Latimore v. Pickell et al

Filing 63

OPINION and ORDER Regarding Defendants' 55 Motion for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAVIN KYLE LATIMORE,
Plaintiff,

Case No. 14-13997

v.

Hon. Gerald E. Rosen

ROBERT J. PICKELL, et al.,
Defendants.
____________________________________/
OPINION AND ORDER REGARDING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
December 27, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
Plaintiff Javin Kyle Latimore commenced this action in this Court on
October 16, 2014, asserting federal claims of excessive force under 42 U.S.C. §
1983 and a variety of state-law claims against Genesee County Sheriff Robert J.
Pickell, Genesee County Undersheriff James Gage, and fifteen other law
enforcement officers employed by the Genesee County Sheriff Department.1
1

Prior to the close of discovery, Plaintiff’s claims against Undersheriff Gage were
dismissed by stipulation of the parties. In addition, Plaintiff has agreed to the dismissal of

Plaintiff’s claims arise from a March 26, 2013 incident in which he was subjected
to various forms of force at the City of Flint lockup and the Genesee County Jail
following his arrest for trespass when he allegedly refused the order of two nonparty City of Flint police officers to leave a Flint restaurant. This Court’s subject
matter jurisdiction rests upon Plaintiff’s assertion of claims arising under federal
law. See 28 U.S.C. § 1331.
Through the present motion, the Defendant law enforcement officers seek
an award of summary judgment in their favor on each of Plaintiff’s remaining
federal and state-law claims. In support of this motion, Defendants argue (i) that
the claims asserted against the Defendant officers in their official capacity are
inadequately pled and lack evidentiary support, (ii) that Plaintiff has failed to
produce evidence in support of his claims against Sheriff Pickell, (iii) that the
Defendant law enforcement officers did not use excessive force in their
interactions with Plaintiff or, at a minimum, are entitled to qualified immunity
from liability for Plaintiff’s claims of excessive force, and (iv) that Plaintiff’s
state-law claims of assault and battery are defeated by his active resistance to the

his claims against three other Defendant officers: Genesee County Deputies Radmilla
Hovey and Timothy Lynch and Sergeant Pete Stocchi. Finally, Plaintiff has
acknowledged that his state-law claims of false arrest, false imprisonment, and civil
conspiracy are subject to dismissal, leaving assault and battery as the only theories of
recovery that Plaintiff is still pursuing under state law.
2

Defendant officers’ verbal commands and lawful efforts to restrain him.
Defendants’ motion has been fully briefed by the parties. Having reviewed
the parties’ briefs and their accompanying exhibits, as well as the remainder of the
record, the Court finds that the relevant allegations, facts, and legal issues are
sufficiently presented in these written submissions, and that oral argument would
not aid the decisional process. Accordingly, the Court will decide Defendants’
motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern
District of Michigan. This opinion and order sets forth the Court’s rulings on this
motion.
II. FACTUAL BACKGROUND
The facts underlying the March 26, 2013 incident giving rise to this suit are
the subject of considerable disagreement and dispute among the parties. In
accordance with the present, summary judgment posture of this case, the following
account is based on a view of the record in a light most favorable to Plaintiff as the
non-moving party.
On March 26, 2013, Plaintiff Javin Latimore — who was then twenty-three
years old — visited three bars and restaurants in downtown Flint, Michigan,
consuming a few glasses of wine over the course of the evening. Plaintiff’s last
stop that night was the Blackstone restaurant, where he sat at the bar and asked for
3

a drink menu. Before he could order a drink, however, the bartender told Plaintiff
to “leave or he was going to call the police,” without giving any reason.
(Defendants’ Motion, Ex. C, Plaintiff’s Dep. at 37.)2 The bartender then made a
phone call, and two City of Flint police officers arrived at the scene. (See id. at
37-38.)
Upon the arrival of the Flint police, Plaintiff approached one of the officers
and insisted that he had done nothing wrong. (See id. at 39.) The officer
responded that “you can’t come into people’s establishments if you’re unwanted,”
and Plaintiff was placed under arrest. (Id. at 40.) The police report for this
incident states that Plaintiff was ordered three times to leave the bar and refused
each of these orders, (see Flint Police Report at 2), but Plaintiff denies that he was
given any such warning before being arrested, (see Plaintiff’s Dep. at 39-40). The
police report further indicates that Plaintiff was arrested for trespassing, (see Flint
Police Report at 2), but Plaintiff testified that he was not told why he was being
arrested, (see Plaintiff’s Dep. at 41).
Following his arrest, Plaintiff was placed in handcuffs and transported to the

2

According to a report prepared by a non-party City of Flint police officer, the
bartender stated that after he served Plaintiff a drink, Plaintiff “became verbally abusive”
and began yelling and cursing at the bartender. (Defendants’ Motion, Ex. D, Flint Police
Report at 2.) Plaintiff, however, has denied that he verbally abused or cursed at the
bartender. (See Plaintiff’s Dep. at 36-37.)
4

City of Flint lockup, which was run by the Genesee County Sheriff Department.
Upon his arrival at the lockup, Plaintiff was led to an intake area and told to sit on
a bench. (Plaintiff’s Response, Ex. A, Plaintiff’s Dep. at 52-53.)3 According to
Plaintiff, as he moved to one end of the bench and attempted to speak with a
Caucasian female police officer who was standing to his left,4 this officer “pinned
[him] onto the bench” and made some sort of physical contact with him, and two
additional unnamed officers joined her in pinning Plaintiff to the bench,5 pushing
his body “really hard” in the process. (Plaintiff’s Dep. at 53-56.)6
Plaintiff next was picked up off the bench and taken to an isolation cell to

3

This portion of Plaintiff’s encounter with the Defendant law enforcement officers
was captured on video, and Defendants have produced a copy of this video as an exhibit
to their motion. (See Defendants’ Motion, Ex. E.) As discussed below, the parties have
different views as to the events depicted in this video recording.
4

Plaintiff testified that upon reviewing police reports and “putting things together,”
he determined that this officer was Deputy Collette Newman. (Id. at 53-54.)
5

It appears from the record that these two other officers were Deputy Jason
Thomas and Deputy Demetta Reeves.
6

