Mitchell v. Monroe, County of et al

Filing 49

OPINION and ORDER Granting 37 MOTION for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
David Mitchell
Plaintiff,
v.

Case No. 16-10570

Monroe, County of, et. al.

Hon. Sean F. Cox

Defendants.
_________________________/
OPINION & ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff David Alan Mitchell (“Plaintiff”) brings § 1983 claims against the
County of Monroe and several of its officers. Plaintiff alleges that Defendants violated his
constitutional right to be free from excessive force. The excessive force claims stem from an
altercation between Plaintiff and the individual Defendants while Plaintiff was in custody at the
Monroe County Jail. During this altercation, Plaintiff was tasered and physically restrained.
Plaintiff allegedly suffered physical and mental injuries as a result. Plaintiff also brings a
municipal liability claim against Monroe County.
Currently before the Court is Defendants’ Motion for Summary Judgment. (Doc. # 37).
Defendants’ motion has been fully briefed. The Court finds that oral argument would not
significantly aid in the decisional process and therefore orders that the instant motion will be
decided upon the briefs. See E.D. Mich. LR 7.1(f). For the reasons that follow, the Court shall
GRANT Defendants’ motion.

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BACKGROUND
I.

Factual Background1
A.

Plaintiff’s arrest

On December 19, 2014, Plaintiff was stopped by a police officer for speeding. (Def.s’
Stmt. ¶ 1). During this encounter, the officer (who is not a party to this case) discovered that
there was an outstanding warrant for Plaintiff’s arrest for failing to pay child support. (Id.).
Plaintiff was subsequently transported to the Monroe County Jail. (Id.).
B.

Arrival and Booking at Monroe County Jail

Upon arriving to the jail, Plaintiff testified that he was searched, stripped down, given
clothes, and one blanket. (Ex. A to Pl.’s Resp., Pl.’s Dep. at 46). Plaintiff was subsequently
placed in a holding cell until he was booked later that morning. Plaintiff estimates that the cell
was approximately 51 degrees and that he was unable to sleep as a result. (Id.).
In the morning, Plaintiff was taken to the jail’s booking room. The ensuing activity was
largely captured on video recording. (Ex. 5 & 6 to Def.s’ Br.). Although there is no audio,
Plaintiff can be seen standing at the booking counter speaking to Corrections Officer Sean Almes
(“Defendant Almes”). Defendant Almes can be seen standing inside the guard booth. Defendant
Almes and Plaintiff were separated by a chain link fence. (Ex. D to Pl.’s Resp. at 53). Plaintiff
was not handcuffed at this time and had a blanket wrapped over his shoulders. Plaintiff appears
calm and non-combative.
Defendant Almes was responsible for asking Plaintiff intake questions, which included

1

Pursuant to this Court’s Practice Guidelines, Defendants have filed a Statement of
Material Facts Not in Dispute (Doc. # 36, Def.s’ Stmt.) and Plaintiff has filed a CounterStatement of Disputed Facts (Doc. # 44 at pp. 8-14, Pl.’s Stmt.).
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questions as to whether Plaintiff suffered from depression and/or whether Plaintiff was on
medication for depression. The parties dispute whether Plaintiff responded to these questions by
stating that he was feeling suicidal.
According to Defendant Almes, Plaintiff stated that “he was feeling suicidal” during
booking. (Ex. 3 to Def.s’ Br. at ¶ 1). However, Plaintiff testified as to the following:
I admitted to him that, yes, I’m under anti-depressants for suicidal thoughts, and
[Almes] jumped right to that, are you suicidal now. I never gave an answer to
that question was I suicidal now. I gave a, what would I do if I was, grind my
nose back and forth on this chicken wire until I was dead?
(Pl.’s Dep. at 49). According to Plaintiff, Plaintiff then sarcastically pressed his nose up in the
chain link fence and “kind of emulated what [he] would do...” if he were feeling suicidal. (Id. at
52).
After this exchange, Defendant Almes notified Field Training Officer Ryan Miekos
(“Defendant Miekos”) that Plaintiff stated he was feeling suicidal. Defendant Miekos, who was
also in the guard booth, instructed Defendant Almes to place Plaintiff in a suicide prevention
suit. (Ex. 2 to Def.s’ Br., Almes Incident Report). According to Defendant Almes, Plaintiff
became agitated when he realized that he was going to be placed in a suicide prevention suit.
(Id.). Despite being asked to give up his blanket and dress into the suit, Plaintiff refused. (Ex. D
to Pl.’s Resp. at 22-23).
Defendant Miekos then notified Sergeant Julie Massengill (“Defendant Massengill”) of
the situation. Defendant Massengill testified that she was informed of “a suicidal subject at the
counter that was uncooperative.” (Ex. D to Pl.’s Resp. at 22). Defendant Massengill
subsequently made her way to the booking room to explain the jail’s suicide policy to Plaintiff.
(Id. at 32). Defendant Massengill testified that she advised Plaintiff that the officers have a duty
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to protect anyone who makes a suicidal statement by placing them in a suicide garment. (Id.).
She further advised that there were no exceptions to the policy and that when the policy is
enacted, the inmate is to be placed in a special holding cell – to be checked on every 15 minutes.
(Id.). Plaintiff denies being advised of the jail’s suicide policy.
Plaintiff was asked numerous times to step into the intake shower room so that the male
officers could dress him in the suicide prevention suit. (Id. at 34). Massengill stated that she
advised Plaintiff that “if he didn’t cooperate with us and go into the suicide garment, that he
would force us to have to do it for him because we weren’t going to allow him to remain
unwatched.” (Id.).
Plaintiff admits that he refused to comply with Defendants’ orders. At his deposition, he
explained that: “I told them that I was not suicidal, and they weren’t going to humiliate me by ...
stripping me down butt naked and putting the suit on me when they know I was just being a
smart aleck.” (Pl.’s Dep. at 54). Plaintiff further claims that he explained to Defendant
Massengill that he was not suicidal, but that she insisted he could not “retract” his statements.
(Id. at 103). According to Plaintiff, Defendant Massengill threatened to “shoot [him] in the chest
with this stun gun” if he refused to wear the suit. (Id. at 49). Plaintiff told Defendants that he
would sue them if they touched him and forced him to dress into the suit. (Pl.’s Dep. at 104).
Because Plaintiff failed to comply, Defendant Massengill eventually ordered Officer
Jamie Francisco (“Defendant Francisco”) to escort Plaintiff to the intake shower room so that he
can be dressed into the suit. (Ex. D to Pl.’s Resp. at 36). At this point in time, Defendants claim
that Plaintiff’s refusal to cooperate escalated to active resistance.
C.

