Fazica v. Jordan et al
Filing
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OPINION and ORDER GRANTING IN PART AND DENYING IN PART 16 MOTION for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Renee Fazica,
Plaintiff,
v.
Case No. 16-13563
Zachary Jordan et al.,
Sean F. Cox
United States District Court Judge
Defendants.
______________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This § 1983 case stems from alleged excessive force used against Plaintiff by several jail
officials during her arrival and booking at the Oakland County Jail. Defendants have moved for
judgment on the pleadings or summary judgment, arguing that Plaintiff has failed to show that
any individual defendant personally engaged in misconduct in violation of her rights.
For the reasons below, the Court shall grant Defendants’ Motion for Summary Judgment
in part and deny it in part. The Court shall deny the motion as to the four defendants (Jordan,
Tucker, Cordova, and Fletcher) who were members of the team that brought Plaintiff into the jail
because a genuine issue of material fact exists as to whether each defendant was present and
personally involved in any violation of Plaintiff’s rights. But the Court shall grant the motion as
to Defendant Nicotri because there is no evidence that he was present or personally involved in
any alleged violation of Plaintiff’s rights.
BACKGROUND
In October 2014, after drinking a pint of vodka, Plaintiff Renee Fazica got behind the
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wheel with her teenage son in the car. Pl. Dep., p. 21-22. Eventually she was pulled over by
Bloomfield Township police officers. Id. at 23; Def. Stmt. of Undisputed Facts, ¶ 1. The officers
arrested her and took her to the police station. Pl. Dep., p. 26.
Because Plaintiff was being loud at the station, the Bloomfield Township officers decided
to take her to the Oakland County Jail. Id. at 30-31. They contacted officials at the jail and
informed them that Plaintiff was intoxicated and had been acting disorderly. Def. Ex. C, H. For
this reason, a Cell Extraction Team was deployed to secure Plaintiff upon arrival and bring her
into the jail. Def. Ex. H. Members of the team are trained to deal with prisoners who are unruly,
combative, and non-compliant. Jordan Dep., p. 13. The extraction team consisted of five
Oakland County Sheriff’s deputies: Defendants Deputy Zachary Jordan, Mark Fletcher, Josh
Tucker, and Carlos Cordova as well as non-party Dwayne Rodriguez. Defendant Sergeant Paul
Nictori, who was working as an on-duty supervisor, was also notified of Plaintiff’s impending
arrival. Nictori Dep., p. 8; Def. Ex. C. He was not, however, a member of the extraction team.
Nictori Dep., p. 9.
When Plaintiff arrived at the jail, she observed four men waiting for her. Pl. Dep., p. 32.
Tucker, with assistance from Cordova and Rodriguez, removed Plaintiff from the patrol car,
bringing her to the ground with her arm stretched back. Id. at 32-33; Def. Ex. C. While Plaintiff
was on the ground, a spit hood was placed over her face. Pl. Dep., p. 33. The spit hood had a
plastic lower half designed to prevent the wearer from spitting and netting on the upper half to
allow the wearer to see and breathe. Cordova Dep., p. 11-12. It covered Plaintiff’s face from the
top of the bridge of her nose to the bottom of her chin. Pl. Dep., p. 33. Plaintiff testified that she
could only see a “tiny bit” out of the top of the mask. Id.
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Next, the team members picked Plaintiff up off the ground, stood her up, and walked her
to a different location in the jail. Id. at 40-41. They made Plaintiff walk in a bent-over position
facing the floor. Id. at 41-42. While Plaintiff was walking, an unidentified officer said, “follow
my voice or I’ll tase you.” Id. at 42. During the walk, one of the team members had his hands on
Plaintiff’s neck, pushing hard enough that she complained that he was hurting her and that she
could not breathe. Id. at 43-44. According to Plaintiff, every time she complained he gripped her
neck harder. Id. at 44. Plaintiff does not know exactly who had his hands on her neck. Id. at 43.
The team brought Plaintiff to a room within the jail and began to strip search her. Id. at
45. She was placed face down on the floor and had her pants physically ripped off. Id. at 45-46.
During the search, Plaintiff felt someone spread her buttocks apart. Id. at 46. She also felt
someone put his hands up the front of her bra while another team member touched her genitals.
