Warren v. Dearborn, City of et al
Filing
45
ORDER granting 41 Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (Chubb, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNIE WARREN,
Plaintiff,
Case No. 12-14850
HON. TERRENCE G. BERG
v.
CITY OF DEARBORN, NICHOLAS ZUBOK,
JOHN NIESLUCHOWSKI, DAVID
FINAZZO, and ANDREW ZELAZNY, in
their individual capacities,
Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (DKT. 41)
Before the Court is a motion for summary judgment filed by all Defendants
on September 26, 2014. (Dkt. 41.) Defendants include the City of Dearborn and
Dearborn police officers Nicholas Zubok, John Niesluchowski, David Finazzo, and
Andrew Zelazny. Pursuant to E.D. of Mich. L.R. 7.1(f)(2), the Court took this
motion under advisement without oral argument on September 30, 2014. (Dkt. 42.)
For the reasons explained below, Defendants’ motion for summary judgment IS
GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY
On the evening of November 1, 2010, Plaintiff Johnnie Warren went to Sonia
Warren’s home on 23035 Audette Street in Dearborn, Michigan and demanded
entry. (Dkt. 41, Ex. B, p. 3.) Though Plaintiff was married to Mrs. Warren, a court
order prohibited him from being at the residence when Mrs. Warren’s two
daughters were present. (Dkt. 41, Ex. C, p. 12.) Since her two daughters were
home that evening, Mrs. Warren demanded that Plaintiff leave. (Id. at p. 13.)
Instead of leaving, Plaintiff punched through the plexiglass door and gained entry
to the home. (Id. at pp. 13-14.) Once inside, Mrs. Warren alleges that Plaintiff
smacked her “upside the head” and tackled her 13-year-old daughter to the floor to
prevent her daughter from calling 9-1-1. (Id. at pp. 14, 18.)
Mrs. Warren then fled the home, fearing that Plaintiff had inhaled spray
paint and was under the influence of this substance. (Id. at 16.) Plaintiff admits
that his face and hands were covered in gold spray paint that evening, but denies
being intoxicated. (Dkt. 41, Ex. F, p. 13.) He explains that he last inhaled paint
two days prior to the incident, and that the paint remained on his face and hands
because spray paint does not come off easily. (Id.)
At about 10:30 p.m., Dearborn Police Officers Nicholas Zubuk and John
Niesluchowski responded to a call regarding a domestic assault and battery at Mrs.
Warren’s home. (Dkt. 41, Ex. A) (the emergency dispatcher informed the officers
that Plaintiff’s wife called “stating that her husband was assaulting her.”) Upon
arriving, the officers spoke with Mrs. Warren; she told them that Plaintiff had
broken into her home, punched her in the head, and assaulted her daughter. (Dkt.
41 at p. 1.) The officers then entered the home and identified themselves as
Dearborn police officers. (Id. at p. 2.) Once inside, Officer Niesluchowski saw
Plaintiff sleeping on the living room couch and observed what appeared to be gold
2
spray paint around his mouth and nose. (Id.) The officers identified themselves
and informed Plaintiff that he was under arrest for domestic assault and battery.
(Id.)
A confrontation ensued. The officers claim that Plaintiff began hurling
expletives at them and demanding that they leave the home. (Id.) After observing
Plaintiff clutch an unknown item inside his left pocket, Officer Niesluchowski
ordered Plaintiff to slowly remove his hand from his pocket. Plaintiff refused to
comply. (Id.)
Concerned that Plaintiff might have a weapon, the officers attempted to
physically restrain Plaintiff and forcibly remove his hand from his pocket. (Id. at p.
2-3.) According to the officers, Plaintiff began throwing punches at them and in the
struggle they all fell to the floor. (Id.) With Plaintiff kicking and swinging at them,
Officer Niesluchowski hit Plaintiff with numerous knee strikes and punches. (Id.)
Still, Plaintiff kept resisting and gripping the unknown item in his left pocket. (Id.)
Due to the degree of Plaintiff’s resistance, and because the officers suspected that
Plaintiff was under the influence of drugs, the officers called for back-up. (Id.)
