Richards v. COUNTY OF WASHTENAW et al

Filing 34

OPINION AND ORDER Denying 22 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Bryan Richards,
Plaintiff,
v.

Case No. 18-10840

County of Washtenaw, Thomas Arnett,
Justin Berent, and John Cratsenberg,

Sean F. Cox
United States District Court Judge

Defendants.
______________________________/
OPINION AND ORDER DENYING DEFENDANT BERENT’S MOTION FOR
SUMMARY JUDGMENT
This is a § 1983 action against three police officers and Washtenaw County for an incident
that occurred at a University of Michigan football game. Defendant Justin Berent has moved for
summary judgment on all claims, asserting qualified and statutory immunity. (ECF No. 22).
Plaintiff Bryan Richards responded. (ECF No. 26). The Court heard oral arguments on November
1, 2018. For the reasons below, the Court shall deny Berent’s motion without prejudice.

SOURCE OF FACTUAL BACKGROUND
As a threshold matter, the Court will explain the source of the factual background for this
motion. When Berent first filed this motion, his statement of facts heavily relied on references to
testimony from Richards’ criminal trial for the underlying incident. Cited portions of the transcript
were attached to Berent’s motion as Exhibit 1. (ECF No. 22-1). In Richards’ response, he also

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referenced portions of the criminal trial and included excerpts as Exhibit A. (ECF No. 22-2).1 None
of the provided excerpts, however, were certified as accurate transcriptions of the trial testimony.
At the hearing on this motion, the Court expressed grave concerns about relying on incomplete,
uncertified transcripts from a different proceeding to provide the primary factual basis for this
summary judgment motion. Since then, Berent has requested leave to file a supplemental exhibit,
which is a complete, certified copy of Richards’ criminal trial. (ECF No. 33). The Court GRANTS
this request, and uses this copy of the transcript as the basis for this opinion’s factual background.
BACKGROUND
Because Berent is moving for summary judgment, the Court will view the facts in the light
most favorable to Richards.
On October 1, 2016, Richards and a group of friends were in Ann Arbor to see a University
of Michigan football game. Richards weighs 285 lbs, has back problems, and has arthritis in his
ankles, knees, and hips. Tr. of People v. Richards, 16-1002-FH, (Mich. Cir. Ct. March 13, 2017)
(“Richards Tr.”) 258, 279. (ECF No. 33). Richards was also tired from the previous day, which he
had spent walking around airports on his way to Ann Arbor. Id. at 229.
Before the game, Richards and his friends tailgated at the house of one of their sons. Id. at
254-255. At this tailgate, Richards drank five 12-ounce Bud Lights over the course of roughly two
hours and fifteen minutes. Id. at 255, 273. This beer was the only alcohol that Richards drank that
day, and Richards did not feel intoxicated. Id. at 255. Richards did not appear intoxicated according
to one of his friends, John Duda, Id. at 229.

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Notably, however, Richards’ counsel pointed out some of the problems of relying on
these transcripts in the affidavit that he filed in response to Berent’s contemporaneous motion to
stay discovery. (ECF No. 24-7).
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As the game approached, Richards and his friends began the roughly one-and-a-half mile
walk to the stadium. Id. at 275. Richards started feeling winded and the arthritis in his left ankle
flared up. Id. at 257. Richards attempted to rest, but his friends encouraged him to continue because
they were already late for the game. Id. Richards decided to soldier on, but put his arms around
Duda and another friend, so that he could take weight off of his left foot. Id. at 258.2 When the
group arrived at the stadium’s security gate, Richards walked in on his own. Id. Once he was in the
stadium, he again put his arms around his friends. Id. at 258-259.
As Richards and his friends were walking to their seats, Duda accidently kicked Richards’
left ankle. Id. at 259. Richards let go of his friends, doubled-over in pain, and grabbed his arthritic
ankle. Id. Campus police officers approached Richards, and asked if he had been drinking. Id.
Richards replied “no.” Id. The officers stated that they thought he was drunk and then gave him a
choice between being arrested and going to the infirmary. Id. at 260. After a bit more argument,
Richards agreed to the latter. Id. Medics from Huron Valley Ambulance (“HVA”) strapped
Richards onto a motorized cart and drove him to the infirmary. Id.
At the infirmary, the medics placed Richards on a gurney that had fixed, steel railings on
both sides. Id. at 263. Richards complied with the medical staff for about 15 minutes. Id. at 262.
Eventually, he stated that he was refusing treatment and began to leave by scooting to the end of the
bed. Id. at 263. Just as Richards reached the end, HVA medic Rick Johnson “shoved [him] back”

