Jackson v. Dottor et al
Filing
17
OPINION and ORDER Granting Defendants' 8 Motion for Summary Judgment and Denying Plaintiff's 14 Cross-Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Vicki Lashawn Jackson,
Plaintiff,
v.
Case No. 17-cv-10514
Judith E. Levy
United States District Judge
Jordan Dottor and
City of Dearborn Heights,
Mag. Judge Anthony P. Patti
Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [8] AND
DENYING PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT [14]
Plaintiff Vicki Lashawn Jackson brought this action, which arises
out of a traffic stop that resulted in her arrest on January 14, 2015. The
complaint includes a claim for excessive use of force and state law tort
claims against the responding officer, Jordan Dottor (“Officer Dottor”),
and his employer, City of Dearborn Heights (collectively “defendants”).
The complaint revolves around the allegation that Officer Dottor
unreasonably removed plaintiff from her car at with his gun drawn and
injured her by handcuffing her wrists too tightly. Defendants filed this
motion for summary judgment on August 24, 2018, on all counts. (Dkt.
8.) Plaintiff responded late, filing an “answer to defendants’ motion for
summary judgment” and “cross-motion for summary judgment.” (Dkt.
14.)
I.
Background1
Dashcam footage caught the relevant portions of Officer Dottor’s
pursuit and traffic stop that forms the basis for this case. On January 14,
2015, at about 4:38 P.M., Officer Dottor turned right onto Ford Road, in
Dearborn, Michigan, activated his overhead lights, and pursued plaintiff
for speeding. (Dkt. 8-2 at 8; Dkt. 8-4 at 16:38:17–16:38:50.) He pulled
behind plaintiff in the left turn lane at the intersection of Ford and
Inkster Roads. Plaintiff turned left into the right-most lane of Inkster
Road. (Dkt. 8-2 at 8; Dkt. 8-4 at 16:39:00.)
Despite being pursued by Officer Dottor, plaintiff continued to drive
in the right lane without stopping for several minutes. At one point early
in the pursuit, plaintiff decreased her speed, appearing to pull over, but
increased speed again and drove onwards. (Dkt. 8-4 at 16:39:20–
Because plaintiff did not provide a meaningful recitation of the facts of her
case in response to defendants’ summary judgment motion, the facts outlined below
are taken from the record as developed by defendants.
1
2
16:39:30.) Plaintiff passed multiple roads and driveways where she could
have pulled in safely as she continued on Inkster Road. (Id.) After
pursuing plaintiff with his overhead lights for approximately one minute,
Officer Dottor activated his siren. (Id. at 16:39:37.)
After two minutes of pursuit, Officer Dottor and plaintiff stopped at
a red light. Officer Dottor stopped his patrol car, turned off his siren, and
yelled at the plaintiff twice to “[g]et out of the car now.” (Id. at 16:40:33.)
Plaintiff did not immediately exit her vehicle. Officer Dottor then drew
his weapon, approached the car, and directed plaintiff to turn off her
vehicle. (Id. at 16:40:38.) He opened her car door, pulled her out of the
vehicle, placed her under arrest, and proceeded to handcuff her. (Id. at
16:40:40–16:40:50.) Plaintiff, visibly upset, pleaded with Officer Dottor:
“Are you serious?” “My son is on the bus,” and “I wasn’t running, I had
no chance to pull over.” (Id. at 16:40:52–16:41:20.)
During the traffic stop and the subsequent ride to the police station,
plaintiff complained that the handcuffs caused her pain and discomfort.
Plaintiff first complained of tight handcuffs three minutes after she was
initially handcuffed, stating: “[t]hese cuffs are so . . . they’re hurting my
arm.” (Id. at 16:44:39.) Officer Dottor immediately replied, “[o]kay, I’ll
3
adjust them, one minute.” Less than one minute later, Officer Dottor told
plaintiff, “[o]kay, turn around and I’ll [adjust] them,” and he did so. (Id.
at 16:45:22.) Five minutes later, plaintiff made another complaint that
“[t]hese handcuffs are still too tight.” (Id. at 16:50:45.) Officer Dottor
replied, “[n]o, I can get my fingers through them . . . this one is barely
even on you.” (Id. at 16:50:56–16:51:10.) Plaintiff, however, maintained
that the handcuffs were still too tight. (Id. at 16:51:03.) Officer Dottor
asked plaintiff to rearrange the position of her hands, and after a
moment, told her, “[t]here you go,” presumably having adjusted the
handcuffs a second time. (Id. at 16:51:10–16:51:14.) For a few moments
after that, plaintiff complained that “[i]t’s still too tight, “[o]uch,”
“[t]hey’re still too tight,” and “[g]et it off that bone.” (Id. at 16:51:15–
6:51:30.) Plaintiff, however, made no additional complaints about the
tightness of the handcuffs for the final ten minutes of the drive to the
police station.