Deputy Newman testified at her deposition that she pushed Plaintiff back onto the
bench after he tried to stand up and disregarded commands to stay seated. (See Plaintiff’s
Response, Ex. B, Newman Dep at 11, 17; see also Defendants’ Motion, Ex. A, Newman
Suppl. Report.) Plaintiff testified, in contrast, that he did not try to stand up or lift himself
off the bench, and he also denied that he became combative as he sat on the bench.
(Plaintiff’s Dep. at 55-57.)
5

be searched.7 According to reports prepared by Sergeant Pam Sanchez, Deputy
Reeves, Deputy Newman, Deputy Thomas, and Deputy Brett Beckley, Plaintiff
was combative, uncooperative, and repeatedly disregarded verbal commands as
the officers attempted to search him, and he kicked Sergeant Sanchez in the face at
one point during this encounter. (See Defendants’ Motion, Ex. A, Sanchez Report;
Beckley Incident Report; Reeves Suppl. Report; Newman Suppl. Report; Thomas
Suppl. Report; see also Ex. H, Sanchez Dep. at 11, 18-21; Ex. I, Reeves Dep. at
19-25; Ex. J, Thomas Dep. at 21-23; Ex. M, Beckley Dep. at 14-24; Plaintiff’s
Response, Ex. B, Newman Dep. at 10-16.) The officers further stated that as
Plaintiff continued to actively resist their efforts to subdue and search him, they
administered OC spray and drive stun tasering. (See Sanchez Dep. at 9; Thomas
Dep. at 23; Beckley Dep. at 18-24.) Plaintiff testified, however, that he did not
intentionally kick any of the officers, and he denied that his foot ever made contact
with any officer’s face. (See Plaintiff’s Dep. at 58-61.)
According to Sergeant Sanchez’s report, when the officers were unable to
subdue Plaintiff through the use of OC spray and drive stuns, Plaintiff was placed
in leg shackles and transported to the Genesee County Jail “so that he could be

7

Plaintiff’s brief stay in the isolation cell also was captured on video, and
Defendants have provided a copy of this video as well. (See Defendants’ Motion, Ex. E.)
6

secured better for his and the staff’s safety.” (Defendants’ Motion, Ex. A, Sanchez
Report at 1-2; see also Ex. F, Rule Dep. at 10 (explaining that it was “common
practice[] to transport a prisoner that was noncompliant to the main jail,” which
was better equipped to handle this situation).)8 Deputy R. Nickleson and
Lieutenant Matthew Rule stated in their reports that upon Plaintiff’s arrival at the
Genesee County Jail, he refused to comply with the officers’ commands that he
exit the police cruiser, so the officers had to remove him from the vehicle and
carry him inside to a report writing area. (See Defendants’ Motion, Ex. A,
Nickleson Incident Report; Rule Suppl. Report.) In contrast, Plaintiff could not
recall being ordered out of the police car, nor did he recall that the officers had to
forcibly remove him from the vehicle. (See Plaintiff’s Dep. at 75.)
According to the incident reports prepared by Lieutenant Rule and Deputy
Nickleson, when Plaintiff was brought into the report writing area of the county
jail, he was instructed to face the wall and told that his handcuffs would be

8

Plaintiff testified that as he was being carried in shackles from the Flint lockup to
a police car to be transported to the Genesee County Jail, the officers who were carrying
him slammed his forehead into a metal door frame and forcibly struck him in the
abdomen. (See Plaintiff’s Dep. at 70-73.) Plaintiff was unable to identify these officers,
however, (see id. at 70-72), and it appears from the record that the officers who
transported Plaintiff from the lockup to the county jail were employed by the Flint Police
Department and are not parties to this suit, (see Defendants’ Motion, Ex. A, Nickleson
Incident Report at 1; Rule Suppl. Report at 1; Ex. F, Rule Dep. at 11).
7

removed. (See Nickleson Incident Report; Rule Suppl. Report; see also Rule Dep.
at 13-14.)9 Plaintiff then was directed to place his hands on the wall so that
Deputy Nickleson could conduct a search, but Plaintiff instead pulled his hands
off the wall. (See Rule Dep. at 14-15; Nickleson Incident Report; Rule Suppl.
Report.) Lieutenant Rule testified that after he instructed Plaintiff repeatedly to
leave his hands on the wall and Plaintiff failed to comply, he first warned Plaintiff
that he would use OC spray if he continued to take his hands off the wall, and then
administered a “one-second burst of OC spray” to Plaintiff’s face when he failed
to heed this warning. (Rule Dep. at 15-17; see also Nickleson Suppl. Report.)
Plaintiff, in contrast, did not recall being asked to put his hands on the wall or
failing to comply with any such instruction, but instead testified that he was
pushed against the wall and that OC spray was administered without warning.
(See Plaintiff’s Dep. at 79-80.)10

9

There are no video recordings in the record that captured Plaintiff’s encounters
with law enforcement officers once he was moved from the Flint lockup to the Genesee
County Jail. Lieutenant Rule testified that there are video cameras in the booking area of
the county jail, but that recordings are written over after approximately 29 days unless a
request is made to preserve a recording. (See Rule Dep. at 23-24.)
10

In the excerpt of his deposition testimony that was provided to the Court, Plaintiff
did not identify the officers involved in this encounter. Indeed, Lieutenant Rule evidently
was present at Plaintiff’s deposition, and Plaintiff expressly testified that he had no
contact with this individual on the night of the incidents giving rise to this suit. (See id. at
79.)
8

According to Lieutenant Rule, because he and Deputy Nickleson were
unable to conduct a search of Plaintiff in the report writing area due to his noncompliance and active resistance, the officers re-applied leg irons to Plaintiff and
moved him to a safety cell so that the search could be completed. (See Rule Dep.
at 18-20.) Lieutenant Rule further testified that upon removing Plaintiff’s
restraints in the safety cell, Plaintiff “began to kick and flail and actively resist”
the officers’ efforts to search him and commands to put his arms behind his back,
and that another one-second burst of OC spray was administered at that time in an
“attempt to regain control of the situation.” (Id. at 19-21; see also Nickleson
Suppl. Report; Rule Suppl. Report.) Two other officers, Sergeant William Tucker
and Deputy Leon Skinner, evidently assisted in the attempted search of Plaintiff in
the safety cell, and Sergeant Tucker stated in his report that he used pressure point
compliance grips and peroneal strikes in an effort to counter Plaintiff’s active
resistance and secure his compliance, albeit to little or no effect. (See Defendants’
Motion, Ex. A, Tucker Suppl. Report.)11

