Rowlery, Jr. v. Genesee, County of, et al

Filing 78

MEMORANDUM OPINION and ORDER Denying in Part and Granting in Part Defendants' Second 74 MOTION for Summary Judgment , ( Motions in Limine shall be filed by 5/25/2015, Joint Final Pretrial Order shall be submitted t o chambers on 6/22/2015, Final Pretrial Conference set for 6/30/2015 at 1:00 PM, Jury Instructions and Proposed Voir Dire Due is due by 7/6/2015, Jury Trial set for 7/13/2015 at 8:30 AM before District Judge Judith E. Levy) - 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. Judge David R. Grand

v.
Genesee County, Robert Winston,
David Schmieder, E. Martin,
S. Pritchard, Mangrum, Szemites,
Nukolls, and Dobbs,
Defendants.
__________________________________/

OPINION AND ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANTS’ SECOND MOTION FOR SUMMARY
JUDGMENT [74]
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.

Defendant

Schmieder was a lieutenant and defendant Nuckolls was a sergeant in
the Genesee County Sheriff’s Department at all times relevant to this

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complaint.

The other individual defendants were Genesee County

deputy sheriffs who were assigned to work in the jail.
Plaintiff brought 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
brought a claim against Genesee County for failure to train and
supervise its officers, in violation of the Fourth and Fourteenth
Amendments.
Before the Court is defendants’ Winston, Szemites, Mangrum,
Prtichard, Nuckolls, and Martin’s second motion for summary
judgment, in which they argue that video evidence demonstrates that
they are entitled to qualified immunity with respect to plaintiff’s
excessive force claim arising out of the December 2010 altercation. (Dkt.
74).

For the reasons set forth below, the Court denies in part and

grants in part defendants’ motion.
I.

Procedural Background
On March 24, 2014, 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;
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(3) all official capacity claims; (4) assault and battery against all
defendants except Winston and Szemites; and (5) gross negligence.
(Dkt. 58). Plaintiff responded to the motion, a reply was filed, and on
July 15, 2014, oral argument was held.

(Dkt. 63 & 64).

Upon

questioning during oral argument, the Court learned there was a video
of one of the instances of alleged unconstitutional conduct, and the
parties were granted an opportunity to submit the video along with a
brief explanation of what they believe it showed. The following is a link
to the video:

On October 16, 2014, the Court issued an opinion and order
granting in part and denying in part defendants’ motion for summary
judgment. (Dkt. 69). On November 7, 2014, defendants sought leave to
file a second motion for summary judgment to address qualified
immunity related only to the December 2010 incident. (Dkt. 71). The
Court granted defendants leave to file this motion, received briefings
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from all parties, and heard oral argument on February 18, 2015. (Dkt.
73-77).
II.

Facts
The Court adopts the fact section of its October 16, 2014 Opinion

and Order. With respect to the video of the December 2010 incident,
the Court found:
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 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
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testified that he “delivered a strike to [plaintiff’s] left
common peroneal,” which is a nerve in the back of the 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 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).
(Dkt. 69).
Defendants did not provide the Court with guidance as to the
identities of each individual officer in the video. During oral argument,

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plaintiff’s and defendants’ counsel both declined the Court’s invitation
to view the video and provide their perspective on its content.
III.

Standard of Review
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)).
IV.

Analysis
Qualified immunity is an affirmative defense available to

government officials performing discretionary functions.

Harlow v.

Fitzgerald, 457 U.S. 800 (1982). Whether a defendant is entitled to
qualified

immunity

“generally

turns

on

the

objective

legal

reasonableness of the action . . . assessed in light of the legal rules that
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were clearly established at the time it was taken.”

Anderson v.

Creighton, 483 U.S. 635, 639 (1987). Courts must balance “the nature
and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing government interests at stake.”
Graham v. Connor, 490 U.S. 386, 396 (1989). The plaintiff bears the
burden of proving that a defendant is not entitled to qualified
immunity. Gardenshire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000).
Courts in this Circuit employ a two-step analysis to determine
whether a defendant is entitled to qualified immunity. First, “viewing
the facts in the light most favorable to plaintiff, we determine whether
the allegations give rise to a constitutional violation.”

