Jones v. Detroit et al
Filing
55
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOC. 34) AND DISMISSING CERTAIN DEFENDANTS. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
S. BAXTER JONES,
Plaintiff,
Case No. 17-11744
v.
CITY OF DETROIT ET AL.,
Defendants.
___________________________________/
HON. AVERN COHN
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (DOC. 34) AND DISMISSING CERTAIN DEFENDANTS
Table of Contents
I. INTRODUCTION…………………………………………………………………………………2
II. BACKGROUND…………………………………………………………………….…………...3
A. THE ARREST………………………………………………………………………….4
B. THE ARRESTING OFFICERS…………………………………………………………..5
C. THE POST-ARREST TRANSPORTATION………………………………………………6
D. THE CITY OF DETROIT’S ADA PROCEDURES………………………………………..7
III. LEGAL STANDARD………………………………………………………………………….…7
IV. THE ADA…………………………………………………………………………….……….8
A. THE SCOPE OF THE ADA…………………………………………………………….8
B. THE ADA’S REMEDIAL SCHEME……………………………………………………..10
C. MUNICIPAL LIABILITY UNDER THE ADA……………………………….……………..12
D. INDIVIDUAL LIABILITY UNDER §1983 FOR ADA VIOLATIONS…………………………14
V. QUALIFIED IMMUNITY …………...……………………………………………………………16
VI. MICHIGAN’S PERSONS WITH DISABILITIES CIVIL RIGHTS ACT………………………………17
VII. FOURTH AMENDMENT – EXCESSIVE FORCE……………………………………………….18
VIII. CONCLUSION……………………………………………………………………………….20
I.
INTRODUCTION
This case involves the Americans with Disabilities Act (ADA),1 the Rehabilitation
Act,2 and 42 U.S.C. § 1983. Plaintiff, Baxter Jones (“Jones”), is a wheelchair-bound
individual qualified for protections provided by the ADA and the Rehabilitation Act.
Jones is suing the City of Detroit (“the City”) and certain police officers3 for disability
discrimination and for the use of excessive force during his arrest. Jones says that his
rights were violated while being transported to a detention center in an ill-equipped
police van following a lawful arrest. Jones also says that the City is non-complaint with
the ADA because it lacks adequate procedures related to ADA grievances. The
amended complaint contains the following counts (Doc. 32):
Count 1: ADA claims against the City based on the actions of its officers
Count 2: ADA claims against individual police officers
Count 3: Rehabilitation Act claims against the City
Count 4: Rehabilitation Act claims against individual officers
Count 5: Fourth Amendment Excessive Force claims against individual officers
Count 6: Michigan’s Persons with Disabilities Civil Rights Act claims against the City
Count 7: ADA claims against the City based on its ADA procedures
In previous proceedings, the Court bifurcated Jones’ claims for injunctive relief
from his claims for damages because the parties say that the claims for injunctive relief
are in the process of being resolved. (Doc. 51). Specifically, the parties are currently
working together to resolve the issues relating to the police department’s ADA
procedures. (Doc. 53). Therefore, the Court will not address Count 7 at this time.
1
42 U.S.C. § 12132, et seq.
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq.
3
The Detroit Police Department officers named in the complaint are Sergeant Reuben
Fluker, Officer Robin Cleaver, Sergeant Edward Hudson, Commander Elvin Barren,
Officer Gregory Robson, Capitan Kyra Hope, and John Doe.
2
2
The way in which Jones alleges his claims and theories of liability present issues
of law that have not been squarely addressed by the Sixth Circuit and are the subject of
reasonable dispute.4 For instance, Jones’ claims require the Court to interpret the
language of Title II of the ADA, which in relevant part states “no qualified individual with
a disability shall, by reason of such disability, be excluded from the participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The Court must
decide whether this statute (1) extends to police activities, and (2) permits an action
against a municipality based on respondeat superior liability. Further, the Court must
decide whether Jones’ 42 U.S.C. § 1983 claim provides a remedy against individual
officers for causing a deprivation of the federal rights provided by the ADA and the
Rehabilitation Act.