Throughout the traffic stop and ride to the police station, most of
the conversation revolved around plaintiff’s concern for her son. Plaintiff
told Officer Dottor multiple times that she had to pick up her ten-yearold son from his bus stop and asked Officer Dottor repeatedly to contact
4
her daughter. Officer Dottor contacted dispatch and requested that
plaintiff’s daughter be notified that her brother had to be picked up from
his bus stop. (Id. at 16:43:47–16:44:50.) Dispatch later informed Officer
Dottor that plaintiff’s daughter was already at the bus stop when
dispatch contacted her; Officer Dottor then conveyed this message to
plaintiff. (Id. at 16:57:20.)
Officer Dottor and plaintiff arrived at the police station at 5:00 P.M.
Plaintiff maintains that after she was booked, she continued to complain
of discomfort and pain from the handcuffs. (Dkt. 8-2 at 10.) She alleges
that she requested to see a sergeant, who ordered that the handcuffs be
removed. (Id.) Plaintiff spent the night in the jail and was released the
next morning. (Id. at 11).
An attorney, Odie T. Uddyback, III, visited plaintiff at the police
station. He recalled plaintiff’s wrists being bruised and swollen and
recalled taking cell phone photos of plaintiff’s wrists. (Dkt. 14-3 at 3.) But
he states now that he has switched phones multiple times since the
incident and no longer has the photos. (Id.)
At some point following the arrest, plaintiff saw her doctor, an
internal medicine physician, about possible wrist injuries from the
5
handcuffing. (Dkt. 8-2 at 13). Plaintiff, however, could not recall the
doctor providing any diagnosis, treatment, or medication, nor does she
allege or provide medical records to substantiate her alleged wrist
injuries. (Id.) Plaintiff also contends that the traffic stop caused her to
suffer heightened anxiety, prompting an increased dose of her antianxiety medication. (Id.)
II.
Legal Standard
Summary judgment is proper when “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 (1986). 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)).
The moving party “bear[s] the initial burden of demonstrating the
absence of a genuine issue of material fact on at least one essential
6
element.” Stiles v. Grainger Cty., 819 F.3d 834, 847 (6th Cir. 2016) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party
meets this burden, the non-moving party must then point to “facts in the
record raising a genuine issue for trial.” Id. (citing Celotex, 477 U.S. at
324).
III. Plaintiff’s “Cross-Motion for Summary Judgment”
On October 29, 2018, plaintiff filed her response to defendants’
motion for summary judgment and entitled it, in part, a “cross-motion for
summary judgment.” But the dispositive motion cut-off in this case was
August 27, 2018. (Dkt. 7.) Although the Court entered a stipulated order
extending the time for plaintiff’s counsel to file a memorandum in
response to defendants’ timely motion for summary judgment (Dkt. 13),
the order does not provide an extension to the dispositive motion cutoff.2
Therefore, the Court will not consider plaintiff’s cross-motion, as it is
The stipulated order was, in fact, the second stipulation permitting an
extension to file a response to defendants’ motion for summary judgment. (See Dkts.
11, 13.) Plaintiff had filed a two-page “answer and cross-motion” on the final day
permitted under the first stipulated extension. (Dkt. 12.) Plaintiff’s first filing was
grossly deficient, prompting the need for the second stipulation for an extension to
file the current amended response.
2
7
untimely. And, in any event, the motion is facially deficient. The motion
is denied.
IV.
Defendants’ Motion for Summary Judgment
Plaintiff brings counts of excessive force, gross negligence,
intentional infliction of emotion distress, and assault and battery against
Officer Dottor. And although not clearly delineated on the face of the
complaint, it appears the only count that is pleaded against the City of
Dearborn Heights is count one, broadly entitled “Violations of the Fourth
and Fourteenth Amendments.” (Dkt. 1) Defendants move for summary
judgment on all counts.
a. Count One
Plaintiff brings count one pursuant to 42 U.S.C. § 1983, asserting a
claim of excessive force in violation of the Fourth Amendment of the U.S.
Constitution. Specifically, she alleges that Officer Dottor handcuffed her
too tightly, amounting to excessive force. She appears to bring a
municipal liability claim against the City of Dearborn Heights under this
count, as well.