Shreve v.

Franklin Cty., 743 F.3d 126, 134 (6th Cir. 2014). Second, “we assess
whether the right was clearly established at the time of the incident.”
Id. A court may undertake either step of the analysis first. Pearson v.
Callahan, 555 U.S. 223 (2009).
The Court applies the same summary judgment standard to a
motion based on qualified immunity as in other cases: the facts must be
viewed in the light most favorable to plaintiff and genuine disputes of

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fact cannot be resolved in favor of the movant. See Tolan v. Cotton, 134
S.Ct. 1861, 1866 (2014).
A. Whether the Facts Give Rise to a Constitutional
Violation
1. Legal Standard Under the Fourteenth
Amendment
Because plaintiff was a pretrial detainee at the time of the alleged
excessive force his excessive force claim is analyzed “under the
Fourteenth Amendment’s Due Process Clause, which ‘protects a pretrial
detainee from the use of excessive force that amounts to punishment.’”
Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir. 2008) (quoting
Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989)); see also Bell v.
Wolfish, 441 U.S. 520, 535 (1979) (“[i]n evaluating the constitutionality
of conditions or restrictions of pretrial detention…, we think that the
proper inquiry is whether those conditions amount to punishment of the
detainee.”) “A plaintiff has a substantially higher hurdle to overcome to
make a showing of excessive force under the Fourteenth Amendment as
opposed to under the Fourth Amendment.” Burgess v. Fischer, 735 F.3d

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462, 472 (6th Cir. 2013) (citing Darrah v. City of Oak Park, 255 F.3d
301, 306 (6th Cir. 2001)). 1
Under the Fourteenth Amendment, the standard for excessive
force is “whether the actions of law enforcement officers ‘shock the
conscience of the court.’” Francis v. Pike Cnty., 875 F.2d 863 at *2 (6th
Cir. 1989) (quoting Lewis v. Downs, 774 F.2d 711, 713 (6th Cir. 1987).
The Sixth Circuit has explained that where the accused government
actors:
are afforded a reasonable opportunity to deliberate various
alternatives prior to electing a course of action ..., their
actions will be deemed conscience-shocking if they were
taken with “deliberate indifference” towards the plaintiff's
federally protected rights. In contradistinction, in a rapidly
evolving, fluid, and dangerous predicament which precludes
the luxury of calm and reflective pre-response deliberation
..., public servants' reflexive actions “shock the conscience”
only if they involved force employed “maliciously and
sadistically for the very purpose of causing harm” rather
than “in a good faith effort to maintain or restore discipline.”

There is currently a split among the circuits regarding the standard
that should be applied to pre-trial detainee excessive force claims.
During the current term, the Supreme Court will address whether the
requirements of an excessive force claim are satisfied by a showing that
a state actor used intentional and objectively unreasonable force
against a pre-trial detainee. See Kingsley v. Hendrickson, 135 S.Ct.
1039 (2015).
1

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Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (quoting
Lewis, 523 U.S. at 852-53) (internal citations omitted). The malicious
and sadistic standard, however, “applies only in emergency-type
situations such as a prison riot or a high-speed police chase.” United
States v. Budd, 496 F.3d 517, 530 n. 9 (6th Cir. 2007).
In non-emergency situations, the Court must consider the
following factors when determining whether an action shocks the
conscience: (1) the need for application of force, (2) the relationship
between that need and the amount of force used, (3) the threat
reasonably perceived by the officers, and (4) any efforts to temper the
severity of the force used.

