Thomas v. Eastpointe, City of et al

Filing 36

ORDER granting in part and denying in part 26 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK THOMAS,
Case No. 15-11443
Plaintiffs,
v.

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

CITY OF EASTPOINTE AND MARK
BARR,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [26]
Plaintiff Derrick Thomas filed this civil rights lawsuit on April 21, 2015,
alleging violations of his Fourth and Fourteenth Amendment Rights under 42
U.S.C. § 1983 by Defendants, Officer Mark Barr and the City of Eastpointe.
Defendants filed the Instant Motion for Summary Judgment [26] on May 31, 2016.
Both parties have timely briefed the issues before the Court: Plaintiff filed a
Response to the Summary Judgment Motion [32] on July 11, 2016, and Defendants
filed a Reply [35] on July 25, 2016. At the conclusion of a hearing held on
September 9, 2016, the Court took the motion under advisement.
For the reasons explained below, Defendants’ Motion for Summary
Judgment [26] is DENIED IN PART and GRANTED IN PART.

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FACTUAL BACKGROUND
In May 2013, Plaintiff Derrick Thomas lived with his girlfriend, Georvanna
Solomon, in a rental home in Eastpointe, Michigan. On the evening of May 3,
2013, Mr. Thomas and Ms. Solomon were visited there by Antoine Clements
(Plaintiff’s relative) and Jennifer Lyles (Clements’ girlfriend). Plaintiff testified
that he did not believe he or any of the others drank alcohol that evening.
Clements testified that Plaintiff did not drink, but that Clements himself drank a
few beers and a half pint of vodka that Lyles brought.
As the evening transitioned into early morning, Clements and Lyles began
arguing, exchanging heated words and pushing each other. Plaintiff testified that
Clements shoved him once, too. After Lyles and Clements exited the house,
Plaintiff followed.
Neighbors placed four 911 calls in response to the confrontation. The first
dispatch report states: “Assault in progress . . . Male and female yelling at each
other. Male is assaulting the female in the driveway and also damaging a vehicle.
No weapons seen.”1 The second dispatch report provides: “We’re getting multiple
calls. They’re gonna be out in a driveway. Male assaulting a female.”2 Defendant
Barr and Officer Jeffery Mezner reported to the scene in separate cars. Barr drove
up immediately behind Mezner.
1
2

Def.’s Ex. D, 05-04-2013_04.02.21.6a_-_50EPSS1_(Voice).WAV, at 0:25-0:30.
Def.’s Ex. D, 05-04-2013_04.04.08.5a_-_50EPSS1_(Voice).WAV, at 0:00-0:07.

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The Court has had the opportunity to examine video footage recorded by the
officers’ dashboard cameras. The video from Defendant Barr’s vehicle shows that
when Plaintiff and Clements first came into Barr’s view, Clements was lying in the
street, near the sidewalk on Barr’s right. Plaintiff stood close to Clements when
the officers arrived, but walked away from him, across the street toward the
sidewalk on Barr’s left. A third individual also stood nearby in the street, slightly
further down the road. Plaintiff, Clements, and the third individual did not appear
to be interacting at that time. As the officers pulled up, Plaintiff crossed to the left
sidewalk and began walking down the street, away from the officers. Meanwhile,
the third person walked closer to Clements; however, as Clements began to pick
himself up, the third individual turned around and followed Plaintiff. Clements
stood and walked toward the left sidewalk around the same time that the officers
exited their vehicles and approached him.
The video footage shows that shortly after Clements started walking,
Plaintiff jogged towards Clements while someone repeatedly said “What you
gonna do?” in an aggressive tone. Plaintiff’s hands were at his sides, near his waist,
and the officers appeared to be close enough to see that he was not holding a
weapon. Plaintiff was within arm’s reach of Clements but did not strike him or
visibly prepare to strike him. At that time, the officers were also fairly close to
Clements. Plaintiff began to turn away from Clements and the officers around the

