Carter v. Carter et al

Filing 57

OPINION and ORDER Adopting in Part 41 REPORT AND RECOMMENDATION, Overruling in Part Defendants' 46 Objections, Granting in Part and Denying in Part Defendants' 38 MOTION for Summary Judgment, and Continuing 7 Order of Reference. Signed by District Judge David M. Lawson. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARC CARTER,
Plaintiff,
v.

Case Number 14-13502
Honorable David M. Lawson
Magistrate Judge Mona K. Majzoub

ANDREW CARTER, JOSEPH
MONTGOMERY, NICHOLAS KRINGS,
and DEPUTY GALIMBERT,
Defendants.
____________________________________/
OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION,
OVERRULING IN PART DEFENDANTS’ OBJECTIONS, GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, AND CONTINUING ORDER OF REFERENCE
Plaintiff Marc Carter, a Michigan prisoner representing himself, filed this lawsuit under 42
U.S.C. § 1983 against Washtenaw County, Michigan Deputy Sheriffs who arrested and beat him
following a high speed chase. The plaintiff contended in a complaint that the officers used excessive
force in effectuating the arrest, thereby violating his Fourth Amendment rights. The Court referred
the case to United States Magistrate Judge Mona K. Majzoub under 28 U.S.C. § 636(b)(1)(B) and
E.D. Mich. LR 72.1(b)(3) to conduct pretrial proceedings. Thereafter, the defendants filed a motion
for summary judgment. Judge Majzoub filed a report on January 24, 2017 recommending that the
defendants’ motion be denied in the main, although she recommended dismissal of the plaintiff’s
state law claim for gross negligence. The plaintiff did not object to the report and recommendation,
but the defendants filed timely objections, and the matter is now before the Court for fresh review.

I.
The facts of the case — and the parties’ competing versions of them — were summarized
throughly by the magistrate judge. Therefore, only a brief summary is necessary here. The events
occurred on August 9, 2012, when the plaintiff’s dangerous driving caught the attention of the
Eastern Michigan University police. The plaintiff was driving a stolen car, and engaged officers
from the Ypsilanti Police Department and deputies of the Washtenaw County Sheriff Department
in a high-speed chase. The pursuit continued for more than 10 minutes, until the plaintiff lost control
of his vehicle in a residential neighborhood, struck a curb, and crashed into a ditch. A pursuing
police cruiser slid to a halt on the muddy road and hit the driver side door of the vehicle, bending it
backwards. The plaintiff then leaped over the door and the hood of the police cruiser and tried to
flee. Deputy Montgomery got out of the cruiser, quickly caught up with Carter, and grabbed him
from behind. The parties agree on these facts. Their stories diverge from that point on.
The defendants maintain that the plaintiff attempted to flee until he was subdued. They say
that he continued to resist arrest, which necessitated the “administ[ration of] three strikes in an
attempt to hit Carter’s brachial plexus,” and “three additional strikes in an attempt to hit [his]
suprascapular nerve.” The plaintiff was taken to the ground, but, say the defendants, he “continued
to struggle” and “refused to be handcuffed,” holding his arms underneath his body until the blows
from the police subdued him and he was handcuffed. All of this, they say, took about 20 seconds.
The plaintiff insists that the force used to subdue him was excessive. He says that Deputy
Carter, “punched [him] in the face unnecessarily” and “beat” him as Montgomery was holding him,
that Montgomery “kicked [him on his left side] when [he] was down” and that when Montgomery
kicked him, he was laying on the ground, on his right side. The plaintiff stated that Deputy Krings
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punched him twice in the front of his chest, also while he was on the ground. He said that Deputy
Galimbert “probably” hit or kicked him while he was on the ground, and also asserted that Galimbert
“didn’t stop [the other officers] from beating” him. The plaintiff testified that the beating while he
was on the ground lasted “a while,” which he estimated to be around 45 seconds.
At least one of the police vehicles was equipped with a dash camera, but the defendants
concede that “this part of the parties’ interaction occurs just outside the frame of the video footage.”
Also in the record is a transcript of a guilty plea colloquy from the state court proceedings in which
the plaintiff was convicted of several charges related to the August 9, 2012 flight and apprehension,
including felony resisting arrest. The defendants took the plaintiff’s deposition, which is part of the
record as well.