Officers Zelazny and Finazzo then arrived to help place Plaintiff under
arrest. Because Plaintiff continued struggling, Officer Finazzo struck Plaintiff
multiple times in the arm while all four officers handcuffed him. (Id. at p. 4.) Even
after he was handcuffed, the officers claim that Plaintiff continued resisting and
3
spit blood at them. (Id. at 4.) Plaintiff was then taken to Oakwood Hospital for
evaluation and treatment. (Dkt. 41, Ex. B, p. 11.)
After his arrest, the police discovered that Plaintiff had been concealing a set
of keys with a chrome cylinder key fob in his pocket. (Id. at p. 9.) Police also
observed a can of gold spray paint inside Plaintiff’s Ford Explorer along with a
plastic bag covered in gold paint. (Id. at p. 11.) Further, officers saw gold paint on
the car’s steering wheel controls and on the driver and passenger seats. (Id.)
Plaintiff’s account of the events is markedly different. According to Plaintiff,
the officers arrived at his home without identifying themselves, flashed a gun in his
face and then “punched him in the face with closed fists repeatedly, and kicked him
in the ribs, face and legs.” (Dkt. 1, p. 3.) In his pleadings, Plaintiff denies resisting
arrest and instead claims that he assumed the fetal position and took a beating
from the officers. (Dkt. 41, Ex. F, p. 16.) Plaintiff stated in his deposition that the
beating left him with severe injuries, including:
[a] seven-millimeter lesion on the frontal lobe of [his] brain. A
broken nose. A broken cheekbone. A shattered orbital socket,
orbital floor. A shattered right sinus. Five broken ribs. Two
broken vertebrae. Three ruptured disks.
(Id. at p. 19.) While Plaintiff did not submit any medical records substantiating
these injuries, it is undisputed that Plaintiff required medical treatment and was
taken to the hospital after his arrest.
On February 11, 2011, Plaintiff pled guilty to one count of resisting and
obstructing police and one count of domestic violence. (Dkt. 41, at p. 5.) At his plea
4
hearing, when asked whether he kicked or swung at the officers when they
attempted to arrest him, Plaintiff stated “I was holding something in my hand and
kind of squiggling, yes.” (Id. at Ex. E, p. 7.) When asked at his plea hearing
whether he complied with the officers, Plaintiff responded “no,” admitting that he
failed to comply with the officers as they attempted to arrest him. (Id.)
On October 31, 2012, Plaintiff brought suit against all of the officers involved
as well as against the City of Dearborn. (Dkt. 1.) Plaintiff’s suit consists of four
counts: (1) § 1983 excessive force under the Fourth Amendment against all officers;
(2) failure to adequately train officers resulting in a violation of constitutional rights
against the City of Dearborn; (3) assault and battery against all officers; and (4)
gross negligence by all officers. (Id.)
II. ANALYSIS
A. Standard of Review
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, show that
there is no genuine issue as to any material fact such that the movant is entitled to
a judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563,
568 (6th Cir. 2013); see also Fed. R. Civ. P. 56(a). A fact is material only if it might
affect the outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary judgment, the
Court must view the evidence, and any reasonable inferences drawn from the
5
evidence, in the light most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted);
Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001).
“As the moving parties, the defendants have the initial burden to show that
there is an absence of evidence to support [plaintiff’s] case.” Selhv v. Caruso, 734
F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party has met its burden, the non-moving party “‘may not rest
upon its mere allegations or denials of the adverse party’s pleadings, but rather
must set forth specific facts showing that there is a genuine issue for trial.’”
Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (citing Moldowan
v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009)).
B. Discussion
1. Given Plaintiff’s Violent Resistance, the Officers’ Use of Force to
Effectuate an Arrest was not Unreasonable.
Claims alleging that police officers used excessive force in effectuating an
arrest “should be analyzed under the Fourth Amendment and its reasonableness
standard…” Graham v. Connor, 490 U.S. 386, 395 (1989) (internal italics and
quotation marks omitted). “Determining whether the force used to effect a
particular seizure is reasonable under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.”
