe injuries, which resulted in Plaintiff’s Decedent’s death.” Plaintiff
seeks judgment in her favor in whatever amount she is found to be entitled.
Plaintiff also seeks exemplary and punitive damages, plus interest, costs and
attorney fees.
II.

STANDARD OF REVIEW
Summary judgment is appropriate in cases where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of
demonstrating that summary judgment is appropriate. Equal Employment
Opportunity Comm’n v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093
(6th Cir. 1974). The Court must consider the admissible evidence in the light most
favorable to the nonmoving party. Sagan v. United States of Am., 342 F.3d 493,
497 (6th Cir. 2003).
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“At the summary judgment stage, facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a
genuine issue of material fact, the nonmovant must do more than present “some
evidence” of a disputed fact. Any dispute as to a material fact must be established
by affidavits or other documentary evidence. Fed. R. Civ. P. 56(c). “If the
[nonmovant’s] evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson v. Liberty Lobby Inc., 477 U.S.
242, 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, 497 (E.D. Mich. 1993)
(citations omitted). “When opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott, 550 U.S. at 380.
III.

ANALYSIS
In their Motion for Summary Judgment, Defendants make various

arguments. First, Defendants argue that there is no genuine issue of material fact
precluding summary judgment on Plaintiff’s claims of violation of 42 U.S.C.
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§1983 against Officer Taylor because “the record conclusively establishes that Cpl.
Taylor was not the officer who placed handcuffs on Plaintiff or had any physical
contact with her.” Cpl. Taylor only spoke to the Loss Prevention Associate and
directed other officers to handcuff Plaintiff and the three other women with her.
Defendants contend that even when accepting Plaintiff’s version as true for
purposes of the motion, there is “no genuine issue of material fact regarding the
use of force by any officer at the scene.” Whether or not an officer used excessive
force during an arrest is subject to the reasonable standard. Plaintiff was told to
put her hands on the car so she could be handcuffed, but held onto her cell phone.
The arresting officer pushed her against the car and handcuffed her. The Court
agrees that this was a reasonable use of force under the circumstances.
“To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-2255, 101 L. Ed. 2d 40
(1988) (internal citations omitted). As § 1983 is not itself a source of substantive
rights, and only a method for vindicating federal rights elsewhere conferred, a
plaintiff must set forth specific constitutional grounds for asserting a § 1983 claim.