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Duda described the arrangement like this: “we weren’t carrying....[b]eing the die hard
fans that we are, we’re, you know, we weren’t going to – no man left behind type thing. So, you
know, we’re like well, come on, you know, you don’t have to rest. We’ll –you know, we’ll help
you type of thing. It was you, know, it was kind of being funny that, you know, he was out of
shape and not able to make it in.” Id. at 243. Thus, the arrangement seems to have been a display
of fandom rather than a medical necessity.
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on. Id. at 263-264. Johnson kept his hands on Richards’ chest and told him that he could not leave
because he was drunk. Id. at 264.
Richards got off the bed and started to walk out of the room. Id. Johnson grabbed Richards’
right bicep and tried to hold him back. Id. Richards and Johnson argued and struggled with each
other for “probably less than 10 seconds.” Id. Richards never pushed, punched, or rushed Johnson.
Id. at 265-266.
At this point, University of Michigan Police Officer Justin Berent and Washtenaw County
Deputy Sheriffs Thomas Arnett and John Crastenberg arrived on the scene. Berent entered the room
first and saw Richards struggling to get away from Johnson.3 Id. at 202. Berent grabbed Richard’s
left arm, twisted it behind Richards’ back, and bent him over. Id. at 266. 4 Richards described this
maneuver as an “arm bar.” Id. at 266.
Once Richards was bent over, one of the officers “jumped on the front of [his] body from
over [his] head onto [his back].” Id. at 264-265. Richards collapsed onto his hands and knees. Id.
at 265. The officers then “started jumpin’ [sic] up and down on [him].” Id. During this process,
Richards hit his head on a table, and Berent injured his finger. Def’s Statement of Undisputed Facts
¶ 18.
Once Richards was on the ground, Berent and the other officers warned Richards to “stop

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Berent actually testified that he saw Richards “forcefully push Johnson.” But, for this
motion, the Court assumes that Richards and Johnson were struggling in the manner described
by Richards (i.e. Johnson was holding Richards by the bicep, preventing him from walking
away).
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The Court infers that Berent was the officer who twisted Richards’ left arm. Berent
testified that he grabbed Richards’ left arm. Id. at 202. Richards testified that “someone grabbed
my left arm, twisted it back behind me which bent me over.” Id. at 264. Drawing all inferences
in favor of Richards, the Court concludes that Berent twisted the left arm.
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resisting.” Richards Tr. 277. This was the first time that the officers indicated to Richards that they
were police. Id. at 277. After the officers handcuffed him, Richards stated that he going to sue them.
Id. at 270. The officers informed him that he was being charged with resisting and obstructing an
officer. Id.
In the end, Richards was charged with (1) assaulting, resisting, or obstructing a police officer
(Berent), (2) assaulting, resisting, or obstructing a medical first responder (Johnson), and (3)
misdemeanor assault and battery (against Johnson). Richards’ Crim. Compl. A jury acquitted him
of all charges. People v. Richards, March 14, 2017, 65.
On March 13, 2018, Richards filed this § 1983 action against Berent, Arnett, Crastenberg,
and Washtenaw County. As to the officers, Richards alleges (1) Fourth Amendment claims for
unreasonable search and seizure, (2) state-law false arrest/false imprisonment claims, (3) Fourth
Amendment claims for excessive force, (4) Fourth Amendment claims for malicious prosecution,
and (5) state-law malicious prosecution. Against Washtenaw County, Richards alleges failure to
train and/or supervise its police officers
On June 20, 2018—nearly eight months before discovery ends—Berent moved for summary
judgment on all counts, and for a stay of discovery pending the Court’s ruling on his motion. (ECF
No. 22, 23). The Court denied Berent’s motion for a stay. (ECF No. 32).
In Berent’s motion for summary judgment, he argues that qualified and statutory immunity
shield him from liability for his conduct.
ANALYSIS
Summary judgment will be granted when no genuine issue of material fact exists. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists when “the

