Clay v. Emmi et al

Filing 33

ORDER granting in part and denying in part 21 Motion for Summary Judgment; granting in part and denying in part 23 Motion for Judgment. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSHUA CLAY,
Plaintiff,

CASE NO: 13-11555
HONORABLE VICTORIA A. ROBERTS

v.
MICHAEL EMMI, Hazel Park Police Officer;
RICHARD STORY, Hazel Park Firefighter/Medic;
MICHAEL SHARROW, Hazel Park Firefighter/Medic;
PAUL VANDENADELLE, Security Personnel at
St. John Oakland Hospital; KEVIN MITCHELL,
Security Personnel at St. John Oakland Hospital; and
ST. JOHN PROVIDENCE HEALTH SYSTEM.,

Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
I.

INTRODUCTION
This dispute arises from an incident at St. John Oakland Hospital. An

ambulance transported Joshua Clay (“Clay”) there after his case worker believed he
had a present plan to commit suicide. Clay claims he was unlawfully restrained,
handcuffed, and tasered. Defendants Michael Emmi (“Officer Emmi”), Richard Story
(“Story”) and Michael Sharrow’s (“Sharrow”) filed a Motion for Summary Judgment.
Defendants Paul Vandenadelle (“Vandenadelle”), Kevin Mitchell (“Mitchell”) and St.
John Providence Health System’s (“St. John”) filed a Motion for Judgment on the
Pleadings.
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Clay filed a three-count Complaint against defendants. Count I alleges violations
of 42 U.S.C. §1983 and the 4th and 14th Amendments against Officer Emmi of the
Hazel Park Police Department. Count II alleges negligence against Story and Sharrow;
they are both firefighter/medics for the Hazel Park Fire Department. Count II also
alleges negligence against Vandenadelle and Mitchell, security personnel at St. John
Oakland Hospital (“St. John”). Count III alleges agency liability/respondeat superior
against St. John.
The Motion for Summary Judgment on Count I against Officer Emmi is DENIED.
The Motion for Summary Judgment on Count II against Story and Sharrow is
GRANTED. The Motion for Judgment on the Pleadings on Count II against Mitchell and
Vandenadelle is GRANTED. The Motion for Judgment on the Pleadings on Count II
and Count III against St. John is DENIED.
II.

BACKGROUND
On April 8, 2010, Clay spoke with his Easter Seals case worker, Katrina Lorenz

(“Lorenz”) regarding depression. Clay says he called Lorenz to tell her he had been
having depressive thoughts on a prior occasion, but he was able to use coping
mechanisms to handle those thoughts. Clay insists that at the time of the call, he was
no longer depressed. Nonetheless, Lorenz told Clay she was sending an ambulance to
get him. Lorenz called Hazel Park and requested an officer go to Clay’s home. Lorenz
said Clay had a history of hospitalizations and she believed a present plan to commit
suicide by slitting his wrists. Officer Emmi and Sgt. Arthur arrived on the scene. Medics
Story and Sharrow also responded. Officer Emmi spoke to Clay’s mother. Together,

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they located Clay in the back of a van parked in the driveway. Officer Emmi spoke to
Clay’s mother who said her son was bi-polar and had attempted suicide in the past.
Officer Emmi and St. Arthur spoke with Clay and he agreed to go to the hospital. They
transported him there without incident.
At the hospital, Clay was placed in a curtained off area known as “Minor 9.”
Mitchell and Vandenadelle, security officers at St. John Oakland Hospital, arrived.
Story, Sharrow, and Officer Emmi were still present. Clay was asked to remove his
clothing and put on a hospital gown.
The parties dispute the degree to which Clay refused to cooperate after he was
asked to put on the gown. Clay says he did not want to put on the gown, and he only
agreed to go the hospital to talk to someone. Clay says he didn’t do anything.
Defendants say Clay got out of the bed and attempted to leave. Defendants say
Clay’s demeanor and body language were aggressive and they decided to stop him.
Story and Sharrow stood on each side of Clay, placed their hands on him and took him
to the ground. It is unclear how many people were involved in restraining Clay at this
time. Story testifies that only he and Sharrow were involved in taking Clay down;
Sharrow confirms the two of them grabbed and took Clay down. Mitchell says he and
Vandenadelle assisted. Vandenadelle says he and Mitchell were towards Clay’s lower
body. Clay says “many” men were holding him down. Officer Emmi says Clay
continued to struggle while he was down and Clay was warned that he would be
tasered. Testimony from the other men at the scene describe resistance from Clay and
note that he was physically imposing. Officer Emmi says Clay tried to get his arms
away and that he attempted to push himself off the floor to get back up again. The
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parties dispute whether Clay was already handcuffed at the time the taser was
deployed. After the taser was used, Defendants helped Clay up and secured him to the
bed without further incident.
III.