8
i. Officer Dottor
Plaintiff argues that Officer Dottor used excessive force and is not
entitled to qualified immunity related to his placement of the handcuffs
of her wrists. “In civil suits pursuant to 42 U.S.C. § 1983 for money
damages, qualified immunity protects a public official from being sued as
long as the official ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Crockett v. Cumberland, 316 F.3d 571, 579 (6th Cir. 2003) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). On summary judgment,
the Court considers whether the facts “viewed in the light most favorable
to the plaintiff, ‘show the officer’s conduct violated a constitutional
right.’” Soloman v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir.
2004) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Only if there is
sufficient showing of a constitutional violation must a court analyze
whether the right is “clearly established.” Id.
The Fourth Amendment guarantees citizens the right “to be free of
excessive force when police make an arrest or seizure.” Lyons v. City of
Xenia, 417 F.3d 565, 575 (6th Cir. 2005). The right to be free from
excessive force includes a prohibition of “unduly tight or excessively
9
forceful handcuffing.” Miller v. Sanilac Cty, 606 F.3d 240, 252 (6th Cir.
2010) (citing Morrison v. Bd. of Tr. of Green Twp, 583 F.3d 394, 400 (6th
Cir. 2009)). To determine whether handcuffing is excessively forceful,
courts employ a three-pronged test. Lyons, 417 F.3d at 576. To avoid
summary judgment on her handcuffing claim, plaintiff “must offer
sufficient evidence to create a genuine issue of material fact that: (1) [ ]
she complained that the handcuffs were too tight; (2) the officer ignored
those complaints; and (3) the plaintiff experienced ‘some physical injury’
resulting from the handcuffing.” Miller, 606 F.3d at 252 (quoting
Morrison, 583 F.3d at 400). In this case, only prongs two and three are at
issue since it is undisputed that plaintiff complained that the handcuffs
were too tight.
In general, to meet the second prong, the officer must have
dismissed or disregarded plaintiff’s complaints. See Baynes v. Cleland,
799 F.3d 600, 609 (6th Cir. 2015). A “dismissive response” may be
sufficient to meet this prong, and thus, “a plaintiff can survive summary
judgment even if the officer gave some reply . . . if the response was
essentially nonresponsive.” Id. (citing Morrison, 583 F.3d at 402). For
instance, in Baynes, the plaintiff survived summary judgment where the
10
plaintiff “testified that [the officer] replied to [plaintiff’s] complaints by
telling [plaintiff] that the handcuffs were not to tight, and if they were
loosened, [plaintiff] may be able to get out.” Id. This response was, in
effect, nonresponsive since it simply dismissed the plaintiff’s complaints
without acting on them.
Plaintiff fails to show that Officer Dottor ignored her complaints. In
contrast to Baynes, the Dashcam audio recorded multiple responses by
Officer Dottor almost immediately after plaintiff’s initial complaints.
When plaintiff first complains a few minutes into her arrest, Officer
Dottor immediately responded, “I’ll adjust them for you.” And he does so
within one minute. About five minutes later, plaintiff again tells Officer
Dottor that the handcuffs are too tight. He again responded immediately,
stating, “I can get my fingers in here” and “this one’s barely even on you,”
demonstrating that he checked the handcuffs within moments of her
second complaint. He then helped her adjust her hands, stating “there
you go.” After two adjustments, plaintiff again claims the handcuffs are
too tight. But for the final ten minutes of transport to the police station,
plaintiff makes no further complaints. By responding to plaintiff and
11
adjusting the handcuffs and plaintiff’s hand position, Officer Dottor was
demonstrably responsive.
Plaintiff repeatedly argues that Officer Dottor ignored her requests
and she contends that Officer Dottor failed to loosen her handcuffs at any
point. This is refuted by the dashcam footage. And although Officer
Dottor did not respond to her final complaint, an officer is not required to
respond to every request to loosen handcuffs. Rather, the law requires
that an officer not ignore an arrestee’s complaints. See Miller, 606 F.3d
at 252. Officer Dottor’s swift response to the initial two complaints, even
if plaintiff believes his responses were inadequate, sufficiently
demonstrates that he did not ignore plaintiff’s complaints. Because the
second prong is not met, Officer Dottor is entitled to summary judgment
on this claim.
Regarding the final prong, that plaintiff was physically injured, the
Sixth Circuit instructs that most injuries are sufficient, including
swelling, redness, numbness, and injuries requiring further medical
attention. E.g., Baynes, 799 F.3d at 609 (finding deposition testimony
about numbness and medical records noting a diagnosis of “bilateral
radial sensory neuropathy” as a result of the handcuffing was sufficient).