11

In the excerpts of his deposition that have been provided to the Court, Plaintiff
has little to say about the time he spent in the safety cell at the county jail. He testified at
one point that he was “slamm[ed] . . . onto a metal bench face-first while [he] was in
handcuffs,” (Plaintiff’s Dep. at 78), but he did not indicate where this occurred or identify
the officers involved in this use of force. Beyond this, Plaintiff recalled only that he was
“moved to an isolation cell” by “perhaps two” officers and left there “for some time.”
(Id. at 81.) Contrary to Plaintiff’s assertion in his response to Defendants’ motion, (see
9

Plaintiff remained in the Genesee County Jail for three days, and then
visited an emergency room upon his release. (See Plaintiff’s Dep. at 16-17.) He
testified that he sustained an injury to his left hand and a closed head injury. (See
id. at 15-17.) Plaintiff later was charged with three counts of assaulting, resisting,
or obstructing a police officer, and he pled no contest to one of these three
charges. (See Defendants’ Motion, Ex. B, Information and Judgment.) This suit
followed, with Plaintiff alleging in his complaint (i) that the Defendant law
enforcement officers used excessive force against him following his March 26,
2013 arrest, (ii) that the Defendant Genesee County Sheriff is liable as the
supervisor of the officers who employed excessive force, (iii) that the Defendant
officers are subject to liability in their official capacities in light of the Genesee
County policies and procedures that authorized their misconduct, and (iv) that the
Defendant officers also are liable under Michigan law for assault and battery.12
III. ANALYSIS

Plaintiff’s Response Br. at 10), Plaintiff did not testify that he was “tased multiple times”
or “beaten” at any point after his arrival at the Genesee County Jail, whether in the
portion of his deposition testimony cited in support of this assertion or elsewhere in the
excerpts of this testimony provided for the Court’s review.
12

As noted earlier, Plaintiff is no longer pursuing the other state-law theories of
recovery asserted in his complaint, and he also has agreed to dismiss his claims against
Undersheriff James Gage, Sergeant Pete Stocchi, and Deputies Timothy Lynch and
Radmilla Hovey.
10

A.

The Standards Governing Defendants’ Motion
Through the present motion, the Defendant Genesee County law

enforcement officers seek an award of summary judgment in their favor on
Plaintiff’s federal claims of excessive force and his state-law claims of assault and
battery. Under the Federal Rule governing this motion, summary judgment is
proper “if the movant shows that there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
As the Supreme Court has explained, “the plain language of Rule 56[] mandates
the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S. Ct. 2548, 2552 (1986).
In deciding a motion brought under Rule 56, the Court must view the
evidence “in a light most favorable to the party opposing the motion, giving that
party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.
Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving
party may not rely on bare allegations or denials, but instead must support a claim
of disputed facts by “citing to particular parts of materials in the record, including
11

depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing
affidavits “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “[a] mere scintilla
of evidence is insufficient” to withstand a summary judgment motion; rather,
“there must be evidence on which the jury could reasonably find for the nonmoving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and
citation omitted).
B.

Issues of Fact Remain as to Whether Two of the Defendant Officers
Used Excessive Force Against Plaintiff in the Report Writing Area of
the Genesee County Jail, But Plaintiff’s Remaining § 1983 Claims of
Excessive Force Either Lack Evidentiary Support or Are Defeated by
Qualified Immunity.
Although Plaintiff’s federal and state-law claims are not set forth in separate

counts of his complaint, he alleges at various points in the complaint that the
individual Defendant law enforcement officers violated his rights under the U.S.
Constitution through their use of excessive and unreasonable force. (See, e.g.,
Complaint at ¶¶ 10-11, 13(a), 14(c).) The Defendant officers now seek an award
of summary judgment in their favor on these federal § 1983 claims of excessive
12

force, arguing (i) that the record establishes as a matter of law that the force
employed against Plaintiff was not unreasonable, but instead was a necessary
response to Plaintiff’s active resistance and combative actions, and (ii) that even
assuming there are issues of fact as to the reasonableness of the force used by one
or more of the Defendant officers, the doctrine of qualified immunity would shield
these officers from liability.
As Defendants observe, the Sixth Circuit has held that the Fourth
Amendment standard of “reasonableness” governs the use of force against an
individual like Plaintiff who is detained following a warrantless arrest, at least
until the arrestee receives a probable cause hearing. See Aldini v. Johnson, 609
F.3d 858, 866-67 (6th Cir. 2010). Under this Fourth Amendment standard:
[T]he officer’s use of force [must] be objectively reasonable,
balancing the cost to the individual against the government’s interests
in effecting the seizure. This standard contains a built-in measure of
deference to the officer’s on-the-spot judgment about the level of
force necessary in light of the circumstances of the particular case.
The officer’s subjective intentions are irrelevant to the Fourth
Amendment inquiry.
Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002) (citations omitted). The
Supreme Court has emphasized that “[t]he ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386,
13

396, 109 S. Ct. 1865, 1872 (1989). Moreover, “[t]he difficulties of operating a
detention center must not be underestimated by the courts,” and “[m]aintaining
safety and order at these institutions requires the expertise of correctional officials,
who must have substantial discretion to devise reasonable solutions to the
problems they face.” Florence v. Board of Chosen Freeholders of County of
Burlington, __ U.S. __, 132 S. Ct. 1510, 1515 (2012).
1.