STANDARD OF REVIEW
A.

Motion for Summary Judgment

The Court grants 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). On a motion for summary judgment, the facts must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A fact is material for purposes of summary judgment if
proof of that fact would have the effect of establishing or refuting an essential element of
the cause of action or a defense advanced by the parties. Kendall v. Hoover Co., 751
F.2d 171, 174 (6th Cir.1984).
B.

Motion for Judgment on the Pleadings

The Court applies essentially the same standard of review for judgment on the
pleadings as for a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir.2001). “For purposes of
a motion for judgment on the pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and the motion may be granted
only if the moving party is nevertheless clearly entitled to judgment.” Poplar Creek Dev.
Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 240 (6th Cir.2011) (citation

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omitted). Although the Court’s decision rests primarily on the allegations of the
complaint, “matters of public record, orders, items appearing in the record of the case,
and exhibits attached to the complaint” may also be considered. Barany-Snyder v.
Weiner, 539 F.3d 327, 332 (6th Cir.2008).
To survive a Rule 12(c) motion, a plaintiff must provide grounds of entitlement to
relief that are more than “labels and conclusions” and “factual allegations must be
enough to raise a right of relief above the speculative level. . .” Sensations, Inc. v. City
of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008) citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). “Federal Rule of Civil Procedure 8(a)(2) requires only a
‘short and plain statement of the claim showing that the pleader is entitled to relief.’” Id.
Specific facts are not necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
U.S. 89, 93 (2007) quoting Twombly, 127 U.S. at 555.
IV.

ANALYSIS
A.

Motion for Summary Judgment
1.

Count I: 42 U.S.C. §1983 Claim Against Police Officer Emmi
Under the Fourth and Fourteenth Amendments for Excessive
Force