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same time that Defendant Barr said, “Both of you guys get on the fucking ground.”
As Plaintiff walked away at a normal pace, Barr repeated, “Get on the ground.”
Barr followed Plaintiff while Mezner approached Clements, saying, “Get on the
ground.” When asked how Plaintiff responded to the officers’ commands to get on
the ground, Barr testified that Plaintiff “acted like [the officers] weren’t even
there” and “just kept walking away.”3
Barr tased Plaintiff approximately five to ten seconds after ordering Plaintiff
to get on the ground. Barr did not warn Plaintiff that he would be tased if he failed
to comply. Barr and Mezner acknowledged during depositions that under city
policy, officers are supposed to issue a warning before tasing an individual if
possible under the circumstances.4 Barr testified that he did not think a warning
was prudent, explaining: “Everything was unfolding fast and … I didn’t know
what his intentions were, he was facing away from me, I couldn’t see his hands, I
didn’t know … [if he had] any kind of weapons.”5
Plaintiff fell to the ground after being tased. Defendant Barr, joined
occasionally by Mezner (who also kept watch over Clements), proceeded to
handcuff Plaintiff and take him to his car. The manner in which the handcuffing
occurred is disputed. Plaintiff testified that after he fell to the ground, an officer
did something that caused a part of the officer’s body to forcefully collide with
3

See Barr Dep. 15:2, 16:14, Feb. 15, 2016.
See Barr Dep. 16:21-25, 17:1-2, 16:14, Feb. 15, 2016; Menzer Dep. 7:16-21, Feb. 15, 2016.
5
See Barr Dep. 17:12-22, 16:14, Feb. 15, 2016
4

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Plaintiff’s back. Plaintiff initially testified that the officer “jumped on [his] back
hard,”6 but then admitted that he did not know exactly what happened or what part
of the officer’s body collided with him. Plaintiff also testified that the officer
grabbed one of his arms and pushed it forcefully to the back of his head while
telling Plaintiff to stop resisting. The officer then allegedly grabbed Plaintiff’s
other arm and applied handcuffs to his right wrist and his left elbow. Plaintiff
conceded that, at the time, he did not ask the officers to move his handcuffs or tell
them that his elbow hurt while he was on the ground. Plaintiff testified that two
officers helped Plaintiff stand. He testified that the officer on his right side helped
him up “the right way,” but the officer on his left side yanked him up by his
handcuffs.7
The officers’ account of the handcuffing process differs from Plaintiff’s.
Both officers admitted at the depositions that Plaintiff was compliant during the
arrest process. However, Defendant Barr denied jumping on Plaintiff’s back or
putting any weight on him. He also denied cuffing Plaintiff in the area of his
forearm and elbow, testifying that he applied both cuffs to Plaintiff’s wrists. He
stated that he checked whether the cuffs were properly spaced by inserting a finger
into the cuffs and double locking them. Finally, he testified that he grabbed
Plaintiff by his arms or beneath his arms (not by the handcuffs) when helping him
6
7

See Thomas Dep. 159: 2-5, March 4, 2016.
Id. at 170:5-7.

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to his feet. Mezner testified that Defendant Barr asked Plaintiff to put his hands
behind his back before cuffing him, and that Plaintiff complied. He testified that
Barr cuffed Plaintiff’s wrists (not his elbow) and checked the cuffs’ tightness by
double locking them. Mezner explained that both officers assisted Plaintiff to his
feet, but did not explain how they did so.
The videos do not clearly depict the handcuffing process. However, on the
dashboard video from Defendant Barr’s car, Barr can be heard telling Plaintiff to
put his hands behind his back and to hold his palms together in a “praying”
position. Shortly thereafter, Plaintiff asks, “Like this?”8 Barr repeats his command
and promptly says, “There you go. Just like that.”9 At one point, it looks like an
officer standing next to Plaintiff drops a flashlight, and Plaintiff immediately says,
“Ow. What the hell was that?”10
The officers walked Plaintiff to Defendant Barr’s car. The video from
Mezner’s car shows the officers stopping briefly; they appear to manipulate
something behind Plaintiff’s back—possibly his handcuffs.11 Camera 2 on
Defendants’ Exhibit F shows Plaintiff in the back seat of Barr’s car from the
moment he is placed in it through the moment he exits the car at the police station.
Starting around 4:16:17, Plaintiff says several times that his cuffs are too tight. At
8

See 1:04-1:16, 494_Front Camera.mp4, Defs.’ Ex. E.
Id.
10
See 4:06:53, Camera 1, Defs.’ Ex. F, and/or 00:53 on 601_Front Camera_SCALE 238.mp4, Defs.’ Ex.
E.
11
See 4:30-4:35, 601_Front Camera.mp4 on Defs.’ Ex. E.
9