Plaintiff’s Encounter with Certain of the Defendant Officers in
the Intake Area of the Flint Lockup

Plaintiff’s interactions with the Defendant officers are most appropriately
analyzed in four segments. See Phelps, 286 F.3d at 301. Following his arrest,
Plaintiff first was taken to the City of Flint lockup, led to an intake area, and told
to sit on a bench. In his response to Defendants’ motion, Plaintiff summarizes the
events in this intake area in two brief sentences, citing his own deposition
testimony as establishing (i) that Defendant Newman pushed him onto a bench
while he was “handcuffed” and thus “unable to break his fall,” and (ii) that he was
not “combative, threatening or verbally abusive to any deputies” during this
interaction. (Plaintiff’s Response Br. at 9 (citing Plaintiff’s Dep. at 52, 55, 56).) It
follows, in Plaintiff’s view, that the Defendant officers who interacted with him in
the intake area acted in an “objectively unreasonable” manner by using “force

14

against a neutralized person.” (Plaintiff’s Response Br. at 20.)
Plaintiff’s account of this incident in his summary judgment brief cannot be
squared with the evidentiary record. Most notably, Plaintiff himself expressly
denied at his deposition that he ever attempted to get up off the bench, (Plaintiff’s
Dep. at 55-57), and the video recordings of Plaintiff in the intake area of the Flint
lockup likewise fail to disclose any effort by Plaintiff to get off the bench, (see
Defendants’ Motion, Ex. E, Camera 48 and Camera 49 Recordings). It follows —
and the video recordings confirm — that Plaintiff was never pushed down onto the
bench from a standing position while “handcuffed” and “unable to break his fall,”
as suggested by Plaintiff in his brief in opposition to Defendants’ motion.
To be sure, the officers in the intake area employed at least some force
against Plaintiff as he sat on the bench. In particular, the video recordings reveal
— and Plaintiff likewise testified, (see Plaintiff’s Dep. at 55) — that when
Plaintiff slid down to the end of the bench at one point in order to speak to Deputy
Newman, one or two officer responded by placing him back at the middle of the
bench. About a minute later, as Plaintiff continued to verbally interact with the
officers and slide around on the bench,13 three officers forcibly moved him back to

13

The video recordings lack sound, so it cannot be determined what Plaintiff or the
officers were saying to each other.
15

the middle of the bench and pinned his back against the wall. (See id. at 55-57.)
In Plaintiff’s view, this record gives rise to issues of fact as to whether the
officers’ use of force against him as he was handcuffed and “neutralized” was
objectively unreasonable. (See Plaintiff’s Response Br. at 20.)
The law is clear, however, that “[n]ot every push or shove . . . violates the
Fourth Amendment.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. Rather, the
Supreme Court has recognized that “police officers are often forced to make splitsecond judgments — in circumstances that are tense, uncertain, and rapidly
evolving — about the amount of force that is necessary in a particular situation.”
Graham, 490 U.S. at 397, 109 S. Ct. at 1872. Thus, while the courts have
recognized that the Fourth Amendment is violated through the use of “gratuitous
violence” on an “incapacitated detainee,” Morrison v. Board of Trustees of Green
Township, 583 F.3d 394, 407 (6th Cir. 2009), they have found no such violation
where an officer has employed an appropriate degree of force to achieve a valid
law enforcement objective, see, e.g., Jackson v. Lubelan, No. 15-2563, __ F.
App’x __, 2016 WL 4932166, at *3 (6th Cir. Sept. 16, 2016) (finding “no
precedent” for the conclusion that the defendant officers engaged in a “malicious
or gratuitous use of force” by pulling up on the plaintiff’s handcuffed arms in an
effort to maneuver him into a police car); Khother v. DeEulis, No. 12-1929, 527 F.
16

App’x 461, 466 (6th Cir. June 6, 2013) (finding that the defendant officer
“reasonably responded to a disruptive detainee” by “pull[ing] [the plaintiff]
forward from his chair to lead him to a holding cell”); Gorajczyk v. City of St.
Clair Shores, No. 08-14764, 2010 WL 3488646, at *6 (E.D. Mich. Aug. 31, 2010)
(holding that the force used by the defendant officer was “not gratuitous,” but
instead was “designed to move [the plaintiff] into [his] home”).
The Court finds that this latter line of cases is controlling here. There is no
indication in the record that any officer punched, struck, or otherwise employed
gratuitous force against Plaintiff while he was in the intake area of the Flint
lockup. Nor did the officers use OC spray or a taser in this initial encounter with
Plaintiff. Rather, the officers merely used the modest degree of force necessary to
ensure that Plaintiff remained in the middle of the bench where he sat, so as to
keep him at a safe distance from others in the intake area. When Plaintiff slid to
one end of this bench, in close proximity to Deputy Newman, he was guided back
to the middle of the bench in a non-violent manner. When he continued to move
around on the bench while engaged in an animated discussion with the officers in
the area, three of the officers forcibly brought him back to the middle of the bench
and pinned him against the wall. The amount of force used in these encounters
was reasonably tailored to the objective the officers sought to achieve, and could
17

by no means be characterized as “gratuitous” or “violent” in nature. Under this
record, Plaintiff cannot establish a violation of his Fourth Amendment protection
against the unreasonable use of force.
Even if issues of fact remained as to the reasonableness of the force used by
the Defendant officers while Plaintiff was detained in the intake area of the Flint
lockup, the Court finds that the doctrine of qualified immunity would shield the
officers from liability. To overcome the officers’ qualified immunity, Plaintiff
must demonstrate that the “contours of the right [violated] . . . [were] sufficiently
clear that a reasonable officer would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987);
see also Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)
(confirming that it is the plaintiff’s burden to show that the defendant is not
entitled to qualified immunity). While it is not necessary that “the very action in
question has previously been held unlawful,” Plaintiff must show that the
unlawfulness of the Defendant officers’ conduct was “apparent” in light of preexisting law. Anderson, 483 U.S. at 640, 107 S. Ct. at 3039. “If an officer,
therefore, makes a mistake as to how much force is required, he will still be
entitled to qualified immunity so long as that mistake was reasonable.” Solomon
v. Auburn Hills Police Department, 389 F.3d 167, 174 (6th Cir. 2004). In this
18

manner, “[q]ualified immunity will often operate to protect officers from the
sometimes hazy border between excessive and acceptable force.” Solomon, 389
F.3d at 174 (internal quotation marks and citations omitted).
Plaintiff has failed as a matter of law to establish that any Fourth
Amendment violation committed by the Defendant officers in the intake area of
the Flint lockup would have been apparent to these officers in light of pre-existing
law.14 In his fairly terse discussion of qualified immunity as it applies to the facts
presented here, Plaintiff relies principally on the Sixth Circuit’s decisions in
Phelps, supra, 286 F.3d at 301-02, and McDowell v. Rogers, 863 F.2d 1302, 1307
(6th Cir. 1988), for the proposition that the use of force against a neutralized, nonviolent, and non-resisting detainee is objectively unreasonable. (See Plaintiff’s
Response Br. at 20, 24.)15 As observed earlier, however, the cases cited by
Plaintiff all involved the use of gratuitous force against an incapacitated and fully
14