Clay says that using force against a neutralized person is objectively
unreasonable and when Officer Emmi applied the taser, Clay was handcuffed, on the
ground, and with multiple men holding him down. The parties do not agree as to
whether Clay was resisting when the taser was deployed. Clay says he did not hit or
strike Defendants and it is undisputed that he was not being investigated for a violent
crime presenting a heightened risk of danger. Clay also says that even if he did resist,
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any resistance was de minimus at best because he did not make dramatic movements
and, therefore, the level of force used was unreasonable.
Officer Emmi says Clay’s claim of excessive force fails as a matter of law
because Officer Emmi had probable cause to believe Clay posed a danger to himself or
others, and he was justified in using a reasonable amount of force to restrain him.
Officer Emmi says he does not need to show “dramatic movement” by Clay. Rather,
Clay’s alleged continued wrestling attempts to leave the hospital and Officer Emmi’s
inability to contain him through other means warranted the use of the taser.
An official seizing a person for a psychiatric evaluation must have probable
cause to believe that the person is a danger either to himself or others. Monday v.
Oullette, 118 F3d 1099, 1102 (6th Cir. 1997). “A mental health seizure can rest upon
probable cause even when the person seized does not actually suffer from a dangerous
mental condition” because “‘probable cause is a fluid concept – turning on the
assessment of probabilities in particular factual contexts.’” Id. at 1102 citing Illinois v.
Gates, 462, U.S. 213, 232 (1983).
The Fourth Amendment prohibits an arresting officer from using excessive force.
Graham v. Connor, 490 U.S. 386, 397 (1989). The Court applies an objective
reasonableness test, in which the reasonableness of the use of force is considered from
the “perspective of a reasonable officer on the scene rather than with the 20/20 vision of
hindsight.” Id. at 396. The assessment of reasonableness takes into consideration the
facts and circumstances of each case, including “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
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This test is “fact specific, not mechanical.” Wysong v. City of Heath, 260, Fed.Appx
848, 854 (6th Cir.2008).
Officer Emmi relies heavily on Monday v. Oullette, 118 F3d at 1099. In Monday
v. Oullette, the plaintiff, a large man with a history of depression and substance abuse,
called a community health hotline and informed the psychologist that he was drinking
while on his medication, a potentially lethal combination. Id. at 1101. The psychologist
called the police and requested an investigation. Id. They arrived to find plaintiff
coherent but intoxicated and depressed. Additionally, the police counted the pills from a
recently filled prescription and found that approximately twenty were missing. Id.
Concerned that plaintiff might be suicidal, the police insisted that he go to the hospital.
Id. The plaintiff repeatedly refused. Id. The officer told the plaintiff that if he did not
come willingly to the hospital, he would be pepper sprayed. Id. The plaintiff said, “Well,
I guess you’re going to have to spray me,” which the officer did. Id. Plaintiff was then
helped onto a stretcher and taken to the hospital. Id.
Officer Emmi argues that circumstances surrounding Clay’s transport to the
hospital were enough to support a finding of probable cause for a custodial seizure,
because he says this case is factually similar to Monday v. Oullette and even more
compelling because a mental health professional decided there was a substantial
probability that Clay might be suicidal; Hazel Park personnel were called to assist;
police and EMS on the scene spoke with Clay’s mother who confirmed Clay had a
mental illness and history of suicide attempts; and Clay was found hiding in a minivan.
Officer Emmi says that just as it was reasonable for the officer to use pepper spray in
Monday v. Oullette, here it was reasonable to use the taser to keep Clay from leaving
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and to get him to stop resisting. Clay denies dramatic movements and pushing to get
off the ground. He says there is no dispute that he was unarmed and did not assault or
attempt to assault anyone. Clay says Monday v. Oullette is distinguishable because
Monday admitted to “struggling” with the officers and refusing to go with them. Clay
says he did not struggle.
Monday v. Oullette is distinguishable. The parties here dispute whether Clay
was already subdued and handcuffed. Also, at the time force was used, Clay was on
the ground with at least two, possibly four or five men restraining him.
Whether Clay actively resisted is important; in many cases, it is the test of
whether the application of force is reasonable. Use of a taser is not a violation of the
Fourth Amendment if a person is actively resisting arrest and refuses to be handcuffed.
Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 509 (6th Cir. 2012). On the
other hand, the Sixth Circuit finds that an officer’s use of force is excessive if the
suspect was compliant or not resisting. Hagans, 695 F.3d at 509 citing Kijowski v. City
of Niles, 372 Fed.Appx. 595 (6th Cir.2010).
In Kijowski, the plaintiff appealed the district court’s grant of summary judgment
in favor of the defendant police officer. The Sixth Circuit reversed and remanded,
finding that if plaintiff’s version of the facts was correct, the officer’s use of force was
unreasonable where plaintiff was dragged from a truck and tasered twice despite no
resistance. The Sixth Circuit cited Casey v. City of Federal Heights, 509 F.3d. 1278,
1285 (10th Cir.2007), finding that use of an electrical stun gun would not be excessive if
a person was actively resisting arrest by kicking and biting. However, “[a]bsent some
compelling justification – such as the potential escape of a dangerous criminal or the
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threat of immediate harm – the use of such a weapon on a non-resistant person is
unreasonable.” Kijowki v. City of Niles, 372 Fed.Appx. at 600 citing Wysong v. City of
Heath, 260 F. App'x 848, 855 (6th Cir. 2008).
Also important is whether Clay was actively resisting at the time of the
application of force. Landis v. Baker, 297 Fed. Appx 453 (6th Cir. 2008). Even if a
person previously resisted, conduct can be objectively unreasonable if at the time force
is used, the person is no longer trying resisting. Id. at 458. See also, Roberts v.
Manigold, 240 Fed.Appx. 675 (6th Cir. 2007) (Genuine issue of material fact regarding
whether use of force was excessive when taser was used repeatedly while plaintiff was
completely pinned and a second officer admits he could have subdued plaintiff without
assistance); Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004) (Officers
not entitled to qualified immunity for pepper spraying and applying pressure to the back
of a handcuffed individual, who is known to be mentally ill already lying face down.
Accordingly, even if Clay initially resisted arrest, a reasonable jury could find that
when the taser was applied, Clay was effectively subdued considering the number of
people present and the possibility that he was handcuffed.
Defendants attach three affidavits to their reply. The first affidavit is from Barbara
Bruette, an Emergency Department staff nurse who was present at the time of the
incident. The second affidavit is from Dr. Swarup Misra, who treated Clay. The third
affidavit is from Psychiatrist Augusto Jamora, who examined Clay after he was admitted
to the hospital. The affidavits support Defendants’ position that Clay resisted efforts to
subdue him. Defendants argue that Clay’s version of the facts is blatantly contradicted
by the record so that no reasonable jury could believe it. Kowolonek v. Moore, 463
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Fed.Appx. 531, 539 (6th Cir.2012). In Kowolonek v. Moore, - also a summary judgment
case - the only evidence that a taser was used was testimony by a witness whose
testimony was undermined by various weaknesses and contradictions. Here, there is
no question that a taser was used and the genuine issue of fact is whether at the time
he was tasered, Clay was completely pinned and no longer resisting. A jury could find
that the use of force was excessive considering that Clay was not under arrest, was
known to be unarmed and did not physically or verbally threaten anyone. Furthermore,
a reasonable jury could find that the use of the taser was a gratuitous use of force
where as many as five men were immediately available to restrain a person already on
the floor.
Under these circumstances, construing the facts and all reasonable inferences in
the light most favorable to Clay, the Court cannot state, as a matter of law, that the use
of the taser was reasonable.
2.

