Trevino v. Kelly

Filing 89

OPINION AND ORDER Adopting Report and Recommendation DENYING 79 Motion for Summary Judgment filed by Tim Trevino, AND DENYING 82 Motion for Summary Judgment filed by Jacob Pifer. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIM TREVINO,
Plaintiff,
v.

Case Number 14-14376
Honorable David M. Lawson
Magistrate Judge Stephanie Dawkins Davis

JACOB PIFER,
Defendant.
______________________________/
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,
OVERRULING DEFENDANT’S OBJECTIONS, AND DENYING
CROSS-MOTIONS FOR SUMMARY JUDGMENT
The plaintiff filed his original complaint in this case on November 13, 2014, and he later
filed an amended complaint naming certain additional individual defendants. He contends that his
Fourth Amendment rights were violated by arresting officers who used excessive force when they
deployed a taser even though he offered no resistance. The case was referred to Magistrate Judge
Stephanie Dawkins Davis to conduct pretrial proceedings.
Several dispositive motions were filed by the various defendants, and the plaintiff moved to
voluntarily dismiss his claims against some of them. After all of the dispositive motions were
resolved by the Court, only defendant Officer Jacob Pifer remained. He subsequently filed a motion
for summary judgment on the basis of qualified immunity. The plaintiff also filed a motion for
partial summary judgment as to the defendant’s liability for the use of excessive force. On January
22, 2018, Magistrate Judge Davis filed a report in which she recommended that both motions should
be denied. Magistrate Judge Davis concluded in her report: “[I]f a jury accepts plaintiff’s version
of events, that he was not actively resisting and that he was shot with a taser within seconds of the
officers’ entry into his bedroom, the jury could reasonably find that the use of the taser was

excessive force. Conversely, if a jury accepts Pifer’s version of events, that plaintiff was verbally
resisting and advancing towards officers, it could reasonably find that the force used was not
excessive.” Rep. & Rec. at 16.
That conclusion was unavoidable. Although Defendant Pifer offered a version of the facts
that had the plaintiff actively resisting — and thus justifying the use of a taser to subdue him — the
plaintiff filed an affidavit depicting a far different version of the events. He averred that he was at
home, sleeping in bed with his wife, on the afternoon of February 22, 2013, when police executed
a search warrant for the home to locate and arrest him. He asserts that when the police officers
entered his home, he was lying on his back sleeping, and his wife was between him and the police
officers. He claims that all of the officers were shouting different orders and, within 10 seconds of
their entry, defendant Officer Jacob Pifer shot him in the chest with a taser gun. The plaintiff
maintains that he never resisted the defendant’s efforts to arrest him, he did not try to escape or reach
for a weapon, and he never stated that he was armed. It appears to be undisputed that the officers
found no weapons in the bedroom.
Remarkably, and in the face a classic factual dispute that precludes summary judgment as
a matter of law, defendant Pifer objected to the denial of his motion. The plaintiff did not object.
The matter is before the Court for fresh review.
I.
Although the underlying circumstances of the plaintiff’s arrest hotly are disputed by the
parties, they appear entirely to agree about which material facts are in dispute. In her report, the
magistrate judge summarized the plaintiff’s testimony as follows:
Plaintiff’s version of events differs from the defendant’s. Plaintiff says he was at
home, sleeping in bed with his wife, on the afternoon of February 22, 2013 when
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police executed a valid warrant on his home. Plaintiff says that when the police
officers entered his home, he was lying on his back sleeping, and his wife was
between him and the police officers. Plaintiff says that all of the officers were
shouting different orders and within 10 seconds of their entry, defendant shot him in
the chest with a taser gun. Plaintiff maintains that he never resisted, did not attempt
to escape or reach for a weapon, and never stated he was armed. Further, the officers
found no gun in his bedroom.
Rep. & Rec. at 3-4 (Pg ID 868-69) (citing Plf.’s Aff. ¶¶ 5-20) (Pg ID 705-06)). In his response to
the plaintiff’s motion for summary judgment, defendant Pifer stated his own substantially identical
assessment of the parties’ factual dispute:
This case involves the quintessential genuine issue of material fact. Plaintiff insists
he was tased while sleeping in his bed and was at all times compliant with Defendant
and the other officers who entered his home. Defendant and the other officers tell a
much different story, describing Plaintiff as verbally combative and resisting arrest.
The objective reasonableness of Defendant’s use of a taser turns on which version
is true.
Def.’s Resp. to Plf.’s Mot. for Summ. J. at 7 (Pg ID 732).
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
(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 fact that the parties have filed cross motions for summary judgment does not
automatically justify the conclusion that there are no facts in dispute. Parks v. LaFace Records, 329
F.3d 437, 444 (6th Cir. 2003) (“The fact that the parties have filed cross-motions for summary
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judgment does not mean, of course, that summary judgment for one side or the other is necessarily
appropriate.”). However, summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A trial is required only — as here — when “there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably be resolved
in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The defendant filed objections raising two issues. First, the defendant contends that the
magistrate judge committed error by relying on cases decided after the arrest occurred in February
2013 to determine whether the plaintiff’s Fourth Amendment rights were clearly established.
Because the qualified immunity defense turns on the answer to that question, Pifer believes that
cases decided after that date, which define the line between “active” and “passive” resistance that
governs the propriety of taser usage, should have no bearing on whether his excessive force was
clearly so. Second, the defendant asserts that the plaintiff has not provided more than a “mere
scintilla” of evidence in support of his claims, because, among other things, he submitted as an
exhibit to one of his pleadings a copy of the defendant’s police report. He says that the plaintiff
“relied upon” that report to support some of his claims and arguments in this case. The defendant
contends that the account of the arrest described in that report and in the defendant’s testimony is
much more plausible than the plaintiff’s version of the events, and that no jury reasonably could
accept the plaintiff’s testimony as a basis for a verdict in his favor.
A. Defendant’s First Objection
The defendant’s first objection is without merit because the nature of the plaintiff’s purported
resistance to the arrest — “active” versus “passive,” for example — is not material to any issue

