Fuller v. Kerr, et al

Filing 73

OPINION AND ORDER (1) Granting in Part and Overruling Defendants' 71 Objections to Report and Recommendation; (2) Denying Plaintiff's 72 Motion for Extension of Time; (3) Adopting 69 Report and Recommendation; and (4) Granting in Part and Denying in Part Defendants' 48 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS FULLER,
Plaintiff,

Case No. 13-cv-13171
Hon. Matthew F. Leitman

v.
DAVID KERR et al.,
Defendants.
_________________________________/
OPINION AND ORDER (1) GRANTING IN PART AND OVERRULING
DEFENDANTS’ OBJECTIONS TO REPORT AND RECOMMENDATION
(ECF #71); (2) DENYING PLAINTIFF’S MOTION FOR EXTENSION OF
TIME (ECF #72); (3) ADOPTING REPORT AND RECOMMENDATION
(ECF #69); AND (4) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF #48)
INTRODUCTION
In 2011, Plaintiff Leroy Fuller (“Fuller”) was a resident of the Tri-County
Community Adjudication Program (“Tri-Cap”). Tri-Cap is a diversion program
that aims to reduce non-violent offender admissions to jail or prison. (See ECF
#48 at 12, Pg. ID 314.) In this action, Fuller alleges that while he was housed at
Tri-Cap, Defendant David Kerr (“Kerr”), a Tri-Cap employee, subjected him to
excessive force and committed assault and battery against him by spraying him
with a de-lousing agent during a contraband check. Fuller also claims that Kerr
and Defendants Gary Davis, Janet Cochran, and John W. Hawley (collectively, the

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“Defendants”) violated his Eighth Amendment rights by withholding medical care
and prescription drugs.
The Defendants jointly filed a motion to dismiss and for summary judgment
on December 31, 2014 (the “Motion”).

(See ECF # 48, Pg. ID 303.)

The

Magistrate Judge issued a Report and Recommendation with respect to the Motion
on August 18, 2015 (the “R&R”). (See ECF #69, Pg. ID 755.) In the R&R, the
Magistrate Judge recommended that the Court grant the Motion with respect to all
but two of Fuller’s claims: the excessive force and assault and battery claims
against Kerr arising out of the spraying. (See id. at 34, Pg. ID 788.)

The

Defendants have filed timely objections to the R&R (the “Objections”). (See ECF
#71, Pg. ID 794.) They argue that Kerr should be granted summary judgment on
Fuller’s excessive force and assault and battery claims. (See id. at 18, Pg. ID 811.)
The Court finds merit in some of the Objections but agrees with the Magistrate
Judge’s ultimate conclusion that Kerr is not entitled to summary judgment on the
excessive force and assault and battery claims.
For the reasons stated below, the Court (1) SUSTAINS the Objections in
part and OVERRULES them in part, (2) ADOPTS the R&R, (3) DENIES the

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Motion with respect to the excessive force and assault and battery claims against
Kerr, and (3) GRANTS the Motion in all other respects.1
BACKGROUND OF THE RELEVANT CLAIMS AGAINST KERR
Tri-Cap aims to reduce prison or jail admissions for non-violent offenders by
offering a number of services, including twenty-four hour supervision, a work
release program, vocational and educational training, and substance abuse
monitoring and counseling. (See ECF #48 at 12, Pg. ID 314.) Fuller was admitted
to the Tri-Cap Facility on June 27, 2011. (See ECF #48-4 at 1, Pg. ID 343). That
same day, he received a non-toxic de-lousing application, also known as a “quell
shower.” (ECF #48-10 at 1, Pg. ID 350.) Fuller testified that the quell shower did
not cause him any sort of injury or pain. (ECF #48-8 at 3, Pg. ID 349.)
Tri-Cap forbids its residents from smoking cigarettes while on the premises.
On July 3, 2011, six days after Fuller entered Tri-Cap and received his initial quell
shower, Kerr witnessed Fuller and two other residents smoking cigarettes. (ECF
#48-17, Pg. ID 376.) Kerr then escorted Fuller and the other two residents to a

