Fleming v. Oakland County Sheriff's Deputy Brandon Scruggs et al
Filing
33
ORDER Granting in Part and Denying in Part Defendants' 30 Motion for Reconsideration. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONNIE FLEMING,
Plaintiff,
Case No. 18-cv-11573
Hon. Matthew F. Leitman
v.
BRANDON SCRUGGS, et al.,
Defendants.
__________________________________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR RECONSIDERATION (ECF No. 30)
I
This action arises out of the stop and Tasing of Plaintiff Ronnie Fleming by
Defendants Brandon Scruggs and Ruben Garcia, two Oakland County Sheriff’s
Deputies. Fleming brings claims against Scruggs, Garcia, and Oakland County.
Fleming’s Complaint contains three categories of claims: (1) claims under 42 U.S.C.
§ 1983 against Scruggs and Garcia for violating the Fourth Amendment by stopping
Fleming without reasonable suspicion and using excessive force against Fleming (by
Tasing him); (2) a municipal liability claim under 42 U.S.C. § 1983 against
Defendant Oakland County based upon the alleged Fourth Amendment violations
by Scruggs and Garcia; and (3) state-law tort claims against all Defendants for
assault and battery, false arrest and false imprisonment, malicious prosecution,
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intentional infliction of emotional distress, gross negligence, and willful and wanton
misconduct. (See id., PageID.7–13.)
On July 26, 2019, Defendants filed a Motion for Summary Judgment (ECF
No. 18). In that motion, they argued, among other things, that Scruggs and Garcia
were entitled to summary judgment on Fleming’s state-law claims based upon statelaw immunity and because the claims failed on the merits. In an Opinion and Order
issued on June 3, 2020, this Court denied the motion to the extent it sought summary
judgment in favor of Scruggs and Garcia on the state-law claims based upon statelaw immunity. (See Op. & Order, ECF No. 29, PageID.637–639.) But the Court
neglected to address the aspect of Defendants’ motion in which Defendants argued
that the state-law claims against Scruggs and Garcia failed on the merits. (See id.)
On June 9, 2020, Defendants filed a Motion for Reconsideration requesting
that the Court consider the merits of Fleming’s state-law claims. (See Mot. for
Recons., ECF No. 30.) The Court has now done so. For the reasons explained
below, Defendants’ Motion for Reconsideration is GRANTED IN PART and
DENIED IN PART.
II
A
The Court begins with Fleming’s assault and battery claim based upon the
Tasing. Defendants argue that Garcia is entitled to summary judgment on that claim
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because Garcia did not commit “a willful or intentional touching of Plaintiff against
Plaintiff’s will.” (Id.; quotation marks omitted.) In support of this argument,
Defendants highlight that it was Scruggs – not Garcia – who deployed the Taser
against Fleming. And they insist that since Garcia did not fire the Taser, he cannot
be held liable for an assault and battery based upon the Tasing. The Court disagrees.
A defendant who intentionally and substantially supports and participates in
an offensive touching may be held liable for assault and battery even if he does not
personally commit the touching. See Assault and Battery § 98, 6 Am. Jur. 2d
(recognizing that one who joins in an effort to commit an assault and battery may be
held liable for the tort even if he does not personally commit the offensive touching);
see also Restatement (Second) of Torts § 876 (1979) (recognizing an aiding and
abetting theory for tort liability); Nicholl v. Torgow, --- N.W.2d ---, 2019 WL
5280844, at *5 (Mich. Ct. App. 2019) (applying section 876 of the Restatement to a
claim for aiding and abetting a tort).1 Here, as explained in the Opinion and Order,
a jury could reasonably find that Garcia intentionally and “actively participated in”
1
See also Fremont Reorganizing Corp. v. Duke, 811 F. Supp. 2d 1323, 1346 (E.D.
Mich. 2011) (recognizing the aiding and abetting theory of tort liability under
Michigan law); El Camino Res., LTD. v. Huntington Nat’l Bank, 722 F. Supp. 2d
875, 897–915 (W.D. Mich. 2010) (conducting detailed analysis under Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938), and concluding that the Michigan Supreme Court
would recognize an aiding and abetting theory of tort liability, “which requires a
showing that the alleged aider-and-abettor provided substantial assistance or
encouragement to the other ‘so to conduct himself’”), aff’d, 712 F.3d 917 (6th Cir.
