Rowlery, Jr. v. Genesee, County of, et al
Filing
69
OPINION and ORDER Granting in Part and Denying in Part Defendants' 58 Motion for Partial Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION
Joseph Rowlery, Jr.,
Plaintiff,
Case No. 12-cv-15292
Hon. Judith E. Levy
Mag. Paul J. Komives
v.
Genesee County, Robert Winston,
David Scmeider, E. Martin,
S. Pritchard, Mangrim, Syzmitus,
Nukous, and Dobbs,
Defendants.
__________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT [58]
This case alleges police misconduct. It arises out of a claim by
plaintiff Joseph Rowlery, Jr. (“Rowlery”) against defendants Genesee
County, Robert Winston, David Schmieder, Elijah Martin, S. Pritchard,
Mangrum, Brandon Szemites, Nuckolls, and Dobbs.1
Defendant
Schmieder was a lieutenant and defendant Nuckolls was a sergeant in
Defendants Mangrum, Szemites, and Nuckolls’ names were misspelled in plaintiff’s complaint and
case caption. The Court will not disturb the case caption, as plaintiff has not moved to correct the
misspellings, however the Court will use the correct spelling of defendants’ names in this opinion
and order.
1
1
the Genesee County Sheriff’s Department at all times relevant to this
complaint.
The other individual defendants were Genesee County
deputy sheriffs who were assigned to work in the jail.
Plaintiff brings claims against all defendants for (1) excessive use
of force; (2) cruel and unusual punishment in violation of the Eighth
Amendment; (3) assault and battery; and (4) gross negligence. He also
brings a claim against Genesee County for failure to train and supervise
its officers, in violation of the Fourth and Fourteenth Amendments.
On March 24, 2014, all defendants filed a Motion for Partial
Summary Judgment with respect to the following claims: (1) excessive
use of force under the Eighth Amendment; (2) all claims against
Genesee County; (3) all official capacity claims; (4) assault and battery
against all defendants except Winston and Szemites; and (5) gross
negligence. Plaintiff responded to the motion, a reply was filed, and
oral argument was held on July 15, 2014. Upon questioning during oral
argument the Court learned there was a video of one of the instances of
alleged illegal conduct, and the parties were granted an opportunity to
2
submit the video along with a brief explanation of what they believe it
shows.2
I.
FACTS
Plaintiff alleges he was assaulted by officers in the Genesee
County Sheriff’s Department (“the County” or “the Department”) on two
separate occasions when he was lodged at the Genesee County
Jail. The first instance took place in December of 2010, and the second
took place in September 2011.
The December 2010 Incident
On December 3, 2010, plaintiff was being held in the Genesee
County Jail on a warrant for failure to pay child support. (Dkt. 58 at
8). Plaintiff alleges that while he was in the process of being released, a
female detainee in a nearby jail cell asked him if he was being released.
Video evidence shows plaintiff standing by a jail cell for about two
minutes before defendant Winston and another officer, coming from the
opposite end of the hall, approached him. (Dkt. 63-5 at 6). Defendant
Winston allegedly asked plaintiff what he was doing, and plaintiff
In defendants’ “brief explanation” regarding the video, they included an argument for qualified
immunity for the first time. The Court will not address this defense because defendants failed to
raise it in their Motion for Partial Summary Judgment, and the supplemental briefing was to be
limited to an explanation of the newly submitted video.
2
3
replied that he was being released. According to plaintiff, defendant
Winston responded: “No you’re not. Give me your coat, you’re going
back in your cell.” (Dkt. 63-3 at 19).
The video shows plaintiff talking with the two officers while a
third officer walks down the hall towards plaintiff. The video does not
contain audio. Plaintiff removes his coat and places it on the floor. At
this point, there are five officers standing in the hallway.
Plaintiff
claims that defendant Winston ordered him to lie down on the floor and
put his hands behind his back. Plaintiff maintains that he was fully
compliant with this order. (Dkt. 63-3 at 19-20). Defendant Winston
claims that plaintiff was not compliant with any of his instructions, but
acknowledges that plaintiff removed his shoes and jacket voluntarily.
(Dkt. 63-5 at 7).
The video shows plaintiff turn to face the wall and the officer
nearest to him (Winston) lunges at him, pushing him against the wall.
