Jackson v. Genesee, County of et al
Filing
48
MEMORANDUM OPINION and ORDER Granting in Part Defendants' 41 MOTION for Summary Judgment and Dismissing Case - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Thelonious Jackson,
Plaintiff,
v.
Case No. 13-cv-15178
Hon. Judith E. Levy
Mag. Judge Mona K. Majzoub
Daniel Lubelan and Platt R.
Weinrick,
Defendants.
________________________________/
OPINION AND ORDER GRANTING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [41]
AND DISMISSING CASE
This is an excessive force case. Plaintiff alleges that defendants
handcuffed him during an arrest, and applied the handcuffs excessively
tight. Pending is defendants’ motion for summary judgment. (Dkt. 41.)
I.
Factual Background
On December 22, 2011, defendants Daniel Lubelan and Platt
Weinrick, Michigan State Police officers, pulled plaintiff over in Flint,
Michigan, for expired tags. Officer Lubelan approached plaintiff’s car
on the driver’s side, and Weinrick approached it on the passenger’s side.
Lubelan asked for plaintiff’s identification and proof of insurance, ran
the information through the police database, and discovered that
plaintiff had three outstanding arrest warrants.
Defendants then arrested plaintiff for the outstanding warrants.
Plaintiff alleges that Lubelan handcuffed him, and the handcuffs were
extremely tight, and that he experienced pain while the handcuffs were
on. (Dkt. 43-2 at 11.) He further alleges that he told defendants the
handcuffs were too tight, but they either did nothing or told him not to
worry about it.
(Id.)
Plaintiff then states that Lubelan “went and
talked to [Weinrick] for a moment or so, . . . and [then] we walked
around to the right side of the officers’ vehicle.” (Id.) Plaintiff states
that he complained about the tightness of the cuffs once more, and then
Lubelan “lift[ed] [him] up from the – from [his] wrist to put [him] in the
car[.]”
(Id.)
“[W]hen [Lubelan] lifted up on it it kind of pinched
[plaintiff’s] nerves in [his] neck.”
(Id.)
Plaintiff’s primary physical
complaint is of tingling and numbness in his right wrist, which began
“[a]bout a minute after the cuffs were placed.” (Id. at 17.)
Plaintiff then alleges that he told the officers repeatedly during
the thirty-minute wait for a tow truck and subsequent transport to the
2
jail that his handcuffs were too tight, and the officers did nothing.
Plaintiff was in jail for the next ten days, and then sought medical
attention after his release.1
On January 26, 2012, plaintiff was initially diagnosed with carpal
tunnel syndrome and inflamed nerves in his wrist after complaining of
numbness. (Dkt. 43-5 at 2.) The pain did not subside, and plaintiff
sought further medical treatment in June 2012, complaining of
“discomfort in his neck and right cervical area.” (Dkt. 43-7 at 2.) His
test results suggested cervical nerve root compression.
(Id. at 3.)
Plaintiff testified at deposition that he was told by his doctor that the
cause of his wrist and neck pain was a pinched nerve in his neck. (Dkt.
41-6 at 7; see also Dkt. 43-7.)
Plaintiff filed suit on December 19, 2013, against Genesee County
and unknown officers, and amended his complaint on December 16,
2014. (Dkt. 33.) Defendants filed a motion for summary judgment on
August 31, 2015 (Dkt. 41), and the motion is now fully briefed. Oral
argument was held on December 2, 2015.
Plaintiff testified that he sent a medical kite while in jail, and may have seen a
nurse. (Dkt. 43-2 at 12-13.) At oral argument, defendant’s counsel stated that no
record of the kite or the nurse visit exist.
1
3
II.
Legal Standard
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 asserts three claims against defendants: 1) violation of
the Fourth Amendment through use of excessive force in handcuffing; 2)
assault and battery; and 3) gross negligence. (See Dkt. 33.)
A. Excessive Force Claim
To survive a motion for summary judgment, a plaintiff asserting a
handcuffing excessive force claim must offer sufficient evidence to
create a genuine issue of material fact that: (1) he or she complained the
4
handcuffs were too tight; (2) the officer ignored those complaints; and
(3) the plaintiff experienced some physical injury resulting from the
handcuffing.
Baynes v. Cleland, 799 F.3d 600, 608 (6th Cir. 2015).
Defendants stipulate that plaintiff has met the first two elements of
this test based on his testimony. (Dkt. 41 at 18.) They argue that
plaintiff has not established the third element: some physical injury
resulting from the excessively tight handcuffing.
At this stage, plaintiff does not bear an onerous evidentiary
burden in establishing an issue of material fact as to physical injury; a
plaintiff’s testimony alone is sufficient to create a genuine issue of
material fact. See, e.g., id. at 609 (holding that the plaintiff’s testimony
that he could not feel his fingers because of the tightness of the
handcuffs and that he still experienced numbness in his fingers was
sufficient to survive summary judgment); Morrison v. Bd. of Trustees of
Green Twp., 583 F.3d 394, 402-03 (6th Cir. 2009) (holding that
testimony the plaintiff suffered wrist marks and bruising from the
handcuffs was sufficient); Martin v. Heideman, 106 F.3d 1308, 1310,
1312-13 (6th Cir. 1997) (holding that plaintiff’s testimony that he
5
experienced numbness and swelling from excessively tight handcuffs
was sufficient).