Id. at 46-47. Plaintiff also testified that someone “slap punched” her while she was being stripsearched. Id. at 52. Although Plaintiff could not identify precisely who searched her, she
recalled seeing in the room all four men she had previously observed when she arrived at the jail.
Id. at 48.
After the search, the team walked Plaintiff, who was only wearing a bra, to a cell. Id. at
49. Someone threw a pair of scrubs in the corner of the cell and closed the door. Id. Plaintiff was
booked the next morning and released. Id. at 50. None of the extraction team members remember
this incident. See Cordova Dep., p. 9; Fletcher Dep., p. 10; Jordan Dep., p. 8; Tucker Dep., p. 7.
In 2015, Plaintiff sued Defendants along with Bloomfield Township, three of its police
officers, and Oakland County (Case No. 15-13858, Doc. # 1). This Court granted the Oakland
County Defendants’ Motion to Dismiss without prejudice (Case No. 15-13858, Doc. # 25). In
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doing so, the Court noted that Plaintiff had failed to sufficiently allege any claims against the
individual Defendants, as her complaint was entirely conclusory and lacked supporting factual
allegations. But the Court dismissed the case without prejudice, allowing Plaintiff the
opportunity to file an amended complaint.
Eight months later, in lieu of filing an amended complaint, Plaintiff filed this action
solely against Defendants Jordan, Fletcher, Tucker, Nicotri, and Cordova (Doc. # 1). She then
filed an amended complaint, which contains factual allegations that are far more specific than
those in the prior action (Doc. # 7). Her amended complaint raises three claims for relief: (1) a §
1983 excessive force claim, (2) a claim that Defendants’ conduct amounted to “gross negligence,
willful and wanton misconduct, assault, battery, and/or intentional infliction of emotional
distress on Plaintiff”, and (3) a § 1983 claim for deprivation of liberty without due process of
law.
Defendants have moved for judgment on the pleadings or, in the alternative, for summary
judgment (Doc. # 16) and Plaintiff has responded (Doc. # 22). This Court held a hearing on
Defendants’ motion on March 15, 2018.
STANDARD OF DECISION
Defendants’ motion is for judgment on the pleadings or, in the alternative, for summary
judgment. Because this latter motion is more inclusive, and because the parties’ submissions
contain matters outside the pleadings, the Court shall apply the summary judgment standard
when evaluating Defendants’ motion. See Fed. R. Civ. Pro. 12(d) (“If, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court,
the motion must be treated as one for summary judgment under Rule 56.”).
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Summary judgment will be granted when no genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact
exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The moving party bears the initial burden of establishing that there are no genuine
issues of material facts, which it may accomplish by demonstrating that the nonmoving party
lacks evidence to support an essential element of its case.” Miller v. Maddox, 866 F.3d 386, 389
(6th Cir. 2017) (quotations omitted). If the movant satisfies this burden, the non-moving party
must go beyond the pleadings and present “specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 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 Sch., 305 F.3d 520, 526 (6th Cir.
2002).
ANALYSIS
I. Video Footage
To begin, Plaintiff’s response to Defendants’ motion relies in part on the purported
existence of video footage of the incident. But because any video footage of the incident is not in
the record, the Court may not consider Plaintiff’s proffer as to its contents.1 Bormuth v. County
of Jackson, 870 F.3d 494, 524 (2017) (Sutton, J., concurring) (“Rule 56 expressly limits what we
may consider to ‘materials in the record[.]’”), citing Fed. R. Civ. P. 56(c)(3).
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Thus, the Court need not consider Plaintiff’s argument that any missing footage should
be held against Defendants. What’s more, this argument should have been raised in an
appropriate discovery motion, not in opposition to the motion for summary judgment. Goodman
v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 507 (D. Md. 2009).