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that time, it seem that he is alone in the car—Defendant Barr does not appear to
enter the car until several minutes later, around 4:23:05. Around that time,
Plaintiff starts speaking with Defendant Barr (Barr is not visible on camera, but his
identity can be inferred because he mentions that he tased Plaintiff).
Approximately three minutes later, Plaintiff seems to say, “Sir, my arms hurt. My
arms are tired.”12 Periodically thereafter, Plaintiff starts leaning his body and
moving his arms in a manner that could indicate discomfort.13 During such
movements, the cuffs occasionally come into view, affixed to his wrists or slightly
above his wrists (not his left elbow).14 When Officer Barr gets back into the
vehicle and begins driving away from the scene, Plaintiff says, “Hey, can you take
these cuffs off, man? My wrist is bleeding.”15 The car pulls to a stop at the police
station about one-and-a-half minutes later.
After Plaintiff complained to jail staff that he was injured, he was taken to
St. John Hospital. He was diagnosed with a fractured radial head, and his arm was
put in a sling. Plaintiff testified that he believed Defendant Barr caused the
fracture when he grabbed Plaintiff’s left arm and pushed it forcefully up to
Plaintiff’s head before applying the cuffs.

12

See 4:26:45, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.
See, e,g, 4:30:33, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.
14
See, e.g., 4:30:36 and 4:30:53, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.
15
See 4:42:48, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.
13

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On December 6, 2013, in the 38th District Court in Eastpointe, Michigan,
Plaintiff pled guilty to a misdemeanor charge of hindering and obstructing arrest
arising from the May 4, 2013 incident. When asked during his plea hearing to
identify the factual basis for his plea, Plaintiff testified that he walked by a fight in
which he was not involved, an officer responding to the fight ordered him to stop,
and he walked away.
SUMMARY JUDGMENT STANDARD
“The question on summary judgment is whether the moving party has
demonstrated that the evidence available to the court establishes no genuine issue
of material fact such that it is entitled to a judgment as a matter of law.” Dobrowski
v. Jay Dee Contractors, Inc., 571 F.3d 551, 554 (6th Cir. 2009). The moving party
has the burden of establishing that there are no genuine issues of material fact,
which may be accomplished by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A genuine issue of material fact exists if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must
construe the evidence and all reasonable inferences drawn therefrom in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); see also Kalamazoo Acquisitions, L.L.C. v.

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Westfield Ins. Co., 395 F.3d 338, 342 (6th Cir. 2005). The nonmoving party “may
not avoid a properly supported motion for summary judgment by simply arguing
that it relies solely or in part upon credibility considerations … [but instead] must
present affirmative evidence.” Fogerty v. MGM Group Holdings Corp., Inc., 379
F.3d 348, 353 (6th Cir. 2004) (quoting Cox v. Ky. Dep’t of Transp., 53 F.3d 146,
150 (6th Cir. 1995)).
ANALYSIS
I.

Plaintiff’s Excessive Force Claims Against Officer Barr
Plaintiff argues that Defendant Barr employed excessive force by (1) tasing

him and (2) handcuffing him in a harmful manner. The question of whether force
employed in a seizure is excessive does not turn on the extent or even the existence
of injury. Miller v. Samilac County, 606 F.3d 240, 252-54 (6th Cir. 2010) (citing
Pigram ex rel. Pigram v. Chaudoin, 199 F. App’x 509, 513 (6th Cir. 2006)
(denying qualified immunity on a Fourth Amendment excessive force claim to an
officer who slapped a suspect in the face, causing no injury)). Instead, “[t]o make
a showing of excessive force ‘under the Fourth Amendment, [courts] apply an
objective reasonableness test, looking to the reasonableness of the force in light of
the totality of the circumstances confronting the defendants, and not to the
underlying intent or motivation of the defendants.’” Gorney v. Charter Twp. of
Brownstone, No. 14-12731, 2016 U.S. Dist. LEXIS 116892, at *21 (E.D. Mich.

