Bell v. Porter et al

Filing 18

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

B e l l v. Porter et al

D o c . 18

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

D A N I E L L E BELL, P l a in tif f , F ile No. 1:09-CV-970 v. H O N . ROBERT HOLMES BELL D O N A L D PORTER, in his individual c a p a c ity, and CITY OF LANSING, D e f e n d a n ts . / OPINION T h is action alleging the use of excessive force during a police encounter is before the C o u rt on a motion for summary judgment filed by Defendants City of Lansing and Lansing p o lic e officer Donald Porter. (Dkt. No. 11.) For the reasons that follow, Defendants' motion w ill be granted in part and denied in part. I. Plaintiff Danielle Bell is a 29-year-old double amputee with two prosthetic legs. On O c t o b e r 27, 2007, Plaintiff and her sister Laura Bell were passengers on a Capital Area T ra n sp o rta tio n Authority ("CATA") bus in the City of Lansing, Michigan. Before the bus le f t the main terminal, the driver asked a juvenile female passenger who had been yelling out o f the bus window to stop yelling or to get off the bus. (D. Bell Dep. 32.) The girl stopped ye llin g , but continued to talk loudly to her two male companions. (Id. at 35.) The bus driver

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s to p p e d the bus, and ordered the girl off the bus. (Id.) As the girl walked toward the exit, s h e began calling the bus driver names. The bus driver grabbed her and shoved her. (Id. at 3 5 -36 .) Plaintiff stood up and told the bus driver she could not do that to somebody else's c h ild . (Id. at 36.) Plaintiff's sister offered to let the juvenile use her telephone. (Id. at 38.) T h e bus driver called to request police assistance. (Id. at 40.) Officer Porter was dispatched to the 100 block of North Grand Avenue to respond to th e bus driver's complaint of disruptive individuals on the CATA bus. (Porter Dep. 22.) The b u s driver advised Porter that she wanted the juvenile girl, her two male companions, P la in tif f , and Plaintiff's sister off the bus. (D. Bell. Dep. 41; Porter Dep. 23.) Porter w itn e ss e d a loud, heated verbal dispute between the bus driver and the group. (Porter Dep. 2 4 .) Based on the tone of the discussion, Porter determined that it would be best if the group g o t off the bus and took up their grievances with the CATA administration. (Id. at 25-26.) P o rter directed the five individuals to get off the bus. (D. Bell. Dep. 43.) As the others were g e ttin g off the bus, Plaintiff was still trying to get the bus driver's name. (Id.) When Porter to l d Plaintiff that he would get the information for her, she started to get off the bus. A c c o rd in g to Plaintiff, as she turned around to step backwards off the bus, Porter put his h an d s out and pushed her chest, causing her to fall backwards. (D. Bell Dep. 50.) Plaintiff filed this action alleging two claims against Defendant City of Lansing and D e f en d a n t Porter: Count I, deprivation of federal civil rights pursuant to 42 U.S.C. § 1983 b a se d on the use of excessive force, and Count IV, violation of the Michigan Persons With

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D is a b iliti e s Civil Rights Act ("PWDCRA"), Mich. Comp. Laws § 37.1101, et seq. Plaintiff h a s alleged two additional claims against Defendant Porter: Count II, gross negligence, and C o u n t III, assault and battery. Defendants have moved for summary judgment on all claims. II. U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is p ro p e r if there is no genuine issue as to any material fact and the moving party is entitled to ju d g m e n t as a matter of law. In evaluating a motion for summary judgment the Court must lo o k beyond the pleadings and assess the proof to determine whether there is a genuine need f o r trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If D e f e n d a n ts carry their burden of showing there is an absence of evidence to support a claim, P la in tif f must demonstrate by affidavits, depositions, answers to interrogatories, and a d m is s io n s on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. C a tre tt, 477 U.S. 317, 324-25 (1986). In considering a motion for summary judgment, the Court must construe the evidence a n d draw all reasonable inferences in favor of the nonmoving party. Minges Creek, L.L.C. v . Royal Ins. Co. of Am., 442 F.3d 953, 955-56 (6th Cir. 2006) (citing Matsushita, 475 U.S. at 587). Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiff's p o s itio n is not sufficient to create a genuine issue of material fact. Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such

