Michalski v. Sonstrom et al

Filing 46

ORDER Denying 32 Defendant Sonstrom's Motion for Summary Judgment and Granting In Part and Denying In Part 30 Defendants Cates and City of Taylor's Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL MICHALSKI,
Plaintiff,

Case No: 17-10307
Honorable Victoria A. Roberts

v.
TROOPER SONSTROM, et al.,
Defendants.
_____________________________/
ORDER: (1) GRANTING IN PART AND DENYING IN PART CATES
AND CITY OF TAYLOR’S MOTION FOR SUMMARY JUDGMENT [ECF No. 30];
(2) DENYING SONSTROM’S MOTION FOR SUMMARY JUDGMENT [ECF No. 32];
and (3) DISMISSING CITY OF TAYLOR FROM THE ACTION
I.

INTRODUCTION
Plaintiff Michael Michalski (“Michalski”) filed this case against Michigan State

Police Trooper Benjamin Sonstrom (“Sonstrom”), Taylor Police Detective Christopher
Cates (“Cates”), the City of Taylor (the “City”), and three unidentified John Doe officers.
The only remaining claims are Fourth Amendment excessive force claims against
Sonstrom, Cates and the John Doe officers, and a municipal liability claim against the City.
Before the Court are two fully briefed summary judgment motions, one by
Sonstrom and one by Cates and the City. Both officers argue they did not use
excessive force, and that they are entitled to qualified immunity.
The Court DENIES Sonstrom’s motion. Cates and the City’s motion is
GRANTED with respect to the City and DENIED as to Cates. The City is DISMISSED
from the case.
Moreover, the Court DISMISSES the John Doe officers; Michalski has not
identified those officers, and he appears to have abandoned his claims against them.

II.

ANALYSIS
The Court thoroughly reviewed the complaint, the briefs, the deposition

transcripts, Sonstrom’s patrol car video of the incident, and all other exhibits.
The Court finds it unnecessary to recite the facts exhaustively here. Similarly, the Court
need not recite the governing law and standards for qualified immunity and a Fourth
Amendment excessive force claim; the Court incorporates by reference the law and
standards set forth in Baker v. City of Hamilton, Ohio, 471 F.3d 601 (6th Cir. 2006).
The parties dispute many of the underlying facts relevant to Michalski’s claims.
However, in deciding these motions, “the court must view the evidence and draw all
reasonable inferences in favor of the non-moving party.” See Baker, 471 F.3d at 605
(citation omitted).
A.

Genuine Issues of Material Fact Preclude Summary Judgment on
Michalski’s Excessive Force Claims Against Cates and Sonstrom

With respect to Sonstrom and Cates, genuine issues of material fact preclude
summary judgment; specifically, questions of fact exist concerning the amount and type
of force Sonstrom and Cates used and whether Michalski had surrendered, was
surrendering, or was resisting arrest.
Viewing the record and patrol car video in the light most favorable to the nonmoving party – as required – the facts show that: (1) Michalski had surrendered or was
surrendering at the time Sonstrom and Cates forcibly removed him from the car and
violently threw him to the ground; (2) Michalski did not resist arrest, yet the officers
struck him numerous times in the head, neck, back and legs, while continuing to
push/force him to the ground; and (3) Sonstrom tasered Michalski two times, and then
one of the officers handcuffed him.