The plaintiff filed his complaint on September 9, 2014. In four counts, the complaint raises
claims against the individual defendants via 42 U.S.C. § 1983 for excessive force (count I) and
failure to intervene to prevent the use of excessive force (count II), and under state law for gross
negligence (count III), and intentional infliction of emotional distress (IIED) (count IV). As noted,
the defendants moved for summary judgment. The plaintiff did not file a response to the motion.
In her report on the defendants’ motion for summary judgment, Magistrate Judge Majzoub
recommended that the defendants’ motion be granted in part and the claim for gross negligence be
dismissed because there is no free-standing cause of action for “gross negligence” premised on
conduct that amounts to an excessive use of force. However, she concluded that the excessive force
and IIED claims should be allowed to proceed, based on the variance between the parties’ accounts
of the apprehension, and because the video record of the event does not unambiguously resolve their
conflicting accounts.
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The magistrate judge also found that the defendants were not entitled to qualified immunity,
because the right to be free from excessive force during the course of an arrest is well established,
and a jury reasonably could conclude that the defendants’ acts were unreasonably excessive when
they kicked and punched the plaintiff, more than once, while he was semi-conscious and “balled up
on the ground in a fetal position to protect himself from Defendants’ strikes,” offering nothing more
than “passive resistance” to their attempts to place him in handcuffs.
The magistrate judge concluded that the IIED claim should proceed because the plaintiff’s
testimony minimally sufficed to show that the defendants intentionally inflicted a severe beating on
him that left him “traumatized,” and a jury reasonably could conclude that their conduct was
“malicious,” so that they would not be entitled to state law governmental immunity. Finally, the
magistrate judge found that, notwithstanding whether the conviction for resisting arrest comprised
as a necessary element that the arrest was “lawful,” the recent decisions of federal and state courts
on point support the position that an arrest can be “lawful” even if excessive force is used to
accomplish it, and, therefore, the state did not necessarily have to prove — nor was the plaintiff
compelled to admit in the course of entering his guilty plea — that no excessive force was applied
by the defendants.
The plaintiff did not object to the report and recommendation. The defendants filed
objections to the report and recommendation, citing five grounds.
II.
The filing of timely objections to a report and recommendation requires the Court to “make
a de novo determination of those portions of the report or specified findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
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(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
Court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order
to determine whether the recommendation should be accepted, rejected, or modified in whole or in
part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues — factual and legal — that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection
requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be
clear enough to enable the district court to discern those issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “[T]he failure to file specific objections to a
magistrate’s report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912
(6th Cir. 2004).
A.
The plaintiff has not objected to the magistrate judge’s recommendation to dismiss his gross
negligence claim. Absent objection, that recommendation will be adopted. See McClanahan, 474
F.3d at 837 (explaining that “‘[o]nly those specific objections to the magistrate’s report made to the
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district court will be preserved for appellate review; making some objections but failing to raise
others will not preserve all the objections a party may have’”) (quoting Smith, 829 F.2d at 1373).
B.
In their first objection, the defendants argue that the magistrate judge’s determination on their
unopposed motion should have been limited to examining whether the defendants had met their
burden of production; instead, the magistrate judge “did the plaintiff’s work for him” and “took on
the role of an advocate” by combing the record in search of evidence to support the claims.
It is well recognized that “[t]he party bringing the summary judgment motion has the initial
burden of informing the district court of the basis for its motion and identifying portions of the
record that demonstrate the absence of a genuine dispute over material facts.” Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (citing Mt. Lebanon Personal Care Home, Inc. v.
Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the party opposing
the motion then may not ‘rely on the hope that the trier of fact will disbelieve the movant’s denial
of a disputed fact’ but must make an affirmative showing with proper evidence in order to defeat the
motion.” Id. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)).
However, although the law is clear that the Court is not obligated to perform a searching
review of the record, the Court certainly cannot be faulted for taking the time thoroughly to review
and consider those portions of the record that the defendants’ themselves attached in support of their
motion. The defendants have not cited any authority for the proposition that the Court is obligated
to turn a blind eye to everything beyond their own defendant-favorable interpretation of the record
evidence, and to disregard any contrary portions of the record that were submitted with the motion,
but not cited by them. That notion is contrary to the plain language of Federal Rule of Civil
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Procedure 56, which directs the Court how to proceed in the event of an insufficient response to a
dispositive motion: where “a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may . . . grant summary
judgment if the motion and supporting materials — including the facts considered undisputed —
show that the movant is entitled to it.” Fed. R. Civ. P. 56(e) (emphasis added).