See Hudson v. McMillan, 503 U.S. 1, 6

(1992); Vaughn v. Thomson, 121 F.3d 710 (6th Cir. 1997).
The events here did not occur in a “rapidly evolving, fluid, and
dangerous” situation as contemplated by the Sixth Circuit in Budd and
the Hudson factors apply.
2. Defendants Szemites and Nuckolls
As a preliminary matter, “an excessive-force claimant must show
something more than de minimis force.” Leary, 528 F.3d at 443. In
Leary, the Sixth Circuit found that a karate chop to the back of the neck
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was de minimis when the plaintiff “did not suffer any verifiable injury
from the blow.” Leary, 528 F.3d at 443. The Sixth Circuit subsequently
explained that there is no “blanket de minimis requirement for
excessive force claims.” Morrison v. Board of Trustees of Green Tp., 583
F.3d 394, 406-07 (6th Cir. 2009) (“a plaintiff may allege use of excessive
force even where the physical contact between the parties did not leave
excessive marks or cause extensive physical damage.”) (internal quotes
and citations omitted); see also Richmond v. Settles, 450 Fed. App’x 448
at 453 (6th Cir. 2011) (“Although the injury sustained by the inmate
must be more than de minimis, it need not be particularly serious in
order to sustain an Eighth Amendment claim.”); Budd 496 F.3d at 53031 (“[a]lthough a pretrial detainee’s injuries must be more than de
minimus to support a constitutional violation, they need not be serious
or significant.”); Holmes v. City of Massillon, 78 F.3d 1041, 1048 (6th
Cir. 1996) (finding that officers engaged in excessive force by removing
plaintiff’s wedding ring).
Viewing the evidence in the light most favorable to plaintiff, there
is no evidence showing that these two defendants engaged in any
application of force, let alone force that was deliberately indifferent to
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the plaintiff’s rights.

Indeed, plaintiff has failed to identify any

evidence that either of these defendants came into physical contact with
him. (See Dkt. 69 at 22, 30; Dkt. 58-7 at 12, 16; Dkt. 63-4 at 5).
Accordingly, the excessive force claims arising out of the
December 2010 incident as to defendants Szemites and Nuckolls will be
dismissed because, to the extent that any force was applied by these
defendants, the force used was de minimus.
3. Deputies Winston, Mangrum, Pritchard,
and Martin
Defendants argue that the video evidence clearly demonstrates
that plaintiff was non-compliant with officer instructions and “wholly
discredits plaintiff’s version of events.”

(Dkt. 74 at 8).

Defendants

allege that plaintiff was instructed to remove his coat and shoes and
enter a cell. Plaintiff concedes that he was given these instructions,
and the video shows that he removed his coat. Defendants contend that
the deputies’ use of force was justified because they attempted to guide
plaintiff into a cell and plaintiff resisted by throwing out his arm and
kicking his leg backwards.
The Court is not convinced that the video shows this sequence of
events.
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The video shows some movement of plaintiff’s arm and leg,
however a reasonable juror could conclude from the video and plaintiff’s
testimony that he was not engaged in non-compliant behavior that
justified the application of force.

Video evidence also shows that

defendants Mangrum, Pritchard, and Martin assisted Deputy Winston
in either the takedown of plaintiff or in holding him down by his feet
and shoulders during the time when Deputy Winston is alleged to have
punched plaintiff in the back of the head.

At the hearing on this

motion, defendants’ counsel concurred that one “could possibly”
conclude form the video that plaintiff was not resisting.
As with the takedown, there remains a critical issue of material
fact with respect to the alleged punch to the head that plaintiff claims
occurred when he was lying on the ground. The video, while helpful in
illuminating some of the actions that took place, does not resolve all of
the factual disputes.

If the jury concludes that Deputy Winston

punched plaintiff in the back of the head while plaintiff was lying
compliantly on the floor, then that conduct would constitute excessive
force under the Fourteenth Amendment. See Philbrook v. Lemere, 2008
WL 4648241 at *3 (D.N.H. 2008) (finding that punching a detainee after
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he was already handcuffed would be sadistic and malicious in violation
of the Fourteenth Amendment).
For these reasons, there remains a material question of fact and a
reasonable juror could conclude that plaintiff was compliant, that there
was no need or justification for the application of force, and that
defendants