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remaining for trial. As the magistrate judge recognized — and as the defendant conceded in his
opposition to the plaintiff’s motion — the plaintiff’s position is that he did not offer any resistance
at all to the arrest. It is beyond dispute that it clearly was established under the controlling case law
in this circuit, well before February 2013, that the use of a taser against a suspect who offered no
resistance at all — “active” or otherwise — constituted unreasonably excessive force.
“Cases from this circuit and others, before and after May 2007, adhere to this line: If a
suspect actively resists arrest and refuses to be handcuffed, officers do not violate the Fourth
Amendment by using a taser to subdue him.” Hagans v. Franklin County Sheriff’s Office, 695 F.3d
505, 509 (6th Cir. 2012) (collecting cases). “By contrast, when we have found excessive force, the
suspects were compliant or had stopped resisting.” Ibid. “A suspect’s active resistance also marks
the line between reasonable and unreasonable tasing in other circuits.” Id. at 509-10 (citing
Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010) (tasing non-resistant suspect
was excessive force); Oliver v. Fiorino, 586 F.3d 898, 906–07 (11th Cir. 2009) (tasing suspect ten
times was excessive force because he stopped resisting after the first shock); Brown v. City of
Golden Valley, 574 F.3d 491, 498–99 (8th Cir. 2009) (tasing car passenger who was not attempting
to flee or resist arrest was excessive force); Casey v. City of Fed. Heights, 509 F.3d 1278, 1282 (10th
Cir. 2007) (tasing a non-violent misdemeanant who was not offering any resistance was excessive
force)). In Thomas v. Plummer, 489 F. App’x 116 (6th Cir. 2012), the Sixth Circuit plainly held as
follows: “The question presented is whether an officer’s tasing a once-disobedient suspect who has
stopped resisting constituted excessive force, as of August 23, 2009. We hold that it did.” Id. at 125.
The court of appeals noted that it had “applied this general rule in the context of taser use, holding