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th a t a reasonable jury could return a verdict for Plaintiff. Id.; see generally Street v. J.C. B r a d fo r d & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989). I I I. A . Excessive Force Claim In Count I of her complaint, Plaintiff asserts an excessive force claim under 42 U.S.C. § 1983 against Officer Porter and the City . 1. Officer Porter D ef en d an ts contend that Officer Porter is entitled to summary judgment on Plaintiff's e x c e ss iv e force claim because he did not violate Plaintiff's Fourth Amendment rights or, in th e alternative, because he is entitled to qualified immunity. P la in tif f 's excessive force claim is governed by the Fourth Amendment's prohibition a g a in s t unreasonable seizures of the person. Graham v. Connor, 490 U.S. 386, 394 (1989). In determining whether a constitutional violation based on excessive force has occurred, the S ix th Circuit applies "the objective-reasonableness standard." Binay v. Bettendorf, 601 F.3d 6 4 0 , 647 (6th Cir. 2010). In evaluating the reasonableness of the force used, "[r]elevant c o n sid e ra tio n s include `the severity of the crime at issue, whether the suspect poses an im m e d ia te threat to the safety of the officers or others, and whether he is actively resisting a rre st or attempting to evade arrest by flight.'" Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2 0 0 7 ) (quoting Graham, 490 U.S. at 396). "In addition, the Sixth Circuit has found that `the d ef inition of reasonable force is partially dependent on the demeanor of the suspect.'"

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M a r v in v. City of Taylor, 509 F.3d 234, 245 (6th Cir. 2007) (quoting Solomon v. Auburn H ills Police Dept., 389 F.3d 167, 174 (6th Cir. 2004)). Because the test of reasonableness u n d e r the Fourth Amendment is not capable of precise definition or mechanical application, " its proper application requires careful attention to the facts and circumstances of each p a rtic u la r case." Graham, 490 U.S. at 396. D e f en d a n ts contend that Officer Porter's action was objectively reasonable under the c irc u m s ta n c es because Porter stuck out his arm instinctively to create reactive space when P la in t if f unexpectedly turned around to face him before exiting the bus: W h e n you get to the rear door of the bus, there was a single step down and th e n ­ before ground level. She kind of got to the point ­ she got to that point, sh e stopped and immediately turned around and was facing face to face with m e . But she was still the whole time being very loud and yelling and arguing w ith the bus driver, and I didn't know what she was doing. I mean, 'cause she s to p p e d , she spun around and was right in my face, kind of, you know, being ­ yelling. And I didn't know at that point if she was mad at me, you know, b e c au s e she was upset about having to get off the bus. I didn't know if she w a s going to start taking some of that out on me or what. I just kind of stuck m y arm up in kind of ­ in like a stiff arm type motion and, you know, to allow m ys e lf a reactionary gap between her and I because I didn't know what was g o in g ­ I didn't know what was happening. And I said, "Get off the bus." (P o r te r Dep. 36.) Porter testified that he did not intend to push Plaintiff off the bus, and he d id not expect Plaintiff to lose her balance or fall. (Id. at 43.) He merely wanted to provide s p a c e between the two of them so that he could respond to her next actions. (Id. at 42.) In su p p o rt of his reaction, Porter explains that Plaintiff did not initially obey his directions to g e t off the bus, but instead continued to argue with the bus driver. (Porter Dep. 32.) A c c o rd in g to Porter, he did not know that Plaintiff was disabled until after she fell, and had 5