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record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp. 475 U.S. 574, 587 (1986). “The mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at
252.
Berent argues that qualified immunity shields him from Richards’ § 1983 claims. Thus,
Richards “bears the burden of showing that (1) the defendant’s acts violated a constitutional right
and (2) the right at issue was clearly established at the time of the defendant’s alleged misconduct.”
Barber v. Miller, 809 F.3d 840, 844 (6th Cir. 2015).
I.

Search and Seizure Claim (Count I)

In Count I of his Complaint, Richards alleges that Berent violated his Fourth Amendment
right to be free from unreasonable searches and seizures when he “falsely arrested and falsely
detained Plaintiff without probable cause or exigent circumstances.” Compl. ¶ 33.
Berent’s liability must be assessed individually, based on his own actions. Dorsey v. Barber,
517 F.3d 389, 399 n.4 (6th Cir. 2008) (citing Ghandi v. Police Dep’t of the City of Detroit, 747 F.2d
338, 352 (6th Cir. 1984)). Thus, the Court will consider only the events that took place after Berent
arrived at the infirmary.5
“In order for a wrongful arrest claim to succeed under § 1983, a plaintiff must prove that the
police lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002). “A police

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The parties spend the first portion of their briefs arguing about whether Richards’ initial
“medical detention” (i.e. when the campus police officers stopped him and forced him to go to
the infirmary) was justified. Berent was not involved in that detention and those officers are not
named in this case. Therefore, the propriety of the initial detention is not relevant to this motion,
and likely not relevant to the rest of the case.
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officer has probable cause only when he discovers reasonably reliable information that the suspect
has committed a crime.” Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir.2000). To determine
whether probable cause existed, the Court must examine the totality of the circumstances and may
“consider only the information possessed by the arresting officer at the time of the arrest.” Harris
v. Bornhorst, 513 F.3d 503, 511 (6th Cir.), cert. denied, 554 U.S. 903, 128 S.Ct. 2938, 171 L.Ed.2d
865 (2008). “A finding of probable cause does not require evidence that is completely convincing
or even evidence that would be admissible at trial; all that is required is that the evidence be
sufficient to lead a reasonable officer to conclude that the arrestee has committed or is committing
a crime.” Id.
Here, it is unclear what the officers knew before arriving at the infirmary, or how they came
to know it. In Berent’s report, he stated that he “was advised that HVA requested police assistance
at the medical holding area.” (ECF No. 22-2, PageID 173). At Richard’s criminal trial, Berent
testified that the officers “were alerted that HVA needed assistance” and that, when they arrived,
medical staff stated “that an intoxicated subject couldn’t leave, and an assault just took place.” Tr.
Richards. 732. Cratsenberg testified that “medical personnel came from the other side saying they
needed PD in the medical.” Id. at 717. But Arnettt testified that the officers received a radio call:
Q

Okay. At some point are you alerted to an incident that’s taking place in the
HVA clinic?

A

When we stopped into the lockup to use the restroom, the HVA clinic is in
the same building. You have to walk outside to get to it. While we’re waiting
to use the restroom, a radio call came for someone being assaulted at the
HVA clinic. That’s when we responded.

Q

Okay. Now, I know you wear a radio to help communicate with dispatch and
other law enforcement officers working the games, is that correct?