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II. Individual Liability
Turning to the merits, Defendants’ motion is very limited in scope. It raises a single
issue: whether Plaintiff has sufficiently shown a genuine issue of material fact that any of the
named defendants personally violated her constitutional rights. See Lanman v. Hinson, 529 F.3d
673, 684 (6th Cir. 2008) (“[D]amages claims against government officials arising from alleged
violations of constitutional rights must allege, with particularity, facts that demonstrate what
each defendant did to violate the asserted constitutional right.”); Pollard v. City of Columbus,
Ohio, 780 F.3d 395, 402 (6th Cir. 2015) (observing that a defendant’s liability must be “assessed
based on his own individual conduct and not the conduct of others.”).
All three of Plaintiff’s claims center around the extraction team’s alleged use of
objectively unreasonable force. To hold an individual officer liable in these circumstances,
Plaintiff must show more than “mere presence at the scene.” Binay v. Bettendorf, 601 F.3d 640,
650 (6th Cir. 2010). Instead, she must show “that the officer (1) actively participated in the use
of excessive force, (2) supervised the officer who used excessive force, or (3) owed the victim a
duty of protection against the use of excessive force.” Id. (quotation marks omitted). Under the
third prong, “a police officer who fails to act to prevent the use of excessive force may be held
liable when (1) the officer observed or had reason to know that excessive force would be or was
being used, and (2) the officer had both the opportunity and the means to prevent the harm from
occurring.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).
Although Plaintiff is unable to identify the precise actions undertaken by any individual
defendant, this alone does not foreclose relief. The Sixth Circuit has been reticent to rule against
plaintiffs who “fail to allege specific conduct by each officer when the officers’ actions have
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made them impossible to identify.” Greer v. City of Highland Park, __ F.3d __, p. 3 (6th Cir.
2018); see also Binay, 601 F.3d at 651 (“[T]he fact that Defendants wore masks during the raid
made it exceedingly difficult for Plaintiffs to identify with precision which officers engaged in
which conduct.”). Here, the extraction team members impaired Plaintiff’s ability to identify them
when they outfitted her with a spit hood that impaired her vision and kept her face down
throughout the majority of the incident. See Pershell v. Cook, 430 F. App’x 410, 416 (6th Cir.
2011) (declining to grant qualified immunity when the plaintiff could not precisely identify the
officers who struck him while he was face down on the ground). Plaintiff’s inability to identify
the precise conduct of each defendant is also exacerbated by Defendants’ collective inability to
recall the incident. Although Defendants are correct that there is no indication that they acted in
bad faith, cf. Burley v. Gagacki, 729 F.3d 610, 622 (6th Cir. 2013) (“[H]ere the agents’ intent to
conceal contributed to plaintiffs’ impaired ability to identify them.”), the absence of an intent to
conceal is not dispositive. It is Defendants conduct that has prevented Plaintiff from delineating
their actions. To grant them summary judgment in these circumstances would still risk
immunizing them to Fourth Amendment claims as a reward for successfully keeping their
identities unknown. See Greer, __ F.3d at __, p. 3.
Indeed, on several occasions the Sixth Circuit has held that plaintiffs met their burden to
ascribe liability to an individual defendant even though they were unable to identify that
defendant’s specific conduct. In these cases, the Sixth Circuit has held that a genuine issue of
material fact exists when the plaintiff shows that the defendant was present and could have been
involved in the violation of the plaintiff’s constitutional rights. See Burley, 729 F.3d at 622
(holding a jury could reasonably find that the team members of an identified defendant were
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personally involved in the alleged use of excessive force or failed to intervene to prevent it);
Pershell, 430 F. App’x at 416 (affirming the denial of qualified immunity when the plaintiff
provided significant information about the location and conduct of the officers and the officers
provided accounts of the incident); Binay, 601 F.3d at 651 (holding there was a question of
material fact as to the personal involvement of a defendant officer who could not be identified by
plaintiffs but was present and could have been involved in the constitutional violation). These
cases are distinguishable from those in which the plaintiff is completely unable to identify the
officials involved or cannot show that the particular defendant was involved in the
unconstitutional conduct. See Crawford v. Geiger, 656 F. App’x 190, 200 (6th Cir. 2016)
(distinguishing Binay because the defendant was not present for most of the confrontation and
there was no indication that he had the ability to instruct a fellow officer about that officer’s use
of force against the plaintiff); Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002) (holding
that the district court properly dismissed excessive force claims against unidentified officers).