Qualified Immunity and The Michigan Mental Health
Code

The Court finds that genuine issues of material fact exist with respect to the issue
of excessive force, and must now decide whether Officer Emmi is entitled to summary
judgment based on qualified immunity.
The purpose of qualified immunity is to balance a plaintiff’s right to damages for
constitutional violations against the competing interest of protecting public officers from
overly burdensome lawsuits. Anderson v. Creighton, 483 U.S. 635, 638 (1987).
Therefore, to hold a public officer accountable, the right the defendant is charged with
violating must be both clearly established and one which a reasonable person would
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have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Although it need not be
the case that ‘the very action in question has previously been held unlawful, ... in the
light of pre-existing law the unlawfulness must be apparent.’” Russo v. City of
Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992).
Officer Emmi says he is entitled to qualified immunity because his actions were
reasonable in light of the rapidly evolving situation. Officer Emmi also says that since
Monday v. Oullette is so factually similar, a reasonable officer would not have been on
notice that his conduct was objectively unreasonable.
The right to be free from physical force when one is not resisting is clearly
established by the Sixth Circuit. Wysong v. City of Heath, 260 F. App'x 848, 856 (6th
Cir. 2008). At the time of the incident, case law held that excessive force on an
unresisting person is unreasonable. This is sufficient to put Officer Emmi on notice.
Here, there is a genuine issue of fact regarding whether Clay was resisting and whether
he was handcuffed. In these circumstances, qualified immunity cannot be granted as a
matter of law. Brandenburg v. Cureton, 882 F.2d 211, 216 (6th Cir.1989) (holding that
while the court determines the law to be applied, the jury must decide whether the
defendant is entitled to immunity when immunity turns upon which view of the facts is
accepted).
Defendant Emmi says that the Michigan Mental Health Code allows a peace
officer to use force when taking an individual into protective custody if it appears that the
individual requires treatment. MCL §330.1427 and §330.1427a.
§330.1427a(1) provides:
(1) If a peace officer is taking an individual into protective custody, the
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peace officer may use that kind and degree of force that would be lawful if
the peace officer were effecting an arrest for a misdemeanor without a
warrant. In taking the individual into custody, a peace officer may take
reasonable steps for self-protection. The protective steps may include a
pat down search of the individual in the individual's immediate
surroundings, but only to the extent necessary to discover and seize a
dangerous weapon that may be used against the officer or other persons
present. These protective steps shall be taken by the peace officer before
the individual is transported to a preadmission screening unit or a hospital
designated by the community mental health services program. Mich.
Comp. Laws Ann. § 330.1427a.
Factual issues regarding whether the degree of force used was reasonable
preclude a judgment that Officer Emmi’s actions were lawful. Brandenburg v. Cureton,
882 F.2d at 216. This matter will proceed to trial on the issue of excessive force by
Officer Emmi. The Motion for Summary Judgment on Count I against him is DENIED.
3.