Defendants contend in their motion that the relevant pre-existing law for
purposes of the Court’s qualified immunity inquiry is the Fourteenth Amendment’s
“shocks the conscience” standard, since at the time of the incidents giving rise to this suit,
the Sixth Circuit purportedly had not yet held that the Fourth Amendment standard of
reasonableness governs the use of force against arrestees who have not yet received a
probable cause hearing. (See Defendants’ Motion, Br. in Support at 15-16.) The Sixth
Circuit, however, adopted this Fourth Amendment standard in Aldini, 609 F.3d at 866-87,
and this 2010 decision predated the events of this case by nearly three years.
15

Plaintiff also cites the Sixth Circuit’s decisions in Robinson v. Bibb, 840 F.2d
349, 351 (6th Cir. 1988), and Yates v. City of Cleveland, 941 F.2d 444, 447 (6th Cir.
1991), but these cases addressed the use of deadly force and provide no guidance here.
19

neutralized individual. See Morrison, 583 F.3d at 407 (addressing allegations that
the defendant officer “repeatedly pushed [the plaintiff’s] face to the ground every
time she attempted to speak while she was already handcuffed, lying down, and
compliant with the officer’s commands”); Phelps, 286 F.3d at 297, 301
(considering evidence that after the defendant officer “tackled the handcuffed
[plaintiff] and was sitting on top of him,” the officer “hit [the plaintiff] in the face
twice” and “banged his head into the floor at least three times”); McDowell, 863
F.2d at 1303 (evidence at trial indicated that “after [the plaintiff] had been
handcuffed, and at a time when he was offering no resistance, one of the
[defendant] officers hit him with a nightstick, breaking a rib”).
As already discussed, the record here fails to disclose any use of gratuitous
or violent force against Plaintiff in the intake area of the Flint lockup. Instead, the
evidence shows that the Defendant officers employed only modest force against
Plaintiff to keep him positioned near the center of the bench where he was seated,
and that these actions served the legitimate law enforcement objectives of ensuring
officer safety and maintaining order in the intake area. Because Plaintiff has not
demonstrated that the officers’ actions in the intake area violated any clearly
established Fourth Amendment standard of reasonableness, it follows that the
officers are entitled to qualified immunity.
20

2.

The Use of Force Against Plaintiff in an Isolation Cell at the Flint
Lockup

After he initially was placed on a bench in the intake area, Plaintiff next was
moved to an isolation cell to be searched. According to the Defendant officers
involved in this encounter — specifically, Sergeant Sanchez, Deputy Reeves,
Deputy Newman, Deputy Thomas, and Deputy Beckley — Plaintiff was
combative, uncooperative, and repeatedly disregarded verbal commands as the
officers attempted to search him, and he kicked Sergeant Sanchez in the face
during the course of this struggle. The officers testified that in response to
Plaintiff’s active resistance, they administered OC spray and drive stuns with their
tasers. (See Sanchez Dep. at 9, 19-21; Thomas Dep. at 21-23; Beckley Dep. at 1724.) Plaintiff testified, in contrast, that he did not intentionally kick any of the
officers, and he denied that his foot ever made contact with any officer’s face.
(See Plaintiff’s Dep. at 58-61.)
In arguing that his Fourth Amendment rights were violated during this
encounter, Plaintiff again relies on the principle that it is unreasonable to inflict
gratuitous force against a neutralized and compliant detainee. Yet, beyond his
testimony that he did not kick anyone, Plaintiff has produced no evidence that he
was compliant, cooperative, non-combative, or non-resistant as the Defendant

21

officers attempted to search him in the isolation cell.16 Consequently, the
testimony of the Defendant officers as to Plaintiff’s various acts of resistance —
including flailing about, kicking his legs, yelling, struggling with the officers, and
disregarding the officers’ verbal commands, (see Sanchez Dep. at 11, 19; Reeves
Dep. at 19-25; Thomas Dep. at 21-23; Beckley Dep. at 14-23) — stands unrefuted
in the record.17 Against this evidentiary backdrop of force used to subdue a
combative and non-compliant detainee, Plaintiff cannot show that the Defendant
officers violated the Fourth Amendment protection against the unreasonable use of
force during the time that Plaintiff was detained and searched in an isolation cell at

16

As noted earlier, the parties have produced only selected excerpts of Plaintiff’s
deposition testimony. To the extent that Plaintiff might have described in greater detail
what transpired while he was kept in the isolation cell in the Flint lockup, no such
testimony is in the record before this Court.
17

In his response to Defendants’ motion, Plaintiff seemingly suggests that the video
recording of his time in the isolation cell contradicts the officers’ testimony as to what
transpired in this cell. Yet, he does not identify any specific portions of the recording that
disclose the use of force against a neutralized and compliant detainee. Neither does the
Court’s own review of this recording cast doubt on the account of the Defendant officers,
where (i) Plaintiff’s upper body generally is not visible, (ii) his legs regularly move about
during the recording, whether due to his own flailing or the officers’ repositioning of his
body as they conduct their search, and (iii) there is no audio that would either corroborate
or contradict the officers’ testimony that Plaintiff repeatedly disregarded their verbal
commands and warnings. Accordingly, while the courts have deemed it appropriate to
disregard a party’s account that is “blatantly contradicted” by video evidence, Scott v.
Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007); see also Griffin v. Hardrick,
604 F.3d 949, 954 (6th Cir. 2010), the video recordings in this case provide no such basis
for discounting the testimony of the Defendant officers.
22

the Flint lockup.
3.