Video Footage of Altercation

4

As previously mentioned, the altercation that forms the basis of this suit was fully
captured by two cameras affixed to the ceiling in the booking room. (Ex. 5 & 6 to Def.s’ Br.).
Defendants have submitted a copy of two video recordings, which provide the Court with
different vantage points of the incident. Exhibit 5 contains footage of the guard booth, the
booking counter, and the hallway directly in front of the counter. Exhibit 6 contains footage of
the hallway abutting the guard booth and booking counter. To the extent possible, the Court
will defer to the video footage–as opposed to the parties’ versions of the facts–when describing
the altercation.
The Court will refer to the video recordings by the second to the time-stamped
information that appears on the tapes. The recording begins with video footage of Plaintiff
standing at the booking counter. (Ex. 5 to Def.s’ Br.). Plaintiff can be seen conversing with
Defendant Almes, presumably answering intake questions. At approximately 9:19:49, while
Plaintiff is at the booking counter, a jail trustee can be seen placing a suicide prevention suit on
the counter to Plaintiff’s right. (Id. at 9:19:49). Defendant Almes then walks over to the
booking counter and retrieves the suit. (Id. at 9:20:03). Defendant Almes then stands next to
Plaintiff and gestures toward the shower room several times. (Id. at 9:20:10). Almes eventually
walks over to the shower room door and faces Plaintiff, who is still standing at the booking
counter. (Id. at 9:20:23). Plaintiff can be seen conversing with Defendants Almes and Miekos,
both of whom are standing at the shower room entrance. (Id. at 9:20:25-9:20:50).
At 9:20:55, Defendant Francisco enters the picture. He walks over to Plaintiff’s side and
can be seen gesturing toward the shower room. (Id. at 9:21:01). Plaintiff does not move.
Defendant Francisco eventually begins to put on rubber gloves. (Id. at 9:21:29).