Now before the Court is Defendants’ motion for summary judgment. (Doc. 34).
For the following reasons the motion is GRANTED in part, and DENIED in part.
II.
BACKGROUND
Pursuant to the Court’s motion practice guidelines, a motion for summary
judgment is to be accompanied by a separate document that details the relevant facts,
which are to be organized into numbered paragraphs. (Doc. 19, p. 4–11). Here, the
parties’ enumerated statement of facts are oversimplified and do not contain all the
relevant facts that the parties discuss in their briefs. This makes it difficult for the Court
to be certain that its recitation of the factual record accurately reflects the material facts
4
Not all the issues discussed by the Court have been raised by the parties, however,
the Court finds that it must decide these legal issues before it can address the
substance of Jones’ claims.
3
not in dispute. The Court’s motion practice places an onus on the parties to consolidate
all the relevant facts into one document. This helps reveal factual disputes. Because
the parties failed to consolidate a full factual record, the Court sourced its understanding
of the record from several documents filed by the parties. The facts, as best can be
gleaned from the record, are as follows.
A. The Arrest
A protest took place at the Homrich Contractor Facility on W. Grand Boulevard in
Detroit, Michigan on July 18, 2014 regarding residential water shutoffs for nonpayment
of water bills. (Doc. 48). Jones was a protester and participated in the obstruction of the
entranceway of the Homrich Contractor Facility. (Doc. 48). Police officers were called to
the scene and the protesters were ordered to move from the entranceway. (Doc. 48).
When Jones refused to obey, he was arrested. (Doc. 48). Jones does not claim that his
arrest was unlawful or improper. (Docs. 32, 48).
Jones was arrested with eight other individuals for disorderly conduct. (Docs. 40,
48). The eight other arrestees were transported to the detention center on a bus.
(Docs. 34, 40). However, Jones could not be transported on the bus due to his
wheelchair. (Docs. 34, 40). So, the police officers decided to transport Jones in a van.
(Docs. 40, 48). Jones says that after he was loaded into the van he informed the police
officers that his neck was in pain—which was caused by him having to duck his head
due to the height of his wheelchair and the low ceiling in the van. (Doc. 40). The parties
submitted a video and photo evidence of Jones being loaded into the van. (Docs. 34-8,
40-8, 40-17, 40-18).
4
B. The Arresting Officers
The police officers named in the complaint are: (1) Sergeant Reuben Fluker, (2)
Officer Robin Cleaver, (3) Sergeant Edward Hudson, (4) Commander Elvin Barren, (5)
Officer Gregory Robson, (6) Capitan Kyra Hope, and (7) John Doe.
1. Sergeant Reuben Fluker
Jones says that Fluker is individually liable for failing to accommodate him during
his post-arrest transportation. Jones says Fluker is liable because: (1) he did not ask
Jones whether he had any specific transportation needs, (2) he was one of the police
officers who lifted Jones’ wheelchair into the van, and (3) he reached his hand between
Jones’ head and the doorframe to pushed Jones’ head down so he could fit him into the
van (“when, in fact, he did not fit”). (Docs. 32, 41).
2. Officer Robin Cleaver
Jones says that Cleaver is individually liable for failing to accommodate him
during his post-arrest transportation. Jones says Cleaver was one of the police officers
who participated in loading Jones into the van. Cleaver pulled the wheelchair from
inside the back of the van as other police officers lifted Jones’ wheelchair. (Docs. 32,
41).
3. Sergeant Edward Hudson
Jones says that Hudson is individually liable for failing to accommodate him
during his post-arrest transportation. Hudson was one of the police officers who
participated in loading Jones into the van. (Docs. 32, 41).
