Anderson v. Furst et al
Filing
141
ORDER Denying 122 Motion for Summary Judgment. Signed by District Judge Victoria A. Roberts. (LVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY ANDERSON,
Plaintiff,
Case No. 17-12676
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti
v.
COLTER FURST, Michigan State
Trooper, MICHAEL THOMAS,
Michigan State Trooper, and
NATHAN ELLIS, Michigan
State Trooper,
Defendants.
________________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[ECF No. 122]
I.
INTRODUCTION
Jerry Anderson (“Anderson”) is a state prisoner proceeding in forma
pauperis. He filed a civil rights lawsuit pursuant to 42 U.S.C. § 1983 against
Colter Furst, Michael Thomas, and Nathan Ellis (collectively, “Defendants”).
Anderson alleges that Defendants, all Michigan State Police Troopers,
violated his Fourth Amendment rights by using excessive force during his
September 4, 2015 arrest. He seeks injunctive and declaratory relief, in
addition to compensatory and punitive damages.
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Before the Court is Anderson’s Motion for Summary Judgment. [ECF
No. 122]. There is a genuine dispute over whether officers used more force
than necessary to arrest Anderson.
In response to Anderson’s motion for summary judgment, Defendants
say that there is a dispute of material fact and, in the alternative, they are
entitled to qualified immunity. Defendants’ response is akin to a cross-motion
for summary judgment on the issue of qualified immunity, which they
supported with affidavits and other documents. That should have been filed
independent of their response. Nonetheless, Defendants are not entitled to
qualified immunity.
The Court DENIES Anderson’s Motion. [ECF No.122].
II.
BACKGROUND
On September 4, 2015, Anderson led officers on a high-speed car
chase for about thirty miles.
Earlier that day, a dispatcher advised officers that there was a BOL
(“be on look-out”) issued for a light-colored Ford Crown Victoria or Mercury
style vehicle involved in a shooting and homicide in Clio, Michigan. Around
10:50 pm that evening, Genesee Township Police advised that they located
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a vehicle matching this description. As officers attempted to stop the car,
Anderson initiated a high-speed pursuit that spanned around 30 miles.
The chase ended when officers executed a Precision Immobilization
Technique (PIT) maneuver that halted Anderson’s car. Effectively, officers
pinned it, preventing Anderson from fleeing.
Officers ordered Anderson to surrender. Anderson contends that he
voluntarily surrendered; however, officers state Anderson refused to comply
with their “loud verbal commands” to exit the car with his arms up. Three
officers – including Defendants Furst and Ellis – forcibly removed Anderson
and placed him on the ground. While removing Anderson from the car, Furst
observed a pistol magazine in the driver’s seat.
Officers tried to handcuff Anderson while he was on the ground. They
say Anderson refused to allow officers to handcuff his left arm and concealed
it under his body. Because Furst was unable to pull Anderson’s arm from
underneath his body and believing that Anderson could be armed, he
“delivered an elbow strike to [Anderson’s] left side/oblique area.” Anderson
still refused to give up his left arm. Furst delivered a second strike to the
same area. Furst was then able to remove Anderson’s left arm and cuffed
him.
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III.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), “[t]he Court shall 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.” The movant bears the initial burden to inform the Court of the basis for
its motion; it must identify particular portions of the record that demonstrate
the absence of a genuine dispute as to any material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies its burden, the nonmoving party must set forth specific facts showing a genuine issue for trial.
Id. at 324. Unsupported, conclusory statements are insufficient to establish
a factual dispute to defeat summary judgment, as is the “mere existence of
a scintilla of evidence in support of the [non-movant’s] position”; the evidence
must be such that a reasonable jury could find in its favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Alexander v. CareSource, 576
F.3d 551, 560 (6th Cir. 2009).
In deciding a summary judgment motion, the Court “views the factual
evidence and draws all reasonable inferences in favor of the nonmoving
party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000).
The Court need only consider the cited materials, but it may consider other
evidence in the record. Fed. R. Civ. P. 56(c)(3). The Court’s function at the
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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.”
Liberty Lobby, 477 U.S. at 249.
IV.
ANALYSIS
Anderson argues officers used excessive force to arrest him, and that
there is no question of fact that they did so The Court disagrees.
A. There is a Question of Fact Concerning Excessive Force
42 U.S.C. § 1983 states in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen . . . 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.
“To state a cause of action under § 1983, a plaintiff must allege the
deprivation of a right secured by the United States Constitution or a federal
statute by a person who was acting under color of state law.” Spadafore v.
Gardner, 330 F.3d 849, 852 (6th Cir. 2003). Defendants do not dispute they
acted under color of law, and that Anderson alleges Defendants violated his
Fourth Amendment right not to be subjected to the excessive use of force.
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But, Defendants deny any constitutional violation and assert they are entitled
to qualified immunity in any event.
Claims of excessive force by police officers during an arrest must be
analyzed under the Fourth Amendment and its “reasonableness” standard.
Graham v. Connor, 490 U.S. 386, 395 (1989). In Graham, the Court stated
that “the right to make an arrest or investigatory stop necessarily carries with
it the right to use some degree of physical coercion or threat thereof to effect
it.” Id. at 396. Therefore, when analyzing such a claim the Court must
consider: 1) the severity of the crime; 2) whether the suspect poses an
immediate threat to the safety of officers or others; and 3) whether the
suspect is actively resisting arrest or attempting to flee. Id.