Here, however, plaintiff conflates two acts: excessively tight
handcuffing, from which he has not alleged any injury, and an awkward
twisting of his arm, from which he has alleged an injury, supported by
numerous medical records. Plaintiff alleges that the following series of
events occurred: he was asked to exit his vehicle, and then handcuffed.
Plaintiff complained of the tightness of the handcuffs, while the officer
who handcuffed him spoke to his partner for a “moment or so.” Plaintiff
was then placed into the police car, during which his wrist was
awkwardly twisted and he felt a pinch in his neck. “[A]bout a minute
after the cuffs were placed” on his wrists, plaintiff began to feel
numbness and tingling in his right wrist.
Instead, what plaintiff has alleged is an injury resulting from the
awkward twisting of his wrist while he was being placed in the car.
Plaintiff has not identified any physical injury other than general and
unspecified pain that resulted from the handcuffs being too tight.
Instead, he has identified an act – the awkward twisting of his wrist
resulting in the pinching of a nerve – from which injury resulted.
6
Certainly, this awkward placement was used because plaintiff was
handcuffed, but the tightness of the handcuffs did not have any impact
on this maneuver at the time he was placed in the car.
Plaintiff’s
doctors have diagnosed him with a pinched nerve resulting in the
injuries he sustained (and to the extent his initial assessment did not
state that the cause was a pinched nerve, it did not establish that the
cause was or could have been the excessively tight handcuffing).
Plaintiff’s timeline of events also establish that his pain began
when his wrist was twisted. Plaintiff testified that he was handcuffed
for a moment while Lubelan talked to Weinrick, and then walked over
to the police car, where his wrist injury occurred while being placed in
the car. He also states that his wrist began to hurt about a minute
after the cuffs were placed on him – in other words, roughly at the time
his wrist was awkwardly twisted. Plaintiff has not provided evidence
that there was any time during which he was physically injured prior to
the twisting, and his medical records establish that the likely cause of
any wrist problems was the twisting.
Because plaintiff has not created a genuine issue of material fact
that he experienced physical injury resulting from the handcuffing,
7
rather than the independent awkward twisting of his wrist while he
was handcuffed, his excessive force claim must be dismissed.
B. Qualified Immunity
Defendants assert that they are also entitled to qualified
immunity as to plaintiff’s claims. To the extent that plaintiff alleges
that defendants violated his Fourth Amendment rights in some manner
other than the handcuffing (namely, the manner in which plaintiff’s
arms and wrists were moved when being put into the car), qualified
immunity is warranted.
“[A] defendant is entitled to qualified immunity on summary
judgment unless the facts, when viewed in the light most favorable to
the plaintiff, would permit a reasonable juror to find that: (1) the
defendant violated a constitutional right; and (2) the right was clearly
established.” Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011). It
does not appear that plaintiff is asserting that defendants violated the
Fourth Amendment through any action other than the handcuffing, and
he has provided no evidence that defendants did so. Notably, plaintiff
characterizes defendants’ efforts as “help[ing] me get in the car,” and
does not contend that he was mistreated as they did so beyond the
8
tightness of the handcuffs, or that the officers otherwise acted
unreasonably. (Dkt. 43-2 at 17.)
C. Assault and Battery
Plaintiff alleges that defendants committed assault and battery
against him. “To recover civil damages for assault, plaintiff must show
an intentional unlawful offer of corporal injury to another person by
force, or force unlawfully directed toward the person of another, under
circumstances which create a well-founded apprehension of imminent
contact, coupled with the apparent present ability to accomplish the
contact.”
VanVorous v. Burmeister, 262 Mich. App. 467, 482-83
(2004). “To recover for battery, plaintiff must demonstrate a willful and
harmful or offensive touching of another person which results from an
act intended to cause such a contact.” Id. at 483.
Governmental employees in Michigan are immune from tort
liability for negligent torts if 1) the employee is acting or reasonably
believes he or she is acting within the scope of his or her authority; 2)
the agency for which the employee works is engaged in the exercise or
discharge of a governmental function; and 3) the employee’s conduct
9
does not amount to gross negligence that is the proximate cause of the
injury or damage. M.C.L. § 691.1407(2).
In Odom v. Wayne County, 482 Mich. 459 (2008), the Michigan
Supreme Court determined that the proper test for governmental
employee liability from intentional torts remained the same as it did
before the passage of subsection (2) of § 691.1407. Odom, 482 Mich. at
470. That test grants immunity where 1) an employee’s acts were taken
during the course of employment and the employee was acting, or
reasonably believed he was acting, within the scope of his authority; 2)
the
acts
were
taken
in
good
faith;
and
3)
the
acts
were
discretionary/decisional, as opposed to ministerial/operational. Id. at
468 (citing Ross v. Consumers Power Co., 420 Mich. 567, 633-34 (1984)).