“Rule 56(c) requires a party objecting to a motion for summary judgment to support its
assertions by ‘citing to [sic] particular parts of materials in the record.’” Dice Corp. v. Bold Techs.,
556 F. App’x 378, 384 (6th Cir. 2014). Consequently, the Sixth Circuit has noted that it does “not
entertain on appeal factual recitations not presented to the district court when reviewing a district
court’s decision.” Ibid. (citing Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007);
Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992)). “This burden to respond
is really an opportunity to assist the court in understanding the facts.” Guarino, 980 F.2d at 405.
“But if the non-moving party fails to discharge that burden — for example, by remaining silent —
its opportunity is waived and its case wagered.” Ibid. The defendants are correct that “there is no
duty imposed upon the trial court to ‘search the entire record to establish that it is bereft of a genuine
issue of material fact,’” and “a court’s reliance on the facts advanced by the movant is proper and
sufficient.” Id. at 404 (quoting Street, 886 F.2d at 1480). However, there is no support in Rule 56
or the decisions on point for the defendants’ position that the Court is not permitted to review all of
the evidence submitted by the moving party, and to determine whether, in reality, it supports the facts
that they claim to be undisputed, or discloses other facts that are at odds with their assertions. When
considering challenges to summary judgment rulings on appeal, the Sixth Circuit routinely engages
in its own review of the evidentiary record. E.G., Jude v. Inez Deposit Bank, 968 F.2d 1215, 1992
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WL 158877, at *3 (6th Cir. 1992) (“Review of the materials presented to the trial court affirms that
court’s conclusion that no genuine issues of material fact existed.”) (unpublished table decision).
Here, the magistrate judge concluded that the excerpts of the plaintiff’s deposition testimony
supplied by the defendants suggest that, after Deputy Carter’s initial punch to his face, the plaintiff
did not resist their attempts to arrest him, and that, as he lay on the ground, unresisting and only
partly conscious, helplessly curled in a ball only to shield himself from the continued beating, at least
three of the defendants continued to beat and kick him for up to 20 seconds. She also found that
substantial parts of the beating were not captured by the video camera or were obscured from view,
so the parties’ conflicting accounts of what happened on the ground could not be reconciled by resort
to the video record. See Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that a court may grant
summary judgment based on video evidence that contradicts the non-moving party’s factual
assertions, but only when that party’s position “is blatantly contradicted by the record, so that no
reasonable jury could believe it” and amounts to “visible fiction”). Certainly it was not improper
for the magistrate judge to take the time to view the video tape and read the deposition testimony
before coming to her conclusion. In fact it would be improper and in derogation of the duties of the
Court to do otherwise.
The first objection will be overruled.
C.
Next, the defendants repeat their argument that there is no genuine dispute that the officers
did not use excessive force, because the plaintiff “admits that he engaged in ‘active resistance.’”
They contend that there is no authority for the proposition that officers engage in excessive use of
force where they merely use a modest number of physical strikes on a resisting suspect, to obtain his
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compliance with orders to stop resisting and present his hands to be cuffed, during the course of a
less than 20-second struggle. However, that position necessarily depends on the defendants’ own
view of the evidence, which, as the magistrate judge observed, is inconsistent with the properly
plaintiff-favorable view of the record that the Court must take when considering whether to grant
summary judgment.
When considering a motion for summary judgment, “[t]he court must view the evidence and
draw all reasonable inferences in favor of the non-moving party, and determine ‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Alexander, 576 F.3d at 557-58 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
The defendants argue at some length that it is well established that they are entitled to use
physical strikes to obtain compliance when a suspect is “actively resisting.” But the principal
support for their position is their assertion that they “have unequivocally stated that [the plaintiff]
was holding his arms underneath his body, despite the officers’ efforts to put them behind his back.”