12
Although deposition testimony may support the existence of an issue of
fact on this element, a failure by plaintiff to support her testimony with
medical or other records can weigh in favor of summary judgment for
defendants. Miller, 606 F.3d at 252 (“[A]lthough [plaintiff] stated in his
deposition that he lost color in his hands for more than a day after the
arrest and has continuing inability to use his hands, these assertions are
not supported by his medical records or the intake form he completed
during his arrest.”).
The Court need not reach a decision on this prong but nonetheless
notes that plaintiff struggles to substantiate an issue of fact on this
element, as well. Plaintiff’s deposition testimony does not reveal any
physical injury. And although she stated she went to a physician
following the incident, she also stated she was unable to recall whether
it resulted in a diagnosis or needed treatment. She also provides no
medical records in response to defendants’ motion to support her claim.
The only showing she has made is to provide her own affidavit that states
her “wrist was bruised and swollen” (Dkt. 143-2), and an affidavit from
an attorney who visited her at the police station, who stated he took
pictures of her wrists that “were so bruised to the point that they look as
13
if they were bleeding” (Dkt. 143-3). And since the only potential
photographic evidence of her bruised wrists has since been lost, no
photos, medical documentation, or deposition testimony is provided to the
Court to support an issue of triable fact on plaintiff’s injuries. Although
most physical injuries will qualify, failing to support assertions of an
injury with deposition testimony, medical records, or otherwise can
suggest a plaintiff has not met her burden on this prong. See Miller, 606
F.3d at 252. Nonetheless, the Court declines to decide this issue.
Because there is no issue of fact as whether Officer Dottor
responded to plaintiff’s complaints about the handcuffs, her right to be
free from excessively forceful handcuffing was not violated.3 Officer
Dottor is entitled to summary judgment on this claim.
ii. City of Dearborn Heights
In her response to defendants’ motion, plaintiff briefly argues that
the City violated her constitutional rights through “active concealment of
abusive police actions.” (Dkt. 14 at 22–23.) “To show the existence of a
Since there was no constitutional violation, the Court need not analyze
whether the right is clearly established, but notes that the right at issue is likely is.
See Baynes, 799 F.3d at 613 (“[U]nduly tight or excessively forceful handcuffing is a
clearly established violation of the Fourth Amendment.” (citing cases)).
3
14
municipal policy or custom leading to the alleged violation, a plaintiff can
identify: (1) the municipality’s legislative enactments or official policies;
(2) actions taken by officials with final decision-making authority; (3) a
policy of inadequate training or supervision; or (4) a custom of tolerance
or acquiescence of federal violations.” Winkler v. Madison Cty., 893 F.3d
877, 901 (6th Cir. 2018) (quoting Baynes, 799 F.3d at 621). But in her
response, plaintiff rests on bald assertions. She has not pointed to any
evidence in the record that creates a triable fact as to an official policy,
action by policy makers, lack of training, or a custom adopted by
Dearborn Heights. Accordingly, the City is entitled to summary
judgment on this claim.
b. Gross Negligence
Plaintiff brings a count of gross negligence against Officer Dottor.
“Under the governmental immunity act, a governmental employee is not
liable in tort for personal injuries as long as the employee’s ‘conduct does
not amount to gross negligence that is the proximate cause of the injury
or damage.’” Oliver v. Smith, 269 Mich. App. 560, 565 (2006) (quoting
MCL § 691.1407(2)). But the governmental immunity act does not create
a cause of action. Rakowski v. Sarb, 269 Mich. App. 619, 627 (2006) (citing
15
Beaudrie v. Heanderson, 465 Mich. 124, 139 (2001)). A plaintiff must first
allege “that the governmental employee defendant owed a common-law
duty to the plaintiff.” Id. But because Michigan courts are not “bound by
the choice of label” used in a pleading, Norris v. Police Officers, 292 Mich.
App. 574, 582 (2011), the Court will generously construe this claim to be
a claim of negligence arising out of Officer Dottor’s handcuffing.4
Under the statute, a lower level government defendant’s actions
taken within the scope of his employment is immune from suit, unless it
amounts to gross negligence. MCL 691.1407(2). Gross negligence is
defined as “conduct so reckless as to demonstrate a substantial lack of
concern for whether an injury results.” MCL 691.1407(8)(a). A court must
determine whether an officer’s “conduct and failure to act demonstrates
This Count is likely deficient. The Michigan Court of Appeals has stated that
a “claim of gross negligence [that] is fully premised on [a] claim of excessive force” is
not a separate cognizable claim. VanVorous v. Burmeister, 262 Mich. App. 467, 483
(2004). And, in fact, plaintiff’s gross negligence count is pleaded as a constitutional
violation, referencing “excessive, unnecessary and unwarranted brutality” in
violation of “Plaintiff’s constitutional rights as protected under the 4th and 14th
Amendment to the United States Constitution.” (Dkt. 1 at 14.) The actions alleged in
this count are also the same ones that serve as the basis for counts of intentional
infliction of emotional distress and assault and battery, both intentional torts. See
VanVorous, 262 Mich. App. at 483–84 (“[T]his Court has rejected attempts to
transform claims involving elements of intentional torts into claims of gross
negligence.”). But because the Michigan Court of Appeals has also cited to
handcuffing-related excessive force cases in the context of gross negligence, the Court
will entertain this count on the merits.
