Clay v. Emmi et al
ORDER denying 35 Motion for Reconsideration ; denying 36 Motion for Reconsideration. Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO: 13-11555
HONORABLE VICTORIA A. ROBERTS
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.,
This matter is before the Court on two motions for reconsideration.
Plaintiff was transported to St. John Oakland Hospital because his case worker
believed he had a present plan to commit suicide. At the hospital, Clay says he was
subjected to excessive force when he was unlawfully restrained, handcuffed and
tasered. Defendants Michael Emmi, Richard Story and Michael Sharrow filed a Motion
for Summary Judgment. Defendants Paul Vandenadelle, Kevin Mitchell and St. John
Providence Health System filed a Motion for Judgment on the Pleadings.
On September 30, 2014, the Court entered an order granting the Motion for
Summary Judgment in favor of Story and Sharrow, as well as the Motion for Judgment
on the Pleadings in favor of Mitchell and Vandenadelle. These four were dismissed
from the case.
The Court denied Officer Emmi’s Motion for Summary Judgment, finding a
material issue of fact as to whether Clay was restrained when he was tasered. The
Court ruled that Clay’s Fourth and Fourteenth Amendment claims for excessive force
would go to trial.
The Court denied the Motion for Summary Judgment against St. John, finding
that Clay alleged multiple theories of negligence and St. John failed to provide
meaningful analysis under each of the theories sufficient to meet its burden.
Officer Emmi and St. John separately filed Motions for Reconsideration. Officer
Emmi’s Motion is GRANTED in part and DENIED in part. St. John’s Motion is DENIED.
Standard of Review
A court may grant a motion for reconsideration if it is demonstrated that a
palpable defect misled the Court in its ruling, correction of which would result in a
different disposition. E.D. Mich. LR 7.1(h)(3).
"It is an exception to the norm for the Court to grant a motion for
reconsideration." Maiberger v. City of Livonia, 724 F. Supp. 2d 759, 780 (E.D. Mich.
2010). "[A]bsent a significant error that changes the outcome of a ruling on a motion,
the Court will not provide a party with an opportunity to relitigate issues already
decided." Id. Palpable defects are those which are "obvious, clear, unmistakable,
manifest or plain." Mich. Dep't of Treasury v. Michalec, 181 F. Supp. 2d 731, 734 (E.D.
Defendant Emmi’s Motion for Reconsideration
In his Motion for Reconsideration, Emmi claims: (1) Plaintiff’s excessive force
claim can proceed either under the Fourth or Fourteenth Amendment but not both; (2)
the Fourteenth Amendment is applicable and not the Fourth; (3) even if the Court
applied a Fourth Amendment analysis, Emmi should prevail; (4) Emmi is entitled to
qualified immunity; (5) the Court was misled regarding the number of people who
potentially held Clay down; and (6) a different disposition of the case should result.
Emmi says that because Clay claimed violations under both the Fourth and
Fourteenth Amendments, the Court must decide which amendment applies and Clay
cannot proceed to trial on both. The Court analyzed Clay’s claim under the Fourth
Amendment only. Emmi says the Fourteenth Amendment should be applied. Clay says
it is proper for the case to proceed under the Fourth Amendment.
Emmi concedes the Sixth Circuit applied a Fourth Amendment analysis to mental
health seizures, but distinguishes that case because the plaintiff in Ziegler challenged
the propriety of the seizure, not the degree of force. Ziegler v. Aukerman, 512 F.3d 777
(6th Cir. 2008). But, Emmi fails to acknowledge the Sixth Circuit also applies a Fourth
Amendment analysis to mental health seizures when excessive force claims are
alleged. Monday v. Oullette, 118 F.3d 1099, 1104 (6th Cir. 1997). The Sixth Circuit
discussed the application of the Fourth and Fourteenth Amendments in Lanman v.
Hinson, 529 F.3d 673, 681 (6th Cir. 2008):
[A] voluntarily confined individual who is bodily restrained by State actors,
related to his consented-to medical treatment, has not been seized for
purposes of the Fourth Amendment's application so long as a reasonable
person in the patient's position would believe that he was free to leave the
State's care. (Citations omitted). If, however, a reasonable person in the
patient's position would believe that the physical restraint was not medical
treatment, but rather an attempt by the State to transform the voluntary
care relationship into involuntary confinement, then the patient has been
seized within the meaning of the Fourth Amendment and its standard
In Lanman, the Fourteenth Amendment was applied because plaintiff was a
voluntarily admitted patient in a psychiatric hospital and the court held that a reasonable
person in his position would believe that the restraint was part of his medical care, not
an attempt by defendants to keep him at the hospital against his will. Id. at 681.