5

Defendant Francisco then steps toward Plaintiff, reaches for the blanket over Plaintiff’s
shoulders, and attempts to secure a grip over Plaintiff. (Id. at 9:21:55). Plaintiff can be seen
resisting Defendant Francisco’s hold by pulling away. (Id. at 9:21:57). Defendant Francisco
testified that it is considered “active aggression” when an inmate pulls away from an officer.
(Ex. E to Pl.’s Br. at 37). Defendant Francisco immediately attempts to put Plaintiff in an
“escort hold,” which has been described as putting one hand over an inmate’s shoulder and one
hand on an inmate’s wrist. (Ex. 5 to Def.s’ Br. at 9:21:59). Plaintiff continues to resist
Defendant Francisco’s hold.
Defendants Almes and Miekos then approach to assist Francisco in securing Plaintiff.
(Id. at 9:22:00). At this point in time, all three officers are surrounding Plaintiff and there
appears to be a struggle as Defendants attempt to pull Plaintiff down toward the hallway abutting
the booking counter. (Ex. 6 to Def.s’ Br. at 9:09:50).
Defendant Miekos testified that he attempted to secure Plaintiff by using a straight armbar takedown. (Ex. C to Pl.’s Resp. at 44). Miekos explained that he stepped in to grab
Plaintiff’s arm, but Plaintiff turned away. (Id.). This caused Miekos to lose his grip over
Plaintiff, and when he attempted to “re-grab” Plaintiff’s arm, they both went down towards the
ground. (Id.). Miekos believes that when they initially hit the ground, Plaintiff was on his
stomach and that as soon as he hit the ground, he rolled over to his back. (Id. at 45).
As Plaintiff is pulled down to the ground, he can be seen thrashing about and kicking his
feet in the air. (Ex. 6 to Def.s’ Br. at 9:09:55). Defendants Francisco, Miekos, and Almes
attempt to secure him, but Plaintiff continues to twist and turn. (Id. at 9:09:55-9:10:07).
Defendant Almes was attempting to secure Plaintiff’s legs and Defendant Miekos attempted to

6

secure Plaintiff’s upper body.
Defendant Massengill was following behind as the struggle ensued. While Plaintiff was
on the ground, actively resisting, Defendant Massengill applied the taser. (Ex. 6 to Def.s’ Br. at
9:10:02). A taser keeps a digital record of the times it is discharged and the data may be
downloaded into a log format. Plaintiff claims he was tased three times. However, here, the log
indicates that the taser was deployed by trigger one time, with the readout being 9:04:44,2 for a
total of six seconds. (Ex. 12 to Def.s’ Br., Taser Report; Ex. 11 to Def.s’ Br.). One prong went
into the blanket Plaintiff was wrapped in and one prong penetrated Plaintiff’s skin in his chest
area. (Ex. 7 to Def.s’ Br.; Ex. 11 to Def.s’ Br.).
Plaintiff stopped resisting after he was tased. Deputy Matthew Frazer (“Defendant
Frazer”) can be seen approaching the hallway at this time. (Ex. 6 to Def.s’ Br. at 9:10:29; Ex. 13
to Def.s’ Br.). Plaintiff remained still on the floor, as several officers surrounded him. Nurse
Denise Saks enters the picture several minutes later and appears to examine Plaintiff while he lay
on the ground.
Plaintiff was then lifted to his feet. (Id. at 9:12:27-9:13:41). Nurse Saks can be seen
removing one prong from Plaintiff’s chest area (Id. at 9:13:47) and checking the rest of
Plaintiff’s body for prongs. (Id. at 9:14:10). Saks provides the prong she retrieved from
Plaintiff’s chest to an officer and proceeds to check Plaintiff’s mouth and chest. The video
footage ends as the officers walk Plaintiff to the shower room. (Id. at 9:15:00).

2

The Court notes that there is a discrepancy between the second to time-stamped
information on the recordings and the read-out time listed on the log. Neither party has made
any mention of this and it does not appear to be outcome-determinative. Notably, Plaintiff has
not disputed the validity of the information contained in the log.
7

There is no dispute that Plaintiff was subsequently dressed in the suicide prevention suit
and placed in a cell. (Def.s’ Stmt. at ¶ 30; Pl.’s Stmt. at ¶ 30). Nor do the parties dispute that
within approximately 20 minutes, an Oakland County sheriff’s deputy appeared at the jail in
response to the Oakland County warrant.
D.

Plaintiff’s Testimony Re: Altercation

Although the video footage clearly depicts the altercation, the Court will briefly recite
Plaintiff’s version of events to highlight any disputes. Plaintiff denies that he was resisting and
describes the incident as follows:
There wasn’t much talking going on. There was - they brought me out and up to
the desk to book me, and as she was trying to convince me by telling me either
I’m going to strip and put this suit on or she’s going to shoot me in the chest,
when I said no, they surprised me by jumping over my back and grabbing me and
exposing my chest, and I was hit with ... the first blast of the stun gun.
....
There was a second group of ... guards, at least two more ... that showed up right
away to try to ... get me down, I guess you could say it. They were pulling me
left to right . . . . And then – and a large security – or a large jail guard picked me
up and slammed me to the concrete. And when he did, my head busted open, and
he hollered that we got a bleeder. And then he put his knee cap into my ear
socket, and he ground my head into the concrete until my jaw dislocated. And
then they grabbed my arms and legs and they pulled them out and they stretched
them and they stood on them. And then – then he hollered back at the lady to hit
me again with the stun gun, and she hit me a third time. Then when I was –
wasn’t quite done shaking they did a wrestling chicken move on me and forced
their arm up and behind my shoulder and stretched my shoulder behind my back
and that’s what screwed up my shoulder and flipped me over and – and I was
bleeding from the chest . . . .
(Pl.’s Dep. at 57, 60-61). After Plaintiff was dressed in the suicide prevention suit, he
remembers an Oakland County deputy appearing at his jail cell. Plaintiff testified that:
Yes, and an Oakland County officer walks up to the – to the jail door and he said,
Mr. Mitchell, I just saw what they did to you, and I’m going to get you out of here
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now. They’re over laughing and joking about what they did to you and they’re
watching it on tape and Oakland County wants no part of this, and I’m taking you
to the closest hospital. The warrant against you has been cancelled, and we’re
going to let you go.
(Id. at 70).
E.