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that a suspect not resisting arrest had a clearly established right not to be tased, as of October 28,
2006.” Id. at 126 (citing Kijowski v. City of Niles, 372 F. App’x 595, 601 (6th Cir. 2010)).
The plaintiff attested that he was asleep when police entered his bedroom, and that the
defendant deployed his taser within ten seconds after entering the room, as the police shouted a
barrage of verbal commands. That testimony would be sufficient to permit a jury reasonably to
conclude that the plaintiff did not resist arrest, and had no capacity to mount any resistance, since
he either was asleep in his bed or was awoken mere seconds before he was tased. It certainly also
reasonably would support a conclusion that the plaintiff was tased before he had any opportunity
to comply with the defendant’s orders or attempts to arrest him.
The defendant contends that the magistrate judge erroneously relied on points of law that
were not clearly established before the date of the arrest. But, in his opposition to the plaintiff’s
motion, the defendant principally cited Gradisher v. City of Akron, 794 F.3d 574 (6th Cir. 2015).
Def.’s Resp. to Plf.’s Mot. for Summ. J. at 7 (Pg ID 732) (citing 794 F.3d at 586 (“[W]hether
Gradisher resisted or not and whether he was given an opportunity to comply with commands
before, and while, being tased are material facts in dispute.”)). Gradisher concerned the use of a
taser on the plaintiff in that case during a 2011 arrest. The court of appeals denied qualified
immunity to the officer who deployed his taser because, under the plaintiff’s version of the facts,
he was compliant and unresisting, or had no opportunity to comply before he was tased. Under any
reading of the controlling case law in effect in February 2013, it was clearly established that an
unresisting suspect, or a suspect who had no opportunity to comply with the orders of police, had
a right not to be tased during the course of an arrest.
B. Defendant’s Second Objection

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The defendant’s second objection also is meritless. The defendant argues that the Court must
credit his version of the facts and not the plaintiff’s because the plaintiff submitted among his
documents the defendant’s police report in support of a “reply” to the defendant’s answer to the
complaint. But the defendant has not pointed to any admission in the record by the plaintiff that he
bought into that version of the events, or that it was true. And the plaintiff’s affidavit testimony
flatly contradicts the defendant’s account. The conflicts in the parties’ testimony are not over mere
trifles. The defendant himself has conceded — in fact he ardently insisted in his opposition brief
— that the decision of a fact finder about which account of the events to credit as true would be
dispositive as to his liability. The defendant’s argument that the Court should credit his testimony
over the plaintiff’s, because the plaintiff’s version is “implausible,” invites the Court pick the more
credible account. It is elementary, however, that “‘[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge.’” Savage v. Federal Express Corp., 856 F.3d 440, 446 (6th Cir. 2017) (quoting Anderson,
477 U.S. at 255). The Court’s role in ruling on a motion for summary judgment is to decide whether
the opponent of the motion has put forth sufficient admissible evidence to show that “there are [one
or more] genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Anderson, 477 U.S. to 250. As the magistrate
judge patiently explained, the plaintiff has done so here.
III.
The record before the Court adequately establishes that a genuine issue of material fact
remains for trial as to whether the plaintiff resisted the defendant’s attempts to arrest him or had any
opportunity to comply with the defendant’s and other officers’ orders before he was tased. The

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plaintiff did not object to the magistrate judge’s conclusion that his motion should be denied. The
defendant’s objections to the denial of his motion are without merit.
Accordingly, it is ORDERED that the report and recommendation [87] is ADOPTED, and
the defendant’s objections [88] are OVERRULED.
It is further ORDERED that the plaintiff’s motion for summary judgment [79] and the
defendant’s motion for summary judgment [82] are DENIED.
Because it appears that no pretrial motions remain pending, and the matter is ready for trial,
it is further ORDERED that the order of reference [25] is VACATED.
It is further ORDERED that the case is referred to the pro bono clerk for designation of
counsel for the plaintiff, after which the Court will convene a status conference to establish a trial
date and other related case management benchmarks.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 2, 2018
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 2, 2018.
s/Susan Pinkowski
SUSAN PINKOWSKI

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