4. Commander Elvin Barren
Jones says that Barren is individually liable for failing to accommodate him during
his post-arrest transportation. Jones says that Barren (1) made the decision to
transport Jones in the van, (2) did not consider other transport options, as was
5
authorized by police policy, (3) participated in Jones’ arrest, (4) did not ask Jones
whether he had any specific transportation needs, and (5) instructed other police
officers to lift Jones into the van. (Docs. 32, 41).
5. Officer Gregory Robson
Jones and the City have agreed that Robson should be dismissed from the case.
6. Capitan Kyra Hope
Jones and the City have agreed that Hope should be dismissed from the case.
7. John Doe
Jones and the City have agreed that “John Doe” should be dismissed from the
case.
This leaves only Fluker, Cleaver, Hudson, and Barren as individual defendants.
C. The Post-Arrest Transportation
Jones says that during transportation to the detention center he was not secured
by a seatbelt, but instead was secured by “a DPD intern, [who] sat in the back of the
van and placed a foot against a wheel of [Jones’] chair.” (Doc. 40, p. 16). Jones says
that while driving to the detention center his head struck the low ceiling in the van
several times. (Doc. 40). Jones says that he notified the police officer driving the van
that he was in pain. Id.5
After arriving at the detention center, Jones was released and was not
prosecuted. (Docs. 40, 48). Jones says that he suffered medical damages resulting
from the police officers’ failure to accommodate him during transportation. (Docs. 32,
40, 48). Specifically, Jones attributes medical injuries to the aggravation of his pre-
5
The officer driving the van was not identified during discovery. Jones makes no claims
against this police officer.
6
existing neck injury, and says that his “slouched posture [in the van] impacted him more
severely than it might have impacted another person . . . .” (Doc. 40, p. 15, n.8)6.
D. The City of Detroit’s ADA Procedures
At the time of Jones’ arrest, the police department had the following procedures
in place:
Any wheelchairs, crutches, and medication, shall be transported with, but
not placed in the possession of the detainee. . . . In the event a cast, brace
or prosthetic device must be removed for safety concerns (e.g. hook or
possible weapon) EMS shall be used for the transport.
In instances when a person has a disability that prevents transport in a
marked patrol vehicle, a supervisor shall be requested for assistance to
determine the most appropriate method of transportation. Alternate
methods of transportation may include, but are not limited to, the use of an
unmarked scout car, van, or EMS transport.
(Doc. 40-14).
After the incident, Jones “sought to file a complaint pursuant to 28 C.F.R. §
35.107.” (Doc. 40, p. 17). However, Jones says that no ADA grievance procedures
were in place from July 2014 through October 2014. (Doc. 32). He also says that “he
filed a motion in the City of Detroit bankruptcy proceeding . . . seeking leave to object to
the Plan of Adjustment because the Plan did not provide for accessibility in public
safety.” Id. Jones ultimately filed a complaint with the City’s Human Rights Department,
which the City says provides its ADA grievance procedure. (Docs. 34, 40, 48).
III.
LEGAL STANDARD
The summary judgment standard under Fed. R. Civ. P. 56 is well known and
does not require a belabored discussion here. Ultimately, a district court will grant a
6
See also (Doc. 34-5, p. 9):
Q: Did you have spinal cord damage as a result of the [prior] auto accident?
A: Yes.
7
summary judgment motion if there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law; while drawing “all justifiable inferences in the
light most favorable to the non-moving party,” Hager v. Pike Cnty. Bd. of Ed., 286 F.3d
366, 370 (6th Cir. 2002).
IV.
THE ADA
Title II of the ADA and Section 504 of the Rehabilitation Act are similar in
purpose and scope. McPherson v. Michigan High School Atheletic Ass’n, Inc., 119 F.3d
453, 459 (6th Cir. 1997). Typically, these claims are analyzed together “because the
standards under both acts are largely the same [and] cases construing one statute are
instructive in construing the other.” Id. at 460 (quoting Andrews v. State of Ohio, 104
F.3d 803, 807 (6th Cir. 1997)). “[T]he principal distinction between the two statutes is
that the coverage under the Rehabilitation Act is limited to entities receiving federal
financial assistance.” Id. “There may be other differences in the application of the two
statutes,” however, those differences are not implicated here. Id. Thus, for simplicity’s
sake, the analysis that follows will focus on the ADA and omit repetitious references to
the Rehabilitation Act.