Count II: The Hazel Park Firefighter/Medics and Governmental
Immunity

Defendants say there are two possible statutory sources under which Story and
Sharrow have governmental immunity. First, by statute, government employees are
“generally immune from tort liability” if the “conduct does not amount to gross
negligence that is the proximate cause of the injury or damage.” Smith v. County of
Lenawee, 600 F.3d 686, 690 (6th Cir. 2010); Mich. Comp. Laws Ann. §691.1407(2)(c).
Secondly, a separate Michigan statute, the Michigan Emergency Medical Services Act,
provides immunity for first responders. Mich. Comp. Laws. Ann. §333.20901 et. seq.
a.

The Michigan Emergency Services Act

This statute, MCLA §333.20965(1), provides in part:
(1) Unless an act or omission is the result of gross negligence or willful
misconduct, the acts or omissions of a medical first responder, emergency
medical technician, emergency medical technician specialist, paramedic,
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medical director of a medical control authority or his or her designee, or,
subject to subsection (5), an individual acting as a clinical preceptor of a
department-approved education program sponsor while providing services
to a patient outside a hospital, in a hospital before transferring patient care
to hospital personnel, or in a clinical setting that are consistent with the
individual's licensure or additional training required by the medical control
authority including, but not limited to, services described in subsection (2),
or consistent with an approved procedure for that particular education
program do not impose liability in the treatment of a patient on those
individuals or any of the following persons:
(e) The hospital or an officer, member of the staff, nurse, or other employee of
the hospital.
Additionally, section 333.20965 (4) notes that subsection (1) above does not limit
immunity from liability otherwise provided by law.
The Michigan Emergency Medical Services Act was designed to limit liability of
first responders when they are acting “in treatment” of a patient. Lee v. Dowagiac
Volunteer Fire Dep't Ambulance Serv., Inc., 289605, 2010 WL 2332391, *1 (Mich. Ct.
App. June 10, 2010). In an unpublished opinion, the Michigan Court of Appeals says
the statute does not define “treatment.” The court looked to the dictionary which
defines “treatment” as “the application of medicines, surgery, therapy, etc., in treating a
disease or disorder.” Id. quoting Random House Webster's College Dictionary (1997).
The Court held that transportation and transfer of a patient in need of emergency
medical care is “treatment” under the statute when emergency providers were called to
the home of the plaintiff, evaluated his situation, administered medical services to him at
his home, decided he should go to the hospital, moved him to an ambulance, and
continued to provide care on the way to the hospital. Id. The court specifically noted
that on these facts, “[t]his is not a case of merely transporting a patient from one

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location to another.” Id. at *1.
The Court disagrees that Story and Sharrow are immune from liability under this
statute. Sharrow testified that during the ambulance ride, he asked Clay standard
questions regarding his allergies, current medications, and basic medical history. There
is nothing in the record which suggests either Sharrow or Story administered any
medical treatment either at Clay’s home, during transport, or at the hospital.
Based on the record, the Court finds that Sharrow and Story merely transported
Clay and did not provide “treatment” under §333.20965(1).
b.