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Because a jury could find that Michalski had surrendered or was surrendering
before the officers removed him from his car and violently threw him to the ground, a
reasonable jury could conclude that the officers’ decision to throw Michalski to the
ground, their decision to strike him on his head and body, and Sonstrom’s decision to
taser him twice were unreasonable, and constituted excessive force in violation of
Michalski’s Fourth Amendment rights. See Baker, 471 F.3d at 607-09.
Moreover, the right of a surrendered person to be free from such force was
clearly established by Sixth Circuit case law before this incident occurred. See id. at
608-09.
The following excerpt from Baker illustrates that the genuine issues of material
fact that exist preclude the entry of summary judgment:
1. Troy Baker
Viewing the record in the light most favorable to Troy Baker, we hold that
he has set forth facts sufficient to establish a genuine issue of material fact
as to whether Officer Taylor used excessive force in arresting him on
December 15, 2002. Baker alleges that when Officer Taylor followed him
to the bushes, he came out from behind the bushes with his hands straight
up in the “surrender” position. At this point, according to Baker, Officer
Taylor struck Baker in the head with his asp [(i.e., baton)], knocking Baker
to the ground. Officer Taylor then struck Baker in the knee, yelling “[t]hat's
for running from me.”
Because Baker had surrendered before being struck, a reasonable jury
could conclude that Officer Taylor's strike to Baker's head was unjustified
and excessive. By raising his hands in the surrender position, Baker
arguably showed that he was unarmed, was compliant, and was not a
significant threat to Officer Taylor's safety. A reasonable factfinder could
therefore find that Officer Taylor's strike to Baker's head was unwarranted
and unreasonably severe. Moreover, a jury could find that Officer Taylor
acted unreasonably in striking Baker's knee after Baker had fallen to the
ground. We have held repeatedly that the use of force after a suspect has
been incapacitated or neutralized is excessive as a matter of law. See,
e.g., Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 687 (6th Cir.
2006); Champion, 380 F.3d at 902 (citing cases); see also Phelps v. Coy,
286 F.3d 295, 301 (6th Cir. 2002) (“[T]here was simply no governmental
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interest in continuing to beat [plaintiff] after he had been neutralized, nor
could a reasonable officer have thought there was.”). At the time he was
struck in the knee, Baker had surrendered and had been neutralized by
Officer Taylor; the strike to Baker's knee was unjustified and gratuitous.
Furthermore, Officer's Taylor alleged statement after striking Baker's knee
– “[t]hat's for running from me” – shows that the purpose of this hit was not
to subdue Baker, but rather to punish him. See Pigram v. Chaudoin, No.
06-0378, 2006 WL 2860773, at *3, 2006 U.S.App. LEXIS 25073, at * 10
(6th Cir. Oct. 5, 2006) (unpublished) (noting that officer's slap to plaintiff
“cannot reasonably be construed as a means of subduing Pigram” where
the officer's stated justification for the slap was because the plaintiff had a
“smart-ass mouth”).
That Baker was not handcuffed at the time he was struck does not
preclude a finding of unreasonableness. See Tapp v. Banks, 1 Fed. Appx.
344, 350 (6th Cir. 2001) (unpublished) (“[I]t is not objectively reasonable
for an officer dealing with an essentially compliant person, to strike the
person's legs twelve to fifteen times in the absence of resistance.”).
Moreover, that Baker received one strike to the head and one to the knee
from Officer Taylor's asp – in comparison to the numerous punches and
head slams at issue in Phelps or the repeated strikes to the leg in Tapp –
does not necessarily render Officer Taylor's behavior reasonable. See
Pigram, 2005 WL 2600216, at *3, 2006 U.S.App. LEXIS 25073, at *9
(holding that a single slap, administered after the plaintiff had been
subdued, under specific circumstances, may constitute a Fourth
Amendment violation). Finally, that Baker had attempted to evade arrest
does not *608 preclude his claim of excessive force against Officer Taylor
or render Officer Taylor's use of his asp reasonable. See Shreve, 453 F.3d
at 687 (holding that strikes to plaintiff's back and knee are unreasonable
where plaintiff was already incapacitated, despite plaintiff's prior attempt to
avoid detection by police). A jury could therefore find that Officer Taylor
acted unreasonably in striking Baker's head and knee and used excessive
force in violation of Baker's Fourth Amendment rights during the arrest on
December 15, 2002.
The next inquiry is whether Baker's right to be free from such strikes was
“clearly established” at the time of the incident. We conclude it was. We
have noted recently that “[c]ases in this circuit clearly establish the right of
people who pose no safety risk to the police to be free from gratuitous
violence during arrest.” Shreve, 453 F.3d at 688 (citing cases). Although
Shreve post-dated Baker's arrest by four years, there was ample case law