Defendant Winston claims that he felt plaintiff “tense up” and “push[]
back” when he attempted to guide him into the cell. In order to get him
to the ground, Winston testified that he “delivered a strike to
[plaintiff’s] left common peroneal,” which is a nerve in the back of the
4
leg. (Dkt. 63-5 at 7). This is a strike officers are trained to use to
restrain someone who is resisting their commands. (Id.).
The video shows that plaintiff was forced to the floor and landed
on his face. Then three of the other officers restrained plaintiff at his
head and feet while defendant Winston appears to kneel on top of
plaintiff’s back. Defendants Mangrum and Pritchard testified that they
held plaintiff down on the ground while he was being handcuffed. (Dkt.
63-6 at 18; Dkt. 63-8 at 8). Defendant Martin also testified that he
came into physical contact with plaintiff during this altercation. (Dkt.
63-7 at 9). Plaintiff alleges that while lying handcuffed face-down on
the floor, Winston beat on the back of his head while kneeing him in the
back causing his head to “split open on the hard concrete floor.” (Dkt.
63-3 at 19-21). Defendants claim that plaintiff was resisting while on
the floor by tightening his arms to make restraining him more difficult.
While plaintiff was being restrained on the floor, a sixth officer walked
down the hallway towards the melee.
A group of officers then lifted plaintiff up so that he was sitting in
the middle of the hallway. The end of the video shows plaintiff sitting
handcuffed with his pants around his ankles and blood on the left side
5
of his face and above his right eye. Plaintiff also alleges that one of his
teeth was knocked out as a result of the strikes to his head. (Dkt. 63-3
at 23).
Defendant Schmieder testified at his deposition that he was not in
the vicinity at the time of the incident, but only reviewed reports of it
after the fact. This is consistent with video evidence showing only six
officers in the area. Defendants Winston, Martin, Pritchard, Mangrum,
and Szemites all testified that they were present during this incident.
Plaintiff alleges that defendant Nuckolls was present as well, although
Nuckolls disputed this fact when questioned during his deposition.
Plaintiff was examined by a nurse at the jail and it was
determined that he needed to be taken to the hospital. (Dkt. 63-7 at
10). Defendants Dobbs and Szemites took plaintiff to Hurley Medical
Center where he was treated for his injuries and received thirteen
stitches. (Dkt. 63-3 at 26; Dkt. 63-5 at 9). After being treated at the
hospital, plaintiff was transported and released into the community.
During this drive, defendants Dobbs and Szemites allegedly told
plaintiff “not to worry about what happened at the jail, that Sergeant
6
Nuckolls said that Deputy Winston would be handled.” (Dkt. 63-3 at
26).
The September 2011 Incident
In September 2011, plaintiff was held at the same jail on a
warrant for larceny.
During this visit, plaintiff was on medication,
which was administered by the jail nurse. All parties agree that when
the nurse administered the medication, she asked plaintiff to show her
that he had swallowed the pills. Plaintiff claims he opened his mouth
for the nurse to see that he swallowed the medication; however,
defendant Szemites testified that plaintiff did not lift his tongue, and
defendant Dobbs testified that plaintiff opened his mouth, but only
about “one finger” wide. The nurse then said, “Do I have to get Officer
Dobbs to look in your mouth for you?” (Dkt 63-3 at 32; Dkt. 63-9 at
7;Dkt. 63-11 at 11).
Defendant Dobbs approached the area. Plaintiff testified that he
opened his mouth for Dobbs and then began to walk away. Defendant
Szemites asked plaintiff to return to show him that he had swallowed
the pills, and then allegedly told plaintiff to return to his cell and “go
lock up.” Plaintiff responded by saying that if they wanted to lock him
7
up, they would have to take him to the restricted housing unit.
Defendant Szemites allegedly said “If I got to take you to restricted
housing unit I’m going to fuck you up worse than Winston did the first
time.” Defendant Szemites then allegedly knocked plaintiff down to the
ground by swinging his arm at plaintiff’s neck. When plaintiff was on
the floor, he claims that Szemites stepped on his head with his boot,
rendering him unconscious for a few seconds. (Dkt. 63-3 at 33-34).