Governmental Immunity

The Court next reviews Plaintiff’s allegations under MCLA §691.1407 to
determine whether that statute provides immunity to Story and Sharrow. The Court
finds that it does.
§691.1407(7)(2) and (3) set forth government immunity for individuals. However,
unlike the Michigan Emergency Medical Services Act - which limited liability for first
responders who were rendering “treatment” to individuals - §691.1407 provides
immunity unless the government agent/employee is providing medical care or
treatment.
§691.1407(7)(2) and (3) provide in part:
(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
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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.
(3) Subsection (2) does not alter the law of intentional torts as it existed
before July 7, 1986.
§691.1407(7)(4) is the section that excludes immunity for acts taken with respect
to providing medical care or treatment and says:
“This act does not grant immunity to a government agency or an employee
or agent of a governmental agency with respect to providing medical care
or treatment to a patient, except medical care or treatment provided to a
patient in a hospital owned or operated by the department of community
health or a hospital owned or operated by the department of corrections
and except care provided by an uncompensated search and rescue
operation medical assistant or tactical operation medical assistant.”
Immunity from tort liability is expressed in very broad language that “extends to
all governmental agencies and applies to all tort liability when governmental agencies
are engaged in the exercise or discharge of governmental functions.” McLean v.
McElhaney, 289 Mich. App. 592, 598 (2010). Exceptions to governmental immunity are
narrowly construed; Michigan courts have applied a narrow definition of the phrase
“medical care or treatment,” no defined by the statute. Id. citing Stanton v. Battle Creek,
466 Mich. 611, 618 (2002) (Noting that while the legislative immunity granted to
governmental agencies and their employees is broad, it is subject to five narrowly drawn
statutory exceptions). The term “‘Medical care or treatment’ includes care and
treatment for mental illness or disease.” McLean v. McElhaney, 289 Mich.App. at 604.

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Accordingly, if Story and Sharrow were providing medical care or treatment to Clay,
they would not be immune from tort liability.
Construing the medical exception narrowly, the Court finds that Sharrow and
Story were merely transporting Clay from one location to another, and did not provide
treatment to him. Since they did not provide medical care or treatment, under
§691.1407(2)(c), Sharrow and Story are immune from liability unless their conduct
amounts to gross negligence. “Gross negligence” is defined as “conduct so reckless as
to demonstrate a substantial lack of concern for whether an injury occurs.” MCL
691.1407(8)(a). Generally, once a standard of conduct is established, the
reasonableness of conduct under that standard is a question for the factfinder. Tallman
v. Markstrom, 180 Mich.App. 141, 144 (1989). “However, if, on the basis of the evidence
presented, reasonable minds could not differ, then the motion for summary disposition
should be granted.” Vermilya v. Dunham, 195 Mich.App. 79, 83 (1992).
Sharrow and Story say they are entitled to governmental immunity because Clay
has only pled ordinary negligence, not “gross negligence.” Defendants say Clay cannot
identify either Sharrow or Story as the proximate cause of any injury. Clay says any
failure to properly plead gross negligence against Story and Sharrow is not intentional;
he asks permission to amend the complaint, if necessary. Clay says reasonableness of
conduct is a question for the jury and that Defendants’ disregard for substantial risks
and “blatant and wilful disregard” for his safety rise to the level of gross negligence.
Both parties concede that Clay did not want to put a hospital gown on and that he
walked away from the hospital bed. In response, Sharrow and Story stopped Clay from
leaving, and with one person on each side of him, grabbed him and lowered him to the
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floor. Clay says the actions of both defendants were negligent and that they “negligently
battered and injured Plaintiff.” (Doc. #1 at p.6). Viewing all facts in a light most
favorable to Clay, the Court finds that Defendants’ conduct is not so reckless as to
demonstrate a substantial lack of concern for whether an injury occurs. McVay ex rel.
Estate of McVay v. Sisters of Mercy Health Sys., 399 F.3d 904, 908-09 (8th Cir. 2005)
(grant of summary judgment affirmed and security guard not liable for excessive force
even if he tackled plaintiff, when plaintiff was disoriented and barreling toward glass
doors and events were rapidly evolving).
Clay’s claims against Sharrow and Story are barred by the immunity provision of
§691.1407(2). The Motion for Summary Judgment on Count II against Story and
Sharrow is GRANTED.
c.