Plaintiff’s Testimony Re: Injuries Sustained After Altercation

Plaintiff testified that after the altercation, he was bleeding at the corner of his eye socket.
(Pl.’s Dep. at 68). He explained that the spot of blood was roughly the size of a nickel. (Id.).
Plaintiff also stated that he was bleeding from the inside of his mouth. (Id.). Defendants Miekos
and Massengill similarly testified that they recalled seeing “a little bit of blood” on Plaintiff’s
face. Plaintiff also claims that his jaw was dislocated as a result of the pressure from one of the
defendants’ kneecaps pressing into his ear socket. (Id. at 62).
Plaintiff admits that he never asked for medical attention after Nurse Saks examined him.
(Id. at 109). Plaintiff explained, however, that he did not have time to ask for medical care and
that he was never offered such care. (Id.).
F.

Medical Records

After the incident at the jail, the Oakland County deputy dropped Plaintiff off at Monroe
Mercy Hospital. (Def.s’ Stmt. at ¶ 31; Pl.’s Stmt. at ¶ 31). Plaintiff testified that he decided to
go to St. Joseph Mercy Hospital because he did not trust Monroe Mercy. (Id.).
Plaintiff’s medical records confirm that Plaintiff suffered: abrasions to the right side of
his face and to both ears; mild bruising on the left occipital regions of his head with tenderness to
palpation; and tenderness to palpation in right costal margin of his chest wall. (Ex. G to Pl.’s
Resp.).
II.

Procedural Background
9

Plaintiff filed the instant action on February 16, 2016. (Doc. # 1). Plaintiff’s First
Amended Complaint, which is the operative complaint in this suit, names the following as
defendants in this action: (1) County of Monroe; (2) Ryan Miekos; (3) Julie Massengill; (4) Sean
Almes; (5) Jammie Francisco; (6) Matthew Frazer; and (7) Denise Saks. Since the filing of his
amended complaint, Denise Saks has been voluntarily dismissed from this case. (Doc. # 42).
Plaintiff’s complaint alleges the following four counts:
Count I

Violation of the Fourth Amendment, 42 U.S.C. § 1983 Excessive Force

Count II

Violation of the Due Process Clause of the Fourteenth Amendment, 42
U.S.C. § 1983—Excessive Force

Count III

Violation of the Fourteenth and Eight Amendments—42 U.S.C. § 1983
Deliberate Indifference to Medical Needs

Count IV

County of Monroe’s Constitutional Violations

(Pl.’s Compl.). Plaintiff seeks monetary relief for the damages allegedly sustained as a result of
these violations.
Following the close of discovery, Defendants filed the instant Motion for Summary
Judgment. (Doc. # 37, Def.s’ Br.). In it, Defendants argue that their actions in restraining a
resisting inmate do not constitute violations of Plaintiff’s constitutional rights and that each of
the individual defendants are entitled to qualified immunity. Defendants also argue that
Plaintiff’s deliberate indifference claim fails because Plaintiff was not denied medical attention
and he did not suffer from a sufficiently serious medical need. And finally, Defendants argue
that Plaintiff’s municipal liability claim against the county fails because Plaintiff did not suffer a
constitutional violation or, alternatively, because Plaintiff cannot establish that any alleged
violation was the result of a lack of training or supervision. Plaintiff has filed a response in

10

opposition (Doc. # 44, Pl.’s Resp.), and Defendants have filed a reply. (Doc. # 48, Def.s’
Reply).
STANDARD
Summary judgment will be granted where there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
The Court “must view the evidence, all facts, and any inferences that may be drawn from
the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High School,
305 F.3d 520, 526 (6th Cir. 2002). “The court’s duty to view the facts in the light most
favorable to the nonmovant does not require or permit the court to accept mere allegations that
are not supported by the factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906
(6th Cir. 2009). “This is so because the nonmovant, in response to a properly made and
supported motion for summary judgment, cannot rely merely on allegations but must set out
specific facts showing a genuine issue for trial.” Id.
Moreover, the Court “is not obligated to, and should not, rely on the nonmovant’s version
where it is ‘so utterly discredited by the record’” as to be rendered “visible fiction.” Id. (quoting
Scott v. Harris, 550 U.S. 372, 378-80 (2007)). “In Scott, the Eleventh Circuit was held to have
erred by accepting the plaintiff’s version of the facts as true even though that version was so

11

conclusively contradicted by the record that no reasonable jury could believe it.” Id.