h e known of her disability, he would have allowed her more space and more time to get off th e bus. (Porter Dep. 41, 45.) P la in tif f has given a very different account of what happened. Plaintiff described O f f ic e r Porter's actions not as a single straight-arm, but as a two handed push against her c h e st. (D. Bell Dep. 50.) Plaintiff testified that before the push, both she and her sister told th e officer that she was handicapped: I did turn around and go backwards. Like I said, my sister was the last one o ff , and the officer stated once again, "Get off the bus," you know, as she's g e ttin g off. And then I turned around to get off, and my sister was on the g r o u n d and she said, "Give her a minute. She's handicapped." And then just to make sure he heard her, you know, I said it to let him know I was h a n d ic a p p e d . I said, "I'm handicapped." And that's when he just pushed me o f f the bus with ­ just pushed me off the bus. (Id . at 47-48.) Plaintiff's sister, Laura Bell, agreed that "Officer Porter would have heard b o th Danielle and I say she was handicapped before he pushed her . . . ." (Dkt. No. 17, L. B e ll Aff. ¶ 12.) According to Laura Bell, Officer Porter "would have seen how she walked d if f ere n tly do [sic] to 2 prosthetic legs." (Id.) Laura Bell also stated that "at no time did D a n ie lle stop suddenly and turn around since she is handicapped and unable to move q u ic k ly." (Id. at ¶ 11.) Plaintiff also testified that she never threatened, disrespected, or yelled at Officer Porter. (D. Bell. Dep. 69-71.) Viewing the facts in the light most favorable to Plaintiff, the Court concludes that there are genuine issues of material fact that preclude the entry of summary judgment. There a re factual disputes as to whether Officer Porter simply put out a straight arm to gain reactive

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s p a c e or pushed Plaintiff with two hands, whether Officer Porter knew Plaintiff was h a n d ica p p e d , whether Plaintiff stopped suddenly, and whether it was objectively reasonable f o r Officer Porter to have some apprehension for his own safety. A jury could reasonably f in d that Officer Porter's conduct was not objectively reasonable under the circumstances. A c c o r d in g ly, the Court cannot find, as a matter of law, that Officer Porter did not use e x c e s s iv e force. Defendants contend, in the alternative, that Officer Porter is entitled to qualified im m u n ity. Qualified immunity shields government officials from "liability for civil damages in so f a r as their conduct does not violate clearly established statutory or constitutional rights o f which a reasonable person would have known." Binay, 601 F.3d at 646 (quoting Harlow v . Fitzgerald, 457 U.S. 800, 818 (1982)). "Qualified immunity will often operate to protect o f f ic e rs from the sometimes hazy border between excessive and acceptable force." Miller v . Sanilac County, 606 F.3d 240, 253-54 (6th Cir. 2010) (quoting Solomon v. Auburn Hills P o lice Dep't, 389 F.3d 167, 174 (6th Cir. 2004) (internal quotations and citations omitted)). " A n officer should be entitled to qualified immunity if he made an objectively reasonable m is ta k e as to the amount of force that was necessary under the circumstances with which he w a s faced." Id. (citing Greene v. Barber, 310 F.3d 889, 894 (6th Cir. 2002)). An officer's qualified immunity should be recognized on summary judgment "unless th e facts alleged and the evidence produced, when viewed in the light most favorable to the p la in tif f , would permit a reasonable juror to find that: (1) the defendant violated a

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c o n stitu tio n a l right; and (2) the right was clearly established." Morrison v. Bd. of Trustees o f Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (citing Jones v. City of Cincinnati, 521 F .3 d 555, 559 (6th Cir.2008)). "The issue of qualified immunity may be submitted to a jury o n ly if `the legal question of immunity is completely dependent upon which view of the [ d is p u te d ] facts is accepted by the jury.'" Miller, 606 F.3d at 247 (quoting Humphrey v. M a b r y , 482 F.3d 840, 846 (6th Cir. 2007)). As noted above, there are material factual disputes concerning Officer Porter's a c tio n s. Whether or not Officer Porter is entitled to qualified immunity is completely d ep en d en t upon which view of the disputed facts is accepted by the jury. The facts of record w o u ld permit a reasonable jury to find that Officer Porter violated Plaintiff's constitutional r i g h t to be free from excessive force. Defendants have not argued that this right was not c le a rly established. Accordingly, Officer Porter is not entitled to summary judgment on the b a s is of qualified immunity. 2. City of Lansing P la in tif f 's § 1983 claim against the City of Lansing is based upon its allegation that th e City, through the Lansing Police Department has a policy or practice of engaging in the systematic deprivation of civil rights o f citizens and/or arrestees by, among other things, a failure to train or s u p e r v i s e police officers in the proper use of force, accommodation of h a n d ic a p persons and/or the constitutional rights/liberties of citizens subject to legitimate police activity which was the moving force behind plaintiff's i n j u r y. (C o m p l. ¶ 21.) 8