Request for Costs and Fees

Defendants Emmi, Story and Sharrow request an award of costs and fees,
including attorney fees. In its discretion, the Court concludes that such an award is not
warranted under the circumstances; Defendants’ request is denied.

B.

Motion for Judgment on the Pleadings
1.

Count II – Negligence Against Security Personnel
Vandenadelle, Mitchell and St. John Providence Health System

Defendants say Clay failed to state a claim upon which relief can be granted
because “negligent battery” is not a cognizable claim under Michigan law. Clay
responds by saying that he pleaded a claim for general negligence which is proper.
Clay concedes that he used the term “negligently batter” but asserts that he also
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included general claims of negligence in Count II. Clay says his testimony along with
Mitchell’s and Vandenadelle’s, creates a question of fact regarding whether the action of
taking down and pinning him constitutes negligence. Clay says he will amend the
complaint to remove the term “negligently batter” and replace it with the words
“negligently acted” if necessary. Importantly, his theory appears to be one of
negligence.
In determining whether Clay has properly pled a claim for negligence, the Court
does not rely solely on labels in the complaint; but as the Sixth Circuit directs, looks
deeper and examines “the substance of the complaint.” Minger v. Green, 239 F.3d 793,
799 (6th Cir. 2001). Defendants correctly point out that under Michigan law, “the tort of
assault and battery by gross negligence does not exist.” Sudul v. City of Hamtramck,
221, Mich.App. 455, 461 (1997). Sudul involved erroneous jury instructions in which the
verdict form asked whether the officers had assaulted or battered the plaintiff by an act
of gross negligence. Here, Clay titled Count II simply as “negligence” and does not
reference “gross negligence.” Within the body of the Complaint, Clay uses the term
“negligently battered and injured” to refer to the Defendants’ conduct. The issue before
the Court is whether Clay properly pled a claim for negligence, or incorrectly labeled a
claim that is in substance an intentional tort.
Michigan law does not allow a plaintiff to maintain a negligence claim for
intentional actions. Thiel v. Sterling Heights, No. 09-12399, 2010 WL 3170510 (E.D.
Mich. Aug. 10, 2010), citing VanVorous v. Burmeister, 262 Mich.App. 467, 483
(Mich.Ct.App.2004). In Thiel v. Sterling Heights, the plaintiff alleged gross negligence in
the shooting of his brother. The court, applying Michigan law, found that nothing in the
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record suggested the shooting was accidental and the parties did not dispute factually
that the police intentionally aimed and shot the victim. The court granted judgment on
the pleadings in favor of the defendants.
In Smith v. Stolberg, the Michigan Court of Appeals affirmed the trial court’s grant
of summary disposition on plaintiff’s negligence claim because the proper cause of
action was the intentional tort of battery - not negligence. Smith v. Stolberg, 231
Mich.App. 256, 259 (1998). The court noted that while the plaintiff “couches his claim in
terms of breach of defendant’s duty,” the plaintiff essentially alleged an intentional and
offensive touching. Id. at 259.
The Court agrees with defendants that under these facts the proper cause of
action under Michigan law is battery. Clay labeled and pled the elements of negligence:
(1) he was owed a duty of care; (2) this duty of care was breached; (3) causation; and
(4) damages. Smith v. Stolberg, 231 Mich. App. at 258. However, an examination of
the pleadings makes clear that the claim against the two security guards stems from
their actions in taking Clay to the ground and holding him down once he was on the
ground. Like the plaintiff in Smith v. Stolberg, Clay’s claim of negligence is based on an
intentional offensive touching. Therefore, Clay’s proper cause of action is for battery,
not negligence. Defendants’ Motion for Judgment on the Pleadings on Count II against
Mitchell and Vandenadelle is GRANTED.
2.