Plaintiff’s Encounter with Certain of the Defendant Officers in
the Report Writing Area of the Genesee County Jail

Following his brief stay in an isolation cell at the Flint lockup, Plaintiff was
placed in leg shackles and transported to the Genesee County Jail.18 Upon his
arrival, Defendants Rule and Nickleson brought him to the report writing area of
the county jail, where he was instructed to face the wall and advised that his
handcuffs would be removed. (See Rule Dep. at 13-14.) According to Lieutenant
Rule, Plaintiff then “was given loud, clear verbal commands to place his hands on
the wall” so that Deputy Nickleson could conduct a search, but Plaintiff
disregarded this order and “pulled his hands off the wall.” (Id. at 14.) Lieutenant
Rule testified that after Plaintiff disregarded three such commands, he was warned
that the officers would use OC spray if he continued to resist their instructions.

18

As noted earlier, Plaintiff testified that while he was being moved from the Flint
lockup to the police car that would transport him to the county jail, the officers who were
carrying him slammed his forehead into a metal door frame and punched him in the
abdomen. (See Plaintiff’s Dep. at 70-73.) Plaintiff could not identify these officers,
however, nor could he say whether the officers were employed by the City of Flint or
Genesee County. (See id. at 70-72.) Accordingly, because Plaintiff has named only
Genesee County law enforcement officers as defendants in this case, and because it is a
well-established principle of federal § 1983 law that “[e]ach defendant’s liability must be
assessed individually based on his own actions,” Binay v. Bettendorf, 601 F.3d 640, 650
(6th Cir. 2010), the unlawful force allegedly used against Plaintiff as he was transported
from the Flint lockup to the Genesee County Jail cannot serve as the basis for a § 1983
claim against any of the Defendant officers.
23

(See id. at 15-16.) When Plaintiff still refused to comply despite this warning,
Lieutenant Rule applied a “one-second burst of OC spray” to Plaintiff’s face. (Id.
at 16-17.)
Plaintiff’s recollection of this encounter is different. He testified that upon
entering the report writing area, he was pushed against the wall, his pants were
“ripped off,” and OC spray was administered without warning. (Plaintiff’s Dep. at
79-80.) Plaintiff could not recall being given a verbal command to put his hands
on the wall, nor did he recall that he was given any warning that OC spray would
be administered if he removed his hands from the wall. (See id. at 79-80.) Rather,
Plaintiff testified that he was “always compliant during this whole incident.” (Id.
at 80.)
This factual dispute precludes the determination sought in Defendants’
motion — namely, that the force employed by the Defendant officers during their
encounter with Plaintiff in the report writing area of the county jail was reasonable
as a matter of law. The Sixth Circuit has recognized that the use of pepper spray
on an individual who is secured and compliant constitutes excessive force. See
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004).
Accepting Plaintiff’s account as true, this is what happened here. Moreover, the
Defendant officers cannot appeal to qualified immunity as to this incident, because
24

the principle recognized in Champion was deemed “clearly established” at the
time of this 2004 decision. 380 F.3d at 903. Accordingly, Plaintiff may go
forward with his § 1983 claims of excessive force against the two Defendant
officers involved in this incident, Lieutenant Rule and Deputy Nickleson.19
4.

The Use of Force Against Plaintiff in a Safety Cell at the County
Jail

The fourth and final incident giving rise to Plaintiff’s § 1983 claims of
excessive force occurred when Plaintiff was placed back in leg irons and moved to
a safety cell at the Genesee County Jail. According to Lieutenant Rule, after
Plaintiff was taken to the safety cell and his restraints were removed, he “began to
kick and flail and actively resist” the officers’ efforts to conduct a strip search.
(Rule Dep. at 19-20.) When Plaintiff disregarded Lieutenant Rule’s “loud, clear
verbal commands” and continued to “kick[] and flail[] and pull[] his arms away,”
the officer “administered an additional one-second burst of OC spray to attempt to

19

Notably, in the excerpts of his deposition testimony provided for the Court’s
review, Plaintiff did not identify the officers who participated in the incident in the report
writing area of the county jail. Indeed, Plaintiff was expressly asked whether he had any
contact with Lieutenant Rule on the night of the incidents giving rise to this suit, and he
responded that he “did not.” (Plaintiff’s Dep. at 79.) Nonetheless, the record is clear that
Lieutenant Rule and Deputy Nickleson were the two Defendant officers who escorted
Plaintiff to the report writing area and attempted to conduct a search, and Lieutenant Rule
specifically testified that he administered OC spray to Plaintiff’s face. Consequently,
there is no concern that a Defendant officer might face liability for activities in which he
did not participate.
25

regain control of the situation.” (Id. at 20-21.) Another officer on the scene,
Defendant Tucker, stated in a police report that he used pressure point compliance
grips and peroneal strikes in an attempt to counter Plaintiff’s active resistance and
secure his compliance, but that these efforts were largely unavailing. (See
Defendants’ Motion, Ex. A, Tucker Suppl. Report.)
Plaintiff has failed to dispute any of the facts set forth in the Defendant
officers’ accounts of this incident. Although Plaintiff claims in his response to
Defendants’ motion that he was “tased multiple times, sprayed with OC spray and
beaten” upon his arrival at the Genesee County Jail, (Plaintiff’s Response Br. at
10), the deposition testimony cited in support of this assertion addresses an
altogether different encounter, and not anything that occurred in the county jail.20
Even assuming that the Court owed a duty to search the record on Plaintiff’s
behalf, the sole apparent reference to this incident in Plaintiff’s deposition
testimony is his recollection that he was “left in an isolation cell for some time.”
(Plaintiff’s Dep. at 81.) In the portions of his deposition testimony that have been
submitted to the Court, Plaintiff did not state that he was subjected to force in this
isolation cell, nor did he indicate whether he was fully neutralized or compliant at

20

Specifically, the cited excerpt of Plaintiff’s deposition testimony concerns force
inflicted on him as he was taken from the Flint lockup to a police car in preparation for
his transport to the county jail. (See Plaintiff’s Dep. at 72.)
26

the time any such force was employed.21
Under this record, Plaintiff cannot establish that any Defendant officer used
excessive force against him while he was held in a safety cell at the county jail.
Although Lieutenant Rule and Sergeant Tucker have stated that they employed
such measures as OC spray, pressure point compliance grips, and peroneal strikes,
the record demonstrates without contradiction that they did so only after Plaintiff
actively resisted their efforts to search him and failed to comply with their verbal
commands that he cease this resistance. The law is clear that a police officer may
employ a reasonable degree of force to restrain an individual who is uncooperative
and actively resisting legitimate law enforcement objectives such as a search, see,
e.g., Khother, 527 F. App’x at 466; Hagans v. Franklin County Sheriff’s Office,
695 F.3d 505, 509 (6th Cir. 2012); Caie v. West Bloomfield Township, No. 111378, 485 F. App’x 92, 96-97 (6th Cir. June 18, 2012); Burchett v. Kiefer, 310
F.3d 937, 944 (6th Cir. 2002); Brady v. City of Westland, 1 F. Supp.3d 729, 73940 (E.D. Mich. 2014), and there is no evidence that any Defendant officer acted in
excess of this lawful authority during the period that Plaintiff was detained in a