A municipality is not subject to liability pursuant to § 1983 on a theory of respondeat s u p e rio r. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). In Monell a n d subsequent cases, the Supreme Court has "required a plaintiff seeking to impose liability o n a municipality under § 1983 to identify a municipal `policy' or `custom' that caused the p la in tif f 's injury." Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997). " [ T ]h e inadequacy of police training may serve as the basis for § 1983 liability only w h e re the failure to train amounts to deliberate indifference to the rights of persons with w h o m the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989). A municipality may be liable for a failure to train where "the need for more or different tra in in g is so obvious, and the inadequacy so likely to result in the violation of constitutional r ig h ts , that the policymakers of the city can reasonably be said to have been deliberately in d if f ere n t to the need." Moldowan v. City of Warren, 578 F.3d 351, 393 (6th Cir. 2009), c e rt. denied, 130 S. Ct. 3504 (2010) (citing City of Canton, 489 U.S. at 390). In order to s u s ta in her claim against the municipality, "the plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." B ro w n , 520 U.S. at 404. "That is, a plaintiff must show that the municipal action was taken w ith the requisite degree of culpability and must demonstrate a direct causal link between the m u n ic ip a l action and the deprivation of federal rights." Id. Defendants contend they are entitled to summary judgment on Plaintiff's claim against th e City because Plaintiff cannot identify any specific policy or custom of the City or a lack

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o f training which was a driving force behind this incident which would constitute deliberate in d if f e re n c e. D e f e n d a n ts have presented evidence that the City of Lansing has a use of force policy, th a t Officer Porter was trained in the use of force policy, and that Officer Porter has not been th e subject of any disciplinary sanctions relative to allegations of use of excessive force. (P o r te r Dep. 8-12; Def. Ex. 3, Use of Force Policy.)1 In her response to Defendants' motion f o r summary judgment, Plaintiff has not presented any evidence to rebut Defendants' a rg u m e n t and evidence regarding the adequacy of its policies and training on the use of force. T h e City is accordingly entitled to judgment on Plaintiff's constitutional claim based on the C ity's policies and training regarding the use of force. Instead, Plaintiff focuses on the adequacy of the City's training of its officers in d e a lin g with disabled individuals. Plaintiff contends that there are material issues of fact re g a rd in g the adequacy of the municipality's policies and training program regarding the civil rig h ts of disabled citizens which should ultimately be determined by the trier of fact. The o n ly evidence Plaintiff has cited in support of this contention is Officer Porter's testimony th a t he received training with respect to the Americans with Disabilities Act, but that it dealt m o s tly with people with mental disabilities. (Porter Dep. 13.) Officer Porter did not know if he had received any "real training" regarding the duty to accommodate a disabled person, The policy provides in pertinent part that officers "may use such reasonable force as m a y be, or reasonably appears to be, necessary to protect themselves or others to carry out th e ir lawful duties; but should use the amount of force that is proportionate to the level of d em o n strat ed subject resistance." (Def. Ex. 3, Use of Force Policy, ¶ VII(B).) 10
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a n d he could not recall receiving any specific training with respect to the provisions of the P W D C R A or the ADA. (Id. at 14-16.) "The inadequacy of police training only serves as a basis for § 1983 liability `where th e failure to train amounts to deliberate indifference to the rights of persons with whom the p o lic e come into contact.'" Miller, 606 F.3d at 255 (quoting Slusher v. Carson, 540 F.3d 4 4 9 , 457 (6th Cir. 2008)). To establish deliberate indifference toward the rights of disabled in d iv id u a ls , "the plaintiff `must show prior instances of unconstitutional conduct d e m o n s tra tin g that the [municipality] has ignored a history of abuse and was clearly on notice th a t the training in this particular area was deficient and likely to cause injury.'" Miller, 606 F .3 d at 255 (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)). D ef en d an ts have presented evidence that all officers hired by the City of Lansing are ce rtified under the Michigan Commission on Law Enforcement Standards ("MCOLES"). T h o se standards include training in laws pertaining to civil rights, including laws relating to p e rs o n s with disabilities. (Def. Ex. 4, ¶¶ II-B-2.3, II-B-2.4.) Plaintiff has presented no e v id e n c e the City has ignored a history of abuse of disabled individuals by Officer Porter or b y any of its other officers, or that the City was on notice that the training in this particular a re a was deficient and likely to cause injury. Because Plaintiff has not presented evidence th a t the City was on notice that its training regarding the rights of disabled citizens was in a d e q u a te, Plaintiff's evidence that Officer Porter did not recall having received training in th is area is not sufficient to show that the City was deliberately indifferent to the rights of

