Jones v. Montgomery

Filing 49

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S 36 MOTION FOR SUMMARY JUDGMENT. Signed by Chief Judge J. Daniel Breen on 10/13/16. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
_____________________________________________________________________________
DENNIS JONES,
Plaintiff,
v.

No. 15-1142

RICKY MONTGOMERY,
Defendant.
_____________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
_____________________________________________________________________________

Before the Court is a motion for summary judgment pursuant to Rule 56, Federal Rules
of Civil Procedure, filed by Defendant, Lexington Police Department Officer Ricky
Montgomery. (Docket Entry (“D.E.”) 36.) Defendant seeks summary judgment on three claims
of excessive force brought against him by Plaintiff, Dennis Jones, pursuant to 42 U.S.C. § 1983.
(Id.) This is Defendant’s second motion for summary judgment; the first motion was granted in
part and denied in part on January 25, 2016. (D.E. 31.)1 Plaintiff has responded to the instant
motion, (D.E. 39), and it is now ripe for disposition.

1

In Montgomery’s first motion for summary judgment, he raised the defense of qualified
immunity. (D.E. 15.) At the time, the parties disputed the underlying facts; thus, the Court
determined qualified immunity was not appropriate for Plaintiff’s § 1983 claims brought under
the Fourth Amendment. (D.E. 31.) However, the Court did grant summary judgment on
Plaintiff’s Fourteenth Amendment and state law claims. (Id.)

I. PROCEDURAL BACKGROUND
Before reaching the substantive issues presented, the Court is compelled to address the
tardiness of Jones’s response to Montgomery’s motion for summary judgment. On August 5,
2016, this Court issued an order directing Plaintiff to show cause within eleven days why the
case should not be dismissed for his failure to respond to the June 29, 2016 motion for summary
judgment. (D.E. 37.) Plaintiff responded on August 15, 2016, by filing a declaration with the
Court wherein he provided a host of reasons for missing the deadline. These excuses included
representations that counsel “was aware that the Defendant filed a second Motion for Summary
Judgment but [he] was in the middle of a two-week trial,” that he is “a [one]-person law firm and
was literally working [eighteen] hours a day during [his] trial for [ten] straight days,” and that he
did not receive an electronic notification that the motion had been filed until July 6, 2016. (D.E.
38 at PageID 319-20.) He further averred that, because he did not receive notification until July
6, he believed Defendant had missed the June 29 deadline for filing dispositive motions, and he
“wrongfully assumed” the Court would not consider what he believed was a late-filed motion.2
Additionally, according to counsel, due to technical difficulties, he was unable to open the
electronic notification, and he could not contact technical support because he “was in trial all day
long.” (Id. at PageID 319.)
Defendant responded and produced evidence that contradicted these assertions. (D.E.
40.) Montgomery’s attorney obtained records from Shelby County, Tennessee Circuit Court,
where counsel claimed he had a trial during the relevant time period. (D.E. 40-1.) Those records
show that Plaintiff’s counsel, who claimed to be “in the middle of a two-week trial,” was in court
2

This assumption is curious given that the Court has, in this case, accepted a previous
late-filed response from Plaintiff. Engaging in guesswork about how the Court will act is fraught
with peril and not an adequate excuse for failing to meet obligations. See Rice v. Consol. Rail
Corp., 67 F.3d 300, slip op. at 4-5 (6th Cir. 1995) (unpublished table decision).
2

for that case for only two days—on June 29, 2016, and July 11, 2016, when a settlement was
announced to the court. (Id. at PageID 387.) Defense counsel also submitted a copy of an email
that he sent directly to Plaintiff’s counsel on June 29 informing him that the second motion for
summary judgment had been filed. (Id. at PageID 346.) In fact, according to Montgomery, the
reason he sent this email “was to avoid a repeat of the earlier problem where [Plaintiff’s counsel]
claimed he overlooked the [electronic notification].”3
Plaintiff’s counsel responded with a second declaration and clarified that his “two-week
trial which began on June 29” actually settled “during trial” but that he “spent a considerable
amount of time” finalizing the settlement during the next week. (D.E. 43 at PageID 430.) He
further stated that he had another two-week trial scheduled to begin July 19, which was
rescheduled at the last minute to start in mid-August. (Id. at PageID 430-31.) Counsel insisted
that his “absolute belief was that [he] was in the middle of a two-week trial that did begin on
June 29 and had another trial set to begin on July 17 [sic].” (Id. at PageID 431.) Counsel
repeated his claim that he thought Montgomery’s second motion for summary judgment was
filed after the deadline, which he apparently believed negated his obligation to respond. (Id. at
PageID 423.)
In light of the above, Defendant has requested that the Court dismiss this case in its
entirety for failure to prosecute. (D.E. 40 at PageID 340.) Alternatively, he urges that the
inexcusably late-filed response should be stricken from the record. (Id.)