Because assault and battery are intentional torts, the Odom test
applies.
Defendants argue that the plaintiff’s arrest and handcuffing were
taken during the course of their employment and within the scope of
their authority to arrest a person with outstanding warrants, and that
the acts were discretionary.
Defendants also argue that their
handcuffing of plaintiff was done in good faith.
10
Plaintiff disputes each of these elements. Plaintiff argues that
defendants could not have believed they were acting within the scope of
their employment “[b]ased on the violent actions/inactions taken
against [him][.]” (Dkt. 43 at 25.) A police officer handcuffing a person
under arrest pursuant to multiple valid arrest warrants is squarely
within the scope of that officer’s authority.
Plaintiff next argues that defendants’ acts were not taken in good
faith. Under Michigan law, “good faith” means “acting without malice.”
Odom, 482 Mich. at 474. Under the good faith standard, an “action may
lie only if the officer has utilized wanton or malicious conduct or
demonstrated a reckless indifference to the common dictates of
humanity.” Id. (further citation omitted). Plaintiff does not explain
how defendants’ actions were “wanton” or “malicious,” nor how they
“demonstrated a reckless indifference to the common dictates of
humanity.” Instead, plaintiff points to his allegations and concludes
that there can be no dispute this standard is met.
The true issue, then, is whether handcuffing a compliant
individual is a discretionary or ministerial act. Defendants argue that
11
the decision to stop and arrest plaintiff was discretionary, but do not
specifically argue that the handcuffing itself was discretionary.
Ministerial acts require “obedience to orders or the performance of
a duty in which the individual has little or no choice[.]” Id. at 475476 (internal quotation marks and citations omitted). “[H]andcuffing
an individual under normal circumstances incident to an arrest without
resistance may be a ministerial act[.]” Oliver v. Smith, 290 Mich. App.
678, 690 (2010). “Ministerial-operational acts involve the execution or
implementation of a decision and entail only minor decision-making.”
Ross, 420 Mich. at 592. “[A]n officer’s decision concerning what type of
action to take, e.g., to make an arrest, issue a warning, or wait for
assistance, is a discretionary act entitled to immunity. However, the
execution of that decision is merely a ministerial act.” Oliver, 290 Mich.
App. at 690. “It was generally conceded in Ross that a police officer’s
use of excessive force in effectuating an arrest is a ministerial act and
not entitled to the cloak of immunity.” Butler v. Detroit, 149 Mich. App.
708, 718 (1986).
Handcuffing during a regular arrest of a compliant individual may
be, under Michigan law, ministerial. The apparent exception is when
12
the individual does something during the arrest that would require the
officer to use his or her discretion to determine the proper method of
handcuffing the individual. The Court, based on the record before it,
cannot determine whether defendants’ handcuffing of plaintiff was
discretionary or ministerial as a matter of fact or law.
Because the Court has dismissed plaintiff’s federal constitutional
claim,
it
will
decline
to
exercise
jurisdiction
over
plaintiff’s
supplemental state law claim. See 28 U.S.C. § 1367(c)(3). Accordingly,
this claim is dismissed without prejudice to being raised in Michigan
state court. 28 U.S.C. § 1367(d).
D. Gross Negligence
Plaintiff also asserts a claim for gross negligence under M.C.L. §
691.1407(2). (Dkt. 33 at 5-6.) The Governmental Liability Act does not
create a separate cause of action for gross negligence.
Instead, it
establishes that a governmental employee is entitled to immunity for
negligent tort claims unless the employee’s conduct “amount[s] to gross
negligence” as defined by M.C.L. § 691.1407(8)(a).
691.1407(2).
13
M.C.L. §
Plaintiff does not assert any tort claims premised on the
negligence of defendants, and cannot convert his intentional tort claims
into gross negligence claims. VanVorous v. Burmeister, 262 Mich. App.
467, 483-84 (2004) (overturned on other grounds by Odom v. Wayne
County, 482 Mich. 459 (2008)). Accordingly, plaintiff’s gross negligence
claim is dismissed.
IV.
Conclusion
For the reasons set forth above, it is hereby ordered that:
Defendants’ motion for summary judgment (Dkt. 41) is GRANTED
as to plaintiff’s excessive force and gross negligence claims;
Defendant’s motion for summary judgment is DENIED as to
plaintiff’s assault and battery claim;
Plaintiff’s assault and battery claim is DISMISSED WITHOUT
PREJUDICE due to lack of a claim over which the Court has original
jurisdiction; and
Plaintiff’s case is DISMISSED.
IT IS SO ORDERED.
Dated: December 8, 2015
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
14
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 December 8, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
15
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?