Winston,

Mangrum,

Pritchard,

and

Martin

were

deliberately indifferent to plaintiff’s constitutionally protected rights.
B. Whether a Constitutional Right Has Been Clearly
Established
In determining whether the constitutional right is clearly
established, the Court is limited to relying on decisions from the United
States Supreme Court, the Sixth Circuit, district courts within the
Sixth Circuit, and finally, decisions from other circuits. Higgason v.
Stephens, 288 F.3d 868, 876 (6th Cir. 2002). Lower courts must not
define the right at “a high level of generality.” Ashcroft v. Kidd, 131
S.Ct. 2074, 2084 (2011). Rather, courts must define the right “on the
basis of the specific context of the case.” Tolan, 134 S.Ct. at 1866. But
“courts must take care not to define a case’s context in a manner that
imports genuinely disputed factual propositions.” Id.

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Plaintiff need not point to cases involving situations identical to
the instant case. “The rule is not that an official action is protected by
qualified immunity unless the very action in question has been
previously held unlawful.” Griffith v. Coburn, 473 F.3d 650, 659 (6th
Cir. 2007). “The dispositive question is whether the defendants had fair
warning that their actions were unconstitutional.” Id. “Officials can
still be on notice that their conduct violates established law even in
novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
To that end, “[t]he Court can consider more than merely the factual
context of a prior case: the general reasoning that a court employs also
may suffice for purposes of putting the defendant on notice that his
conduct is clearly unconstitutional.” St. John v. Hickey, 411 F.3d 762,
774 (6th Cir. 2005); recognized as abrogated on other grounds, Marvin v.
City of Taylor, 509 F.3d 234, 246 n.6 (6th Cir. 2007).
In the Sixth Circuit, a pretrial detainee’s right to be free from the
use of excessive force amounting to punishment was clearly established
law at the time of the alleged conduct. See Leary, 528 F.3d at 443 (“the
Fourteenth Amendment Due Process Clause... “protects a pretrial
detainee from the use of excessive force that amounts to punishment.”)
15

(quoting Graham v. Connor, 490 U.S. at 395 n. 10); Budd, 496 F.3d at
530 (“The substantive component of Fourteenth Amendment due
process protects citizens against conduct by law officers that shocks the
conscience.”) (internal quotes omitted); see also Rose v. Reed, 2014 WL
2695505 at *10 (S.D. Ohio 2014) (noting that Leary clearly established
that the use

of excessive force amounting to punishment against a

compliant pretrial detainee was unconstitutional).
It is also well established that it is unconstitutional to punch a
detainee once he has already been subdued. This Circuit has held that
“the use of force after a suspect has been incapacitated or neutralized is
excessive as a matter of law.” Baker v. City of Hamilton, 471 F.3d 601,
607 (6th Cir. 2006) (denying qualified immunity where plaintiff was
struck after surrendering to police); Feemster v. Dehntjer, 661 F.2d 87,
89 (8th Cir. 1981) (“[n]o matter how difficult it is to apprehend a
prisoner, the law does not permit officers to beat him once he is securely
in custody.”))
Accordingly, defendants Winston, Mangrum, Pritchard, and
Martin’s motion for summary judgment is denied because they are not
entitled to qualified immunity for the December 2010 incident.
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V.

Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that:
Defendants’ second motion for summary judgment is GRANTED
as it pertains to defendants Szemites and Nuckolls. The excessive force
claims arising out of the December 2010 incident against these
defendants are DISMISSED.
Defendants’ second motion for summary judgment is DENIED as
it pertains to defendants Winston, Mangrum, Pritchard, and Martin
because there remain issues of material fact to be resolved by a jury.
The Court further adopts the following scheduling deadlines:
May 25, 2015: Motions in Limine Due.
June 22, 2015: Joint Final Pre-Trial Order Due.
June 30, 2015 at 1:00 pm: Final Pre-Trial Conference.
July 6, 2015: Jury Instructions and Proposed Voir Dire Due.
July 13, 2015 at 8:30am: Trial.
IT IS SO ORDERED.

Dated: May 4, 2015
Ann Arbor, Michigan

s/Judith E. Levy___________
JUDITH E. LEVY
United States District Judge
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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 May 4, 2015.

s/Felicia M. Moses__________
FELICIA M. MOSES
Case Manager

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