Holmes v. Romulus, City of et al

Filing 71

OPINION AND ORDER Granting in Part and Denying in Part Defendants' Motion for Summary Judgment 60 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORRAINE HOLMES,
Plaintiff,

CASE NO. 16-10610
HON. DENISE PAGE HOOD

v.
CITY OF ROMULUS, et al.,
Defendants.
_________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [#60]

I.

BACKGROUND
A. Procedural Background
On May 25, 2016, Plaintiff Lorine Holmes-El (“Holmes”) filed an Amended

Complaint against Defendants the City of Romulus (“Romulus”), Romulus Police
Officer, David Brooks (“Brooks”), and Director for Public Safety for the Romulus
Police Department John Leacher (“Leacher”) (collectively, “Defendants”), alleging
a 42 U.S.C. § 1983 violation for Excessive Force against Defendant Brooks (Count
I); 42 U.S.C. § 1983 Monell violations by the City Romulus and Defendant Leacher
for failure to hire, supervise, train and/or discipline, and a failure to screen its officers
(Count II); and state law claims for Intentional Infliction of Emotional Distress
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(Count III) and Assault and Battery (Count IV) against Defendant Brooks. (Doc #
7) Holmes requests that the Court award her exemplary damages and other monetary
relief. Id. Pursuant to a Stipulation and Order, Count IV of the Complaint was
dismissed on September 29, 2016. (Doc # 25) Defendant Leacher was also
dismissed from this action pursuant to a Stipulation and Order filed on September
29, 2016. (Doc # 26) The only remaining claims in this action are (1) Holmes’ §
1983 Excessive Force claim against Defendant Brooks, (2) Holmes’ Monell claim
against Romulus, and (3) Holmes’ Intentional Infliction of Emotional Distress claim
against Defendant Brooks.
This matter is before the Court on Defendants’ Motion for Summary
Judgment filed on March 22, 2018. (Doc # 60) Holmes filed a Response on April,
20, 2018. (Doc # 64) Defendants filed a Reply on May 7, 2018. (Doc # 70)
For the reasons set forth below, Defendants’ Motion for Summary Judgment
is GRANTED IN PART and DENIED IN PART.
B. Factual Background
On February 19, 2013, around 4:30 a.m., Holmes, who was 69 years old at the
time, was driving on a dark road with the high beams on her car illuminated. (Doc
# 64, Pg. 2) Brooks made a traffic stop of the vehicle being driven by Holmes for
failure to dim her high beams to oncoming traffic. (Doc # 60, Pg. 4) After
instructing Holmes to produce her driving credentials, Brooks told Holmes she was
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pulled over for driving with her high beams on. (Doc # 64, Pg. 2) Upon questioning,
Brooks learned that Holmes did not have a valid driver’s license, did not have a valid
license plate, and she did not have her vehicle’s registration in her possession,1 but
had a Moorish Science Temple license plate. (Doc # 60, Pg. 4) During the stop,
Holmes began to tell Brooks to “call the sheriff” to the scene of the stop. (Doc # 64,
Pg. 3) Brooks then identified himself as a Romulus police officer, and told Holmes
he did not need to call the sheriff. (Id.) Brooks then began to demand that Holmes
exit her vehicle. (Id.) Holmes initially resisted Brook’s command, and Brooks
radioed for backup. (Id.) The Parties have provided a video recording of the traffic
stop. (Doc # 60, Exh. D)
The video recording shows that, following some resistance, Holmes got out
of her vehicle after Brooks handcuffed her left hand. (Doc # 60, Exh. D at 5:46)
Once Holmes was out of the car, Brooks asked Holmes to put her right hand behind
her back. (Id. at 5:47) Holmes replied that she cannot comply with that request
because of her arthritis. (Id. at 5:48) Brooks said that Holmes could, “put it in front
then.” (Id. at 5:49) Next, Holmes’ right hand can been seen near her coat pocket.
(Id. at 5:53) Brooks instructed Holmes not to put her hand near her pocket (Id. at
5:55), and in less than one second after giving Holmes the order, shoved Holmes
into her vehicle while holding both of her wrists, and then performed a takedown on