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Fuller could have, but did not, file any objections to the portions of the R&R that
recommend that the Motion be granted. Fuller’s failure to file objections waives
any further right to appeal. See Howard v. Sec'y of Health and Human Servs., 932
F.2d 505 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d
1370, 1373 (6th Cir. 1987). Likewise, the failure to object to the R&R releases the
Court from its duty to independently review any portions of the R&R to which the
parties did not object. See Thomas v. Arn, 474 U.S. 140, 149 (1985). The Court
has nevertheless reviewed the R&R and agrees with the findings and conclusions
of the Magistrate Judge except as indicated above.
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staff bathroom where Kerr conducted a strip search of each resident to determine
whether they possessed any other contraband. (See ECF #48-12 at 1, Pg. ID 361.)
During this encounter, Kerr administered a second quell shower to Fuller
(the “July 3rd Quell Shower”). (See ECF # 48-8 at 3, Pg. ID 355; ECF #48-12 at
2, Pg. ID 361.) Fuller claims that during the July 3rd Quell Shower, Kerr sprayed
him in the face with the de-lousing agent without need or warning. (See ECF #26
at 3, Pg. ID 122). Kerr admits that he sprayed Fuller but denies that he did so
needlessly and/or without warning. (See ECF #48-12 at 2, Pg. ID 361). Kerr says
that he sprayed Fuller because he saw suspected lice (or other insects) on Fuller’s
back and that he warned Fuller before spraying him. (Id.) In this action, Fuller
alleges that the July 3rd Quell Shower constituted excessive force and assault and
battery.
THE R&R
At the close of discovery, the Defendants moved for summary judgment on
all of Fuller’s claims. The Magistrate Judge recommended that the Court grant
summary judgment to Defendants with respect to all of Fuller’s claims except the
excessive force and assault and battery claims against Kerr arising out of the July
3rd Quell Shower. (See R&R at 15, Pg. ID 769.) The R&R suggests that there is a
material factual dispute with respect to Kerr’s reason and motivation for
administering the July 3rd Quell Shower. (Id. at 11-12, Pg. ID 765-66.) The R&R
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suggests that the record contains evidence that, contrary to Kerr’s current claim,
Kerr sprayed Fuller without warning and without justification. (See id.) The R&R
identified this evidence as follows:
1. Statements by Fuller in his verified complaint and in his postdeposition affidavit that Kerr sprayed him without prior warning.
(See ECF #26 at 3, Pg. ID 122; ECF # 66-1 at 2, Pg. ID 641.)
2. Fuller’s deposition testimony that there were no lice on his body
when Kerr applied the July 3rd Quell Shower and that Kerr thus
had no justification for administering the shower. (See ECF # 48-8
at 9, Pg. ID 355.)
3. A police report describing a statement by Kerr in which he denied
administering the July 3rd Quell Shower at all – a statement that
contradicts Kerr’s current admission that he did administer the
shower. (See ECF #66-2 at 12, Pg. ID 701.)
4. Kerr’s failure to mention the July 3rd Quell Shower in a
disciplinary report he wrote about his interactions with Fuller on
July 3 (See ECF #48-17 at 2, Pg. ID 376-78) – an omission the
R&R regarded as possibly inconsistent with Kerr’s current claim
that he justifiably administered the shower after seeing lice on
Fuller.
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Based on this evidence, the R&R concludes: “In order for the Court to find
that Defendant Kerr’s version of the facts is undisputed, it would have to ignore the
obvious inconsistencies between Defendant Kerr’s own statements and completely
disregard Plaintiff’s consistent sworn renditions of what occurred.” (R&R at 16,
Pg. ID 770.)
DEFENDANTS’ OBJECTIONS
The Defendants contend that the Court should reject the R&R because it
contains the following errors:
1. The R&R erroneously considers statements in Fuller’s post-deposition
affidavit that Kerr sprayed him without warning. The Defendants argue
that the Court should disregard those statements because they conflict
with Fuller’s deposition testimony. (ECF # 71 at 18-19, Pg. ID 811-12.)
2. The R&R erroneously credits Fuller’s testimony that he was lice-free
when Kerr sprayed him with the July 3rd Quell Shower. (Id. at 16-17,
Pg. ID 809-10.)
3. The R&R fails to consider whether Defendant Kerr is entitled to qualified
immunity. (Id. at 20-23, Pg. ID 813-16.)