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d is a b le d citizens.

Defendant City of Lansing is accordingly entitled to judgment on

P la in tif f 's excessive force claim against it. B. Gross Negligence Claim D e f en d a n ts contend that Plaintiff's gross negligence claim against Officer Porter s h o u ld be dismissed because it is subsumed into her assault and battery claim. In support of th is contention Defendants rely on case law indicating that "Michigan `has rejected attempts to transform claims involving elements of intentional torts into claims of gross negligence.'" M ille r, 606 F.3d at 254 (quoting VanVorous v. Burmeister, 687 N.W.2d 132, 143 (Mich. Ct. A p p . 2004)). In VanVorous, the plaintiff's gross negligence claim was based on her allegation that th e defendants "breached the duty of care they owed to Mr. VanVorous by utilizing excessive f o r c e to subdue or control Mr. VanVorous." Id. at 143. The court determined that the p la in tif f 's claim of gross negligence was "fully premised on her claim of excessive force," a n d accordingly granted summary disposition in favor of the defendants because Michigan c o u rts reject "attempts to transform claims involving elements of intentional torts into claims o f gross negligence." Id. The VanVorous court relied on Smith v. Stolberg, 586 N.W.2d 103 (Mich. Ct. App. 1 9 9 8 ), where the plaintiff couched his negligence claim in terms of "breach of defendant's d u ty `not to engage in disruptive behavior, not to speak to opposing parties in a case in which d e f e n d a n t is engaged as counsel, and not to touch or strike members of the opposite parties'

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f a m ily.'" Id. at 104-05. The Smith court determined that the plaintiff was essentially a lle g in g an intentional, offensive touching, and accordingly granted summary disposition in favor of defendants with regard to plaintiff's negligence claim. Id. at 105. See also Sudul v . City of Hamtramck, 562 N.W.2d 478, 479 (Mich. Ct. App. 1997) (holding that the tort of a s s a u lt and battery by gross negligence does not exist). Plaintiff contends her allegations of gross negligence are independent and distinct f ro m her allegations of excessive force, and therefore do not fall within the rule set forth in V a n V o r o u s . Plaintiff's excessive force claim is based on allegations that Officer Porter b re a c h e d the following duties: a. To treat plaintiff with respect and dignity as may be consistent with her s e c u rity, and legitimate law enforcement activity. b. To avoid foreseeable injury to plaintiff, while investigating or pursuing le g itim a te police activity. c . To avoid conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. (C o m p l. ¶ 27.) It appears to the Court that although Plaintiff's excessive force claim is based on the sa m e incident as her assault and battery claim, she has adequately alleged an alternative basis f o r the claim that does not rely on an intentional, offensive touching. Accordingly, her claim is not barred by VanVorous, and Officer Porter is not entitled to summary judgment on P la in tif f 's gross negligence claim.