21

As noted earlier, Plaintiff testified at one point in his deposition that he was
slammed face-first onto a metal bench while in handcuffs. (See id. at 78.) He did not
indicate where this incident occurred, however, nor did he identify the officers involved
in this use of force. Consequently, it would be a matter of pure conjecture to determine
whether this incident occurred in a safety cell at the county jail.
27

safety cell. Accordingly, the Defendant officers are awarded summary judgment
in their favor on Plaintiff’s § 1983 claims of excessive force arising from this
incident.
C.

Plaintiff Has Failed to Provide Evidentiary Support for His Claims
Against the Defendant Officers in Their Official Capacities.
In his complaint, Plaintiff evidently has brought his claims against the

Defendant law enforcement officers in both their individual and their official
capacities. As to the latter, claims against an officer in his or her official capacity
are treated as claims against the governmental entity by which the officer is
employed. See Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991); Mason
v. City of Warren Police Department, No. 10-14182, 2011 WL 5025841, at *11
(E.D. Mich. Oct. 21, 2011). In this case, therefore, Plaintiff’s official-capacity
claims are governed by the standards applicable to claims against Genesee County.
Under well-settled principles, the County “cannot be held liable under §
1983 for an injury inflicted solely by its employees or agents.” Gregory v. Shelby
County, 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell v. Department of Social
Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037 (1978)). Rather, “[f]or liability to
attach, there must be execution of a government’s policy or custom which results
in a constitutional tort.” Gregory, 220 F.3d at 441. Moreover, Plaintiff must

28

establish that “through its deliberate conduct, the [County] was the ‘moving force’
behind” the violation of his constitutional rights — that is, he “must show that the
[County’s] action was taken with the requisite degree of culpability and must
demonstrate a direct causal link between the [County’s] action and the deprivation
of federal rights.” Gregory, 220 F.3d at 442 (quoting Board of County Comm’rs
of Bryan County v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 1389 (1997)).
As Defendants observe, Plaintiff’s complaint is devoid of allegations
identifying any Genesee County policy or custom that led to the deprivation of his
Fourth Amendment rights. He fares little better in his response to Defendants’
motion, suggesting in vague and conclusory fashion that evidence of the requisite
Genesee County policy or custom can somehow be found in the video recordings
of Plaintiff’s encounters with the Defendant officers in the Flint lockup. (See
Plaintiff’s Response Br. at 14.) Yet, the Court already has determined that
Plaintiff’s Fourth Amendment rights were not violated in these encounters, and it
follows that Genesee County cannot be charged with liability for these incidents.
See Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001).
Plaintiff arguably also seems to suggest that the County’s failure to
investigate the incidents giving rise to this suit or discipline any of the officers
involved may serve as evidence of a County policy or practice of acquiescing in
29

officer misconduct. (See Plaintiff’s Response Br. at 13-14.) As a threshold
matter, however, Plaintiff provides no evidentiary support for his claim that there
was no investigation of the incidents that triggered this action. To the contrary,
Sheriff Pickell testified that he reviewed the video recordings of Plaintiff’s
encounters with the Defendant officers at the Flint lockup. (See Defendants’
Motion, Ex. K, Pickell Dep. at 26; see also Plaintiff’s Response Br. at 17
(acknowledging that “[t]he incident complained of here was investigated the
following morning”).)
In any event, while a mishandled investigation or inadequate disciplinary
measures can serve as evidence of a “policy, custom, or practice . . . of condoning”
wrongdoing by police officers, this evidence must be accompanied by a showing
“that the flaws in this particular investigation were representative of (1) a clear and
persistent pattern of illegal activity, (2) which the [County] knew or should have
known about, (3) yet remained deliberately indifferent about, and (4) that the
[County’s] custom was the cause of” the particular misconduct committed in this
case. Thomas v. City of Chattanooga, 398 F.3d 426, 432-33 (6th Cir. 2005).
Plaintiff has not even attempted such a showing here. Indeed, as his sole example
of “wrongdoing” that the County allegedly condoned, Plaintiff points to the video
and the testimony of Defendant Newman as purportedly revealing that this officer
30

pushed him while he was handcuffed and caused him to “fall[] ‘face-first’ into a
bench in the booking area.” (Plaintiff’s Response Br. at 15.) As already
discussed, however, the evidentiary record conclusively refutes this account of
Plaintiff’s interactions with Deputy Newman. Accordingly, Plaintiff’s officialcapacity claims against the Defendant officers are subject to dismissal as
inadequately pled and for lack of evidentiary support.
D.

Plaintiff Has Failed to Provide a Basis for Charging Sheriff Pickell with
Liability for any Violations of His Federal Constitutional Rights.
As his final claim brought under § 1983, Plaintiff seeks to hold Genesee

County Sheriff Pickell liable for the deprivation of his Fourth Amendment right to
be free from excessive force. Plaintiff acknowledges that this claim cannot rest
solely on Sheriff Pickell’s supervisory authority over or right to control the
Defendant officers who allegedly violated his Fourth Amendment rights. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Rather, Plaintiff must show
that Sheriff Pickell “either encouraged the specific incident of misconduct [by a
Defendant officer] or in some other way directly participated in it.” Shehee, 199
F.3d at 300 (internal quotation marks and citation omitted). “At a minimum a
plaintiff must show that the [supervisory] official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of the