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GOVERNING LEGAL STANDARD
A.

R&R Standard of Review
This Court reviews de novo the portions of the R&R to which the parties

have objected. See Fed. R. Civ. P. 72(b)(3). The R&R determined that genuine
issues of material fact exist with respect to Fuller’s excessive force and assault and
battery claims. (See R&R at 15-16, Pg. ID 769-70.) The Defendants timely and
properly objected to this determination.

(See ECF #71, Pg. ID 794.)

Consequently, this Court reviews de novo the portions of the R&R evaluating the
use of excessive force and assault and battery claims.
B.

Summary Judgment Standard of Review
A movant is entitled to summary judgment when it “shows that there is no

genuine dispute as to any material fact....” SEC v. Sierra Brokerage Services, Inc.,
712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Id. “The mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for
[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate
when “the evidence presents a sufficient disagreement to require submission to a
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jury.” Id. at 251-252. Indeed, “[c]redibility determinations, the weighing of the
evidence, and the drafting of legitimate inferences from the facts are jury
functions, not those of a judge…” Id. at 255.
ANALYSIS
A.

The Court Sustains Defendants’ Objection to the R&R’s Consideration
of the Statement in Fuller’s Post-Deposition Affidavit That Kerr
Sprayed Him Without Warning
In his post-deposition affidavit, Fuller said that Kerr began spraying him

“without warning” during the July 3rd Quell Shower. (ECF #66-1 at 2, Pg. ID
641.) The R&R suggested that this statement supports Fuller’s argument that there
is a material factual dispute as to whether Kerr acted unlawfully. But the statement
directly contradicts Fuller’s deposition testimony.

At his deposition, Fuller

admitted that Kerr told him to cover his eyes before he (Kerr) began administering
the quell shower:
Q:

So he told you to put your hands up over your eyes
first?

A:

Yes.

(ECF #48-8 at 9, Pg. ID 355 (emphasis added).)
Under the “sham affidavit” rule, Fuller may not oppose Kerr’s motion for
summary judgment by invoking the contradictory statement from his postdeposition affidavit. See Penny v. United Parcel Service, 128 F.3d 408, 415 (6th

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Cir. 1997) (non-movant may not create material factual dispute by submitting an
affidavit that directly contradicts his deposition testimony).
The Court therefore disregards the sworn allegation in Fuller’s postdeposition affidavit that that he received no warning before he was sprayed.
Fuller’s sworn deposition testimony that Kerr did provide advance warning
therefore controls in the context of Kerr’s motion for summary judgment.
B.

The Court Sustains Defendants’ Objection to the R&R’s Consideration
of Fuller’s Testimony That There Were No Lice on His Back
Fuller initially testified at his deposition that there were no lice on his back

when Kerr administered the July 3rd Quell Shower. (See ECF # 48-8 at 9, Pg. ID
355.) But follow-up questioning of Fuller revealed that Fuller lacked a foundation
for his assertion that he was free of lice:
Q:
A:
Q:
A:
Q:
A:
Q:

A:
Q:

A:

All right. How do you know that there was [sic]
no lice?
I was already sprayed with it.
Okay. But weren’t you sprayed with it—
Upon arrival of coming.
Let me finish my question. Okay?
Go ahead.
You were sprayed with it on June 27, 2011. This
incident in your Complaint says July 3, 2011,
correct?
Right.
Okay. And you’re not a doctor or an expert on lice
so you would have no professional opinion or
knowledge about how many applications of a delicer it would take to get rid of lice, correct?
Right.
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(ECF #48-8 at 9, Pg. ID 355.)
As this testimony makes clear, (1) Fuller simply assumed that he had no lice
on his back during the July 3rd Quell Shower because he had received a quell
shower several days earlier, and (2) he had no basis for making that assumption.
Fuller’s unsupported assumption is not competent summary judgment evidence.2
C.