A. The Scope of the ADA
In relevant part, Title II of the ADA states that “no qualified individual with a
disability shall, by reason of such disability, be excluded from the participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Jones says that this
language imposes a duty to accommodate disabled individuals during post-arrest police
transportations. However, the Sixth Circuit has never held that the ADA applies in the
8
context of police arrests,7 and there is conflicting precedent on the issue. Compare
Patrice v. Murphy, 43 F.Supp.2d 1156, 1160 (W.D. Wash. 1999) (stating “an arrest is
not the type of service, program or activity from which a disabled person could be
excluded or denied [] benefits”); Rosen v. Montgomery County Maryland, 121 F.3d 154,
157–158 (4th Cir. 1997) (stating “[t]he most obvious problem is fitting an arrest into the
ADA at all . . . calling a[n] [] arrest a ‘program or activity’ of the County . . . strikes us as
a stretch of the statutory language and the underlying legislative intent”) with Gorman v.
Bartch, 152 F.3d 907 (8th Cir. 1998) (holding the ADA extends to post-arrest
transportations); Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000) (holding that
police officers are “under a duty to reasonably accommodate [plaintiff’s] disability in
handling and transporting him”).
The Court finds Gorman v. Bartch persuasive precedent because the Eighth
Circuit was faced with a similar case in which a wheel-chair bound individual claimed to
be injured during his post-arrest transportation because the police officers failed to
provide him with an accommodation. In Gorman, the wheelchair-bound plaintiff was
arrested for trespassing. Id., at 909. After his arrest, the police transported him in “a
patrol wagon that was not equipped with a wheelchair lift or wheelchair restraints.” Id.
The plaintiff objected to the use of the van, stating that it was “not properly equipped for
him to ride in.” Id. During the drive to the police station, the plaintiff sustained injuries
because he was not properly secured within the van. Id. at 909–910. After analyzing
the ADA’s statutory language and legislative history, the Eighth Circuit concluded that
7
See Roell v. Hamilton County, OH, 870 F.3d 471, 489 (2017) (“[w]e need not decide
whether Title II applies in the context of arrests”).
9
the ADA covers post-arrest transportations. Id. at 911–914. The court reasoned that the
ADA “must be interpreted broadly to include the ordinary operations of a public entity in
order to carry out the purpose of prohibiting discrimination.” Id. at 913. “The ‘benefit’
[plaintiff] sought in this case was to be handled and transported in a safe and
appropriate manner consistent with his disability.” Id. Because the facts of this case
closely resemble the facts in Gorman, and the Eighth Circuit’s reasoning is persuasive,
the Court finds that the ADA imposes a duty to accommodate disabled individuals
during their post-arrest transportation.8 This holding, however, does carry the day for
Jones. Issues remain regarding the manner in which the ADA imposes this “duty to
accommodate” on municipalities and individual officers.
B. The ADA’s Remedial Scheme
Before discussing whether Jones can recover under his theory of respondeat
superior liability against the City, or whether he can sue the individual police officers
under §1983 for ADA violations, it is important to understand the interrelationships
between the ADA, the Rehabilitation Act, Title VI of the Civil Rights Act of 1964 (“Title
VI”),9 and Title IX of the Education Amendments of 1972 (“Title IX”).10 It is necessary
to first established the relevancy of Title IX precedent to an ADA analysis because the
Court later utilizes Title IX precedent to resolve the questions of law necessarily raised
by Jones’ claims.