Defendant Szemites claims that plaintiff was noncompliant with
the nurse’s request and was being aggressive, so Szemites called a “code
green” and ordered plaintiff to the ground. A “code green,” according to
defendant Dobbs, is used to “respond to some type of hostile action in
the jail… lets everybody else in the jail know that there’s a disturbance,
and that we need assistance.” (Dkt. 63-11 at 12). Defendant Szemites
testified that he saw plaintiff holding a pencil (plaintiff says he was
only holding a cup) and used a “shoulder pin restraint” maneuver to
restrain him.
He states that as a result of plaintiff’s continued
resistance, the two of them fell to the ground. While attempting to get
plaintiff’s hands behind his back, Szemites struck plaintiff’s shoulder
with his knee or fist. (Dkt. 63-9 at 7-10). Defendant Dobbs similarly
8
testified that plaintiff was yelling at Szemites with a pencil in his hand
while refusing to go to the lock up. He recalls that he called the code
green in response to plaintiff’s behavior. Defendant Dobbs testified that
the entire physical altercation between plaintiff and Szemites lasted
about ten to fifteen seconds. (Dkt. 63-11 at 12-14).
After he was handcuffed, plaintiff was again taken to the hospital
and received stitches and a neck and back brace. (Dkt. 63-3 at 33).
Plaintiff claims he has scarring above both of his eyes as a result of the
two incidents at issue in this case. (Dkt. 63-3 at 22-23).
Training & Supervision
Plaintiff alleges that officers with the Genesee County Sheriff’s
Department received insufficient training and supervision.
Defendants Nuckolls and Winston testified that it had been about
four years since their last use-of-force training. (Dkt. 63-4 at 3-4; Dkt.
63-5 at 3-4).
Winston testified that he was unaware whether his
training included anything about protecting an inmate’s safety when
using non-lethal force. (Dkt. 63-5 at 8). Defendants Martin, Pritchard,
and Dobbs testified that the only use of force training they received was
at the corrections academy in 2009 (for Martin and Dobbs) and 2010 (for
9
Pritchard). (Dkt. 63-7 at 4; Dkt. 63-8 at 3; Dkt 63-11 at 3). Szemites
testified that the use of force training in the Sheriff’s Department was
“sporadic” and that he last received such training around 2010. (Dkt.
63-9 at 4).
Schmieder similarly described use of force training as
periodic and testified that the last training he received was between
2006 and 2008. (Dkt. 63-10 at 3).
With respect to supervision, defendant Nuckolls could not recall
when he last received a performance review.
(Dkt. 63-4 at 3-4).
Defendant Winston said it had been about five years since he last
received a performance review.
(Dkt. 63-5 at 3-4).
Winston noted,
furthermore, that there had been a “cutting of supervision in the jail”
which affected the frequency of performance reviews, which were
supposed to occur on a yearly basis.
(Id. at 4).
Defendant Martin
testified that he had only received one performance review in his 3-4
years with the Sheriff’s Department.
(Dkt. 63-7 at 4).
Defendant
Pritchard recalled that, as of February 2014, the last performance
review he received was in 2010 or 2011, shortly after he joined the
Department.
(Dkt. 63-8 at 3).
The last time defendant Szemites
received a performance review was in 2008. (Dkt. 63-9 at 4).
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Defendant Mangrum, on the other hand, said he received use of
force training and performance reviews once a year. (Dkt. 63-6 at 8-9).
Defendants Schmieder and Dobbs also said they received performance
reviews on an annual basis.
(Dkt. 63-10 at 3; Dkt 63-11 at 3).
Defendants testified that use of force reports are reviewed by a
lieutenant to determine the appropriateness of the action. Defendant
Schmieder testified that if any specific complaint of excessive force is
received, that complaint would be further evaluated. He stated that the
Department received no such complaint regarding either of the uses of
force at issue in this case. (Dkt. 58-6 at 12-13).
Several of the individual defendants identified other allegations of
excessive force that had been lodged against them. Defendant Nuckolls,
for example, testified that he has been sued on multiple occasions for
excessive force. (Dkt. 63-4 at 3-4). Defendant Szemites also testified
that he had been the subject of about twenty complaints regarding use
of force and treatment of inmates at the jail. (Dkt. 63-9 at 3-4).
II.
STANDARD OF REVIEW
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Summary judgment is proper where “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.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248. The Court “views the evidence,
all facts, and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v.
Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir.2002)).
III.