in this circuit to give notice to Officer Taylor that Baker had a constitutional
right to be free from gratuitous strikes to the head and knee. For example,
Phelps – which held that a police officer has no governmental interest in
repeatedly striking a criminal defendant after the defendant has been
neutralized – was released on April 10, 2002, eight months before Baker's
arrest. Phelps, 286 F.3d at 301-02. In Adams v. Metiva, 31 F.3d 375 (6th
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Cir. 1994), we likewise held that the use of force on a suspect after he had
been incapacitated by mace is excessive force as a matter of law. Id. at
386; see also McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)
(“[O]ur court has repeatedly found that a totally gratuitous blow with a
policeman's nightstick may cross the constitutional line....”). Because there
was significant Sixth Circuit case law support for Baker's right to be free
from gratuitous strikes to his body, qualified immunity is not an available
defense for Officer Taylor.
2. Jesse Snader
Viewing the facts in a light most favorable to the non-moving party, Jesse
Snader was surrendering at the time that Officer Taylor struck him with his
baton. In light of this action, he has alleged facts sufficient to establish a
genuine issue of material fact as to whether Officer Taylor used excessive
force in arresting him on October 23, 2003. Snader claims that Officer
Taylor struck him on the back of his head while chasing Snader, after
Snader had announced that he was slowing down. After striking Snader,
Officer Taylor allegedly tackled him and sat on Snader's back with a choke
hold, while other officers caught up and subsequently struck Taylor in his
legs.
Defendants argue that Snader had not surrendered at the time that he
was struck by Officer Taylor because, although he announced that he was
stopping, he had yet to come to a complete stop. We disagree. We find it
particularly important that in this case, Snader allegedly yelled “I'm
stopping!” in response to Officer Taylor's instruction that he would shoot
Snader if he did not stop. Snader's alleged response shows that he was
compliant with Officer Taylor's order and in the act of surrendering when
struck by Officer Taylor. A jury could therefore find that Officer Taylor's
use of his asp was unjustified and gratuitous.
We also find it significant that Officer Taylor struck Snader on the head.
We have noted repeatedly that a blow to an individual's head may
constitute excessive force, see, e.g., Bultema v. Benzie County, 146 Fed.
Appx. 28, 36 (6th Cir. 2005) (unpublished); Phelps, 286 F.3d at 302; Davis
v. Bergeon, No. 98-3812, 1999 WL 591448, at *4, 1999 U.S.App. LEXIS
17984, at *12-13 (6th Cir. July 27, 1999) (unpublished), and in the
circumstances alleged by Snader, Officer Taylor's strike to such a
sensitive and vitally important part of Snader's body was objectively
unreasonable. Even if we were to agree with defendants that Officer
Taylor's use of his asp was necessary to subdue Snader – and we do not
– Officer Taylor could have struck Snader in another, less sensitive part of
Snader's body.
Because a jury could find that Snader was surrendering at the time he was
struck in the head, we likewise conclude that Officer Taylor's use of his
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asp was gratuitous. As we discussed above, Snader's right to be free from
a gratuitous strike to the head was clearly established at the time of this
incident. See, e.g., Phelps, 286 F.3d at 301-02; McDowell, 863 F.2d at
1307. Officer Taylor, therefore, may not avail himself of qualified immunity
for the Snader incident.
Baker, 471 F.3d at 607–09 (footnotes omitted).
Michalski’s excessive force claims survive summary judgment except for under
the “duty to protect”/“failure to intervene” theory. Because the use of force lasted no
more than approximately thirty seconds, Michalski cannot show that Cates – or
Sonstrom – had an opportunity to intervene. See Burgess v. Fischer, 735 F.3d 462,
475-76 (6th Cir. 2013) (collecting cases).
B.

Michalski’s Municipal Liability Claim Against the City of Taylor Fails
as a Matter of Law

Michalski’s claim against the City is based on “three previous ‘incidents’ in which
[Cates] was sued for violating a citizen’s constitutional rights.” Michalski says the City
ratified Cates’s behavior because it never disciplined him for those prior alleged
incidents.
Cates was dismissed from each of the three lawsuits. Because each of the suits
resolved in Cates’s favor, the City’s failure to discipline Cates – as well as any allegation
that it failed to supervise or train Cates – is of no consequence.
Michalski falls far short of demonstrating a viable municipal liability claim against
the City. His claims against the City fail as a matter of law.
III.

CONCLUSION
The Court: (1) DENIES Sonstrom’s motion for summary judgment; (2) GRANTS

Cates and the City’s motion with respect to the City and DENIES it with respect to Cates
(except for on the duty to protect theory); and (3) DISMISSES the City from the case.
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IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 5, 2018

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