Defs.’ Objs. at 18. Their testimony on that point, however, is contradicted by the account that the
plaintiff gave at his deposition. The plaintiff testified that as soon as Deputy Carter punched him
in the face, he slumped to the ground and was semi-conscious. He stated that, after he fell to the
ground, he was repeatedly punched and kicked in the chest, side, and back by officers Carter,
Montgomery, and Krings. He also testified that, while he was on the ground, he was laying on his
right side, “kind of semi-unconscious due to the head blow I received and with me trying to just ball
up and protect myself [from being hit].” That testimony directly controverts the defendants’
assertion that the plaintiff was “holding his arms underneath his body,” particularly due to the
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obvious physical incongruity suggested by an attempt by the plaintiff to hold his arms “underneath
his body,” while also laying on one side. The defendants would like the Court to adopt their account
of the struggle as the definitive version, for obvious reasons. But the Sixth Circuit sternly has
warned that, when seeking summary judgment, particularly on the ground of qualified immunity,
defendants unequivocally must accept the facts as asserted by the plaintiff, not as asserted or shaded
by their own testimony and arguments. See McDonald v. Flake, 814 F.3d 804, 816 (6th Cir. 2016)
(“As the plaintiffs point out, Officer Flake’s appeal was solely a fact-based challenge to the
plaintiffs’ evidence and the district court’s findings, which was both contrary to settled law and in
flagrant disregard of the district court’s direct admonition that Flake must accept the plaintiffs’
version of the facts in order to raise a justiciable appeal. Despite his protests in his response filing,
Flake cannot overcome this problem. His appeal was ‘obviously without merit.’” (quoting
Bridgeport Music, Inc. v. Smith, 714 F.3d 932, 944 (6th Cir. 2013)).
The defendants correctly point out, and it is well accepted in this circuit, that “active
resistance” can justify the use of physical force to secure an arrest, particularly where a suspect
physically struggles to withhold his hands from handcuffing. See Jackson v. Washtenaw County, No.
15-1250, 2017 WL 416973, at *3 (6th Cir. Jan. 31, 2017) (distinguishing active and passive
resistance and the degree of force each might justify). The Sixth Circuit has recognized that a
“‘deliberate act of defiance’ using one’s body can constitute active resistance, such as where a
suspect resist[s] arrest by ‘laying down on the pavement and deliberately locking his arms together
tightly under his body while kicking and screaming.’” Goodwin v. City of Painesville, 781 F.3d 314,
326 (6th Cir. 2015) (quoting Eldridge v. City of Warren, 533 F. App’x 529, 534-35 (6th Cir. 2013)).
But the plaintiff’s conduct here, as described by him, reasonably could be found by a jury to be
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nothing more than a failure to comply with an order to present his hands, which, it is equally well
accepted, is properly viewed as mere “passive resistance,” which is not enough to justify repeated
punching and kicking by officers. Jackson, 2017 WL 416973, at *4 (“We have held that a failure
to present one’s arms to an officer upon request without more is at most passive resistance, but that
a physical struggle to maintain control of one’s limbs while being placed in handcuffs can be active
resistance.”).
The defendants contend that the plaintiff has admitted that he “resisted” their efforts to arrest
him, and that he is estopped from arguing otherwise, after he entered a plea of guilty to the resisting
and obstructing charge. But his allocution at the plea hearing did not contradict his deposition
account of the roadside apprehension, where he admitted that he tried to flee only until he was
“apprehended by a fist,” and he never conceded that he actively struggled against officers once he
was taken to the ground by officers Carter and Montgomery. As discussed further below, the
plaintiff did not admit that no excessive force was used on him when he pleaded guilty to the
resisting charge. And the fact that he admitted resisting at some point does not rule out a finding
that, at a later moment, when he had stopped resisting, the defendants acted unreasonably and
contrary to the Fourth Amendment when they continued to beat and kick him. Jackson, 2017 WL
416973, at *3 (“Because each tasing or punch can be a separate constitutional violation, we analyze
them in turn.”).
The defendants contend that the plaintiff has conceded that he “resisted” their efforts to cuff
him while he was on the ground. But he testified that he did not hear any order to stop resisting and
allow himself to be cuffed while he was on the ground, “balled up,” and tried only to “protect
himself” from the repeated blows, and that, as soon as he heard that order, he ceased all efforts to
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stave off the attacks. Perhaps that conduct amounted to noncompliance. But the Sixth Circuit has
“held that mere noncompliance is not active resistance.” Woodcock v. City of Bowling Green, No.