ANALYSIS
I.

Qualified Immunity
In Counts I, II, and III of his amended complaint, Plaintiff alleges that Defendants Almes,

Miekos, Francisco, Massengill, and Frazer violated his constitutional rights. Defendants argue
that they are entitled to qualified immunity on Plaintiff’s Fourth and Fourteenth Amendment
claims.
To state a claim under § 1983, a plaintiff must set forth facts that, when construed
favorably, establish: 1) the deprivation of a right secured by the Constitution or laws of the
United States; 2) caused by a person acting under the color of state law. Dominguez v.
Correctional Medical Services, 555 F.3d 543, 549 (6th Cir. 2009). Here, there appears to be no
dispute that Defendants were acting under the color of state law. As such, the Court will focus
on the first element of Plaintiff’s claim: whether the facts establish a deprivation of a
constitutional right.
Under the doctrine of qualified immunity, government officials performing discretionary
functions are generally shielded from liability from civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known. Id.; Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008).
Determining whether government officials are entitled to qualified immunity generally
requires two inquiries: 1) whether, viewing the facts in the light most favorable to the plaintiff,
the plaintiff has shown that a constitutional violation occurred; and 2) whether the right was

12

clearly established at the time of the violation. Dominguez, 555 F.3d at 549.
Because Plaintiff’s Counts are asserted against more than one defendant, “[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).
A.

Constitutional Violation - Excessive Force

In Counts I and II, Plaintiff alleges that Defendants Almes, Miekos, Francisco,
Massengill, and Frazer violated his constitutional right to be free from excessive force, in
violation of the Fourth and Fourteenth Amendments. Plaintiff’s excessive force claims–whether
brought under the Fourteenth Amendment or the Fourth Amendment–are analyzed under the
Fourth Amendment’s “objective reasonableness” standard. Kingsley v. Hendrickson, 135 S.Ct.
2466, 2473 (2015); see also Clay v. Emmi, 797 F.3d 364, 369 (6th Cir. 2015) (holding that in the
wake of the Supreme Court’s decision in Kingsley, “a pretrial detainee’s excessive force claim
brought under the Fourteenth Amendment’s Due Process Clause is subject to the same objective
standard as an excessive force claim brought under the Fourth Amendment”).
“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.” Burgess v.
Fischer, 735 F.3d 462, 472 (6th Cir. 2013) (internal citations omitted).
In order to determine whether the force used here was constitutionally excessive, the
Court must examine the following three factors: (1) the severity of Plaintiff’s crime; (2) the
threat posed by Plaintiff; and (3) whether Plaintiff was attempting to resist or evade arrest.
Graham v. Connor, 490 U.S. 386, 396 (1989). This inquiry must be “assessed from the

13

perspective of a reasonable officer on the scene making a split-second judgment under tense,
uncertain, and rapidly evolving circumstances without the advantage of 20/20 hindsight.”
Burgess, 735 F.3d at 473 (internal citations omitted).
In making this determination, the Court must “balance the consequences to the individual
against the government’s interests in effecting the seizure.” Burchett v. Kiefer, 310 F.3d 937,
944 (6th Cir. 2002) (citing Graham, 490 U.S. at 396). The Court must also consider the
legitimate interests in managing a jail, “acknowledging as part of the objective reasonableness
analysis that deference to policies and practices needed to maintain order and institutional
security is appropriate.” Kingsley, 135 S.Ct. at 2474.
1.

Plaintiff Cannot Establish That Defendants’ Use of Force Was
Constitutionally Excessive In Light of Plaintiff’s Active Resistance

Even after viewing the facts in a light most favorable to Plaintiff, Plaintiff cannot
establish that the amount of force used against him was constitutionally excessive. The video
footage, along with the deposition testimony, renders Plaintiff’s version of the story–which
attempts to portray Plaintiff as a cooperative pretrial detainee–a “visible fiction.” Scott, 550 U.S.
at 381.
Here, Plaintiff argues that his refusal to put on a suicide prevention suit did not warrant
the force used against him. (Pl.’s Resp. at 23). Plaintiff’s focus is almost entirely on whether he
was feeling suicidal during booking. The problem with Plaintiff’s argument is that it confuses
the Court’s inquiry. The issue here is not whether Plaintiff was feeling suicidal. Notably,
Plaintiff does not attempt to argue that ordering a non-suicidal inmate to wear a suicide
prevention suit amounts to excessive force. Rather, the issue here is whether the amount of force
used by Defendants in subduing Plaintiff, after Plaintiff began to resist their orders, amounts to
14