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The Court notes that Holmes does not contest the legality of the traffic stop.
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Holmes. (Id. at 5:55–6:00) Holmes is heard screaming for help as Brooks held her
on the ground, placed his body weight on Holmes, and told her to place her right
hand behind her back. (Id. at 6:05) Holmes told Brooks several times that, due to
her arthritis, she could not put her right hand behind her back. (Id. at 6:05–6:15)
Despite Holmes’ statements, Brooks proceeded to handcuff Holmes behind her back
as she moaned and told Brooks she could not put her hand behind her back. (Id. at
6:15–7:00)
The supporting officers, one male officer and one woman officer, arrived on
the scene of the stop while Brooks was in the process of handcuffing Holmes. After
Holmes was handcuffed, the female officer conducted a pat-down search of Holmes
and found no weapons or contraband. (Doc # 64, Pg. 11) The female officer left the
scene after the pat-down search. (Id.) The male officer did not assist Brooks in
handcuffing Holmes. (Id.) Later, Brooks and the male officer lifted Holmes up
while her arms were behind her back. (Id. at 12) Holmes was escorted to the police
station by the male officer. (Id.) While at the police station, Holmes complained
that she was in pain. (Id.) An ambulance was called and Holmes was taken to
Annapolis Hospital, where she was informed that both her right and left arms were
injured from the arrest incident, and that her left arm would require immediate
surgery. (Id.) Surgery was performed on Holmes’ left shoulder, and later surgery

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on her right shoulder. (Id.) Holmes’ left shoulder is disfigured and the bone
presently protrudes from her skin. (Doc # 64, Exh. E)
II.

ANALYSIS
A. Standard of Review
The Court will grant summary judgment 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-57 (1986). A fact is material if it could affect the outcome of the case based on
the governing substantive law. Id. at 248. A dispute about a material fact is genuine
if, on review of the evidence, a reasonable jury could find in favor of the nonmoving
party. Id.
The moving party bears the initial burden to demonstrate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets this burden, the nonmoving party must “go beyond the pleadings
and … designate specific facts showing that there is a genuine issue for trial.” Id. at
324. The Court may grant a motion for summary judgment if the nonmoving party,
who has the burden of proof at trial, fails to make a showing sufficient to establish
the existence of an element that is essential to that party’s case. See Muncie Power
Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003). “The
mere existence of a scintilla of evidence in support of the plaintiff’s position will be
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insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252. “Conclusory allegations do not create a
genuine issue of material fact which precludes summary judgment.” Johari v. Big
Easy Restaurants, Inc., 78 F. App’x 546, 548 (6th Cir. 2003).
When reviewing a summary judgment motion, the Court must view the
evidence and all inferences drawn from it in the light most favorable to the
nonmoving party. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986). The Court “need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court’s function at the
summary judgment stage “is not to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249.
B. Excessive Force Claim Against Defendant Brooks
1. Qualified Immunity
Defendants argue that Defendant Brooks is entitled to qualified immunity on
the excessive force claim against him. Holmes argues that Brooks is not entitled to
qualified immunity because a material issue of fact exists as to whether Brooks’
conduct in handcuffing and arresting her was in violation of her rights under the
Fourth Amendment.

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Government officials are entitled to qualified immunity where their actions
do not “violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Green v. Reeves, 80 F.3d 1101, 1104 (6th
Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A government
official will not be immune if, on an objective basis, it is obvious that no reasonably
competent officer would have concluded that the action at issue was lawful; but if
an officer of reasonable competence could disagree on this issue, immunity should
be recognized. Malley v. Briggs, 475 U.S. 335, 341 (1986). Qualified immunity is
an initial threshold question the court is required to rule on early in the proceeding
so that the costs and expenses of trial are avoided where the defense is dispositive.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity is “an entitlement
not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). The privilege is “an immunity from suit rather than a mere
defense to liability; and like an absolute immunity, it is effectively lost if a case is
erroneously permitted to go to trial.” Id.
The first inquiry to determine qualified immunity is whether, taken in the light
most favorable to the party asserting the injury, the facts alleged show the official’s
conduct violated a constitutional right. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
If no constitutional right would have been violated, there is no necessity for further
inquiries concerning qualified immunity. Saucier, 533 U.S. at 201. If a violation
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could be made out, the next step is to determine whether the right was clearly
established in light of the specific context of the case, not as a broad general
proposition. Id. Under the doctrine of qualified immunity, an official will not be
found personally liable for money damages unless the official’s actions violate
“clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow, 457 U.S. at 818. The “clearly established” right
allegedly violated by the officials cannot be considered at an abstract level, but must
be approached at a level of specificity:

“The contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing
violates that right.”

Anderson v. Creighton, 483 U.S. 635, 639 (1987).

“Reasonableness” is a question of law to be decided by the trial court.
2. Excessive Force
Defendants argue that Holmes’ excessive force claims against Brooks should
be dismissed because the force used by Brooks to arrest and restrain Holmes was
reasonable and not excessive. (Doc # 60, Pg. 21) Holmes argues that Brooks’
conduct in arresting and restraining her was unreasonable and excessive because
Brooks was aware of Holmes’ physical medical conditions. (Doc # 64, Pg. 13–14)
Where a plaintiff complains of excessive force in the course of an arrest,
investigatory stop, or other seizure, the claim must be analyzed under the Fourth
Amendment’s objective reasonableness standard, not under a substantive due
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process standard. Walton v. City of Southfield, 995 F.2d 1311, 1342 (6th Cir. 1993)
(citing Graham, 490 U.S. at 395 (1989)). The proper application of the objective
reasonableness standard “requires careful attention to the facts and circumstances of
each particular case, including [1] the severity of the crime at issue, [2] whether the
suspect poses an immediate threat to the safety of the officers or others, and [3]
whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396. “The ‘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.” Id.
The Supreme Court has further explained: The calculus of reasonableness
must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation. Id.
at 396-97.

The question for the Court is “whether the officers’ actions are

‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Id. at 397. This test
“requires a ‘careful balancing’ of the individual interest in being free from
unreasonable seizures and the important governmental interest in protecting the
safety of its peace officers and the public.” Williams v. City of Grosse Pointe Park,
496 F.3d 482, 486 (6th Cir. 2007) (citing Graham, 490 U.S. at 396).
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Brooks argues that he is entitled to summary judgment on the excessive force
claim because he used reasonable force in light of Holmes’ resistance, aggressive
demeanor, and Holmes shoving her right hand in her pocket. Brooks also argues
that the case law that supports Holmes’ theory of excessive force only applies where
an officer knows that the suspect in question is injured and also believes that the
suspect posed no threat to him. (Doc # 70, Pg. 4) Holmes argues that Brooks was
clearly aware that he was violating Holmes’ constitutional rights under the totality
of the circumstances. (Doc # 64, Pg. 16–24)
Viewing the facts in the light most favorable to Holmes, the first Graham
factor weighs in favor of Holmes, as she was guilty of committing only misdemeanor
traffic infractions when she was stopped by Brooks. The second Graham factor also
weighs in favor of Holmes. The video of the arrest demonstrates that Brooks told
Holmes to take her hand away from her pocket, and Brooks began to grab and shove
Holmes before she could comply. In addition, Brooks was holding Holmes by both
of her wrists and charged toward Holmes while performing a takedown. Even if
Brooks might have thought Holmes possessed some weapon, he had control of both
of her hands after grabbing her wrists. Brooks maintained control of Holmes as he
threw her to the ground, mounted, and handcuffed her behind her back. This was
after Brooks instructed Holmes that she could be handcuffed in front of her body.
Despite his own concession, and Holmes’ expressions of discomfort and calls for
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help, Brooks proceeded to handcuff Holmes behind her back while on top of her.
Brooks’ conduct evidences that, despite an awareness that Holmes did not have
weapon in her right hand, he completely disregarded her alleged medical condition
while throwing her down and handcuffing her. The third Graham factor also weights
in favor of Holmes because she began to comply after initially resisting Brooks’
request. The struggle that ensued between Brooks and Holmes was the result of her
resistance to being handcuffed. The video, however, shows that Holmes had begun
complying with Brooks’ orders when he threw her to the ground.
The Court concludes that there remain genuine issues of material fact that
preclude summary judgment in favor of Brooks. Taken in the light most favorable
to Holmes, a reasonable juror could conclude that Brooks violated Holmes’
constitutional right when he threw her down and handcuffed her behind her back.
Defendants concede that Sixth Circuit precedent establishes an excessive force claim
for handcuffing where an officer knew that the suspect had an injured arm and
believed the suspect posed no threat to him. See Walton v. City of Southfield, 955
F.2d 1331 (6th Cir. 1993); see also Crooks v. Hamilton Cnty., Ohio, 458 F. App’x
548, 550 (6th Cir. 2012). Defendants’ Motion for Summary Judgment on the
excessive force claim is DENIED.