4
16
a willful disregard of precautions and measures to attend to plaintiff's
safety,” or otherwise stated, whether “an objective observer watching [the
officer’s] conduct could reasonably conclude that he simply did not care
about plaintiff's safety or welfare.” Jackson v. Lubelan, No. 338275, 2018
Mich. App. LEXIS 2789, at *8–9 (July 5, 2018) (citing Oliver v. Smith,
290 Mich. App. 678, 685 (2010); Tarlea v. Crabtree, 263 Mich. App. 80, 90
(2004)). In the context of handcuffing, the Michigan Court of Appeals has
adopted the Sixth Circuit’s reasoning that “a police officer’s conduct of
handcuffing an individual too tightly does not constitute gross negligence
unless physical injury results.” Oliver, 269 Mich. App. at 566.
Officer Dottor is clearly a lower level employee taking actions
within the scope of his employment, and since his conduct was not grossly
negligent, he is immune from suit on this claim. The dashcam footage
demonstrates that Office Dottor was responsive to plaintiff’s complaints
about the tightness of the handcuffs. On two occasions, he quickly
responded to plaintiff’s requests to adjust them. Therefore, a reasonable
observer could not conclude that Officer Dottor “simply did not care about
plaintiff’s safety or welfare.” See Jackson, 2018 Mich. App. LEXIS 2789,
17
at *8–9. Accordingly, Officer Dottor is entitled to summary judgment on
plaintiff’s claim of gross negligence.
c. Intentional Torts
Finally, plaintiff brings claims of intentional infliction of emotional
distress and assault and battery, which are intentional torts. With
respect to intentional tort claims brought against government
defendants, the Michigan Supreme Court directs courts to do the
following:
If the plaintiff pleaded an intentional tort, determine whether
the defendant established that he is entitled to individual
governmental immunity . . . by showing the following:
(a) The acts were undertaken during the course of
employment and the employee was acting, or reasonably
believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were not
undertaken with malice, and
(c)
the acts were discretionary, as opposed to ministerial.
Odom v. Wayne Cty., 482 Mich. 459, 480 (2008). Malice has been
described as “willful misconduct,” “conduct . . . that was intended to harm
the plaintiff,” or “wanton misconduct . . . show[ing] such indifference to
whether harm will result.” Id. at 475. It is undisputed that the act of
18
handcuffing plaintiff was discretionary and taken during the course of
Officer Dottor’s employment, and therefore the only issue is whether
there is a material issue of fact as to whether Officer Dottor acted with
malice or in bad faith.
Here, the dashcam footage demonstrates that Officer Dottor
responded to plaintiff’s complaints and his actions, therefore, do not
constitute wanton or willful misconduct. Officer Dottor adjusted the
handcuffs after plaintiff complained of discomfort multiple times. There
is nothing in the record to suggest that Officer Dottor “intended to harm”
plaintiff or was willfully indifferent to whether plaintiff would be injured
as a result of his actions. Nor does the dashcam footage or his deposition
testimony, suggest that Officer Dottor’s actions were taken in bad faith.
In her response, plaintiff relies on conclusory statements to refute
defendants’ properly supported motion for summary judgment. She
states that Officer Dottor’s “violent” approach to her vehicle with his
weapon drawn and pulling her from the vehicle is “clearly an assault.”
(Dkt. 14 at 22.) But plaintiff fails to point to the record or provide
additional evidence to support this conclusion. Nor does she provide legal
support for her claim that Officer Dottor’s decision to approach the car
19
with his weapon drawn was unlawful or excessive. Accordingly, there is
no issue of material fact as to malice, and Officer Dottor is entitled to
immunity for the intentional torts brought against him.
V.
Conclusion
For reasons stated above, defendants’ motion for summary
judgment is GRANTED (Dkt. 8); and
Plaintiff’s improper cross-motion for summary judgment is
DENIED (Dkt. 14).
IT IS SO ORDERED.
Dated: March 19, 2019
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 March 19, 2019.
s/Shawna Burns
SHAWNA BURNS
Case Manager
20
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?