Count II: Negligence Against St. John and Count III: Agency
Liability/Respondeat Superior Against St. John Providence
Health System

Clay says St. John is vicariously liable for the acts of its employees under the

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doctrine of respondeat superior. Defendant says if there is no claim against Mitchell or
Vandenadelle, it follows that Clay failed to state a claim upon which relief can be
granted against St. John.
Defendant says an employer is not liable if the employee is not liable and cites to
Rogers v. JB Hunt Transport, Inc., 466 Mich. 645, 651 (2002). In Rogers, the Supreme
Court of Michigan addressed whether an employer is precluded from contesting its
vicarious liability under default judgment principles. Id. at 647. Rogers involved an
automobile accident in which the plaintiff sued the driver and the owner of a tractortrailer. Id. at 648. The driver failed to litigate the claim and a default judgment was
entered against him. Id. at 649. The court emphasized that the entry of default was for
failure to participate in litigation and does not establish that he was actually negligent.
Id. at 654. The court held that when the sole source of liability is vicarious, a default
judgment entered against the employee does not preclude the employer from contesting
vicarious liability. Id. at 655.
Clay also cites to Rogers, and a second case, Green v. Shell Oil Co., 181
Mich.App.439, 447 (1989) for the proposition that as a general rule, an employer is
liable for the wrongful acts of his employee committed within the scope of employment,
and the trier of fact determines whether an employee is acting within the scope of his
employment – an issue not contested in the motion before this Court.
A motion for judgment on the pleadings is proper when taking all well-pleaded
material allegations of the pleadings of the opposing party as true, the moving party is
nevertheless clearly entitled to judgment. Poplar Creek Dev. Co. v. Chesapeake
Appalachia, L.L.C., 636 F.3d at 240. St. John fails to meet its burden that it is clearly
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entitled to judgment regarding the claims against it. In deciding that Clay’s proper
cause of action is on a battery theory rather than a negligence one, this Court does not
reach the merits of whether Mitchell and Vandenadelle were negligent. St. John’s
motion concedes that whether the security guards’ actions were excessive is not
relevant to this motion.
Clay alleges multiple theories of negligence against St. John – that in addition to
being liable for actions taken by the security guards, that St. John is also negligent for
negligent hiring, delegation of responsibilities, training, supervision, and inadequate
policies as well as other ways in which Clay says is to be determined through discovery.
Defendant failed to provide authority or meaningful analysis regarding whether it is
entitled to judgment on the pleadings under each of these theories. Defendant’s Motion
for Judgment on the Pleadings on Count II and Count III against St. John is DENIED.

III.

CONCLUSION
Defendants’ Motion for Summary Judgment is GRANTED IN PART and DENIED

IN PART. The Court DENIES the Motion for Summary Judgment (Count I) against
Officer Emmi.
The Court GRANTS Defendants’ Motion for Summary Judgment on Count II
(negligence) against Story and Sharrow based on qualified immunity. Count II is
DISMISSED.
Defendants’ Motion for Judgment on the Pleadings is GRANTED IN PART and
DENIED IN PART. The Court GRANTS the motion with respect to Mitchell and

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Vandenadelle and DISMISSES Count II (negligence) against Mitchell and
Vandenadelle. Defendants’ Motion for Judgment on the Pleadings is DENIED on Count
II (negligence) and Count III (agency liability/respondeat superior) against St. John.
Request for Costs and Attorney Fees is DENIED.
Story, Sharrow, Mitchell and Vandenadelle are DISMISSED from this case.
This matter will PROCEED to trial on Count I (4th and 14th Amendment claims)
against Officer Emmi and Counts II and III against St. John.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 30, 2014
The undersigned certifies that a copy of this
document was served on the attorneys of
record by electronic means or U.S. Mail on
September 30, 2014.
s/Linda Vertriest
Deputy Clerk

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