8
This holding is narrow and should not be construed as deciding that the ADA extends
to arrests generally. That issue is not before the Court. The Court only finds that postarrest transportation is properly within the scope of the ADA.
9
42 U.S.C. § 2000d.
10
20 U.S.C. § 1681(a).
10
In relevant part, Title II of the ADA provides that “[t]he remedies, procedures, and
rights set forth in [the Rehabilitation Act] shall be the remedies, procedures, and rights
this subchapter provides to any person alleging discrimination on the basis of disability
in violation of section 12132 of this title.” Id. at § 12133. Thus, the ADA expressly
adopts the remedies available under the Rehabilitation Act. In turn, the Rehabilitation
Act incorporates “[t]he remedies, procedures, and rights set forth in Title VI of the Civil
Rights Act of 1964.” 29 U.S.C. § 794a(2).
However, Title VI “mentions no remedies—indeed, it fails to mention even a
private right of action.” Barnes v. Gorman, 536 U.S. 181, 187 (2002). Instead, Title VI
has implied a private cause of action and remedies. See, e.g., Gebser, 524 U.S. at 284.
Thus, a district court must look at Title VI precedent to determine the available remedies
(and by extension, the remedies available under the Rehabilitation Act and the ADA).
The relevance of Title IX is that “[t]he statute was modeled after Title VI.” Id. at
286. Consequently, “[t]he two statutes operate in the same manner . . . .” Id. When
interpreting Title IX, the Supreme Court has frequently looked at Title VI to guide its
interpretation, and vice versa. See, e.g., Id. at 280–290; Barnes v. Gorman, 536 U.S. at
185–187. It follows, then, that remedies available under Title IX are the same as Title
VI, which are incorporated by the Rehabilitation Act and the ADA.
Thus, when analyzing the ADA’s remedial scheme, the law operates like a
matryoshka doll.11 To determine whether a particular remedy is available under the
ADA, the Court looks at its remedial scheme, which looks to the Rehabilitation Act,
11
A matryoshka doll is a Russian nesting doll that separates to reveal a smaller figure of
the same sort inside, which has, in turn, another figure inside it, and so on.
11
which looks to Title VI, which looks like Title IX. Consequently, precedent interpreting
the remedies available under Title VI or Title IX must be considered when analyzing
the ADA’s remedial scheme. Supreme Court decisions interpreting the remedies
available under Title IX have a domino effect that reverberate through Title VI, the
Rehabilitation Act, and finally the ADA.12
Fig.1 – Civil Rights Legislation:
C. Municipal Liability under the ADA
The Supreme Court has not decided the issue of whether Title II of the ADA
authorizes a claim against a municipality based on respondeat superior liability. In City
& County of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765 (2015), the Supreme
Court expressly recognized this issue remains an open question, stating:
Our decision not to decide whether the ADA applies to arrests is
reinforced by the parties’ failure to address a related question: whether a
public entity can be held liable for damages under Title II for an arrest
made by its police officers. Only public entities are subject to Title II, and
the parties agree that such an entity can be held vicariously liable for
money damages for the purposeful or deliberately indifferent conduct of its
employees. But we have never decided whether that is correct, and we
12
The decision to apply Title IX case law to the ADA is not unprecedented. See, e.g.,
Stahura-Uhl v. Iroquois Cent. School Dist., 836 F.Supp.2d 132, 145 (W.D.N.Y. 2011);
Liese Indian River Cty. Hosp. Dist., 701 F.3d 334, 348–49 (11th Cir. 2012).
12
decline to do so here, in the absence of adversarial briefing.
Id. at 1773–74 (internal citations omitted).