ANALYSIS
Plaintiff’s claims stem from two discrete uses of force in December
2010 and September 2011. For the sake of clarity, as there are several
defendants incorporated into each of plaintiff’s claims, the Court will
briefly summarize each defendant’s involvement with both use of force
incidents.
With respect to the December 2010 use of force incident,
defendants Winston, Mangrum, Pritchard, and Martin all testified that
they came into physical contact with plaintiff.
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Defendant Szemites
testified that he was one of the officers in the hallway during this use of
force, but no allegation has been made that he came into physical
contact with plaintiff. Finally, plaintiff alleges that defendant Nuckolls
was also nearby during this use of force, but Nuckolls disputes this fact.
With respect to the September 2011 incident, plaintiff alleges that
only defendants Szemites and Dobbs were present during the use of
force.
Defendant Szemites testified that he used physical force to
restrain the plaintiff, and defendant Dobbs testified that he was in the
vicinity when this use of force occurred.
Defendant Schmieder testified that he was not in the vicinity of
either use of force, and plaintiff has not made any such allegation in
either his complaint or subsequent deposition testimony.
A. Claims against Genesee County
Federal Claims
In a claim brought under 42 U.S.C. §1983 against a municipality,
liability may be imposed only where a constitutional injury was caused
by action taken “pursuant to official municipal policy of some
nature.”
Monell v. Dep’t of Social Services, 436 U.S. 658, 691
(1978). Under Monell, a plaintiff must “identify the policy, connect the
13
policy to the [municipality] and show that the particular injury was
incurred because of the execution of that policy.” Garner v. Memphis
Police Dept., 8 F.3d 358, 364 (6th Cir. 1993) (quoting Coogan v. City of
Wixom, 820 F.2d 170, 176 (6th Cir. 1987)). Municipal liability need not
be based on an explicitly articulated official policy:
Moreover, although the touchstone of the § 1983 action
against a government body is an allegation that official
policy is responsible for a deprivation of rights protected by
the Constitution, local governments, like every other § 1983
“person,” by the very terms of the statute, may be sued for
constitutional deprivations visited pursuant to governmental
“custom” even though such a custom has not received formal
approval through the body's official decision making
channels.
Monell, 536 U.S. at 690-91.
In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme
Court clarified this further, explaining that failure to train could
constitute an official policy when it “evidences a deliberate indifference
to the rights of its inhabitants.” Id. at 389. The Court explained:
[I]t may happen that in light of the duties assigned to
specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been
deliberately indifferent to the need. In that event, the failure
to provide proper training may fairly be said to represent a
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policy for which the city is responsible, and for which the city
may be held liable if it actually causes injury.
Id. at 390.
“A systematic failure to train police officers adequately is a custom
or policy which can lead to municipal liability.” Gregory v. City of
Louisville, 444 F.3d 725, 753 (6th Cir.2006) (citing City of Canton v.
Harris, 489 U.S. 378, 388 (1989)). “Under a “failure to train” theory of
municipal liability, plaintiff must show that (1) a training program is
inadequate to the tasks that the officers must perform; (2) the
inadequacy is the result of the municipality’s deliberate indifference;
and (3) the inadequacy is closely related to or actually caused the
plaintiff's injury. Plinton v. Cnty. of Summit, 540 F.3d 459, 464 (6th
Cir.2008) (citing City of Canton, 489 U.S. at 389–91) (internal quotation
marks omitted).
“[D]eliberate indifference can be demonstrated in two ways:
through evidence of prior instances of unconstitutional conduct
demonstrating that the municipality had notice that the training was
deficient and likely to cause injury but ignored it, or through evidence
of a single violation of federal rights, accompanied by a showing that
the municipality had failed to train its employees to handle recurring
15
situations presenting an obvious potential for such a violation.” Okolo
v. Metro. Gov't of Nashville, 892 F. Supp. 2d 931, 942 (M.D. Tenn. 2012)
(citing Harvey v. Campbell Cnty., Tenn., 453 Fed. Appx. 557, 562-63
(6th Cir. 2011)) (emphasis added).
