Beard et al v. Hawkins et al
OPINION & ORDER Adopting Report and Recommendation 165 and granting in part and denying in part defts' 118 Motion for Partial Summary Judgment. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
TONY DEWAYNE BEARD, JR., a legally
incapacitated person, by and through
JOHNETTE FORD, his legal guardian,
Case No. 14-13465
Honorable Nancy G. Edmunds
CITY OF SOUTHFIELD, et. al.,
OPINION AND ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION  AND GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT 
Plaintiff Tony Beard filed this action claiming that Defendant City of Southfield and ten
of its police officers violated several of his constitutional rights. Defendants now move for
summary judgment on most of Plaintiff's claims (Dkt. 118), and Magistrate Judge Elizabeth
Stafford has provided this Court a Report and Recommendation (R&R) regarding
Defendants' motion. (Dkt. 165.) The Magistrate Judge recommends that the motion for
partial summary judgment be granted in part and denied in part. (Id.) Both parties have
filed objections to the R&R. (Dkt. 168; Dkt. 171.) For the following reasons, the Court
OVERRULES both parties' objections, ACCEPTS AND ADOPTS the R&R, and GRANTS
IN PART and DENIES IN PART Defendants' motion for partial summary judgment.
The R&R provides an extensive factual background, and the Court, having reviewed
the record de novo, adopts that background here. (See Dkt. 165, at 2-10.) To summarize,
Plaintiff suffered injuries after he led Southfield police on a high-speed car chase that
ended in Plaintiff's arrest. Plaintiff then filed suit in this Court alleging that the City of
Southfield and ten of its officers violated his constitutional rights during and leading up to
his arrest. As to the officers specifically, Plaintiff asserts Fourth Amendment claims of
unlawful seizure and excessive force; Eight Amendment claims of cruel and unusual
punishment; and Fourteenth Amendment claims for the denial of equal protection,
violations of substantive due process, and deliberate indifference to his medical needs.
(Dkt. 18 at ¶¶ 41, 47.) As to the City of Southfield, Plaintiff asserts claims of failure to train
and failure to supervise. (Id. at ¶¶ 32-33.)
Before the Court now is the Magistrate Judge's R&R on Defendants' motion for partial
summary judgment. Defendants seek summary judgment on each of Plaintiff's claims
except the excessive force claims related to Plaintiff's arrest against Katie Schneider,
Matthew Taylor, Eric Jachym, and Timothy Gougeon. (Dkt. 118, at 20.) In the time since
Defendants filed their motion, the Court already struck Plaintiff's Eight Amendment claim
as a sanction for Plaintiff's discovery abuses. (Dkt. 155.)
The R&R recommends that Defendants' motion for partial summary judgment be
granted in part and denied in part. More specifically, the Magistrate Judge recommends
that the Court grant summary judgment on all of Plaintiff's claims but the following: (1) the
excessive force claims arising out of Plaintiff's arrest against Ryan Losh and Kory
Karpinsky; (2) the equal protection claim against Taylor related to the use of a racial
epithet; and (3) the claims which Defendants have not challenged--excessive force claims
arising out of Plaintiff's arrest against K. Schneider, Taylor, Jachym, and Gougeon. (Dkt.
165, at 30.) Plaintiff and Defendants have both filed objections to the R&R.
II. Standard of Review
When a party objects to portions of a magistrate judge's report and recommendation
on a dispositive motion, the Court reviews such portions de novo. Fed. R. Civ. P. 72(b).
However, only specific objections that pinpoint a source of error are entitled to de novo
review. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). General objections, or those
that merely challenge the magistrate judge's ultimate determinations, have "the same
effects as would a failure to object." Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). That is, such objections are invalid, and the Court must treat
them as if they were waived. See Bellmore-Byrne v. Comm'r of Soc. Sec., 2016 WL
5219541, at *1 (E.D. Mich. Sept. 22, 2016) (citing id.).
A. Plaintiff's Objection
Plaintiff objects to the Magistrate Judge's conclusion that the Amended Complaint did
not provide Jason Schneider fair notice of an excessive force claim against him. (Dkt. 168,
at 4.) In support, Plaintiff directs the Court's attention to particular allegations in the
Amended Complaint, which, according to Plaintiff, compel a different conclusion.1 Given
that this objection merely challenges the Magistrate Judge's ultimate determination, the
Court may and does treat it as waived. Howard, 932 F.2d at 509. However, even if the
Court evaluated Plaintiff's objection on the merits, it would still fail.
Plaintiff also invites the Court to consider evidence suggesting that J. Schneider kicked
him in the head, but this evidence has no bearing on whether Plaintiff sufficiently pled an
excessive force claim against J.Schneider. See McColman v. St. Clair Cnty., 479 F. App'x
1 (6th Cir. 2012) (rejecting plaintiff's argument that discovery could put defendant on notice
that he was subject to an excessive force claim). The Court further notes that Plaintiff could
have sought leave to amend his pleadings to reflect this evidence but did not do so.
Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain "a short
and plain statement of the claim showing that the pleader is entitled to relief." According to
the Supreme Court, this requires giving "fair notice" of the claim and "the grounds upon
which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). Complaints do not provide fair notice if they offer only "nebulous assertions of
wrongdoing." Robertson v. Lucas, 753 F.3d 606, 623 (6th Cir. 2014). As to constitutional
claims specifically, "[The Sixth Circuit] has consistently held that damage claims against
government officials arising from alleged violations of constitutional rights must allege, with
particularity, facts that demonstrate what each defendant did to violate the asserted
constitutional right." Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (emphasis in
Having reviewed the Amended Complaint, the Court believes that the R&R correctly
concludes that Plaintiff did not provide J. Schneider fair notice of an excessive force claim
against him. While the Amended Complaint includes general claims that all ten named
officers violated Plaintiff's constitutional rights, it never ascribes particular conduct to J.