Further, the issue of respondeat superior liability has not been addressed by the
Sixth Circuit and there exists conflicting authority amongst other circuits. Compare
Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2011) (stating that under Title
II a “public entity is liable for the vicariously acts of its employees”) with Liese Indian
River Cty. Hosp. Dist., 701 F.3d 334, 348–49 (11th Cir. 2012) (stating there is no
respondeat superior liability under the Rehabilitation Act in light of the Gebster
decision); see also Gray v. Cummings, 917 F.3d 1, 17 (2019) (“whether a public entity
can be vicariously liable for money damages under Title II of the ADA” remains “an
open question”); Rosen v. Montgomery Cunty Maryland, 121 F.3d 154, 156 n.2 (4th Cir.
1997). This uncertainty amongst circuits has been caused by the Supreme Court’s
decision in Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998).
In Gebser, the Supreme Court held that Title IX does not permit recovery on a
theory of respondeat superior liability. Id. at 288. The Supreme Court stated, “Title IX
contains important clues that Congress did not intend to allow recovery in damages
where liability rests solely on principles of vicarious liability.” Id. There is nothing in
Gebster that calls into question its applicability to Title VI. On the contrary, the
Supreme Court’s back-and-forth contrast between Title IX and Title VI compels a
finding that Title VI would similarly bar liability based on respondeat superior liability.
Thus, the Supreme Court’s decision to prohibit respondeat superior liability
under Title IX extends to Title VI, which in turn extends to the Rehabilitation Act and
13
the ADA because those statutes incorporate the remedies of Title VI by reference.13
Accordingly, a claim brought under Title II of the ADA for respondeat superior liability
must fail for the same reasons it must fail under Title IX.14
Here, Jones does not take issue with a municipal policy, practice, or custom.
Instead, Jones seeks to hold the City liable under the ADA for its police officer’s failure
to reasonably accommodate him during his post-arrest transport. (Doc. 32, p.11)
(“[p]laintiff was excluded from participation in or was denied the benefits of the services,
programs, or activities of a public entity, specifically by [the] City of Detroit’s Police
Department through its employees and officers . . . for whom [the] City is vicariously
liable”). Because the ADA does not permit suit against a municipality based on
respondeat superior liability, Count 1 of the complaint fails to survive summary
judgment; and Jones’ claims under the Rehabilitation Act (Count 3) must fail for the
same reasons.
D. Individual Liability under 42 U.S.C. § 1983 for ADA Violations
Jones has sued the police officers in their individual capacity, under §1983,
claiming that they violated his federal ADA rights.
13
This holding is consistent with the Eleventh Circuit’s decision in Liese, 701 F.3d at
348–49.
14
This conclusion necessitates the dismissal of Jones’ claims against the City for the
activities surrounding his arrests. Therefore, it unnecessary to address the City’s
argument that Jones was not entitled to an ADA accommodation because he failed to
“request” an accommodation. The ADA’s “request” requirement is found in Title I, and it
is uncertain whether this “request” requirement applies to Title II. See, e.g., David A.
Maas, Expecting the Unreasonable: Why a Specific Request Requirement For ADA
Title II Discrimination Claims Fails to Protect Those Who Cannot Request Reasonable
Accommodations, 5 HARV. L. & POL’Y REV. 217, 220–223 (2011).
14
Claims brought pursuant to 42 U.S.C. § 1983 rely upon substantive rights that
are not provided for within the statute itself. In relevant part, §1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
Thus, §1983 is not “a source of substantive rights, but rather, a method for vindicating
federal rights conferred elsewhere in [] federal statutes.” Stahura-Uhl v. Iroquois Cent.
School Dist., 836 F.Supp.2d 132, 145 (W.D.N.Y. 2011) (citing Graham v. Connor, 490
U.S. 386, 393–94 (1989)). However, “§1983 does not provide an avenue for relief every
time a state actor violates a federal law.” City of Rancho Palos Verdes, Calif. v. Abrams,
544 U.S. 113, 119 (2005). A plaintiff seeking redress under §1983 “must demonstrate
that the federal statute creates an individually enforceable right in the class of
beneficiaries to which he belongs.” Id. at 120. “The critical question [] is whether
Congress meant the judicial remedy expressly authorized by [the statute] to coexist with
an alternative remedy available in a §1983 action.” Id.