The first question is whether plaintiff has offered sufficient
evidence to raise a genuine issue of material fact that the use of force
training
by
the
Genesee
County
Sherriff’s
Department
was
constitutionally inadequate. See Russo v. City of Cincinnati, 953 F.2d
1036, 1047 (6th Cir. 1992) (holding that a plaintiff had provided
sufficient evidence to show that a municipality’s use of force training
with respect to individuals with mental disabilities was constitutionally
inadequate). Plaintiff contends, and testimony from several defendants
shows, that the Department does not have a system to ensure regular
training on use of force. Defendant Nuckolls indicated that it had been
about four years since he received use of force training; Szemites
testified that he received training at some point in 2010; Winston said it
had been four-six years; and Martin, Pritchard, and Dobbs said they
had received no such training since leaving the training academy. (Dkt.
63 at 15-18).
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Plaintiff also argues that the County is liable due to its failure to
supervise. Failure to supervise, as with failure to train, triggers
municipal liability where “the need for more adequate supervision was
so obvious and the likelihood that the inadequacy would result in the
violation of constitutional rights was so great that the [municipality] as
an entity can be held liable.” Leach v. Shelby Cnty. Sheriff, 891 F.2d
1241, 1248 (6th Cir. 1989). Defendant Szemites was present during the
2010 incident, yet received no subsequent performance evaluation.
Indeed, Szemites says he has not received a performance evaluation
since 2008.
Defendant Winston testified that supervision at the
Department has been cut significantly, which led to a decrease in the
frequency of performance evaluations. In defendant Nuckolls’ case, he
could not recall whether he had ever received such an evaluation. While
there are many ways to provide supervision in a law enforcement
agency, conducting performance reviews provides the employer with an
opportunity to communicate with officers about whether their conduct
meets the minimum standards set forth by the Constitution.
With respect to the December 2010 incident, the Court finds that
plaintiff has raised a material question of fact as to the adequacy of
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training regarding the use of force when handling “recurring situations
presenting an obvious potential for” violations of the constitutional
rights of detainees such as plaintiff. The interaction with plaintiff in
December 2010 is precisely the sort of incident that it likely to repeat
itself and that officers should be trained to respond to. Viewing the
evidence regarding training in the light most favorable to plaintiff, a
reasonable
jury
could
find
that
defendants’
training
was
unconstitutionally deficient.
Indeed, the December 2010 incident is the kind of recurring event
that the court in Okolo addresses when noting that “a single violation of
federal rights” paired with a failure to train may trigger municipal
liability. See Okolo 892 F. Supp. at 942. Nonetheless, the County failed
to provide any additional training to the officers present during the
December 2010 use of force, and two years later one of the same officers,
defendant Szemites, used what a reasonable juror could find to be
excessive force against the same individual.3 Accordingly, with respect
Plaintiff, furthermore, provides evidence of a history of complaints against defendant Nuckolls.
Defendants Nuckolls and Szemites also admit that they have received several complaints (about 20
for Szemites) regarding their use of force. (Dkt. 63-4 at 3-4; Dkt. 63-9 at 3-4). These are complaints
the County received, and depending on the nature of the complaints, could also have put the County
on notice that its deputies needed additional use of force training. See Bd. Of County Comm’rs v.
Brown, 520 U.S. 397, 409 (1997) (noting that Canton “did not foreclose the possibility that evidence
of a single violation of federal rights, accompanied by a showing that a municipality has failed to
3
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to the September 2011 incident, plaintiff has raised a material question
of fact as to whether the first incident put the County on notice that the
officers involved in that incident, defendants Winston, Mangrum,
Pritchard, Martin, Szemites, and Nuckolls, needed further training and
supervision on the use of force.
State Law Claims against Genesee County
Plaintiff concedes that these claims against defendant Genesee
County cannot be sustained. (Dkt. 63 at 24). Accordingly, the Court
will grant summary judgment for defendant Genesee County on all of
the state claims, which include Count III (assault and battery) and
Count IV (gross negligence).
B. Plaintiff’s Official Capacity Claims
In plaintiff’s official capacity claims, he is seeking damages not
from the individual officers, but from Genesee County where the
individual defendants are employed. The Supreme Court has held that
“an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Kentucky v. Graham, 473 U.S.
159, 166 (1985). The Court, therefore, will treat the claims against all
train its employees to handle recurring situations presenting an obvious potential for such a
violation, could trigger municipal liability.”).
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of the officers in their official capacity under the Monell analysis set
forth above as these claims “represent only another way of pleading an
action against an entity of which an officer is an agent.” See Alkire v.