16-5322, 2017 WL 633385, at *4 (6th Cir. Feb. 16, 2017) (citing Goodwin, 781 F.3d at 323-24
(holding that refusal to comply with an officer’s command to step outside the apartment was not
active resistance); Eldridge, 533 F. App’x at 535 (“If there is a common thread to be found in our
caselaw on this issue, it is that noncompliance alone does not indicate active resistance; there must
be something more.”)).
In light of the plaintiff’s testimony that he was only semi-conscious, as a result of being
punched in the face by Deputy Carter, the jury could find that officers in the defendants’ positions
reasonably ought to have perceived that the plaintiff was merely — perhaps not even entirely
consciously — reacting to repeated blows by curling up on his side, passively trying only to shield
himself from repeated blows, rather than actively resisting any efforts to handcuff him, particularly
because, according to the plaintiff, as soon as the officers gave a verbal order to stop resisting, then
the plaintiff complied.
The second objection by officers Carter, Montgomery, and Krings will be overruled, because
the plaintiff specifically testified that he was struck more than once by each of those officers. But
he did not offer any positive testimony that officer Galimbert ever punched or kicked him; he only
speculated that Galimbert “probably” did so because he was on the scene. The plaintiff also
contends that Galimbert failed to intervene, but in the context of a fleeting struggle, which the video
record shows took 20 seconds at most, and absent any other testimonial details about Galimbert’s
conduct, there is no proof in the record that would suffice either to hold Galimbert personally liable

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for any direct use or force, or to show that he had any reasonable opportunity to intervene to prevent
a use of force by others.
The Sixth Circuit has held “that a police officer who fails to act to prevent the use of
excessive force may [] be held liable where ‘(1) the officer observed or had reason to know that
excessive force would be or was being used, and (2) the officer had both the opportunity and the
means to prevent the harm from occurring.’” Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir.
2008) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)). However, although the court of
appeals has “found that officers could be held liable under § 1983 for standing by idly while other
officers repeatedly beat and kicked a suspect and dragged him down an alley,” it “also [has] made
clear . . . that officers cannot be held liable under this theory if they do not have ‘a realistic
opportunity to intervene and prevent harm.’” Wells v. City of Dearborn Heights, 538 F. App’x 631,
640 (6th Cir. 2013). The plaintiff is “required to show that [the defendant] himself violated the
Constitution by asking another officer to use excessive force or by failing to stop him from doing
so.” Landis v. Galarneau, 483 F. App’x 209, 211 (6th Cir. 2012). “[A]n officer’s mere participation
in events that include the use of excessive force is not itself sufficient grounds to impose liability.”
Landis, 483 F. App’x at 211 (citing Wilson v. Morgan, 477 F.3d 326, 337 (6th Cir. 2007) (“[A]n
officer who is merely present at a scene but is not directly responsible for the complained of action
is entitled to qualified immunity from suit under § 1983.”)).
Defendant Galimbert’s objection will be sustained. As to the other defendants, they can be
held to account for their “failure to intervene,” where the record testimony suggests that they directly
participated in the beating. Liability can be imposed “when an officer has direct responsibility for
[the] allegedly excessive force” Landis, 483 F. App’x at 211 (citing Wilson, 477 F.3d at 337).
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D.
The defendants also object, contending that they are entitled to qualified immunity where
there was no case law in August 2012 that clearly established that officers used excessive force
where they “[struck] a writhing defendant while — only seconds after engaging in a high-speed
chase — he obstruct[ed] officers and attempt[ed] to wriggle out of their grasp,” and
“administer[ed]strikes and kicks to a suspect who admits that he [rolled] up into a ball with his arms
beneath him instead of complying with the officers’ commands to lie still and place his hands behind
his back.”
The defendants are correct that, if the undisputed record facts were as they portray them to
be, they probably would be entitled to immunity. But, as noted above, the record is not as decisive
as they suppose, and the plaintiff’s testimony does not support their view of the events.
The qualified immunity defense may be raised at any stage of the case. When it is raised in
a motion for summary judgment, as here, courts must weave the summary judgment standard into
each step of the qualified immunity analysis. Scott, 550 U.S. at 378. That means that the court must
view the facts in the light most favorable to the plaintiff, Saucier v. Katz, 533 U.S. 194, 201 (2001);
“[i]n qualified immunity cases, this usually means adopting . . . the plaintiff’s version of the facts.”