“The provision of an express, private means of redress in the statute itself is
ordinarily an indication that Congress did not intend to leave open a more expansive
remedy under § 1983.” Id. at 121. “The express provision of one method of enforcing a
substantive rule suggests that Congress intended to preclude others.” Id. Therefore, to
determine whether Congress intended that the remedies in §1983 coexist with the
remedies in the ADA, the ADA’s enforcement provisions must be analyzed.
As detailed above, Title IX precedent must be considered when deciding the
remedies available under the ADA. Specifically, Fitzgerald v. Barnstable School
15
Committee, 555 U.S. 246 (2009), is controlling. In Fitzgerald, the Supreme Court held
that Title IX’s remedial scheme compelled the conclusion that litigants could also seek
redress under the remedies available pursuant to §1983. Thus, Title IX’s remedial
scheme was not sufficiently comprehensive to preclude the use of §1983. Because
Title IX’s remedial scheme mirrors the remedial scheme of Title VI, which provides the
remedies under the ADA, it follows that the ADA’s remedial scheme is likewise not
sufficiently comprehensive to preclude the use of §1983.
The Court is not alone in finding that §1983 provides a remedy against individual
officers for ADA violations. In Stahura-Uhl v. Iroquois Cent. School Dist., 836 F.Supp.2d
132 (W.D.N.Y. 2011), the court recognized the significance of the Fitzgerald decision
and held that “because the remedial scheme under Title IX and Title VI are nearly
identical and because the Supreme Court has instructed that a Title IX claim can be
vindicated under §1983, this Court has no trouble concluding that the same analysis
applies to Title VI, and by extension the Rehabilitation Act.” Stahura-Uhl, 836
F.Supp.2d at 146.
Accordingly, Jones has stated a cognizable legal claim against the individual
police officers because §1983 authorizes an “individual capacity” claim for violations of
Title II of the ADA.
V. QUALIFIED IMMUNITY
“A plaintiff’s claims brought under § 1983 requires proof that: (1) the defendant
was a person acting under the color of state law, and (2) the defendant deprived the
plaintiff of rights, privileges or immunities secured by the Constitution or laws of the
United States.” Fridley v. Horrighs, 291 F.3d 867, 871–872 (6th Cir. 2002). “Moreover,
the [] right must be ‘clearly established’ at the time of the violation so that ‘it would be
16
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Rayfield v. City of Grand Rapids, No. 18-1927, 2019 WL 1601770 at *6 (6th
Cir. April 15, 2019) (quoting Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001)). Thus, the
police officers cannot be held liable unless the “contours of a right” are “sufficiently
clear” and every reasonable official would have understood that what he or she was
doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Here, Jones seeks to hold the police officers individually liable under § 1983.
Although the Court has concluded that § 1983 authorizes individual liability for police
officers violating ADA rights—the police officers are entitled to qualified immunity
because the law was not clearly established at the time.
As illustrated by the discussion above, the right to be accommodated during a
post-arrest transportation is not a clearly established right. Even more unprecedented
is the duty that the ADA imposes on individual police officers. Not only is there no
guiding precedent in the Sixth Circuit, there are conflicting opinions amongst other
circuits. Gray, 917 F.3d at 17; Duvall, 260 F.3d at 1141; Liese, 701 F.3d at 348–49;
Rosen, 121 F.3d at 156 n.2. It cannot be said that the rights conferred by the ADA, and
the duties it imposes on police officers, were sufficiently clear at the time of Jones’
arrest. Thus, the police officers are entitled to qualified immunity for Counts 2 and 4.
VI. MICHIGAN’S PERSONS WITH DISABILITIES CIVIL RIGHTS ACT
The ADA and Rehabilitation Act claims against the City are barred because the
federal statutes confer a cause of action that does not abrogated sovereign immunity for
claims based on vicarious liability. This holding does not apply to Jones’ state law claim
because the state is free to abrogate its sovereign immunity at will.