excessive force.
Here, the video footage clearly shows: (1) Plaintiff resisting Defendants’ efforts to lead
him to the shower room; and (2) Plaintiff’s efforts to break away from Defendants.
Plaintiff’s active resistance is fatal to his excessive force claims. The Sixth Circuit has
explained that “[w]hen a suspect actively resists arrest, the police can use [force such as] a taser
(or knee strike) to subdue him; but when a suspect does not resist, or has stopped resisting, they
cannot.” Rudlaff v. Gillispie, 791 F.3d 638, 642 (6th Cir. 2015). “Active resistance includes
physically struggling with, threatening, or disobeying officers.” Id. (internal quotation marks
and citation omitted). Active resistance also “includes refusing to move your hands for the police
to handcuff you, at least if that inaction is coupled with other acts of defiance.” Id. (internal
citation omitted).
Defendant Francisco
As to Defendant Francisco, Plaintiff argues that the “video shows him forcefully
grabbing Plaintiff and choking him by wrapping his large arm around Plaintiff’s neck.” (Pl.’s
Resp. at 27). Plaintiff concludes that this force was excessive because Plaintiff was not “rabidly
out of control,” and because Plaintiff was not “acting in a threatening, much less suicidal
manner.” (Id.). Plaintiff’s argument is without merit.
Defendant Francisco did not use excessive force in initially placing his hands over the
blanket on Plaintiff’s shoulders in order to lead Plaintiff to the shower room. This was
objectively reasonable force in light of Plaintiff’s admitted refusal to dress into the suit. Nor did
Defendant Francisco use excessive force when he attempted to place Plaintiff in an “escort hold”
by wrapping his arms around Plaintiff’s shoulder and chest area. Defendant Francisco only

15

resorted to this after Plaintiff began to resist by pulling away from Defendant’s initial grasp.
Plaintiff conveniently fails to mention this fact.
Moreover, Plaintiff has not cited a single case that would support finding excessive force,
where, as here, an officer struggles to secure an actively resisting inmate. Plaintiff’s reliance on
Griffith v. Coburn, 473 F.3d 650 (6th Cir. 2007) is misplaced. In Griffith, the Sixth Circuit held
that it would be excessive force for an officer to “almost immediately and without provocation”
begin choking a suspect. Griffith, 473 F.3d at 658. Here, Plaintiff’s version of events–that
Francisco forcefully grabbed and choked Plaintiff without provocation–cannot be believed in
light of the video recording. And, unlike the plaintiff in Griffith, it is undisputed that Plaintiff
here was resisting Defendant Francisco’s hold. Because Plaintiff was actively resisting, the
second and third Graham factors–whether Plaintiff posed a threat and whether Plaintiff was
actively resisting–weigh in Defendant Francisco’s favor. After viewing all of the facts in
Plaintiff’s favor, the Court still concludes that Defendant Francisco’s actions were not
unreasonably excessive.
Defendant Miekos
As to Defendant Miekos, Plaintiff argues that he “slammed Plaintiff to the ground by
using a straight arm bar takedown maneuver and then got on top of Plaintiff’s body.”3 (Pl.’s
Resp. at 27). Plaintiff claims that this was excessive and unreasonable. Again, Plaintiff’s
argument suffers from the same flaw as above: it disregards the video footage of the incident and
the undisputed fact that Plaintiff was actively resisting Defendants’ orders.

3

To the extent that Plaintiff argues that “one of the Defendants jammed their knee into
Plaintiff’s right ear during the encounter,” Plaintiff has not pointed to any evidence that would
attribute this to Defendant Miekos.
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Under many circumstances, takedowns are appropriate. See Hayden v. Green, 640 F.3d
150, 154 (6th Cir. 2011). “The key point in the analysis is whether there was some real form of
resistance or danger.” Jennings v. Fuller, 659 Fed. App’x 867, 870 (6th Cir. 2016) (citing
Hayden, 640 F.3d at 154). Here, at the time that Defendant Miekos stepped in to assist
Defendant Francisco, Plaintiff was clearly resisting efforts to secure him. Defendant Miekos
attempted to assist by using a straight arm bar take down so that the officers can secure and
handcuff Plaintiff. Because Plaintiff was resisting, Defendant Miekos lost control and they both
fell down to the ground. Once he hit the ground, Plaintiff flipped over on to his back and began
kicking at the officers.
Viewing the facts in a light most favorable to Plaintiff, the Court cannot conclude that
Defendant Miekos used constitutionally excessive force in attempting to secure Plaintiff. It is
undisputed that Plaintiff was resisting by pulling away from the officers, kicking at the officers
and thrashing about. Plaintiff was actively resisting and posed a threat to the officers as a result.
See Graham, 490 U.S. at 396 (discussing factors to assess in objective reasonableness inquiry).
Defendant Almes
As to Defendant Almes, Plaintiff argues that Defendant Almes was an “active participant
in the unreasonable force used against Plaintiff.” (Pl.’s Resp. at 27). Plaintiff takes issue with
Defendant Almes “holding Plaintiff’s right leg” down during the altercation because Plaintiff did
not swing his arms and attempt to hit anyone. Plaintiff’s argument is without merit.
Again, the video footage is clear that at the time that Defendant Almes attempted to assist
Defendant Francisco, Plaintiff was actively resisting, thrashing about, and kicking his feet in the
air. Moreover, Plaintiff fails to cite a single case that would support a finding of excessive force