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Graham v. Connor, 490 U.S. 386, 393-394 (1989); Baker v. McCollan, 443 U.S.
137, 144 n. 3 (1979).
The Fourth Amendment's prohibition against unreasonable searches and
seizures encompasses the right to be free from excessive force in the course of an
arrest. See Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d
443 (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, 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. 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.
In her Complaint, Plaintiff asserts that Cpl. Taylor violated her
constitutionally protected right to be secure against unreasonable searches and
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seizures under the U.S. Constitution. Plaintiff, however, does not provide
sufficient support for the claim that the deprivation was committed by Cpl. Taylor.
The description Plaintiff provided of the arresting officer does not match the
description of Cpl. Taylor. Plaintiff also relies on the fact that Cpl. Taylor wrote
the incident report. During her deposition, Plaintiff agrees that Cpl. Taylor doesn’t
look like the officer she described as arresting her. (Dkt. 32, Defs.’ Mot. for
Summ. J., Ex. G, Excerpts of Pl.’s Dep., p.215). There is no genuine issue of
material fact regarding the lack of participation by Cpl. Taylor in arresting
Plaintiff.
Second, Defendants contend that Cpl. Taylor, individually, is entitled to
qualified immunity on Plaintiff’s 42 USC § 1983 claim. 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, 818,
102 S.Ct. 2727, 73 L.Ed.2d 396 (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, 649 (6th Cir.1988). The Supreme Court has set
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forth a two-part test to determine whether qualified immunity 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, 200, 121 S. Ct. 2151, 2155, 150 L. Ed. 2d 272
(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. 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, 426 (6th Cir.1988), cert. denied,
488 U.S. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989). In other words, Plaintiff
must demonstrate that Defendant’s conduct was objectively unreasonable in light
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of Plaintiff's clearly established rights. See Williams v. Mehra, 186 F.3d 685, 691
(6th Cir.1999).
As discussed above, Plaintiff failed to provide sufficient evidence to support
the allegation that Cpl. Taylor was directly involved in her physical arrest, and
therefore, Plaintiff failed to provide facts to support the allegation that Cpl. Taylor
violated her constitutional right. Since there is no evidence that Cpl. Taylor’s
conduct violated a constitutional right, he is entitled to qualified immunity. See
Pearson v. Callahan, 555 U.S. 223 (2009).
Third, Defendants assert that because there was no constitutional violation,
and since there is “no practice, policy or procedure, which caused a constitutional
violation,” the City of Taylor and Cpl. Taylor, in his official capacity, are entitled
to summary judgment on Plaintiff’s municipal claim as a matter of law. This
evidence is necessary for the claim since “a governmental entity is liable under §
1983 only when the entity itself is a ‘moving force’ behind the deprivation.
Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114
(1985) (internal quotation marks omitted). Even if Plaintiff could prove that there
was an unconstitutional act, proof of a single incident is insufficient to impose
§1983 liability against Wayne County (See City of Oklahoma City v. Tuttle, 471
U.S. 808, 105 S.Ct. 2427, 85 L. Ed. 2d 791 (1985)). As for Cpl. Taylor, Plaintiff
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has failed to provide sufficient evidence of his involvement in a constitutional
violation that would permit setting aside qualified immunity.
Fourth, Defendants state that they are entitled to Summary Judgment on
Plaintiff’s state claims, because Defendants are entitled to governmental immunity.
A governmental agency is granted broad immunity under MCL § 691.1407(1). See
Ross v. Consumers Power Co., 420 Mich. 567 (1984). MCL §691.1407 provides
statutory governmental immunity to: (1) governmental agencies and officers and
employees of governmental agencies (2) engaged in a governmental function (3) if
the officers and employees' conduct do not amount to gross negligence (4) that is
the proximate cause of the injury or damages. MCL §691.1407(1) and (2);
§691.1401(f); See Ross, 420 Mich. 567; Rogers v. City of Port Huron, 833 F.Supp.
1212, 1223 (1993). "Gross negligence" means "conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results." Rogers,
833 F.Supp. at 1223. In order to prevail, a plaintiff cannot assert that defendant's
conduct was "a" proximate cause of the plaintiff's injury, but rather, must establish
that defendant's conduct was "the" proximate cause of the injury. Id. at 1224.
The Court notes that, as a general rule pursuant to Michigan law, intentional
torts are not protected by governmental immunity. However, governmental actions
which would normally constitute intentional torts are protected by governmental
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immunity if those actions are justified. See Brewer v. Perrin, 132 Mich. App. 520,
528, 349 N.W.2d 198 (1984). Specifically, a police officer may use reasonable
force when making an arrest. Id.
Cpl. Taylor is entitled to governmental immunity, because Plaintiff is unable
to show that Defendant’s actions amounted to gross negligence. Cpl. Taylor
spoke to the Loss Prevention Associate and directed other officers to handcuff
Plaintiff and the three other women with. These actions do not amount to gross
negligence. The City of Taylor is also entitled to governmental immunity under
MCL 691.1407 and Plaintiff’s claims do not fall within the exceptions to
immunity.
Fifth, Defendants argue that Plaintiff’s remaining state law claims for gross
negligence, willful and wanton misconduct, assault, battery, and intentional
infliction of emotional distress fail. There is no genuine issue of material fact that
Cpl. Taylor did not have any physical contact with Plaintiff and was not reckless in
the performance of his duties during the arrest, and therefore, the gross negligence
claim fails. Since there is no evidence that Cpl. Taylor threatened no used any
force against Plaintiff, the assault and battery claims fail as well.
The intentional infliction of emotional distress claim fails, because
Plaintiff’s allegations do not support such a claim. Plaintiff has failed to make a
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prima facie showing on his intentional infliction of emotional distress claim as
Plaintiff has not identified any extreme and outrageous conduct.
The Michigan Supreme Court has not explicitly recognized a tort for
intentional infliction of emotional distress. Smith v. Calvary Christian Church,
614 N.W.2d 590, 593, n.7 (Mich. 2000). However, the court has recognized that a
claim could be made under the standard described in the Second Restatements: (1)
extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4)
plaintiff suffered severe emotional distress. Robert v. Auto-Owners Ins. Co., 374
N.W.2d 905, 908 (Mich. 1985). The Court notes that the threshold for what is
deemed outrageous conduct is high. Conduct is sufficiently outrageous when
“where the conduct has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Id. (quoting Restatement Torts,
2d., § 46, comment g). “[M]ere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities” are insufficient. Id. “[T]he trial judge [initially]
decide[s] whether defendant’s conduct might reasonably be regarded as so extreme
and outrageous as to allow recovery for intentional infliction of emotional
distress.” Sawabini v. Desenberg, 372 N.W.2d 559, 565 (Mich. Ct. App. 1985).
Since Plaintiff has not provided evidence to indicate that Cpl. Taylor’s conduct
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was extreme and outrageous, this Court grants summary judgment on the
intentional infliction of emotional distress claim.
Reviewing the record in this case and viewing the facts in the light most
favorable to the Plaintiff, Defendants are entitled to summary judgment on all the
claims for the reason stated above.
IV.

ORDER
Accordingly, IT IS ORDERED that Defendants Motion for Summary

Judgment [Docket No. 32, filed November 13, 2013] is GRANTED.
IT IS FURTHER ORDERED that this case be DISMISSED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: January 21, 2015
I hereby certify that a copy of the foregoing document was served upon counsel
of record on January 21, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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