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C . Assault and Battery Claim D e f en d a n ts contend that Plaintiff's assault and battery claim against Officer Porter sh o u ld be dismissed on the basis of governmental immunity and the standards enunciated in O d o m v. Wayne County, 760 N.W.2d 217 (Mich. 2008). P la in tif f 's assault and battery claim is analogous to her § 1983 excessive force claim, in that she can only recover if Officer Porter's conduct was objectively unreasonable. See V a n V o r o u s , 687 N.W.2d at 142 (noting that under Michigan law, an assault and battery claim a g a i n s t a police officer requires proof that the officer's actions "were not justified because t h e y were not objectively reasonable under the circumstances"). Accordingly, the same is s u e s of fact identified with respect to Plaintiff's excessive force claim preclude entry of s u m m a ry judgment on Plaintiff's assault and battery claim. Neither is Officer Porter entitled to summary judgment on the basis of governmental im m u n ity. To be entitled to governmental immunity for an intentional tort, Officer Porter m u st establish that "he was acting in the course of his employment and at least reasonably b eliev ed that he was acting within the scope of his authority, that his actions were d i s c r e tio n a ry in nature, and that he acted in good faith." Miller, 606 F.3d at 254 (citing O d o m , 760 N.W.2d at 228). Good faith is defined as "without malice." Id. (quoting Odom, 7 6 0 N.W.2d at 225). T h e re can be no dispute that Porter was acting within the course of his employment, th a t he reasonably believed he was acting within the scope of his authority, and that his

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a c tio n s were discretionary in nature. However, viewing the evidence in the light most f a v o ra b le to Plaintiff, the Court is satisfied that there is a dispute of fact as to whether Officer P o r te r acted in good faith. Accordingly, Defendants' motion for summary judgment on the a ss a u lt and battery claim will be denied. D . Persons with Disabilities Civil Rights Act Claim Plaintiff alleges in Count IV that Officer Porter violated her rights under the P W D C R A by failing to provide reasonable accommodation for her disabilities and allow her m o re time to exit the bus. Plaintiff alleges that the City violated her rights under the P W D C R A by failing to train police officers to accommodate persons with disabilities. The PWDCRA prohibits discrimination against individuals because of their d is a b iliti e s . Peden v. City of Detroit, 680 N.W.2d 857, 863 (Mich. 2004). The PWDCRA s p e c if ic a lly guarantees the opportunity obtain full and equal utilization of "public services" w ith o u t discrimination because of a disability and requires a person to accommodate a person w ith disabilities for purposes of public services unless accommodation would impose an u n d u e hardship. Mich. Comp. Laws § 37.1102(1), (2). A city and a police department are " p u b lic services" under the PWDCRA. See Bertrand v. City of Mackinac Island, 662 N .W .2 d 77, 80 (Mich. Ct. App. 2003) (noting that the PWDCRA's definition of a "public se rv ice " includes a city); Gazette v. City of Pontiac, 536 N.W.2d 854, 858 (Mich. Ct. App. 1 9 9 5 ) (noting that a police department is a public service under the HCRA, the predecessor to the PWDCRA).

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D e f e n d a n ts contend that Plaintiff's PWDCRA claim should be dismissed because O f f ic e Porter did not deny Plaintiff public service because of her disability, and because a f a ilu re to train claim against City is not cognizable under the PWDCRA. 1. Officer Port P la i n t i f f has alleged that Officer Porter was aware of her disabilities and that he n e v e rth e le s s failed to provide additional time for her to exit the bus. (Compl. ¶¶ 42, 45.)2 D e f en d a n ts contend that Plaintiff cannot maintain a PWDCRA claim against Officer P o rte r because Officer Porter raised his arm instinctively based on Plaintiff's proximity to h im and not because of Plaintiff's disability. As noted above in connection with Plaintiff's e x c es s iv e force claim, there is a material dispute of fact as to what Officer Porter did and w h y he did it. Accordingly, Officer Porter is not entitled to summary judgment on this claim. 2 . Defendant City of Lansing W ith respect to the City of Lansing, Plaintiff contends that the City's failure to train o r set policy was a moving force behind Officer Porter's deliberate indifference to plaintiff's