3

Plaintiff also failed to timely reply to Defendant’s first motion for summary judgment,
and he provided as an excuse that he had “overlooked” the electronic notification showing that
the motion had been filed. (D.E. 21-1.) In that circumstance, the Court did consider the latefiled response, but admonished Plaintiff’s counsel about the possible consequences of future
untimely filings. (D.E. 31 at PageID 152, n.1.)
3

Federal Rule of Civil Procedure 6(b)(1) provides that
[w]hen an act may or must be done within a specified time, the court may,
for good cause, extend the time: (A) with or without motion or notice if the court
acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of
excusable neglect.
Plaintiff made no request for an enlargement of time to respond to the motion for
summary judgment prior to the date it was due. However, he requested the Court accept a latefiled response when he responded to the show cause order. (D.E. 38.) A court may accept a
filing after the relevant deadline has passed “where the failure to file before the deadline was the
result of excusable neglect.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir.
2006). The term “‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’” and the
determination of whether neglect is excusable “is at bottom an equitable one, taking account of
all relevant circumstances surrounding the party’s omission.”

Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 395 (1993) (internal footnote omitted).
Excusable-neglect determinations require a balancing of five principal factors:
(1) the danger of prejudice to the nonmoving party, (2) the length of the delay and
its potential impact on judicial proceedings, (3) the reason for the delay, (4)
whether the delay was within the reasonable control of the moving party, and (5)
whether the late-filing party acted in good faith.
Nafziger, 467 F.3d at 522. The burden of showing that a failure to act was the result of
excusable neglect is borne by Jones. See D.B. v. Lafon, No. 3:06-CV-75, 2007 WL 896135, at
*2 (E.D. Tenn. Mar. 22, 2007).
In this case, Plaintiff proffers no argument which would support a finding of excusable
neglect. In reviewing the pleadings, the Court concludes that none of the factors favor Jones.
The two-week delay in this case is significant because the trial is set for October 31, 2016.
Because of Jones’s tardiness, Defendant did not file a reply to Plaintiff’s response until August
4

29, 2016. Additionally, the delay was entirely within Jones’s control and the reason for it not
one to which the Court is inclined to turn a blind eye. See Morgan v. Gandalf, Ltd., 165 F.
App’x 425, 429 (6th Cir. 2006) (noting the reason for delay factor “has the greatest import and is
always critical to the inquiry”) (citing Graphic Comm. Int’l Union v. Quebecor Printing
Providence, Inc., 270 F.3d 1, 5 (1st Cir. 2001)). Indeed, the “failure to respond to a motion for
summary judgment or to request an extension of time to file a response thereto is inexcusable
neglect.” See B & D Partners v. Pastis, No. 05-5954, 2006 WL 1307480, at *2 (6th Cir. May 9,
2006) (quoting Kendall v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984)). Also, the excuses
proffered by Plaintiff’s counsel have previously been found wanting. See Wilkerson v. Jones,
211 F. Supp. 2d 856, 859 (E.D. Mich. 2002) (“A lawyer’s busy workload is entitled to very little
weight under Rule [6(b)].”). As to the prejudice factor, Defendant avers that he has invested
time and resources into fact-checking and responding to counsel’s statements in his declarations.
(D.E. 40-1.)
Moreover, the Court questions the integrity of the declarations filed by Plaintiff’s counsel
in response to the order to show cause. Montgomery provided evidence that counsel was not in
court at the times he claimed in his initial declaration. Indeed, he admitted as much in his second
declaration wherein he attempted to explain away the inconsistencies between his two
declarations. All this accomplished was to make apparent that his initial declaration contained
gross misrepresentations. Counsel’s conduct is deeply troubling. Not only does the Court have
grave concerns about the truthfulness of counsel’s assertions, but this is not the first time counsel
has failed to meet deadlines in this case. Plaintiff’s counsel was previously ordered to show
cause why the case should not be dismissed following his failure to respond to Defendant’s first
motion for summary judgment. (D.E. 20.) At that time, he was warned that the Court would not

5

tolerate other unexcused failures to meet deadlines. (D.E. 31 at PageID 152, n.1.) Consequently,
beyond being inexcusable, counsel’s behavior in this regard is ethically-suspect.
Montgomery urges that counsel’s actions warrant dismissal of the case or, alternatively,
that the Court should disregard the late-filed response. Although dismissal is appropriate under
these circumstances, the Court concludes that the best course is to address the substance of
Plaintiff’s claims, so as not to prejudice him for counsel’s failings. However, because counsel
has not shown cause why he failed to timely respond, the late response is STRICKEN and will
not be considered by the Court in resolving this matter. While it may seem a harsh sanction with
respect to Jones, as the Sixth Circuit has recognized, “clients must be held accountable for the
acts and omissions of their chosen counsel.” Nafziger, 467 F.3d at 524 (quoting Pioneer Inv.
Servs. Co., 507 U.S. at 396-97 (internal quotation marks omitted).
Additionally, based on the Court’s finding that counsel’s excuses for late-filing the
response were not valid, the Defendant is DIRECTED to submit a statement of fees and
expenses, within eleven days, that he incurred in connection with the time spent rebutting Jones’s
attorney’s assertions that he was in trial and did not know that a second motion for summary
judgment had been filed.
II. FACTUAL BACKGROUND
For purposes of this motion, the parties do not dispute the following facts. On June 4,
2014, Montgomery, along with Henderson County Sheriff’s Department Investigator Stephen
Clark, went to Jones’s home to arrest him. (D.E. 36-2.) Montgomery and Clark knocked on
Plaintiff’s door, and when he answered, they informed him he was under arrest. (Id.) Plaintiff
was given a copy of the indictments, which contained details of the charges against him. (Id.)
Jones asked Clark if he could smoke a cigarette while he read the paperwork, and Clark gave him