2013).
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the Tasing by “positioning the vehicle so that Scruggs could deploy his Taser on
Fleming.” (Op. & Order, ECF No. 29, PageID.634.) Under these facts, a reasonable
jury could find Garcia liable for the assault and battery of Fleming, and Garcia is
thus not entitled to summary judgment on this claim.
Next, Scruggs is not entitled to summary judgment on the assault and battery
claim for the same reasons that he was not entitled to summary judgment on the
Fourth Amendment excessive force claim. More specifically, a jury could find (on
the facts most favorable to Fleming) that Scruggs deployed his Taser against
Fleming without any justification.
B
The Court next turns to Fleming’s false arrest and false imprisonment claims.
Defendants argue that those claims fail because Fleming’s “guilty plea in regard to
his marijuana possession charge precludes Plaintiff from asserting that his arrest or
being taken to jail lacked probable cause.” (Mot. for Recons., ECF No. 30,
PageID.645–646.) Fleming concedes that “[g]enerally, it appears that a guilty plea
precludes such claims unless there is evidence of fraud or unfair means in procuring
the conviction.” (Resp. to Mot. for Recons., ECF No. 31, PageID.662.) And Fleming
“leaves it to the sound discretion of this Honorable Court as to whether to grant the
motion for reconsideration with respect to the state law claims for false arrest and
imprisonment. . . .” (Id., PageID.655.)
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While Fleming leaves these claims to the Court’s discretion, Fleming suggests
that they may survive because the officers fabricated their reason to stop him.
Fleming contends that Scruggs’ alleged statement that “I’m just going to tell the
judge [that Fleming] ran” – in response to Fleming asking Scruggs why Scruggs
Tased him – “could be found by a jury to be a fabrication.” (Id., PageID.663.)
Fleming argues that this fabrication would allow a reasonable jury to conclude that
his conviction was procured by fraud. (See id.) If the jury made such a finding,
Fleming contends, then it could find in his favor on the false arrest and false
imprisonment claims notwithstanding his conviction.
The Court disagrees with Fleming. Fleming’s conviction for marijuana
possession was not procured through Scruggs’ alleged fabrication because the
alleged fabrication did not relate to whether Fleming possessed marijuana. Instead,
the fabrication related only to whether the deputies had a basis for stopping and
Tasing Fleming. Because the Court rejects Fleming’s sole argument in support of
his false arrest and false imprisonment claims, the Court will grant summary
judgment in favor of the Defendants on those claims.
C
The Court next addresses Fleming’s malicious prosecution claim. Defendants
argue that this claim – like Fleming’s claims for false arrest and false imprisonment
– is barred by Fleming’s conviction for marijuana possession. (See Mot. for Recons.,
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ECF No. 30, PageID.646.) Fleming does not challenge that a conviction may bar a
malicious prosecution claim. Instead, Fleming again argues that his conviction does
not bar his claim because it was tainted by Scruggs’ alleged fabrication. (Pl.’s Resp.
to Mot. for Recons., ECF No. 31, PageID.663.) The Court rejects this argument for
the same reason that it rejected it (above) in the context of Fleming’s false arrest and
false imprisonment claims. Defendants are entitled to summary judgment on
Fleming’s malicious prosecution claim.
D
Next up is Fleming’s claim for intentional infliction of emotional distress
(“IIED”). Defendants argue that this claim fails because Fleming “has not presented
any evidence that either Defendant intentionally caused emotional distress to
Plaintiff. All that is alleged by Plaintiff is that he suffered physical injuries.” (Mot.
for Recons., ECF No. 30, PageID.648; emphasis in original.) In support of this
argument, Defendants cite to a case in which a Judge of this Court dismissed IIED
claims based upon a physical assault where the plaintiff failed to show that the
defendant intended to cause emotional injury. (See id., PageID. 648–649; citing
Henderson v. Jackson, No. 15-10807, 2016 WL 3125214, at *12 (E.D. Mich. June
3, 2016) (“The plaintiff has presented ample evidence that Jackson intended to cause
physical injury upon Henderson, but there is no evidence that the defendant intended
to inflict emotional trauma. . . . The plaintiff has not cited a single case in which a
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police officer’s excessive force – even the use of deadly force – has been found to
support an IIED claim. In fact, Michigan law suggests the contrary.” (emphasis in
original) (citation omitted)).)