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C. Monell Claim
Defendants argue that summary judgment should be granted on Holmes’
Monell claim because she is unable to show that her constitutional rights were
violated, that the alleged violation was a result of the execution of a particular policy
or custom, or that the City of Romulus has ignored prior unconstitutional conduct
by its officers. Holmes does not contest Defendants’ arguments.
“To succeed on a municipal liability claim, a plaintiff must establish that his
or her constitutional rights were violated and that a policy or custom of the
municipality was the ‘moving force’ behind the deprivation of the plaintiff’s
constitutional rights.” Brown v. Battle Creek Police Department, 844 F.3d 556, 573
(6th Cir. 2016) (citing Monell v. Department of Social Services, 436 U.S. 658, 694
(1978)).
“A systematic failure to train police officers adequately is a custom or policy
which can lead to municipal liability.” Miller v. Sanilac Cty., 606 F.3d 240, 255 (6th
Cir. 2010) (citations omitted). “The inadequacy of police training only serves as a
basis for § 1983 liability ‘where the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into contact.’” Slusher v. Carson,
540 F.3d 449, 457 (6th Cir. 2008) (quoting City of Canton v. Harris, 489 U.S. 378,
388 (1989)). A plaintiff “must show prior instances of unconstitutional conduct
demonstrating that the [municipality] has ignored a history of abuse and was clearly
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on notice that the training in this particular area was deficient and likely to cause
injury.” Brown, 844 F.3d at 573 (citing Fisher v. Harden, 398 F.3d 837, 849 (6th
Cir. 2005)).
A city’s failure to investigate claims against its police officers or discipline its
officers for illegal acts may give rise to § 1983 liability. Hullett v. Smiedendorf, 52
F. Supp. 2d 817, 825 (W.D. Mich. 1999) (citing Leach v. Shelby County Sheriff, 891
F.2d 1241, 1247 (6th Cir.1989); Marchese v. Lucas, 758 F.2d 181, 188 (6th
Cir.1985)). “The theory underlying these cases is that the municipality’s failure to
investigate or discipline amounts to a ‘ratification’ of the officer’s conduct.” Dyer v.
Casey, 72 F.3d 129, 1995 WL 712765, at *2 (6th Cir.1995). A plaintiff has the
burden of showing “a history of widespread abuse that has been ignored by the city.”
Berry v. City of Detroit, 25 F.3d 1342, 1354 (6th Cir. 1994).
Holmes does not contest Defendants arguments regarding her Monell claim
against Romulus. Defendants’ Motion for Summary Judgment regarding the Monell
claim should be GRANTED.
D. Intentional Infliction of Emotional Distress
1. Governmental Immunity
Defendants argue that Brooks should be granted summary judgment on the
intentional infliction of emotional distress claim because Michigan law grants police
officers governmental immunity when performing discretionary acts in good faith,
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within the scope of their employment. Holmes argues that Brooks’ use of force in
this case was intended to cause harm, taken with reckless disregard that his conduct
would cause Holmes severe emotional distress, and rooted in an abuse of power or
authority. (Doc # 64, Pg. 24)
Under Michigan law, governmental employees are granted immunity from
liability for intentional torts where (1) an employee’s acts were taken during the
course of employment and the employee was acting, or reasonably believed he was
acting, within the scope of his authority; (2) the acts were taken in good faith and
without

malice;