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Aug. 31, 2016) (citing Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)); see
also Graham v. Connor, 490 U.S. 386, 397 (1989).
Courts consider three factors “in evaluating an excessive force claim: the
severity of the crime, whether the suspect posed an immediate threat to the safety
of officers or others, and whether the suspect actively resisted arrest or attempted
to evade arrest by flight.” Miller, 606 F.3d at 253 (citing Graham, 490 U.S. at
396). The Court must view the facts “from the perspective of a reasonable officer
on the scene.” Id. at 251 (citing Graham, 490 U.S. at 395–96).
Defendant Barr argues that he is entitled to qualified immunity. “To
determine whether an officer is entitled to qualified immunity, a court evaluates
two independent prongs: whether the officer’s conduct violated a constitutional
right, and whether that right was clearly established at the time of the incident.”
Richko v. Wayne County, Mich., 819 F.3d 907, 914–15 (6th Cir. 2016) (citing
Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
A. Tasing
The first Graham factor directs the Court to examine the severity of the
crime for which Barr was called upon to investigate. Barr arrested Plaintiff on
charges of disorderly conduct and hindering and obstructing arrest, relatively
minor crimes. Though Barr arrived on the scene in response to reports of a man
assaulting a woman and damaging a vehicle, the video evidence shows that Barr

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did not witness anything on the scene that would lead a reasonable officer to
believe that such crimes were ongoing. Therefore, Defendant Barr’s decision to
tase Plaintiff cannot be justified by the need to stop such crimes.
The second Graham factor—whether the suspect posed an immediate threat
to the safety of the officers or others—is also problematic for Defendant Barr’s
claim. Arguably, a reasonable officer arriving on the scene might have inferred
that Plaintiff and Clements had been fighting, and that Plaintiff had knocked
Clements down. Further, a reasonable officer could have determined that the
hostility between Plaintiff and Clements had not completely abated, since Plaintiff
turned around and advanced on Clements in an aggressive manner as the officers
approached. However, Plaintiff was walking away from Clements when the
officers first arrived, implying that any fight between them had ended. Though
Plaintiff walked back toward Clements in an aggressive way, his hands remained at
his sides—he did not move to strike Clements. Moreover, a reasonable jury
viewing the video evidence could find that Defendant Barr saw Plaintiff’s hands,
and was thus able to see that Plaintiff was not holding a weapon. Even if Barr did
not see Plaintiff’s hands, he had no particular reason to believe that Plaintiff was
armed, especially because the first dispatch report explicitly provided that no

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weapons had been seen.16 Furthermore, the second dispatcher failed to disclose any
information about weapons, despite mentioning that multiple 911 calls about the
incident had been received. Finally, Barr never asked Plaintiff to show his hands,
so a reasonable officer in his position could not have believed that Plaintiff was
deliberately concealing his hands in a manner that might suggest the presence of a
weapon.
The majority of the parties’ arguments concern the final Graham factor:
whether the suspect actively resisted arrest or attempted to evade arrest by flight.
The Sixth Circuit has found tasing (even repeated tasing) justified where the
person tased was “actively resisting arrest.” Rudlaff v. Gillispie, 791 F.3d 638, 641
(6th Cir. 2015) (citing Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505, 509
(6th Cir. 2012)). However, Sixth Circuit precedent also holds that tasing may be
excessive when done in response to passive resistance, including refusal to comply
with an officer’s command to exit a car or an apartment. Kent v. Oakland County,
810 F.3d 384, 393–94 (6th Cir. 2016); Goodwin v. City of Painesville, 781 F.3d
314, 319, 324–26 (6th Cir. 2015); Eldridge v. City of Warren, 533 F. App’x 529,
530–31, 535 (6th Cir. 2013). “In determining whether officers used excessive
force, courts have placed great weight on officers’ failure to warn a suspect before

16

See Def.’s Ex. D, 05-04-2013_04.02.21.6a_-_50EPSS1_(Voice).WAV, at 0:25-0:30 (the dispatcher
clearly states, “No weapons seen.”).

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deploying a taser.” Cockrell v. City of Cincinnati, 468 F. App’x 491, 498 (6th Cir.
2012) (Cole, J., concurring).
The mere fact that Plaintiff failed to comply with orders to get on the ground
does not establish that he was actively resisting arrest. Plaintiff’s noncompliance
was not accompanied by any other signs of resistance—as Defendant Barr
testified, Plaintiff simply acted as if the officers were not there. It was not as
though Plaintiff actively struggled or fought the officers’ efforts to subdue and
arrest him. Defendants argue that Plaintiff attempted to evade arrest by walking
away from the officers. However, the video shows that he was walking too slowly
for any reasonable officer to believe he was attempting to escape. In the Court’s
view, the final Graham factor favors Plaintiff.
Defendants argue that the final Graham factor supports their position
because Plaintiff pled guilty to hindering or obstructing arrest. More precisely,
they assert that Plaintiff’s conviction “precludes him from arguing that he did not
resist, hinder, or obstruct by failing to comply with an officer’s directive to ‘get on
the ground.’”
The Court “must give the same preclusive effect to a state-court judgment as
that judgment receives in the rendering state.” Buck v. Thomas M. Cooley Law
School, 597 F.3d 812, 816–17 (6th Cir. 2010) (quoting Abbott v. Michigan, 474
F.3d 324, 330 (6th Cir. 2007)). Michigan’s res judicata doctrine provides that a