31

offending officers.” Shehee, 199 F.3d at 300 (internal quotation marks and
citation omitted).
In an effort to make this showing, Plaintiff points to Sheriff Pickell’s
determination following an investigation that the Defendant officers acted
appropriately. (See Plaintiff’s Response Br. at 17.)22 Because the record, in
Plaintiff’s view, demonstrates that the Defendant officers did not act
appropriately, Plaintiff suggests that Sheriff Pickell’s failure to take action
following his investigation reflects his approval of or knowing acquiescence in
officer misconduct, and thereby provides a basis for charging him with liability.
Once again, however, the evidentiary support for this theory of liability is
lacking. As his sole example of officer misconduct in which Sheriff Pickell
purportedly acquiesced, Plaintiff cites the video recording that discloses the use of
OC spray on Plaintiff after he was placed in an isolation cell at the Flint lockup.
In Plaintiff’s view, this application of OC spray was inconsistent with a “general
order” that purportedly prohibits the use of OC spray on an individual who is lying

22

Plaintiff notably fails to cite any evidence in support of this assertion. So far as
the Court is aware, the record discloses only that Sheriff Pickell reviewed the video
recordings of the encounters between Plaintiff and certain of the Defendant officers while
Plaintiff was detained at the Flint lockup, and that Sheriff Pickell concluded upon this
review that the officer conduct captured in these recordings was appropriate. (See Pickell
Dep. at 26.)
32

down on the ground and in restraints or otherwise subdued. (See Plaintiff’s
Response Br. at 17.)23 Yet, as previously discussed, Plaintiff has failed to produce
evidence that he was compliant and neutralized at the time OC spray was
administered in the isolation cell, nor does the video recording of this encounter
evidence any such compliance. Consequently, the sole factual predicate for
Plaintiff’s § 1983 claim against Sheriff Pickell lacks evidentiary support, and
Sheriff Pickell therefore is entitled to summary judgment in his favor on this
claim.
E.

Issues of Fact Remain as to Plaintiff’s State-Law Claims of Assault and
Battery Against Defendants Rule and Nickleson Arising from the
Incident in the Report Writing Area of the Genesee County Jail, But
Plaintiff’s Remaining Assault and Battery Claims Are Defeated by
Governmental Immunity.
Although Plaintiff arguably has asserted a variety of state-law claims in his

complaint, he clarifies in his response to Defendants’ motion that he only wishes
to pursue his state-law claims of assault and battery against the Defendant officers.
Unfortunately, the parties touch upon this state-law theory of recovery only briefly
in their summary judgment submissions. Defendants address this state-law theory

23

As Defendants observe, the “general order” quoted by Plaintiff is unsupported by
citation to the record, nor does it appear that a copy of any such order has been provided
for the Court’s review. Thus, Plaintiff cannot properly rely on this general order as
evidentiary support for his claim against Sheriff Pickell.
33

and Plaintiff’s federal § 1983 claims of excessive force together, (see Defendants’
Motion, Br. in Support at 12-13), without citing any state law whatsoever that
might govern the former theory of recovery. Plaintiff, for his part, references the
qualified immunity conferred upon the Defendant officers under Michigan law,
(see Plaintiff’s Response Br. at 17-19), but then makes no effort to demonstrate
why this immunity should be unavailable under the facts of this case. Thus left to
its own devices, the Court addresses Plaintiff’s state-law claims only briefly, and
concludes that these claims withstand summary judgment to the same extent as
Plaintiff’s analogous § 1983 claims of excessive force.
Under Michigan’s Governmental Tort Liability Act (“GTLA”) as construed
by the Michigan Supreme Court, the individual Defendant law enforcement
officers are immune from liability for the state-law intentional tort claims asserted
in Plaintiff’s complaint if — among other elements that are not at issue here —
their actions “were undertaken in good faith, or were not undertaken with malice.”
Odom v. Wayne County, 482 Mich. 459, 480, 760 N.W.2d 217, 228 (2008). In
contrast to the objective standard of reasonableness that governs a qualified
immunity inquiry under § 1983, the good faith standard under Michigan’s
governmental immunity law is “subjective, not objective.” Romo v. Largen, 723
F.3d 670, 677 (6th Cir. 2013); see also Cohn v. DeWeese, No. 09-12187, 2010 WL
34

3906227, at *21 (E.D. Mich. Sept. 30, 2010). Nonetheless, both the Sixth Circuit
and this Court have recognized that “[t]he question of an officer’s good faith under
Michigan law overlaps considerably, if not entirely, with [the federal qualified
immunity] analysis of whether the officer’s actions were objectively reasonable
under the circumstances.” Malory v. Whiting, No. 11-1468, 489 F. App’x 78, 86
(6th Cir. July 13, 2012); see also Cohn, 2010 WL 3906227 at *21-22.
Against this backdrop, the Court’s earlier analysis of Plaintiff’s Fourth
Amendment claims of excessive force is largely dispositive of Plaintiff’s state-law
claims of assault and battery. As previously explained, the force used by the
Defendant officers in the Flint lockup and in the safety cell at the Genesee County
Jail did not transgress the Fourth Amendment protection against unreasonable
seizures. On the other hand, the Court determined that issues of fact remain as to
the reasonableness of the force employed by Defendants Rule and Nickleson
during their encounter with Plaintiff in the report writing area of the county jail.
Neither side has suggested any basis for the Court to depart from these findings in
determining under Michigan law whether the challenged actions of the Defendant
officers were undertaken in good faith and without malice. Accordingly, to the
same extent that Plaintiff’s § 1983 claims of excessive force withstand summary
judgment, his analogous state-law claims of assault and battery likewise may go
35

forward.
IV. CONCLUSION
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’
September 30, 2015 motion for summary judgment (docket #55) is GRANTED IN
PART and DENIED IN PART, in accordance with the rulings in this opinion and
order. Specifically, Plaintiff may go forward with his federal 42 U.S.C. § 1983
claims of excessive force and his state-law claims of assault and battery against
Defendants Rule and Nickleson arising from the March 26, 2013 encounter
between Plaintiff and these two officers in the report writing area of the Genesee

36

County Jail, but summary judgment is awarded in Defendants’ favor as to (i)
Plaintiff’s remaining § 1983 and state-law claims against these two Defendant
officers, and (ii) Plaintiff’s federal and state-law claims against all other
Defendants.
SO ORDERED.
s/Gerald E. Rosen
United States District Judge
Dated: December 27, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on December 27, 2016, by electronic and/or ordinary
mail.
s/Julie Owens
Case Manager, [phone]

37