Scott, 550 U.S. at 378.
The magistrate judge correctly noted, and the defendants do not dispute, that the right to be
free from the application of excessive force during an arrest was clearly was established in August
2012, and the Sixth Circuit’s decisions on point supplied ample direction to the defendants so that
they should have known that kicking and beating a cowering suspect who does nothing more than

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fail to present his hands or arms upon request for handcuffing was constitutionally unreasonable.
See Austin v. Redford Twp. Police Dep’t, 690 F.3d 490, 498 (6th Cir. 2012).
The Court will overrule the defendants’ third objection.
E.
Next, the defendants argue that the plaintiff’s testimony that he was “traumatized” and
“stressed” by the beating is insufficient as a matter of law to establish that he suffered severe
emotional injury sufficient to sustain the IIED claim. The plaintiff’s testimony on this point is
minimal and undeveloped, but his assertions that he was “traumatized,” and that the beating he
suffered at the hands of officers “brings a lot of stress in” is sufficient — if barely — to submit the
claim to a jury. The testimony certainly is not overwhelming — or even particularly compelling —
but the Sixth Circuit, applying Michigan law, has found evidence that amounted to little more will
suffice for purposes of an IIED claim:
An IIED plaintiff can recover damages for the emotional distress suffered. Although
a plaintiff may also recover for bodily injury resulting from emotional distress, bodily
injury is not a prerequisite to recovery. Here, there is evidence that Armstrong
suffered severe distress as a result of Shirvell’s conduct. Armstrong testified that he
felt frustrated, furious, and low, and believed he was going through a period of
depression. He suffered a loss of confidence. . . . Armstrong felt that he would
continue to feel the emotional effects of Shirvell’s campaign.
Armstrong v. Shirvell, 596 F. App’x 433, 455 (2015). For the same reasons discussed above, and
noted by the magistrate judge, the jury also could find that the defendants’ conduct in kicking and
punching an unresisting suspect curled helplessly on the ground was “extreme and outrageous,” and
that the officers, in doing so, acted intentionally and “maliciously,” such that they are not entitled
to governmental immunity against the IIED claim. Therefore, the defendants’ fourth objection will
be overruled.
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F.
The defendants offer no argument in support of their fifth “objection,” in which they concede
that this Court previously has held that excessive force claims are not barred by the rule of Heck v.
Humphrey, 512 U.S. 477 (1994), and merely assert that they included an objection pro forma to
preserve the issue for appeal. That does not suffice. “‘[O]bjections disput[ing] the correctness of
the magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error’
are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).
Moreover, the courts of this circuit, including the court of appeals and district courts in this
district, consistently have concluded that excessive force claims are not barred by the rule of Heck
v. Humphrey where the plaintiff has pleaded guilty to a resisting arrest charge under Michigan state
law.
In Heck, the Supreme Court held that a plaintiff seeking relief under 42 U.S.C. § 1983 cannot
proceed on a claim when allowing him to do so would call into question the propriety of a prior
criminal conviction that had not been set aside or expunged by judicial or executive action. The
Court held that, “in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of habeas
corpus.” Humphrey, 512 U.S. at 86-87. Discussing Heck’s reach, the Supreme Court has explained
that the rule applies only to “a prisoner’s § 1983 damages action [that] would implicitly question the
validity of conviction or duration of sentence.” Muhammad v. Close, 540 U.S. 749, 751 (2004) (per
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curiam). “Heck’s requirement to resort to state litigation and federal habeas before § 1983 is not,
however, implicated by a prisoner’s challenge that threatens no consequence for his conviction or
the duration of his sentence.” Ibid. Heck does not “categorically” bar all claims of constitutional
violations that flow from an arrest and prosecution when the ensuing conviction remains intact. See
id. at 754.
“[T]he Sixth Circuit has held that a conviction for resisting or obstructing arrest under
Michigan Compiled Laws § 750.81d does not bar a subsequent excessive force claim under section
1983, because the statute does not require that the State prove or the defendant admit that the
arresting officer did not use excessive force.” Steele v. Twp. of Flint, No. 14-13640, 2015 WL
6470887, at *4 (E.D. Mich. Oct. 27, 2015) (citing Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir.