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judgment “bars a subsequent action when ‘(1) the prior action was decided on the
merits, (2) both actions involve the same parties or their privies, and (3) the matter
in the second case was, or could have been, resolved in the first.’” Adam v. Bell,
311 Mich. App. 528, 532 (Ct. App. Mich. 2015) (quoting Adair v. State, 470 Mich.
105, 121 (Mich. 2004)). Under Michigan’s collateral estoppel doctrine, a
judgment may preclude litigation of an issue in a later proceeding if the identical
issue was actually litigated and determined in the earlier proceeding; the parties in
the later proceeding (or their privies) had a full and fair opportunity to litigate the
issue in the earlier proceeding; and the party invoking collateral estoppel would
have been bound by the judgment if it had gone against him. Wells Fargo Bank,
N.A. v. Null, 304 Mich. App. 508, 520–22 (Ct. App. Mich. 2014).
Here, neither Defendants nor their privies participated in the hindering and
obstructing case. Moreover, the issue of whether Plaintiff “actively resisted” arrest
within the meaning of Fourth Amendment excessive force law was not litigated in
the criminal proceedings, and could not have been resolved there. Thus, Plaintiff’s
guilty plea has no preclusive effect on the issue.
In sum, none of the Graham factors favor Defendants, and at the very least,
the final factor seems to support Plaintiff. The Court finds that a reasonable jury
could find that the tasing by Officer Barr violated Plaintiff’s constitutional right to
be free of excessive force.

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The Court also concludes that Plaintiff’s right not to be tased under the
circumstances had been clearly established by May 4, 2013. In several of the
aforementioned cases, the Sixth Circuit held that officers violated the plaintiffs’
constitutional rights by tasing them, even though the plaintiffs had failed to comply
with explicit commands. See, e.g., Kent, 810 F.3d at 393–94; Goodwin, 781 F.3d
at 319, 324–26; Eldridge, 533 F. App’x at 530–31, 535. The Goodwin and
Eldridge courts determined that the right not to be tased in the relevant
circumstances had been clearly established before May 4, 2013. Goodwin, 781
F.3d at 327 (clearly established before June 2010); Eldridge, 533 F. App’x at 535
(clearly established before June 2009). In Kent, the Sixth Circuit found that the
right had been clearly established before September 2013.17 Admittedly, none of
the plaintiffs in those cases were tased in circumstances identical to Plaintiff’s.
However, the facts are similar enough that the Court believes that a reasonable
officer would have known it was unconstitutional to tase Plaintiff, just as a
reasonable officer would have known it was unconstitutional to tase the plaintiffs
in those cases.
B. Handcuffing
Plaintiff’s excessive force handcuffing claim is a close call. It is well
established that “[t]he Fourth Amendment prohibits unduly tight or excessively
17

The Kent court didn’t rely on any cases issued between May and September 2013, so it implicitly
reached the conclusion that the right had been clearly established before May 2013 (when Plaintiff was
tased).

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forceful handcuffing during the course of a seizure.” Miller, 606 F.3d at 252 (citing
Morrison v. Bd. of Trs., 583 F.3d 394, 401 (6th Cir. 2009)). This right was clearly
established for qualified immunity purposes at the time of Plaintiff’s arrest on May
4, 2013. See Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (“The right to be
free from ‘excessively forceful handcuffing’ is a clearly established right for
qualified immunity purposes”) (citing Kostrzewa v. City of Troy, 247 F.3d 633,
641 (6th Cir. 2001)). Furthermore, Sixth Circuit “precedents allow the plaintiff to
get to a jury upon a showing that officers handcuffed the plaintiff excessively and
unnecessarily tightly and ignored the plaintiff’s pleas that the handcuffs were too
tight.” Burchett, 310 F.3d at 944.
It must be noted, however, that “not all conduct that causes an arrestee pain
or discomfort violates the Fourth Amendment.” See Graham, 490 U.S. at 396. “In
order for a handcuffing claim to survive summary judgment, a plaintiff must offer
sufficient evidence to create a genuine issue of material fact that: (1) he or she
complained that the handcuffs were too tight; (2) the officer ignored those
complaints; and (3) the plaintiff experienced “some physical injury” resulting from
the handcuffing.” Morrison, 583 F.3d at 401. The Court must inquire “whether it
would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001); see also
Miller, 606 F.3d at 252 (“In determining whether there has been a violation of the