Schneider demonstrating that he violated Plaintiff's right to be free from excessive force.
Instead, the Amended Complaint's allegations regarding J. Schneider's involvement in the
alleged use of excessive force are nebulous, generic, and opaque. (Dkt. 18 at ¶¶ 10-12;
24; 27-28; 38-40.)
For example, one allegation cited by Plaintiff does not mention J. Schneider at all,
even though it names eight other officers.
(Id. at ¶ 24.)
Another cited portion is
impermissibly vague: "[T]he actions of the Co-Defendant Officers ... lead [sic] to
OFFICERS- J. JAGILESKI [sic] and J. SCHNEIDER, following and harassing him, and
ultimately: a wrongful high speed chase and vehicular pursuit; assault and physical
conduct, including tasing[.]" (Id. at ¶ 27.) It continues with no more particularity: "[T]he
actions described above ... constituted clear violations of his constitutional rights to ... not
become subject to the excessive use of force and/or of deadly force under the Eighth
Amendment." (Id. at ¶ 28.) Given the generality of these allegations, the deficiency of the
Amended Complaint is manifest on the face of Plaintiff's pleading. Therefore, if the Court
were to decide this objection on the merits, it would agree with the Magistrate Judge that
Plaintiff failed to provide J. Schneider fair notice of an excessive force claim against him.
Twombly, 550 U.S. at 555; Lanman, 529 F.3d at 684; see also Dunchock v. City of
Corunna, 2015 WL 1130980, at *3 (E.D. Mich. Mar. 12, 2015) (holding that simply
incorporating prior allegations and referencing general tort law did not provide fair notice).
B. Defendants' Objections
Defendants object to three portions of the R&R. First, Defendants object to the finding
that "Defendants do not claim that they feared that Beard would harm them." (Dkt. 171, at
2.) Defendants argue that this finding is unsupported by the record. Having reviewed the
record de novo, this Court disagrees. Defendants maintain that K. Scheider "did not,
however, say that she did not fear [Plaintiff]." (Id.) But the R&R does not state that any
officer expressed a lack of fear. Instead, the R&R finds that no officer expressed an
affirmative fear. That is an entirely different finding, and it is one supported by the record.
Defendants' first objection is accordingly overruled.
Defendants next object to the following finding: "[A]t this juncture, it would appear that
the officers' efforts were focused on halting [Plaintiff]'s resistance, not on protecting
themselves." (Dkt. 171, at 3.) Defendants argue that this finding is unsupported by the
record. Having reviewed the record de novo, the Court again disagrees. K. Schneider
testified that Plaintiff was "not assaultive but resisting." (138-13, at 13.) She then
reiterated: "[H]e wasn't being assaultive, he was just fighting to try to get away still." (Id.
at 14.) In light of this testimony, the Court finds that the record supports the R&R's finding.
Therefore, Defendants' second objection is also overruled.
Finally, Defendants object to the conclusion that a jury must consider "the evidence
that Beard posed no immediate threat to [Defendants] as demonstrated by the fact that K.
Schneider put her gun away." (Dkt. 171, at 4.) Defendants contend that this conclusion
is based on "an incomplete view of the facts," which ignores the "'dangerous and complex
world'" that K. Schneider faced at the time. (Id. (quoting Smith v. Freland, 954 F.2d 343,
347 (6th Cir. 1992)).) Having reviewed the record de novo, as well as the context in which
this conclusion appears, the Court finds that this objection lacks merit. While it is true that
K. Schneider did not simply put her gun away, as she then equipped her taser (Dkt. 18-13,
at 15), the holstering of her gun still tends to show that Plaintiff did not pose an immediate
threat. It may not be conclusive proof that the officers used excessive force, but the R&R
never suggests that this fact carries dispositive weight.
Instead, the R&R correctly
concludes that it is one piece of evidence that the jury will need to consider in evaluating
Plaintiff's claims. The R&R states in full:
[T]he jury must consider the crime known to the officers at the time (fleeing
and eluding), the evidence that Beard posed no immediate threat to them as
demonstrated by the fact that K. Schneider put her gun away, the evidence
that he was no longer attempting to flee,  Beard's claim that he was not
resisting at the time that Losh and Karpinsky forcefully pulled him through the
window opening, and [the allegation that] Losh forcefully placed Beard on the
ground face-down. Fox v. DeSoto, 489 F.3d [227,] at 236 [(6th Cir. 2007)].
(Dkt. 165, at 23-24.) The Court believes the quoted passage accurately reflects the relevant
facts and law. Therefore, Defendants' final objection is also overruled.
For the foregoing reasons, the Court OVERRULES both parties' objections;
ACCEPTS and ADOPTS the Magistrate Judge's R&R; and GRANTS IN PART and
DENIES IN PART Defendants' motion for partial summary judgment. As a result, the Court
grants summary judgment in Defendants' favor on the following claims: substantive due
process; unlawful seizure; excessive force as it relates to the car chase; excessive force
pertaining to the arrest against J. Schneider, Jeffrey Jagielski, Blake Matatall, and Nicholas
Smiscik; failure to intervene; equal protection as it pertains to racial profiling; equal
protection related to the racial epithet against J. Schneider, Jagielski, Jachym, Gougeon,
Losh, Matatall, Smiscik and Karpinsky; and municipal liability against the City of Southfield.
Plaintiff's only remaining claims are the following: (1) excessive force claims related to
Plaintiff's arrest against K. Schneider, Losh, Karpinsky, Taylor, Jachym, and Gougeon; and
(2) an equal protection claim related to the racial epithet against Taylor.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: January 19, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 19, 2017, by electronic and/or ordinary mail.
s/Carol J. Bethel
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