Fleming never responds directly to Defendants’
argument, nor does he attempt to distinguish Henderson. Instead, he argues that he
has a viable IIED claim because the deputies’ conduct was “absolutely extreme and
outrageous.” (Pl.’s Resp. to Mot. for Recons., ECF No. 31, PageID.664.) But that
does not explain why the flaw identified by Defendants is not fatal to his IIED claim.
Because Fleming has failed to rebut Defendants’ arguments concerning the
deficiency of his IIED claim, the Court will grant summary judgment in favor of
Defendants on that claim.
E
Finally, the Court turns to Fleming’s gross negligence claim.2 (See Mot. for
Recons., ECF No. 30, PageID.650–651.) The Court concludes that this claim fails
for at least two reasons.
2
Fleming’s Complaint appears to bring a separate claim for willful and wanton
misconduct. (See Compl., ECF No. 1, PageID.7–10.) In Fleming’s filings, however,
he has not discussed a claim for willful and wanton misconduct that is separate from
his other state-law claims. (See, e.g., Resp. to Mot. for Summ. J., ECF No. 21; Pl.’s
Supp. Br., ECF No. 25; Resp. to Mot. for Recons., ECF No. 32.) Accordingly, to
the extent that Fleming initially brought a claim for willful and wanton misconduct
that he intended to plead as a separate claim from his gross negligence claim, the
Court considers this claim waived.
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First, under Michigan law, gross negligence “is not an independent cause of
action.” Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011). Instead, it “is a
prerequisite to avoiding that official’s statutory governmental immunity” under
Michigan law. Id. Second, and in any event, if and to the extent that gross negligence
is a cause of action under Michigan law, it is not available to remedy an alleged
intentional wrong such as the Tasing of Fleming. See, e.g., VanVorous v. Burmeister,
687 N.W.2d 132, 143 (Mich. Ct. App. 2004) (“Thus, plaintiff’s claim of gross
negligence is fully premised on her claim of excessive force. As defendants
correctly note, this Court has rejected attempts to transform claims involving
elements of intentional torts into claims of gross negligence.”), abrogated on other
grounds by Odom v. Wayne Cty., 760 N.W.2d 217 (Mich. 2008); Rucinski v. Cty. of
Oakland, No. 13-cv-14667, 2015 WL 3874482, at *10 (E.D. Mich. June 23, 2015)
(“Where, as here, a plaintiff’s claim of gross negligence against an officer is
‘undoubtedly premised on the intentional tort of battery,’ the gross negligence claim
is ‘not cognizable under Michigan law.’” (quoting Livermore ex rel Rohm v.
Lubelan, 476 F.3d 397, 408 (6th Cir. 2007))), aff’d, 655 F. App’x 338 (6th Cir.
2016).
For these reasons, Defendants are entitled to summary judgment on
Fleming’s gross negligence claim.
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III
Accordingly, for the reasons explained above, Defendants’ Motion for
Reconsideration (ECF No. 30) is GRANTED IN PART and DENIED IN PART.
Defendants Scruggs and Garcia are not entitled to summary judgment on Fleming’s
state-law claim for assault and battery.
Defendants are, however, entitled to
summary judgment on Fleming’s remaining state-law tort claims. In all other
respects, the Court reaffirms its ruling in its Opinion and Order dated June 3, 2020.
This case will proceed to trial on the following claims arising out of the Tasing of
Fleming: (1) Fleming’s claims under 42 U.S.C. § 1983 against Scruggs and Garcia
for using excessive force in violation of the Fourth Amendment, and (2) Fleming’s
state-law claim against Scruggs and Garcia for assault and battery.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 2, 2020
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on July 2, 2020, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
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