A

Yes, sir
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Q

And so the radio – you are wearing a receiver and you hear a request to go
to the HVA clinic, is that correct?

A

Yes, sir

Id. at 167-168.
The source is important because it goes to the question of whether Berent reasonably relied
on the information to justify his seizure of Richards. Based on these contradicted versions of the
initial alert, the Court is unable to conclude that Berent reasonably relied on any information that
he possessed before walking into the infirmary.
When Berent arrived at the scene, he saw a uniformed medic physically restraining a man
who did not appear intoxicated. Berent immediately seized the man, put him into an arm bar, and
took him to the ground. On these facts, the Court must conclude that Berent did not have probable
cause to seize Richards for any crime and that Berent can not justify the seizure as a medical
detention. Plaintiff’s version of the events shows that Berent violated his clearly established
constitutional right to be free from unreasonable seizure and, at this time, qualified immunity does
not defeat this claim.
II.

Excessive Force (Count III)

In Count III of his Complaint, Richards alleges that Berent “employed unnecessary and
unreasonable excessive force which resulted in significant injuries.” Compl. ¶ 47.
“It is well-established that individuals have a constitutional right to be free from excessive
force during an arrest.” Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 (6th Cir. 2006). “A
police officer uses excessive force in arresting a suspect if his actions are objectively unreasonable
given the nature of the crime and the risks posed by the suspect’s actions.” Smith v. Stoneburner,
716 F.3d 926, 933 (6th Cir. 2013). The Court views “the situation from the perspective of a
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reasonable officer on the scene at the time,” considering the severity of the crime, whether the
suspect posed a threat, and whether the suspect was actively resisting arrest. Smith v. City of Troy,
874 F.3d 938, 943-44 (6th Cir. 2017).
Here, the severity of the possible crime weighs in Berent’s favor. “A forceful takedown or
‘throw down’ may very well be appropriate in arrests or detentions for assault.” Morris v. Noe, 672
F.3d 1185, 1195 (10th Cir. 2012).
But, the other two considerations favor Richards. Richards was attempting to leave the room
and Johnson had grabbed his arm. The two men were arguing with each other, but there is no
evidence that Richards appeared threatening or likely to assault anyone. Although Richards is a
large man, he was outnumbered by police 3-to-1. Based on this evidence, Court concludes that the
threat factor favors Richards.
The Court must also conclude that the resisting-arrest factor weighs in favor of Richards.
Richards testified that Berent did not indicate that he was police officer before taking Richards to
the ground. Richards Tr. 277. The officers effectively “blindsided” Richards before he knew they
were officers. See McDonald v. Flake, 814 F.3d 804, 815 (6th Cir. 2016) (finding that a police
officer violated plaintiffs’ constitutional right to be free from excessive force when he “led a group
of alcohol-impaired officers in an attack on the unsuspecting plaintiffs”) (emphasis added). Further,
there is no evidence that the decision to perform the takedown was caused by Richards resisting
arrest. In Richards’ version of the facts, Berent walked into the infirmary, immediately grabbed
Richards’ arm, and immediately took him to the ground. Thus, the resisting arrest factor favors
Richards.
Considering the above factors and the totality of the circumstances, and viewing the available

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evidence in light most favorable to Richards, the Court concludes that, at this time, qualified
immunity does not preclude Richards’ excessive force claim against Berent.
III.