17
There is very little case law that extends Michigan’s PWDCRA to municipal
activities beyond employment or housing situations. Although PWDCRA claims are
frequently analyzed alongside ADA claims, there are differences here that render a
parallel interpretation inappropriate.
A federal court should not interpret a state statute when the interpretation could
lead to its unprecedented expansion. Because it is within the discretion of the Court to
dismiss related state law claims when “the claim raises a novel or complex issue of
State law,” the Court declines to exercise supplemental jurisdiction over the state law
claim. 28 U.S.C. § 1367(c)(1).
VII. FOURTH AMENDMENT – EXCESSIVE FORCE
While the issue of excessive force is present in the parties’ papers, the matter
has not received enough focus (at oral arguments or within the briefs) for the Court to
make a summary judgment determination at this time. For the benefit of the parties, the
discussion below details the clearly established law within the Sixth Circuit, which
should be the focus of any future discussions regarding excessive force.
Under the Fourth Amendment, police officers may not use excessive force to
effectuate an arrest. Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006) (citing St. John v.
Hickey, 411 F.3d 762, 771 (6th Cir. 2005)). “Courts must determine whether a
particular use of force is reasonable based on ‘the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.’” Id. (citing Graham v.
Connor, 490 U.S. 386 (1989)). “The assessment is fact-specific, based on a totality of
the circumstances.” Baynes v. Cleland, 799 F.3d 600, 608 (6th Cir. 2015)
In the Sixth Circuit, an arrestee who is suffering from an ailment that is not readily
apparent to police officers must voice a complaint of the injury. See, e.g., Baynes, 799
18
F.3d at 607 (holding that a plaintiff must complain that handcuffs are too tight before a
police officer can be subject to an excessive force violation). Further, “what would
ordinarily be considered reasonable force does not become excessive force when the
force aggravates (however severely) a pre-existing condition the extent of which would
have been unknown to a reasonable officer at the time.” Windham v. Harris, Texas, 875
F.3d 229, 242 (5th Cir. 2017) (quoting Rodriguez v. Farrell, 280 F.3d 1341, 1353 (11th
Cir. 2002)). A detainee must go beyond merely voicing discomfort to put an officer on
notice that the force being applied may be excessive. See Standifer v. Lacon, 587
Fed.Appx. 919, 923 (6th Cir. 2014) (plaintiff “did not communicate that she was in any
pain besides saying a generic ‘ow’—a consistent response any time handcuffs are
placed on one’s wrists.”). Finally, Jones must have complained to the police officers in
a way that would have put the officers on notice that he was being subjected to force
that was aggravating his pre-existing condition.
Jones admits that his “slouched posture impacted him more severely than it
might have impacted another person due to his prior neck injury . . . .” (Doc. 40, p. 15,
n.8). It appears from the video evidence of Jones’ post-arrest transportation that a
person without a prior neck injury would not have suffered an exercise of excessive
force. Thus, Jones must establish that he voiced a complaint to the police officers that
he was in more pain than someone of ordinary sensibilities. See, e.g., Standifer v.
Lacon, 587 Fed.Appx. 919, 923 (6th Cir. 2014) (plaintiff “did not communicate that she
was in any pain besides saying a generic ‘ow’—a consistent response any time
handcuffs are placed on one’s wrists.”). Neither party has focused on this inquiry, which
makes it inappropriate to decide summary judgment at this time.
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VIII. CONCLUSION
For the reasons stated above, Defendants motion for summary judgment (Doc.
34) is GRANTED as to Counts 1, 2, 3, and 4, and DENIED, without prejudice, as to
Counts 5 and 7. The Court declines to exercise supplemental jurisdiction over Count 6,
and it is DISMISSED. Lastly, Defendants Gregory Robson, Kyra Hope, and John Doe
are DISMISSED from the case.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 6/4/2019
Detroit, Michigan
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