(3)

the

acts

where

discretionary/decisional

and

not

ministerial/operational. Odom v. Wayne County, 482 Mich. 459, 468 (2009) (citing
Ross v. Consumers Power Co., 420 Mich. 567, 633-34 (1984)). Intentional Infliction
of Emotional Distress is an intentional tort under Michigan law, so the Odom test
should be applied.
Defendants argue that elements one and three of the Odom test are clearly met,
and the good faith element is met because Brooks honestly believed that his conduct
was appropriate and that he was acting in good faith in response to Holmes’
noncompliance, resistance, and placing her hand in her pocket contrary to his
instructions. (Doc # 60, Pg. 36) Holmes does not contest whether elements one and
three of the Odom test are met, but argues that the facts clearly demonstrate that

14 

Brooks’ actions in handcuffing Holmes were taken with malicious intent. (Doc #
64, Pg. 25).
“The good-faith element of the Ross test is subjective in nature. It protects a
defendant’s honest belief and good-faith conduct with the cloak of immunity while
exposing to liability a defendant who acts with malicious intent.” Odom v. Wayne
Cty., 482 Mich. 459, 481–82 (2008). “There is no immunity when the governmental
employee acts maliciously or with a wanton or reckless disregard of the rights of
another.” Id. at 474.
Defendants argue that Brooks’ actions were taken in good faith because, even
if he was mistaken, he believed that Holmes possessed a weapon when her hands
were near her pocket. Holmes contends that she was merely dropping her keys in
her pocket before being handcuffed. (Doc # 64, Pg. 5) Based on the video footage,
Defendants’ argument is unpersuasive. The video shows that Brooks told Holmes
to take her hand away from her pocket, began to grab and shove Holmes before she
could comply, and while holding Holmes by both of her wrists before performing a
takedown. As stated in the analysis above, Brooks’ conduct evidences that, despite
an awareness that Holmes did not have a weapon in her right hand, he completely
disregarded her alleged medical condition while throwing her down and handcuffing
her. Brooks cannot meet the good faith element of the Ross test. Government
immunity does not apply in this case.
15 

In addition, Defendants argue that Holmes Intentional Infliction of Emotional
Distress claim against Brooks must fail because she cannot establish a prima facie
case under Michigan law. (Doc # 60, Pg. 37) Holmes contends that Brooks’ acts or
omissions were a classic example of “extreme” and “outrageous” conduct that would
cause any person to suffer physical sickness or emotional distress. (Doc # 64, Pg.
25) Under Michigan law, a claim for intentional infliction of emotional distress
requires (1) extreme and outrageous conduct; (2) intent or recklessness; (3)
causation; and (4) severe emotional distress. Roberts v. Auto-Owners Ins. Co., 422
Mich. 594, 602, 374 N.W.2d 905, 908 (1985). Defendants argue, in part, that
Holmes has not provided any evidence that she suffered severe emotional distress.
Holmes contends that Brooks’ conduct would cause any human being to suffer
physical illness and emotional distress, but she has not provided any facts to support
that statement. “Conclusory allegations do not create a genuine issue of material
fact which precludes summary judgment.” Johari v. Big Easy Restaurants, Inc., 78
F. App’x 546, 548 (6th Cir. 2003). Based on the facts presented, Holmes has not
produced sufficient facts to establish a prima facie case for intentional infliction of
emotional distress. Defendants’ Motion for Summary Judgment regarding Holmes’
Intentional Infliction of Emotional Distress claim is GRANTED.

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III.

CONCLUSION
For reasons stated above,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary

Judgment (Doc # 60) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Holmes’ Monell claim against the City
of Romulus is DISMISSED.
IT IS FURTHER ORDERED that Holmes’ Intentional Infliction of
Emotional Distress claim against Brooks is DISMISSED.
IT IS FURTHER ORDERED that the City of Romulus is DISMISSED
from this action.
All other claims remain.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 20, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 20, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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