Irving, 330 F.3d 802, 810 (6th Cir. 2003) (quoting Mattews v. Jones, 35
F.3d 1046, 1049 (6th Cir. 1994)).
Accordingly, for the reasons set forth above, the Court will deny
summary judgment for all of the officers in their official capacity who
were present during the alleged uses of force.
With respect to the
December 2010 incident, the Court will permit the lawsuit to proceed
against defendants Winston, Mangrum, Pritchard, Martin, and
Szemites in their official capacity as they all testified that they were
present and/or came into physical contact with plaintiff during the
alleged use of force. In viewing the facts in the light most favorable to
plaintiff, the Court will also allow the official capacity suit to proceed
against defendant Nuckolls as (1) plaintiff alleges he was present
during the incident; and (2) video evidence shows six officers.
The
Court will grant summary judgment for defendant Dobbs with respect
to the December 2010, as plaintiff has not alleged he was present and
Dobbs testified that he was dealing with another inmate 25 yards away.
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With respect to the September 2011 alleged use of excessive force,
the Court will grant summary judgment for all defendants in their
official capacity aside from those two who testified that they were
present during the use of force – defendants Szemites and Dobbs.
The Court will grant summary judgment for defendant Schmieder
in his official capacity as there is no evidence that he was present
during either incident giving rise to this lawsuit.
C. Assault and Battery Claims Against Defendants Other
Than Winston and Szemites
“A battery is the wilful and harmful or offensive touching of
another person which results from an act intended to cause such
contact.” Espinoza v. Thomas, 189 Mich. App. 110, 119 () (citing Tinkler
v. Richter, 295 Mich. 396, 401 (1940)). An assault is the “unlawful offer
of corporal injury to another by force, or force unlawfully directed
toward the person of another, under such circumstances as create a well
founded fear of imminent peril” combined with the likelihood of such
force occurring if not prevented. Tinkler, 295 Mich. At 401.
Defendants argue that only two of the defendants (Winston and
Szemites) were alleged to have come into physical contact with the
plaintiff. (Dkt. 58 at 18). Although plaintiff testified that he does not
21
know whether anyone other than defendants Winston and Szemites
came into physical contact with him, defendants Mangrum, Pritchard,
and Martin each testified that they came into physical contact with
plaintiff during the December 2010 incident. (Dkt. 63-6 at 18; Dkt. 63-7
at 9; Dkt. 63-8 at 8).
Accordingly, as to defendants Mangrum,
Pritchard, and Martin, there remains a material fact in dispute with
respect to whether they committed assault and battery against plaintiff
during the December 2010 incident.
For the rest of the defendants (Nuckolls, Dobbs, and Schmeider),
however, there is no allegation of physical contact with plaintiff, that
they requested or encouraged the physical contact, or that plaintiff
feared imminent physical contact by these defendants. Plaintiff merely
provides the definition of assault and battery and concludes that
“defendants are clearly liable.” (Dkt. 63 at 24-25). This, on its own, is
not enough to find them liable for assault and battery.
Accordingly, summary judgment on the assault and battery claims
will be granted for defendants Nuckolls, Martin, Dobbs, and
Schmeider.
The
claims
against
22
defendants
Winston,
Szemites,
Mangrum, and Pritchard will stand and summary judgment as to these
deputies is denied.
D. Plaintiff’s Gross Negligence Claim
Defendant Schmieder
The Court will grant summary judgment for Defendant Schmieder
and dismiss the negligence charges against him as plaintiff has
provided no evidence that he was at the scene of either the December
2010 or September 2011 incidents.
Intentional Tort Defendants
Michigan courts have held that claims involving elements of
intentional torts cannot also support a claim of negligence. VanVourous
v. Burmeister, 262 Mich. App. 467, 483-84 (2004) (“[t]his Court has
rejected attempts to transform claims involving elements of intentional
torts into claims of gross negligence.”)
Since the claims against
defendants Winston, Szemites, Mangrum, and Pritchard are based on
alleged intentional assaultive conduct, plaintiff cannot support a gross
negligence claim.
Accordingly, plaintiff’s allegations of gross negligence against
Winston, Szemites, Mangrum, Pritchard, and Martin are dismissed.