2010)). “Nothing in the text of Michigan Compiled Laws § 750.81d(1) or § 750.92 suggests that the
state must prove as an element of the crime that the police did not use excessive force.” Schreiber,
596 F.3d at 334 (citing People v. Ventura, 262 Mich. App. 370, 686 N.W.2d 748, 752 (2004)).
“Furthermore, [the state court decisions on point strongly suggest that] excessive force by the police
is not a defense to a resisting-arrest conviction.” Ibid. (citing People v. Hill, No. 283951, 2009 WL
1830750, at *3 (Mich. Ct. App. June 25, 2009)).
Two district courts in this district that recently confronted the same question concluded that
the central holding of Schreiber remains good law, notwithstanding the intervening decision of the
Michigan Supreme Court in People v. Moreno, 491 Mich. 38, 814 N.W.2d 624 (2012), where the
court held that the “lawfulness” of the arrest is an element of the crime of resisting or obstructing
arrest. Those courts found that, notwithstanding the need to prove “lawfulness” of the arrest, the
decisions on point in Michigan suggest that an arrest may be “lawful” even if excessive force is used
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to accomplish it. Johns v. Oakland County, No. 15-12924, 2016 WL 4396065, at *5 (E.D. Mich.
Aug. 18, 2016) (Michelson, J.) (“[T]he use of excessive force during or to effectuate an otherwise
lawful arrest does not render the arrest unlawful. This in turn means that a conviction under the
resisting-arrest statute does not trigger Heck’s bar to a § 1983 excessive-force suit.”); Nelson v.
Green Oak Township, No. 14-10502, 2016 WL 233100, at *19 (E.D. Mich. Jan. 20, 2016) (Borman,
J.) (“[S]uccess on Plaintiff’s § 1983 claim for excessive force would not necessarily imply the
invalidity of her conviction for resisting arrest.”).
Those decisions are consistent with constitutional principles. Generally, the “lawfulness”
of an arrest is measured by whether it was supported by probable cause. See United States v.
Campbell, 486 F.3d 949, 953-54 (6th Cir. 2007) (quoting United States v. Bueno, 21 F.3d 120, 123
(6th Cir. 1994); see also Florida v. Royer, 460 U.S. 491, 497-501 (1983); Lilly v. City of Erlanger,
598 F. App’x 370, 375-76 (6th Cir. 2015) (“[A] determination of probable cause to arrest depends
simply on whether, at the moment the arrest was made, the facts and circumstances within the
officers’ knowledge and of which they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the arrestee had committed an offense.”) (quotation marks
and alterations omitted). It follows, then that a police officer can make a “lawful” arrest — that is,
one that is supported by probable cause — but still violate the arrestee’s Fourth Amendment rights
by effectuating that arrest through the use of excessive force. If the arrestee resists, and later is
convicted of resisting that arrest, a subsequent lawsuit charging the arresting officer with excessive
force would not “implicitly question the validity of [the] conviction,” and therefore Heck would not
bar the action.
In all events, the defendants’ fifth objection will be overruled.
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III.
After giving fresh review to the defendants’ motion for summary judgment, in light of the
magistrate judge’s report and recommendation and the defendants’ objections, the Court finds that
the magistrate judge reached the correct result on all the question presented save defendant
Galimbert’s entitlement to a judgement in his favor as amatter of law.
Accordingly, it is ORDERED that the defendant’s objections [dkt. #46] are SUSTAINED
IN PART AND OVERRULED IN PART.
It is further ORDERED that the magistrate judge’s report and recommendation [dkt. #41]
is ADOPTED IN PART AND REJECTED IN PART.
It is further ORDERED that the defendants’ motion for summary judgment [dkt. #38] is
GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that the plaintiff’s claim for gross negligence, and all claims against
defendant Deputy Galimbert, are DISMISSED WITH PREJUDICE. The motion is DENIED in
all other respects.
It is further ORDERED that the matter is referred to Magistrate Judge Mona K. Majzoub
under the previous reference order [dkt. #7] to ready the matter for trial, and to conduct a trial if the
parties consent under 28 U.S.C. § 626(b)(1)(c).

Dated: March 29, 2017

s/David M. Lawson
DAVID M. LAWSON
United States District Judge

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on March 29, 2017.
s/Julie Owen
JULIE OWEN

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