Malicious Prosecution (Count IV)

In Count IV, Richards alleges that Berent initiated a malicious prosecution against him.
A Fourth Amendment malicious prosecution claim encompasses wrongful investigation and
prosecution. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). It is distinct from a false arrest
claim, as it "remedies detention accompanied not by absence of legal process, but by wrongful
institution of legal process." Id. (quoting Wallace v. Kato, 549 U.S. 384, 390 (2007)). The claim
itself is a misnomer; no showing of malice is required. Id. at 309. Instead, to succeed on his Fourth
Amendment malicious prosecution claim under § 1983, Richards must prove: (1) a criminal
prosecution was initiated against him and Defendants made, influenced, or participated in the
decision to prosecute; (2) there was a lack of probable cause for the criminal prosecution; (3)
Plaintiff suffered a deprivation of liberty under the Fourth Amendment, apart from the initial seizure;
and (4) the criminal proceeding was resolved in his favor. Id. at 308-09. The parties do not dispute
that Plaintiff has satisfied the third6 and fourth element here.
Berent did not decide to prosecute Richards; under Michigan law that decision lies in the
prosecutor’s sole discretion. Moldowan v. City of Warren, 578 F.3d 351, 400 (6th Cir. 2009). Yet
this does not end the analysis. Richards may show that Berent influenced or participated in the
decision, an inquiry that "hinges on the degree of the officer’s involvement and the nature of the
officer’s actions." Sykes, 625 F.3d at 311 n. 9.

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Although Berent asserts that “[p]laintiff cannot satisfy elements 1 through 3 of the Sykes
analysis,” he does not offer any argument related to the third element. (ECF No. 22 PageID 144145).
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The crux of Richards’ argument is that Berent lied in his police report because Richards
threatened to sue him. Specifically, Richards claims that Berent falsely reported that he saw
Richards push Johnson. Pl. Resp. to Def. Mot. for Summ. J. 18-19. There must be some evidence
to show that the impact of the misstatements and falsehoods in the case report extended beyond the
initial arrest and influenced Richards’ continued detention. Sykes, 625 F.3d at 316.
At the criminal trial, Berent testified—consistent with his report—that Richards shoved
Johnson. Tr. Richards. 202. This was direct evidence of two of Richards’ criminal charges, and
changed the case from a “he said/he said” to a “he said/they said.” The Court must conclude that,
based on its review of the evidence provided, the alleged misstatements influenced the decision to
prosecute Richards.
Further, viewing the evidence in the light most favorable to Richards, there was no probable
cause to believe that Richards assaulted either Johnson or Berent. For these reasons, the Court
concludes that, at this time and based upon the evidence provided, qualified immunity does not
shield Berent from Richards’ malicious prosecution claim.
IV.

State Law Claims for False Imprisonment and Malicious Prosecution

In Counts II and V, Richards alleges state-law false imprisonment and malicious prosecution
claims. Berent claims that he is immune from liability for these claims under Michigan law.
In Michigan, a police officer is entitled to individual governmental immunity if
(1) the acts were undertaken during the course of employment and the employee was
acting, or reasonably believed that he was acting, within the scope of his authority,
(2) the acts were undertaken in good faith, or were not undertaken with malice, and
(3) the acts were discretionary, as opposed to ministerial.
Odom v. Wayne County, 482 Mich. 459, 480 (2008)
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Richards only disputes the second factor, and Berent’s claim of government immunity can
be disposed of easily. “It is a recognized rule that malice may be inferred from want of probable
cause.” Matthews v. Blue Cross Blue Shield of Michigan, 456 Mich. 356, 378 n. 14 (1998). Here,
the evidentiary basis provided at this time shows that Berent’s actions were not supported by
probable cause and, therefore, malice may be inferred. Thus, at this time, Berent is not entitled to
statutory immunity on these claims.
V.

The Effect of this Order

The Court notes that discovery is ongoing. The above conclusions and analysis on Berent’s
qualified and governmental immunity defenses are based only on the limited evidence that was
provided to the Court to support this motion, viewed in the light most favorable to Richards. The
Court acknowledges that these conclusions and analysis might need to change as more evidence is
gathered. For example, Richards and the officers might be deposed and provide a clearer version
of what happened that day. For this reason, the Court will deny Berent’s motion without prejudice.
CONCLUSION AND ORDER
For these reasons, the Court ORDERS Defendant Justin Berent’s Motion for Summary
Judgment (ECF No. 22) is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: December 11, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
December 11, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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