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Fourth Amendment, we consider not the extent of the injury inflicted, but whether
an officer subjects a detainee to gratuitous violence.”)
The Sixth Circuit’s analysis in Morrison is instructive. There, the court
relied on the testimony of a witness, who explained that the handcuffs around the
Plaintiff’s wrists “were so tight that [Plaintiff’s] skin was all pinched over” and
“turning black and blue,” to determine that the plaintiff alleged an adequate injury
to preclude summary judgment. Morrison, 583 F.3d at 402 (internal citations
omitted). Though both the plaintiff and the witness asked the arresting officer to
loosen the plaintiff’s handcuffs, he refused to do so. The court disagreed with the
defendant’s assertion that “allegations of bruising and wrist marks alone are, as a
matter of law, insufficient to establish a ‘physical injury.’” Id. The court further
noted: “the injury required to sustain a successful handcuffing claim is not as
demanding as [the defendant] would suggest.” Id. (citing Martin v. Heideman, 106
F.3d 1308, 1313 (6th Cir. 1997)). In conclusion, the court stated, “the bruising,
skin marks, and attendant pain allegedly suffered by [Plaintiff] during the forty to
fifty minutes she was handcuffed creates a genuine issue of material fact regarding
the existence of an injury.” Morrison, 583 F.3d at 403.
The video evidence here plainly indicates that Plaintiff complained about the
fit of the handcuffs several times, thereby satisfying the first element of the

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Morrison test.18 The second element – whether Officer Barr ignored Plaintiff’s
complaints – is significantly less clear. The lengthiest period of Plaintiff’s
complaining occurs when Defendant Barr does not appear to be present in the
vehicle.19 Plaintiff says, “Hey, I need some handcuffs on my wrists. Please give me
some handcuffs on my wrists . . . I got tight cuffs on, please. Please help me.
Please, these cuffs are too tight . . . please get these cuffs off of me.”20 Though the
video shows Plaintiff complaining about the pain caused by the handcuffs, it does
not seem that Defendant Barr ignored him because Barr appears to be completely
unaware of Plaintiff’s complaints. The next time Plaintiff mentions his arm pain,
about 11 minutes later, he tells Defendant Barr that his arms are tired.21 It is
certainly true that Plaintiff did not explicitly state that his handcuffs were too tight
and that he needed them to be loosened. However, a jury could find that Plaintiff’s
complaints put Defendant Barr on notice as to the pain Plaintiff felt as a result of
the handcuffs. Furthermore, when Defendant Barr entered the vehicle to drive to
the police station, Plaintiff immediately said, “Hey, hey, can you take these cuffs
off, man? My wrists is bleeding.”22 Although the drive to the station was very short

18

See, e.g., 4:15:40-4:17:36, 4:26:45-4:26:48, and 4:42:48-4:42:51, Camera 2, Defendant Barr In-Car
Video, Defs.’ Ex. F.
19
See 4:15:40-4:17:36, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.
20
Id.
21
See 4:26:45-4:26:48, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.
22
See 4:42:48-4:42:51, Camera 2, Defendant Barr In-Car Video, Defs.’ Ex. F.

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– approximately one minute and forty seconds long – Defendant Barr ignored
Plaintiff’s request to remove or adjust the handcuffs.
The third part of the Morrison test – whether the Plaintiff experienced some
physical injury resulting from the handcuffing – is also unclear. There seems to be
a question as to whether Plaintiff’s injury resulted from the fall after the tasing or
the handcuffing. Plaintiff testified during his deposition that after falling to the
ground upon being tased, his head and his wrists hurt.23 He then stated that the
officer “grabbed [his] arm and pushed it hard up in the back of [his] head” and that
these actions “hurt it.”24 He also maintains that the officer cuffed his left elbow,
though the dashcam video only ever shows that the handcuffs were affixed to his
wrists.25 Plaintiff also conceded that, at the time of the handcuffing, he did not ask
the officers to move his handcuffs or tell them that his elbow hurt while he was on
the ground.26
After arriving at the jail, Plaintiff was taken to St. John Hospital,27 and was
later diagnosed with a radial head fracture.28 His arm was also placed in a sling.