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Duty of Officers to Protect Inmates
Defendants contend that the rest of the officers cannot be held
liable for gross negligence because “there is no duty owed by law
enforcement for failing to protect an individual from the criminal acts of
a third party.” (Dkt. 58 at 20-21). Michigan courts have held that
officers are immune from tort liability “for the negligent failure to
provide police protection unless an individual plaintiff satisfies the
special-relationship exception.” White v. Beasley, 453 Mich. 308, 316
(1996).
The question, therefore, is whether a special relationship exists
between officers at a county jail and the people in their custody. In
Philpott v. City of Portage, 2006 WL 2385316 (W.D. Mich. Aug. 17,
2006), the plaintiff alleged gross negligence because her handcuffs were
too tight and the officers in close proximity to her did nothing despite
her complaints. Id. The court denied defendant’s motion for summary
judgment in regards to plaintiff’s gross negligence claims against the
officer. Id. In Wells v. City of Dearborn Heights, 538 Fed.App’x. 631
(6th Cir. 2013), the Sixth Circuit explained that Philpott stood for the
proposition that a negligence claim could be maintained against an
24
officer for failing to intervene “on behalf of an arrestee being subject to
excessive force.” Wells, 538 Fed. App’x at 642.
Defendants rely on Chivas v. Koehler, 182 Mich. App. 467 (1990),
to argue that no special relationship and no duty to intervene exists in
this case. Defendants’ reliance on Chivas is misplaced as the facts are
clearly distinguishable from the matter currently before the Court. In
Chivas, guards at a prison were sued when prisoners escaped and
subsequently killed a police officer in the community. Id. at 469-70. In
making the determination that the guards did not owe a duty to the
police officer, the court looked at a variety of factors – “the societal
interests involved, the severity of the risk, the burden upon the
defendant, the likelihood of occurrence, and the relationship between
the parties” – in determining whether a special relationship existed
between the victim and the person causing the injury. Id. at 475 (citing
Sierocki v. Hieber, 168 Mich. App. 329, 433 (1988)). The court then
concluded that there was no special relationship between the guards
and the escaped prisoners that would impose some additional duty akin
to a psychiatrist who becomes aware of a patient posing risk to a third
party. Id. at 475. The holding in Chivas does not stand for the premise
25
that there is not a special relationship between guards and the general
prison population. Indeed, applying the factors laid out in Chivas, this
Court finds that a special relationship exists between jailers and
detainees in their custody such that they have a duty to intervene if
they see that an inmate is being harmed due to the conduct of another
officer. See id at 475.
The next question is whether defendants Szemites and Nuckolls
(in December 2010) and defendant Dobbs (in September 2011) acted
unreasonably in failing to intervene. In Wells, for example, the Sixth
Circuit upheld a district court’s finding that an officer’s failure to
respond was reasonable under the circumstances where the excessive
force only lasted a few seconds. Wells, 538 Fed. App’x at at 642
(affirming Wells v. City of Dearborn Heights, 2011 WL 6740743 at
*8). In Philpott, on the other hand, the plaintiff was complaining about
handcuffs causing her pain for a significant period of time. Philpott,
2006 WL at *1.
The facts here fall between these two factual
situations. The uses of force at issue before the Court are not like the
use of a taser that is over within seconds. The December 2010 use of
26
force lasted approximately 40 seconds, and the September 2011 use of
force lasted at least 10-15 seconds.4
Accordingly, a reasonable jury could find that defendants Nuckolls
and Szemites (in December 2010), and defendant Dobbs (in September
2011), failed to act reasonably when they did not act to prevent or limit
the use of force.
Proximate Cause
Defendants argue that, even if they acted unreasonably, any
negligent actions could not be the proximate cause of plaintiff’s injury
because
the
most
direct
cause
was
the
actual
physical
assault. Michigan courts have held that to be the proximate cause of
the injury, defendants’ acts alone must have been “the most immediate
efficient and direct cause preceding plaintiff’s injury.” Oliver v. Smith,
290 Mich. App. 678, 686 (2010).
The issue of proximate cause is typically a question of fact for the
jury.
See Helmus v. Dep’t of Transp. 238 Mich. App. 250, 256
(1999). Only when the facts are not disputed and when reasonable
minds could not differ is proximate cause a question of law for the
The only evidence the Court has on the length of the September 2011 use of force is defendant
Dobbs’ testimony that it lasted about 10-15 seconds.