Id. at 396 (internal quotation marks omitted).
6
The reasonableness standard “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Id. at 396.
Further, the reasonableness of an officer’s use of force “must be judged from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Id. This is because the reasonableness inquiry must account
for “the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. at 397.
Here, the Court finds that the officers’ use of force was reasonable given the
circumstances. First, the record supports the officers’ account of a physical
altercation with Plaintiff. In this altercation, Plaintiff attempted to punch and kick
the officers to prevent them from arresting him. These actions posed a direct threat
to the officers’ safety. In addition, while resisting, Plaintiff continued clutching an
unknown object in his hand and would not let it go despite repeated orders from the
officers. Plaintiff’s behavior created a reasonable concern among the officers that
Plaintiff might have a weapon that could pose an additional threat to their safety.
Furthermore, Plaintiff’s active resistance required Officers Zubok and
Niesluchowski to call for back-up from Officers Zelazny and Finazzo. Even after the
7
arrival of two more officers, Plaintiff continued resisting all four officers, leading
Officer Finazzo to strike Plaintiff multiple times in order to handcuff him. In light
of Plaintiff’s initial physical resistance, behavior consistent with the concealment of
a potential weapon, and resistance to being handcuffed, the level of force used by
the officers (punches and knee strikes) was not unreasonable.
Moreover, the Court finds that Plaintiff’s account of the arrest, even when
viewed in the light most favorable to him, is not credible. According to Plaintiff, the
police beat him while he assumed the fetal position without resisting. This version
of events is in blatant contradiction to Plaintiff’s own account during his guilty plea,
where, when asked whether he did kick and swing at the officers, Plaintiff
responded: “I was holding something in my hand and kind of squiggling, yes,” and
where Plaintiff further acknowledged that he did not comply with the officers when
they tried to arrest him. (Dkt 41, at Ex. E, p. 7.)
Moreover, apart from his complaint, Plaintiff has provided no evidence to
show that there is a genuine issue for trial here. See Chappell v. City of Cleveland,
585 F.3d 901, 912 (6th Cir. 2009) (“to withstand a properly supported motion for
summary judgment [a plaintiff] must do more than rely merely on the allegations of
[his] complaint … [a plaintiff] is obliged to come forward with specific facts, based
on discovery and disclosure materials on file, and any affidavits, showing that there
is a genuine issue for trial.”) (internal quotation marks omitted).
8
Because Plaintiff’s admitted conduct posed an immediate threat to the
officers’ safety, the Court cannot find that the officers used unreasonable force in
punching and kneeing Plaintiff to effectuate his arrest. As such, summary
judgment is appropriate as to Count One.
2. Plaintiff’s Claim Against the City of Dearborn Must be Dismissed
because Plaintiff Fails to Identify an Improper Practice or Policy.
Plaintiff next seeks to hold the City of Dearborn liable for failing to
adequately train and or supervise its officers regarding reasonable seizures, the
proper use of force, or reasonable procedures for establishing probable cause.
Municipalities are not vicariously liable for the torts of their employees. Bd. of
Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997). “Instead, it
is when execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under §
1983.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
“However, it is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the ‘moving force’ behind the
injury alleged. That is, a plaintiff must show that the municipal action was taken
with the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.” Brown, 520
U.S. at 404 (internal italics omitted).
9
Here, Plaintiff’s claim fails at the starting gate because he does not identify a
municipal policy or custom that caused his injury. Nowhere in his complaint or
response does Plaintiff identify a questionable practice or custom of the City of
Dearborn. Moreover, even if Plaintiff had identified a specific custom or practice, to
impose liability on the City of Dearborn, Plaintiff also had to show a “direct causal
link” between the city’s action and his injury. That is, Plaintiff had to show that the
city’s practice directly led to his injury. Plaintiff has failed to meet this burden and
as such, summary judgment is appropriate as to Count Two.
3. Plaintiff’s State Law Claims Must Fail because the Officers are
Entitled to Governmental Immunity.