23

See Thomas Dep. 156: 1-16, March 4, 2016.
See Thomas Dep. 158: 9-19, 160: 9-10, March 4, 2016.
25
See 4:26, 601_Front Camera.mp4 on Defs.’ Ex. E.
26
See Thomas Dep. 164: 19-25, 165: 2-5, March 4, 2016.
27
See Thomas Dep. 187:14-188:14, March 4, 2016.
28
“The radius bone goes from your elbow to your wrist. The radial head is at the top of the radius bone,
just below your elbow. A fracture is a break in your bone.” Radial head fracture- aftercare,
MEDLINEPLUS, https://medlineplus.gov/ency/patientinstructions/000561.htm (last visited Aug. 31, 2016).
24

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Plaintiff subsequently underwent 10 months of physical therapy and chiropractic
care at One Source Health & Spine, from March through December of 2014.29
The Court concludes that Plaintiff is entitled to present his excessive force
claim on a theory of unconstitutional tasing and unduly tight handcuffing to a jury,
and DENIES summary judgment to Defendant Barr.
II.

Plaintiff’s Municipality Claim Against City of Eastpointe
“A plaintiff raising a municipal liability claim under § 1983 must

demonstrate that the alleged federal violation occurred because of a municipal
policy or custom.” Burgess, 735 F.3d at 478 (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978)). “A plaintiff can make a showing of an illegal policy or
custom by demonstrating one of the following: (1) the existence of an illegal
official policy or legislative enactment; (2) that an official with final decision
making authority ratified illegal actions; (3) the existence of a policy of inadequate
training or supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations.” Id. (citing Thomas v. City of
Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). Here, Plaintiff’s sole evidence
of an illegal policy or custom is the City’s failure to investigate or review
Defendant Barr’s use of force in the specific incident at issue in this case.

29

Pl.’s Ex. H.

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The Sixth Circuit has recognized that a pattern of inadequately investigating
excessive force claims can establish a “custom of tolerance or acquiescence”
sufficient to support municipal liability. Burgess, 735 F.3d at 478. However, the
failure to investigate a single incident is insufficient. See id. at 478–79 (affirming
summary judgment in favor of municipality on failure-to-investigate claim because
plaintiffs failed to show “any prior instances of a failure to investigate claims of
excessive force”); Thomas, 398 F.3d at 432–34 (affirming summary judgment in
favor of municipality and rejecting plaintiffs’ “attempt[] to infer a municipal-wide
policy based solely on one instance of” inadequate investigation). Because
Plaintiff relies on a single incident, he has raised no genuine issue of material fact
under a custom-of-tolerance theory.
Plaintiff appears to advance his claim under a failure-to-supervise theory
rather than a custom-of-tolerance theory, but that does not help him. “While
plaintiffs may successfully bring claims against municipalities for failure to
supervise where they do not conduct reviews or monitor the performance of their
employees, plaintiffs must also show that the municipality lacks such a process out
of deliberate indifference.” Amerson v. Waterford Twp., 562 F. App’x 484, 492
(6th Cir. 2014) (citing Marcilis v. Twp. of Redford, 693 F.3d 589, 605 (6th Cir.
2012)). A plaintiff “must show prior instances of unconstitutional conduct” to
show deliberate indifference. Marcilis, 693 F.3d at 605. Because Plaintiff has

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produced no evidence of prior instances of unconstitutional conduct, he has raised
no genuine issue of material fact under a failure-to-supervise theory.
Plaintiff conceded during the hearing on September 9th that there is no basis
for his municipal liability claim against the City of Eastpointe. Accordingly, the
Court will GRANT summary judgment to Defendant City of Eastpointe.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that Defendants’ Motion for Summary Judgment [26] is
DENIED IN PART and GRANTED IN PART. The Court finds that Defendant
Barr is not entitled to qualified immunity on Plaintiff’s excessive force claim. The
Court also finds that there is no evidence upon which to support a claim for
municipal liability against Defendant City of Eastpointe.
SO ORDERED.

Dated: October 20, 2016

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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