Plaintiff alleges in Count IV that Officer Porter violated her rights under the P W D C R A as follows: That defendant's failure and/or refusal to provide additional time for plaintiff to exit the bus or otherwise accommodate plaintiff's disability violated p la in tif f 's protected liberty interest in being reasonably accommodated during the police encounter. (C o m p l. ¶ 45.) 16

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r ig h t s .3 D e f en d a n ts contend that a failure to train claim against City is not cognizable under th e PWDCRA. In support of this contention Defendants rely on Dillery v. City of Sandusky, 3 9 8 F.3d 562 (6th Cir. 2005), where the Sixth Circuit rejected a failure to train claim under T itle II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq. Id. at 568. D ille r y did not construe the PWDCRA. Nevertheless, the PWDCRA "substantially m irro rs the ADA," and generally requires the same proofs. Cotter v. Ajilon Servs., 287 F.3d 5 9 3 , 597 (6th Cir. 2002); see also Mitchell v. City of Kalamazoo, No. 4:05-CV057, 2006 WL 3 0 6 3 4 3 3 , at *6 (W.D. Mich. Oct. 26, 2006) (Enslen, J.) (quoting Cotter). The PWDCRA " f o rb id s similar types of discriminatory activity as those proscribed by the ADA." Johnson-Bey v. Brentwal LLC, No. 4:06-CV-67, 2007 WL 2021861, at *5 (W.D.Mich. July 6 , 2007) (Quist, J.). "The two acts have the same purpose and use similar definitions and analyses, and Michigan courts rely on the ADA in interpreting the PWDCRA." In re Ozark, N o . 256851, 2004 WL 2913642, at *3 (Mich. Ct. App. Dec. 16, 2004). Because there is no c a se law in Michigan addressing a failure to train claim under the PWDCRA, reference to th e ADA is appropriate.

Plaintiff alleges in Count IV that Defendant City violated her rights under the P W D C R A as follows: That defendant City of Lansing's failure to train or supervise its police re g a rd in g the need to accommodate persons with disabilities according to the p ro v is io n s of state law is a policy or practice which was a moving force in the v io la tio n of plaintiff's civil right under state law. (C o m p l. ¶ 46.)

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T h e Sixth Circuit explained in Dillery that to make out a prima facie case under the A D A , a plaintiff must establish that "`(1) she has a disability; (2) she is otherwise qualified; a n d (3) she is being excluded from participation in, being denied the benefits of, or being s u b je c te d to discrimination under the program solely because of her disability.'" Id. at 567 (q u o tin g Jones v. City of Monroe, 341 F.3d 474, 477 (6th Cir. 2003)). The Sixth Circuit held th a t the failure of the City of Sandusky to train its employees about the ADA affected all d isa b led persons, not just the plaintiff, and that the plaintiff was accordingly unable to d e m o n stra te that the city "intentionally discriminated against her specifically" by failing to tra in its employees. Id. at 568. "`[A]cts and omissions which have a disparate impact on d is a b le d persons in general [are] not specific acts of intentional discrimination against [the p la in tif f ] in particular.'" Id. (quoting Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th C ir. 1997)). A prima facie case of discrimination under the PWDCRA similarly requires a plaintiff to show that she has been the subject of intentional discrimination. See Bachman v. Swan H a rb o u r Ass'n, 653 N.W.2d 415, 436 (Mich. Ct. App. 2002). A failure to train on the re q u ire m e n ts of the PWDCRA has a disparate impact on disabled persons in general and is n o t a specific act against Plaintiff in particular. Plaintiff's claim that the City failed to failure to train its police regarding the need to accommodate persons with disabilities is accordingly in s u f f ic ie n t to state a claim under the PWDCRA.

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IV . F o r the reasons stated herein, Defendants' motion for summary judgment will be g ra n te d in part and denied in part. The motion will be granted as to all claims against the C ity of Lansing, and denied as to all claims against Officer Porter. An order consistent with this opinion will be entered.

Dated: September 9, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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