The Court must determine “whether the officers’ alleged actions are
‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.” Id. at 397.
Reasonableness “must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Id at 396.
A plaintiff need not suffer serious or permanent injury. Johnson v. City of
Ecorse, 137 F.Supp.2d 886, 892 (E.D. Mich. 2001) (plaintiff’s complaint of
injury to his wrist from tight handcuffs sufficient). However, there must be
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more force than "than the mere technical battery that is inextricably a part of
any arrest." Id.
Anderson alleges excessive force at two points: 1) during attempts to
handcuff him and 2) after he was handcuffed. At each point, there is a
question of fact over whether Defendants used excessive force against
Anderson.
First, reasonable jurors could disagree over the amount of force used
to handcuff Anderson and whether it was proportional to his resistance and,
therefore, objectively reasonable. The parties dispute whether Anderson
resisted Defendants’ efforts to cuff him – Anderson says he surrendered
while Defendants indicate that Anderson actively resisted and refused to give
up his left arm. Anderson was armed, but Defendants admit that his alleged
resistance, although persistent, was limited primarily to keeping his left arm
away from them. Considering that Defendants were attempting to apprehend
a homicide suspect, jurors could disagree regarding whether Defendants’
eventual response with their weapons and force was proportional to
Anderson’s resistance and, therefore, reasonable.
For his second claim, Anderson asserts that Defendants continued to
strike him after he was handcuffed and on the ground as officers searched
for his weapon. Anderson says he was kicked and thrown to the ground. He
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says this was clearly excessive. Defendants dispute this assertion. The
Court reviewed the dashcam footage provided by the parties; however, it
does not capture the moments that officers allegedly used excessive force
to effectuate the arrest.
Anderson’s claim that Defendants continued to strike him after he
surrendered (1) before being handcuffed, and (2) after he was handcuffed,
is sufficient to raise a question of fact concerning the amount of force that
was necessary under the circumstances.
B. Defendants are not Entitled to Qualified Immunity as a Matter of
Law
A court required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officer's conduct violated a
constitutional right? This must be the initial inquiry.
***
If no constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries concerning qualified immunity. On the other hand,
if a violation could be made out on a favorable view of the
parties' submissions, the next, sequential step is to ask
whether the right was clearly established.
Saucier v. Katz, 533 U.S. 194, 201 (2001) (internal citation omitted).
Anderson satisfied the first prong of the analysis because the Fourth
Amendment right to be free from excessive force is clearly established.
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Adams, 31 F.3d at 386; Johnson, 137 F.Supp.2d at 893. Under the second
prong, the Court must determine whether reasonable officers in Defendants’
positions would have known that their alleged actions violated clearly
established rights.
The Court must employ a standard of objective reasonableness and
analyze claims of immunity on a fact-specific, case-by-case basis to decide
if a reasonable official in the officer’s position could have believed his or her
conduct was lawful, in light of clearly established law and the information
possessed. Id.; Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) ( “[T]he
question is whether any officer in the defendant’s position, measured
objectively, would have clearly understood that he was under an affirmative
duty to have refrained from such conduct.”) (quoting Brandenburg v Cureton,
882 F.2d 211, 215 (6th Cir. 1989)).
The ultimate burden rests with Anderson to show Defendants are not
entitled to qualified immunity. Gardenhire v Schubert, 205 F.3d 303, 311 (6th
Cir. 2000). However, a “defendant bears the initial burden of coming forward
with facts to suggest that he acted within the scope of his discretionary
authority during the incident in question.” Id. Thereafter, the burden shifts to
the plaintiff to establish that the defendant's conduct violated a right so
clearly established that any official in his position would have clearly
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understood he was under an affirmative duty to refrain from such conduct.”
Id.
Whether a Defendant is entitled to qualified immunity is usually a
question of law for the court to decide. Brandenburg, 882 F.2d at 215. But,
when the relevant facts are in dispute, the court must leave the factual
findings to the trier of fact:
[S]ummary judgment would not be appropriate if there is a
factual dispute (i.e., a genuine issue of material fact)
involving an issue on which the question of immunity turns,
such that it cannot be determined before trial whether the
defendant did acts that violate clearly established rights.
Gardenhire, 205 F.3d at 311. See also Adams, 31 F.3d at 387 (“[T]he jury
becomes the final arbiter of [defendant’s] claim of immunity, since the legal
question of immunity is completely dependent upon which view of the facts
is accepted by the jury.”).
Because the relevant facts with respect to what occurred during
attempts to handcuff Anderson, and after he was cuffed are in dispute, the
Court must leave the disputed question of fact to the jury – Anderson says
he was struck while being cuffed and kicked after he was restrained;
Defendants deny both claims. See Gardenhire, 205 F.3d at 311; Poe v.
Haydon, 853
F.2d
418,
426
(6th
Cir.
1988)
(noting
that
a summary judgment based on a qualified immunity defense is not
10
appropriate in a § 1983 action “if there is a factual dispute (i.e. a genuine
issue of material fact) involving an issue on which the question of immunity
turns”). If a jury believes Anderson, Defendants are not entitled to qualified
immunity.
The Court cannot decide whether Defendants are entitled to qualified
immunity for their alleged assaults on Anderson because his claims turn on
disputed questions of fact.
V.
CONCLUSION
Anderson’s motion for summary judgment on his §1983 claim is
DENIED.
IT IS ORDERED.
s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 20, 2020
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