4
27
court. See Robinson v. Detroit, 462 Mich. 439, 463 (2000). In Philpott,
the court concluded that, although not the direct cause of the harm,
officers who heard complaints about the tightness of handcuffs could be
the proximate cause of plaintiff’s injuries. Philpott, 2006 WL at *7
(finding that an officer’s failure to loosen handcuffs could be the
proximate cause of an injury even if that officer was not the person who
came into physical contact with the arrestee). In Leverette v. Genesee
County, 2014 WL 2558655 (E.D. Mich. June 6, 2014), the court found
that a defendant officer could be the proximate cause of an injury
caused by other officers engaging in excessive force. Id. at *23 (citing
Wells, 538 F. App’x at 643; Smith v. County of Lenawee, 600 F.3d 686,
692 (6th Cir. 2010)) (recognizing but distinguishing Philpott where the
defendant officer was not an employee of the defendant county and had
been only peripherally involved in plaintiff's care).
Defendants, similarly, have failed to address in any meaningful
way defendants Szemites and Nuckolls (in December 2010) and
defendant Dobbs’ (in September 2011) alleged failure to put a stop to
the use of force. Accordingly, viewing the evidence in the light most
favorable to plaintiff, the Court will deny defendants Szemites,
28
Nuckolls, and Dobbs’ motion for summary judgment on plaintiff’s gross
negligence claim based on defendants’ failure to intervene.
E.
Stipulated Dismissals
Defendants argue that rights under the Eighth Amendment
cannot be asserted until after conviction and sentencing. Graham v.
Connor, 490 U.S. 386, 393 n.6 (1989) (citing Ingraham v. Wright, 430
U.S. 651 (1977)). At oral argument plaintiff’s counsel concurred in this
analysis. Accordingly, the Court will grant summary judgment for all
defendants on plaintiff’s Eighth Amendment claim.
IV.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED:
Defendants’ Motion for Summary Judgment on plaintiff’s Eighth
Amendment claim is GRANTED with respect to all defendants, and
Count II of plaintiff’s complaint is DISMISSED with PREJUDICE.
Defendant Genesee County’s Motion for Summary Judgment on
plaintiff’s constitutional claims against Genesee County (Count V) is
DENIED.
Count I - Excessive Force:
i) December 2010 incident
29
(1) Defendants Schmieder, Dobbs, and Genesee County’s Motion
for Summary Judgment is GRANTED;
(2) Defendants
Winston,
Szemites,
Mangrum,
Pritchard,
Nuckolls, and Martin’s Motion for Summary Judgment is
DENIED.
ii) September 2011 incident
(1) Defendants
Schmieder,
Winston,
Mangrum,
Pritchard,
Nuckolls, and Martin’s Motion for Summary Judgment is
GRANTED;
(2) Defendants Szemites, Dobbs, and Genesee County’s Motion
for Summary Judgment is DENIED.
Count III - Assault and Battery:
i) December 2010 incident
(1) Defendants Genesee County, Szemites, Schmieder, Nuckolls,
and Dobbs’ Motion for Summary Judgment is GRANTED;
(2) Defendants Mangrum, Pritchard, and Martin’s Motion for
Summary Judgment is DENIED.
ii) September 2011 incident
30
(1) Defendants Genesee County, Winston, Mangrum, Pritchard,
Schmieder, Nuckolls, Dobbs, and Martin’s Motion for
Summary Judgment is GRANTED.
Count IV – Gross Negligence
i) December 2010 incident
(1) Defendants Genesee County, Winston, Mangrum, Pritchard,
Schmieder, Nuckolls, and Martin’s Motion for Summary
Judgment is GRANTED;
(2) Defendants Szemites and Nuckolls’ Motion for Summary
Judgment is DENIED.
ii) September 2011 incident
(1) Defendants Genesee County, Winston, Mangrum, Pritchard,
Schmieder, Szemites, Nuckolls, and Martin’s Motion for
Summary Judgment is GRANTED.
(2) Defendant Dobbs’ Motion for Summary Judgment is
DENIED.
With respect to claims of constitutional violations that have
survived this motion for summary judgment, plaintiff’s claims against
31
the remaining individual defendants in their official capacity shall
proceed.
Dated: October 16, 2014
Ann Arbor, Michigan
s/Judith E. Levy___________
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 16, 2014.
s/Felicia M. Moses__________
FELICIA M. MOSES
Case Manager
32
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