Plaintiff also seeks relief on two state law claims, Count Three for assault
and battery and Count Four for gross negligence. The Court has supplemental
jurisdiction over these state law claims under 28 U.S.C. § 1367 because they form
part of the same case or controversy as Plaintiff’s federal law claims.
As a threshold matter, summary judgment is appropriate as to Count Four
because Plaintiff’s gross negligence claim is based on the officers’ alleged use of
excessive force. Under Michigan law, the only actionable cause of action for an
excessive force claim is a claim for assault and battery, not gross negligence. Bletz
v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011); see also VanVorous v. Burmeister, 262
Mich. App. 467, 483-84 (2004) (“plaintiff’s claim of gross negligence is fully premised
on her claim of excessive force … this Court has rejected attempts to transform
10
claims involving elements of intentional torts into claims of gross negligence…”)
(internal citations omitted).
Under Count Three, Plaintiff brings a claim for assault and battery against
the officers. The Defendants raise the defense of governmental immunity. In Odom
v. Wayne County, 482 Mich. 459, 480 (2008), the Michigan Supreme Court explained
that to establish governmental immunity in defense of an intentional tort claim, a
defendant has the burden of showing that:
(a) 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,
(b) the acts were undertaken in good faith, or were not
undertaken with malice, and
(c) the acts were discretionary, as opposed to ministerial
Here, there is no doubt that the officers were acting during the course of their
employment and within the scope of their authority. The officers were on duty
when they were called to the Warren home in response to a domestic violence call.
When they entered the home, they identified themselves as Dearborn Police officers
and were in full police uniforms. Further, when they arrested Plaintiff, they acted
within the scope of their authority as the arrest was supported by probable cause.1
As such, the officers have met the first factor.
1
Probable cause “means facts and circumstances within the officer's knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to commit an offense.” Estate of Dietrich
v. Burrows, 167 F.3d 1007, 1010-11 (6th Cir. 1999) (internal citation omitted). Here, the officers had
11
The officers have also met the second factor. The Michigan Supreme Court
has held that determining the amount of force necessary to effectuate an arrest is a
discretionary, not ministerial, act. Odom, 482 Mich. at 478.
Lastly, the officers must show that they acted in good-faith. Unlike the
reasonableness inquiry for federal excessive force claims, “[t]he good-faith element
of the Ross test is subjective in nature.” Id. at 481. The subjective element is
meant to protect “a defendant’s honest belief and good-faith conduct with the cloak
of immunity while exposing to liability a defendant who acts with malicious intent.”
Id. at 481-82. Malicious intent can be seen by “an intent to harm or, if not that,
such indifference [as] to whether harm will result as to be equivalent of a
willingness that it does.” Id. at 474.
The Court is persuaded that the officers acted in good-faith in arresting
Plaintiff. The record before the Court demonstrates that Plaintiff not only resisted
arrest but vigorously fought with the officers while appearing to conceal something
that the officers reasonably perceived to be a potential weapon. The Court does not
minimize or fail to take into account that the officers were required to use
significant force against Plaintiff and that unfortunately, Plaintiff consequently
suffered serious injuries. However, there is no evidence in the record that would
support a finding that the officers acted maliciously or with any intent other than to
probable cause to believe that Plaintiff had assaulted his wife and her daughter based on the 9-1-1
call and their conversation with Mrs. Warren prior to entering the home.
12
successfully effectuate Plaintiff’s arrest. For these reasons, the Court finds that the
officers have established that they did not act maliciously in using force against
Plaintiff.
In sum, the Court finds that the Defendant Officers are entitled to
governmental immunity. As such, Plaintiff’s claim for assault and battery against
the officers must fail.
III.
CONCLUSION
For the reasons explained above, Defendants’ motion for summary judgment
IS GRANTED as to all counts. As such, Plaintiff’s complaint IS DISMISSED
WITH PREJUDICE.
SO ORDERED.
Dated: April 27, 2015
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on April 27,
2015, using the CM/ECF system, which will send notification to all parties. A copy
of this order was also mailed to Plaintiff’s address, at 2915 Katherine St., Dearborn,
MI 48124.
s/A. Chubb
Case Manager
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?