17

where, as here, an officer attempts to subdue a resisting inmate by securing the inmate’s legs.
After viewing the facts in a light most favorable to Plaintiff, the Court concludes that Plaintiff
has failed to establish excessive force as to Defendant Almes.
Defendant Massengill
As to Defendant Massengill, Plaintiff summarily argues that the use of a taser in this case
was excessive and unreasonable in light of the circumstances. (Pl.’s Resp. at 28). Plaintiff cites
Baker v. Union Township, 587 Fed. App’x 229 (6th Cir. 2014) for the proposition that Defendant
Massengill’s failure to “immediately warn Plaintiff that he would be tased” supports a finding of
excessive force. (Id.). Plaintiff’s argument is without merit.
First, Plaintiff’s reliance on Baker is misplaced. In Baker, the Sixth Circuit held that it
was objectively unreasonable for an officer to tase a suspect who offered no resistance or
indication of aggression. Baker, 587 Fed. App’x at 234. There, the officer “gave no warning or
commands–he simply shot [the plaintiff] with his taser, incapacitating [the plaintiff] and causing
him to fall down the staircase...” Id. The Sixth Circuit explained that none of the Graham
factors weighed in the officer’s favor because: (1) the crime at issue was not severe; (2) the
suspect was not behaving aggressively at the time of the tasing; and (3) the suspect was not
resisting arrest or attempting to flee at the time of the tasing. Id.
The facts here are clearly distinguishable. Notably, according to Plaintiff’s own
testimony, Defendant Massengill did in fact warn Plaintiff that she would tase him in the chest if
he did not comply with the order to wear the suicide prevention suit. The fact that she did not
“immediately” warn Plaintiff does not render her actions constitutionally excessive. Moreover,
unlike the plaintiff in Baker, Plaintiff here was actively resisting at the time that the taser was

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applied. Based on these undisputed facts, the second and third Graham factors weigh in
Defendant Massengill’s favor.
Accordingly, even after viewing all of the facts in Plaintiff’s favor, Defendant
Massengill’s use of a taser does not constitute excessive force. See e.g., Rudlaff, 791 F.3d at 641
(“Our cases firmly establish that it is not excessive force for the police to tase someone (even
multiple times) when the person is actively resisting arrest”) (internal citations omitted); see also
Williams v. Sandel, 433 Fed. App’x 353, 363 (6th Cir. 2011) (not excessive force to tase the
suspect thirty-seven times (and use batons and pepper spray) because he actively resisted arrest).
Defendant Frazer
Plaintiff’s attempt to hold Defendant Frazer liable for excessive force is puzzling, given
the following undisputed facts: (1) Defendant Frazer was not involved in the decision to restrain
Plaintiff; (2) Defendant Frazer was not involved in the takedown of Plaintiff; and (3) Defendant
Frazer was not present during the altercation. (Ex. F to Pl.’s Resp. at 15-18). The only contact
Defendant Frazer made with Plaintiff occurred after Plaintiff was tased, secured, and handcuffed.
(Id. at 17-18). The video recording shows Defendant Frazer helping Plaintiff to his feet and
checking Plaintiff for prongs. As such, the Court finds no basis under which Plaintiff may hold
Defendant Frazer liable for excessive force.
And to the extent that Plaintiff argues that Defendant Frazer “had the ability to intervene
on Plaintiff’s behalf but failed to do so,” Plaintiff’s claim is without merit. It is undisputed that
Defendant Frazer was not present during the takedown and subsequent tasing of Plaintiff. As
such, it would have been impossible for Defendant Frazer to intervene. Despite reviewing the
facts in Plaintiff’s favor, the Court cannot conclude that Defendant Frazer acted with excessive

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force.
B.