Notwithstanding Defendants’ Meritorious Objections to Two Aspects of
the R&R, They Have Failed to Show That the R&R Recommended the
Incorrect Result
In the Motion, Defendants relied heavily on Kerr’s version of events. They

highlighted Kerr’s sworn statements and argued at length that those statements
established that Kerr had a legitimate reason to administer the July 3rd Quell
Shower. (See ECF #48 at 20, Pg. ID 322.) But the Magistrate Judge correctly
concluded that evidence in the record calls into serious question Kerr’s version of
events.
As the Magistrate Judge accurately noted, there is evidence that Kerr
initially denied spraying Fuller with anything on July 3rd. (ECF #66-2 at 12, Pg.
ID 701.) Kerr’s initial denial conflicts sharply with his current claim that he did
spray Fuller and that he had a sound justification for doing so. When viewed in
Fuller’s favor, Kerr’s initial denial of a spraying he now admits could be seen as

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At trial, Fuller will, of course, be permitted to offer competent evidence that there
were no lice on him at the time of the July 3rd Quell Shower. Such evidence could
include, for instance, testimony by Fuller that he did not see nor feel any lice on his
skin at that time.
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Kerr’s implicit acknowledgement that the spraying was wrongful and lacked
justification. Indeed, one could argue that if the spraying was justified, as Kerr
insists, then Kerr would have admitted the spraying and explained the basis for
doing so from the outset. In their Objections to the R&R, Defendants do not even
attempt to argue that the Magistrate Judge erred in suggesting that Kerr’s
conflicting versions of events preclude summary judgment.
The record also contains evidence that Kerr failed to note the July 3rd Quell
Shower in his disciplinary report. The Magistrate Judge properly suggested that
this evidence further undercuts Kerr’s version of events. (See R&R at 15-16, Pg.
ID 769-70.) Like Kerr’s initial denial that he sprayed Fuller, Kerr’s failure to note
the spraying in his report, when viewed in Fuller’s favor, could be viewed as an
implicit acknowledgment that the spraying was wrongful. Defendants’ Objections
do not address Kerr’s failure to note the spraying in his report.
In sum, the Magistrate Judge was entirely correct when he suggested that the
Defendants are not entitled to summary judgment on Fuller’s excessive force and
assault and battery claims because the evidence on which they heavily rely –
Kerr’s version of events – is open to serious question.
D.

The Court Overrules Defendants’ Objection that the R&R Failed to
Consider Kerr’s Qualified Immunity Defense
The Motion did not argue that the Court should grant summary judgment on

qualified immunity grounds. Thus, the Magistrate Judge did not err in declining to
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address qualified immunity. The fact that Fuller raised the issue of qualified
immunity in his pro se response to the Motion did not require the Magistrate Judge
to consider the issue which Defendants failed to raise in the first instance.
E.

The Court Denies Fuller’s Motion for Extension of Time to File a
Response to Defendants’ Objections to the R&R
On September 18, 2015, Fuller filed a motion to extend the time by which he

could file a response brief to the Objections (the “Motion to Extend Time”). (See
ECF #72.) However, the Court does not need to hear from Fuller with respect to
the Objections. As detailed above, the Court is overruling the Objections to the
extent they ask the Court to grant Kerr summary judgment, and the Court is
allowing Fuller’s excessive force and assault and battery claims against Kerr to
move forward. Because the Court denying the Defendants the relief they seek, it
will deny Fuller’s request to file an untimely response brief.
CONCLUSION
For the reasons stated in this Opinion and Order, IT IS HEREBY
ORDERED that the Court
 SUSTAINS IN PART AND DENIES IN PART the Defendants’
Objections (ECF #71);
 DENIES Fuller’s Motion to Extend Time (ECF #72);
 ADOPTS the R&R (ECF #69); and

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 DENIES the Motion solely with respect to Fuller’s claims for excessive
force and assault and battery against Kerr, and GRANTS the Motion in all
other respects (ECF #48).
Accordingly, the only claims for trial are Fuller’s claims against Kerr for excessive
force and assault and battery.
IT IS SO ORDERED.

Dated: September 21, 2015

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 21, 2015, by electronic means
and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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