So, to create a genuine issue of material fact as to whether any of Defendants may be
held liable for the alleged constitutional violations, Plaintiff must show, for each individual
defendant, that the particular defendant was present and could have been involved in the
violation. See Greer, __ F.3d __, p. 3 (“[T]he parties here do not dispute that a raid of the
Greers’ home occurred, and the appealing officers have been identified as the parties who
executed the search warrant.”); Burley, 729 F.3d at 620 (“Because no evidence places the state
and local defendants inside plaintiffs’ home at the appropriate time to witness or respond to any
unconstitutional conduct that may have occurred, the district court properly granted their motion
for summary judgment.”). For possible involvement, Plaintiff must show that a reasonable jury
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could conclude that the particular defendant was personally involved in the violation, failed to
supervise those who were involved, or failed to intervene to prevent the violation. See Burley,
729 F.3d at 622; Cole v. City of Dearborn, 448 F. App’x 571, 577 (6th Cir. 2011). Having
established the appropriate framework, the Court turns to the Defendants here.
Defendants Jordan, Tucker, Cordova, and Fletcher. Here, Plaintiff alleges that the Cell
Extraction Team members violated her Fourth And Fourteenth Amendment rights when they
brought her into the jail and when they strip-searched her. The unrefuted evidence shows that
Jordan, Tucker, Cordova, and Fletcher were all members of that extraction team, each with a
specific assigned role. Def. Ex. C. Although Plaintiff is unable to identify each deputy’s conduct,
the incident report indicates that Tucker, with some assistance from Cordova and Rodriguez,
removed Plaintiff from the patrol car when she arrived. Tucker also “gained control” of her head
while Rodriguez and Cordova took control of her arms. And the incident report, together with
Plaintiff’s testimony, shows that all four extraction team defendants escorted Plaintiff into the
building, ushered her into a room, and strip-searched her. Thus, there is no reasonable dispute
that these four Defendants–Jordan, Tucker, Cordova, and Fletcher–were present during the entire
incident.
A jury could also infer that each of these defendants were either personally involved in
any constitutional violations stemming from the extraction team’s conduct or that they failed to
intervene to prevent them. Each Defendant was present and participated to some degree in
removing Plaintiff from the patrol car, forcibly ushering her into the jail, and strip-searching her.
On this record, a jury could reasonably infer that while the incident was ongoing, these
Defendants “(1) were personally involved in the alleged use of excessive force or (2) failed to
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intervene to prevent it.” See Burley, 729 F.3d at 622. This is sufficient to preclude summary
judgment. The record “will provide the jury with sufficient information to determine the liability
of each individual defendant for the alleged constitutional violation.” Pershell, 430 F. App’x at
416.
Defendant Nicotri. Along with the extraction team members, Plaintiff has also sued
Oakland County Sergeant Nicotri, who was working as an on-duty supervisor in the jail on the
date of the incident. But, as Plaintiff conceded at the hearing, the record is devoid of any
evidence that Nicotri was with the extraction team, that he had any supervisory authority over
the team, or that he had any opportunity to intervene in their actions. And Plaintiff has not
otherwise identified how Nicotri could have been involved in the alleged constitutional
violations. Thus, on this record, Nicotri cannot be held personally liable and he is entitled to
summary judgment. Burley, 729 F.3d at 620; Cole, 448 F. App’x at 577.
CONCLUSION
For the reasons above, IT IS ORDERED that Defendants’ Motion for Summary
Judgment is GRANTED IN PART AND DENIED IN PART. The Court shall GRANT the
motion as to Defendant Nicotri but shall DENY the motion as to Defendants Jordan, Tucker,
Cordova, and Fletcher. Accordingly, the claims against those four Defendants shall proceed to
trial.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 21, 2018
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Renee Fazica,
Plaintiff,
v.
Case No. 16-13563
Zachary Jordan et al.,
Sean F. Cox
United States District Court Judge
Defendants.
______________________________/
PROOF OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 21, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager
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