Constitutional Violation – Deliberate Indifference

In Count III, Plaintiff alleges that Defendants were deliberately indifferent to his serious
medical needs, in violation of the Eighth and Fourteenth Amendments. The Due Process Clause
of the Fourteenth Amendment affords pretrial detainees “a right to adequate medical treatment
that is analogous to prisoners’ rights under the Eighth Amendment.” Gray v. City of Detroit, 399
F.3d 612, 615-16 (6th Cir. 2005). The deliberate indifference standard consists of both an
objective and subjective component. The objective component is satisfied by showing that an
inmate has a medical need that is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 25, 834
(1994) (internal quotation marks and citations omitted). To qualify as “sufficiently serious,” the
need must be one that has been diagnosed by a physician as requiring treatment or one that is so
obvious that even a layperson would recognize the necessity for a doctor’s attention. Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 899 (6th Cir. 2004). The subjective component is satisfied by
showing that Defendants possessed “a sufficiently culpable state of mind in denying medical
care.” Miller v. Calhoun County, 408 F.3d 803, __ (6th Cir. 2005).
1.

Plaintiff Cannot Establish Deliberate Indifference On The Part Of
Defendants

Here, Plaintiff takes issue with Defendants’ decision to seek medical treatment from
Nurse Saks. Plaintiff’s argument–which is roughly two sentences long–is as follows:
Given the physical injuries that could have been seen by Defendants, they should
have made arrangements for Plaintiff to be seen by medical providers outside of
the jail. Bleeding anywhere in the head can be an indication of a serious medical
problem, and one that would arguable [sic] be outside the scope of a jail nurse.
(Pl.’s Resp. at 30). Even assuming Plaintiff can establish the objective component of the

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deliberate indifference standard, he cannot establish the subjective component.
Simply put, Plaintiff has not established that Defendants were deliberately indifferent to
any claimed need. In fact, it is undisputed that Defendants sought medical care for Plaintiff
within minutes after he was tased and secured. It is also undisputed that Nurse Saks examined
Plaintiff. Plaintiff at no point in time stated that he required medical care in addition to Nurse
Saks’ examination. Nor did he complain of pain after Nurse Saks’ examination was complete.
To the extent that Plaintiff now argues that Defendants “should have made arrangements for
Plaintiff to be seen by medical providers outside the jail,” this is insufficient to establish that
Defendants acted with the requisite culpability. There is absolutely no evidence establishing that
any of the individual defendants were on notice that Plaintiff required additional medical care
after he was cleared by Nurse Saks.
II.

Municipal Liability
Count IV of Plaintiff’s amended complaint seeks to hold the County of Monroe liable for

the alleged constitutional violations. Plaintiff’s claim for municipal liability fails for two
reasons.
First, because the individual defendants did not violate Plaintiff’s constitutional rights,
Plaintiff cannot establish a claim of municipal liability against Monroe County. See Cleary v.
County of Macomb, 409 F. App’x 890, 906 (6th Cir. 2011) (noting that under Monell v.
Department of Social Services, 436 U.S. 658 (1978), a municipality may only be liable to a
plaintiff under § 1983 if the plaintiff demonstrates that a constitutional violation occurred and
that it was the result of a policy or custom of the municipality).
Second, even if Plaintiff established constitutional violations, his municipal liability

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claim would still fail. A municipality “be held liable under § 1983 if it maintained a policy or
custom that caused the violation” of the plaintiff’s rights. Harvey v. Campbell County, 453 Fed.
App’x 557, 562 (6th Cir. 2011). Here, Plaintiff does not base his claim against Monroe County
on any actual custom or policy. Instead, Plaintiff’s § 1983 claim is a claim predicated upon a
“failure to train” theory of municipal liability. Plaintiff essentially argues that Monroe County’s
failure to conduct performance evaluations permits officers to continuously violate constitutional
rights. (Pl.’s Resp. at 31-32).
In limited circumstances, a local government’s failure to train police officers may be
deemed a “policy or custom” for purposes of municipal liability. City of Canton v. Harris, 489
U.S. 378, 389 (1989). In order for Plaintiff to establish deliberate indifference, he “must show
prior instances of unconstitutional conduct demonstrating that the [County of Monroe] has
ignored a history of abuse and was clearly on notice that the training in this particular area was
deficient and likely to cause injury.” Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005).
Here, Plaintiff has failed to point to any official or unwritten policy or any specific defect
in training. Plaintiff has also failed to offer any evidence of prior instances of unconstitutional
conduct, which would demonstrate that the County of Monroe was on notice of any deficient
training. Nor has Plaintiff even suggested, for example, that the number of excessive force
incidents in Monroe County is greater than is to be expected from a properly-trained agency. As
such, this claim fails.
CONCLUSION & ORDER
For the foregoing reasons, the Court shall GRANT Defendants’ Motion for Summary

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Judgment.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 2, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 2, 2017, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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