“[W]hen a plaintiff is not in a situation where his rights are governed by the particular
provisions of the Fourth or Eighth Amendments, the more generally applicable Due
Process Clause of the Fourteenth Amendment provides the individual with protection
against physical abuse by officials.” Id. at 681 citing Graham v. Connor, 490 U.S. 386,
Emmi says that since Clay was already awaiting treatment in a hospital setting,
he falls into a murky legal territory regarding which amendment applies. The Court
disagrees. Clay went to the hospital voluntarily and when told to put on the hospital
gown, he got off the bed apparently believing he could leave. He was not committed as
was the plaintiff in Lanman. A reasonable person in Clay’s position would believe that
restraint in this context was an attempt by the State to transform a voluntary relationship
into an involuntary confinement. Clay’s claim was properly analyzed under the Fourth
Plaintiff does not provide any insight into why he filed a claim under both the
Fourth and Fourteenth Amendments. Count I of the Complaint alleges excessive force
under the Fourth and Fourteenth Amendments. However, the Court finds the
Fourteenth Amendment claim was abandoned when Clay failed to raise it in opposing
the Defendants’ Motion for Summary Judgment. Brown v. VHS of Michigan, Inc., 545 F.
App'x 368, 372 (6th Cir. 2013).
Even removing the Fourteenth Amendment claim from consideration by the jury,
there is no palpable defect which if corrected would result in a different disposition of the
Court’s September 30, 2014 Order.
Emmi’s remaining arguments present the same issues already ruled upon by the
Court. Plaintiff’s Fourteenth Amendment claim is DISMISSED from the case. The rest
of Emmi’s Motion for Reconsideration is DENIED.
Defendant St. John’s Motion for Reconsideration
In the Motion for Judgment on the Pleadings, Defendants Vandenadelle, Mitchell
and St. John argued that Clay failed to state a claim upon which relief could be granted
because “negligent battery” is not a cognizable claim under Michigan Law. The Court
agreed and held the proper cause of action is battery. The Court dismissed
Vandenadelle and Mitchell from the case.
St. John argued, without sufficient support or analysis, that Clay also failed to
state a claim upon which relief can be granted against St. John. St. John’s Motion for
Reconsideration contends: (1) permitting various claims against the defendant employer
in the absence of an existing and actionable tort claim proven against the employee
constitutes a palpable defect; and (2) correcting the defect will result in a different
disposition of the case.
Clay responds by saying the Court did not reach the merits of the negligence
claim against the employees and therefore the claim against St. John should proceed.
Clay also says St. John has not presented evidence that the employees were acting
outside the scope of employment.
St. John says an actionable tort claim against the individuals being supervised
must be proven to sustain a negligent hiring, supervision and training claim against an
employer. In support, St. John cites Teadt v. Lutheran Church Missouri Synod, 237
Mich. App. 567 (1999) and Harts v. Farmers Ins. Exch., 461 Mich. 1 (1999).
In Harts, an insured sued its automobile insurer because the agent sold a policy
that lacked a type of coverage. The insured also sued the insurer/employer for
negligently supervising the agent. Id. at *3. The Circuit Court granted summary
judgment for the defendants and the Appeals Court affirmed. The Michigan Supreme
Court held that an insurance agent has no duty to give advice regarding insurance
coverage unless there is a special relationship. The court held no such relationship
existed. The court also held that absent a duty on the part of the agent, the employer
was not vicariously or directly liable.
In Teadt, a parishioner sued a minister, church, state church district and national
church synod because of an allegedly improper sexual relationship between the
parishioner and minister. Teadt v. Lutheran Church Missouri Synod, 237 Mich. App. at
569. The court granted the church’s motion for summary disposition under a vicarious
liability theory because no factual development could sustain the plaintiff’s claim when
the actions in question took place outside the scope of employment. Id. at 572. The
court also granted the church’s motion regarding negligent hiring because the plaintiff
conceded the church had no reason to anticipate the minister’s actions when he was
hired. Id. at 573.
Since the Court did not reach the merits of the claim against the two security
guards, it is possible that Clay will be able to factually develop at trial whether or not the
guards actions were within the scope of employment and whether or not they were
improper. The merits of the claim were not before the Court in the former motion and
they may not be raised for the first time in a motion for reconsideration.
Neither Harts nor Teadt resolves the issue of whether an employer could be
liable under various theories of negligence if the underlying claim against the employee
was wrongfully pled. Neither case sheds light on whether an employer might remain
responsible for battery if those employees are dismissed from the case based on a
St. John also says the limitations period for the underlying cause of action
governs the limitations period associated with the independent action against the
employer. St. John cites Bronson v. Sisters of Mercy Health Corp., 175 Mich. App. 647
(1989) as an example. St. John says the period of limitations for battery is two years
and that applying the reasoning of Bronson, any independent negligence claims based
on tort actions of co-defendant employees are subject to the shorter two year statute of
limitations period and should be dismissed. Clay does not address this argument in his
In its answer to the Complaint, St. John raised a general affirmative defense
based on the statute of limitations. In its prior Motion, St. John argued that allowing the
complaint to be amended for the purpose of adding an assault and/or battery claim
would be futile as the statute of limitations expired prior to the filing of the original
complaint. St. John did not raise a statute of limitations defense argument regarding
negligence claims. A party may not raise new arguments for the first time in a motion
No palpable defect misled this Court. St. John’s Motion for Reconsideration is
Plaintiff’s Fourteenth Amendment claim is DISMISSED. The rest of Defendant
Emmi’s Motion for Reconsideration is DENIED. Defendant St. John Providence Health
System’s Motion for Reconsideration is DENIED.
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 21, 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
October 21, 2014.
S/Carol A. Pinegar
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