6

permission to do so. (D.E. 21-2.) While Plaintiff was reviewing the indictments, Montgomery
“slapped the cigarette from [his] hand and pushed him violently against [his] mobile home.”
(Id.) Jones requested that he not be handcuffed too tightly, explaining that he recently had
“fusion surgery” on his right wrist. (Id.) Defendant told Jones he “didn’t give a damn” about his
wrist and handcuffed him “tightly” behind his back. (Id.) According to Plaintiff, the “handcuffs
were so tight that they prevented any movement of the wrist,” causing him “an extreme amount
of pain.” (Id.)
Jones was handcuffed for approximately seven to eight minutes while awaiting transport
to jail and requested the handcuffs be loosened, to no avail. (D.E. 36-3 at PageID 239.) Officer
Tracy Taylor then arrived to take Plaintiff to jail. (D.E. 21-2.) Taylor asked Jones if he was all
right, and he informed the officer that the handcuffs were causing him pain. (Id.) Taylor
removed the handcuffs and returned them to Montgomery, re-handcuffing Plaintiff at the front of
his body “loosely enough that the pain was relieved.” (Id.)
Jones averred that he was not hostile or threatening at any time during his arrest and that
he made no threats or attempts to evade arrest. (Id.) Plaintiff alleges that, as a result of the tight
handcuffs, he “suffered swelling on the dorsal aspect of [his] wrist and increased pain . . . .” (Id.)
However, Plaintiff also admitted that while he was in jail, he beat on the door to his cell. (D.E.
22.) Jones does not claim that he suffered any injuries from Montgomery’s slapping the cigarette
from his hand or pushing him against his home in the course of handcuffing him. (D.E. 36-3 at
PageID 266.)
Dr. David Yakin, Jones’s treating orthopedic surgeon, testified in a deposition that he
performed fusion surgery on Plaintiff’s right wrist on December 27, 2013. (D.E. 36-4 at PageID
290.) Dr. Yakin testified that Jones presented to his office on August 12, 2014, complaining of

7

wrist pain. (Id. at PageID 293.) Plaintiff reported that he “felt like he was making progress”
until he was handcuffed, complaining of increased pain since that time. (Id.) Upon examination,
the doctor noted swelling on the dorsal aspect of Jones’s wrist along with decreased motion in
his index finger since his most recent visit, which was on May 8, 2014. (Id. at PageID 292, 294.)
Dr. Yakin opined that, assuming Jones’s allegations were true, these injuries were “likely related
to the handcuffing . . . .” (Id. at PageID 297.)
On cross-examination, Defendant’s counsel asked Dr. Yakin whether banging on a jail
cell door could cause the loss of motion to his finger and swelling in his wrist. (Id. at PageID
301.) Dr. Yakin confirmed that this could have caused Jones’s injuries. (Id.) Dr. Yakin also
agreed that Jones only mentioned tight handcuffing when he complained of injuries relating to
his arrest and did not mention his beating on the cell door. (Id. at PageID 301.)
On June 4, 2015, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging
three instances of excessive force stemming from his arrest in violation of the Fourth
Amendment of the United States Constitution. Specifically, he contends that Montgomery
violated his rights by (1) slapping a cigarette from his hand before handcuffing him; (2)
“violently” pushing him against his home while handcuffing him; and (3) handcuffing him too
tightly. We address each allegation of excessive force in turn.
III. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if
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). “A dispute about a material fact
is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Smith v. Perkins Bd. of Educ., 708 F.3d 821, 825 (6th Cir. 2013) (quoting Ford

8

v. Gen. Motors Corp., 305 F.3d 545, 551 (6th Cir. 2002)). A court’s function at the summary
judgment stage is not to “weigh the evidence and determine the truth of the matter”; rather, it is
“to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986); see Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 748 (6th Cir. 2012)
(“Credibility determinations . . . and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” (quoting Anderson, 477 U.S. at 255)).
The moving party “has the initial burden of showing the absence of a genuine dispute as
to a material fact.” Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520
(6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the motion is
properly supported, “the opposing party must go beyond the contents of its pleadings to set forth
specific facts that indicate the existence of an issue to be litigated.” Slusher v. Carson, 540 F.3d
449, 453 (6th Cir. 2008). A court must grant summary judgment “after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S. at 322; see In re Morris, 260 F.3d 654, 665 (6th Cir.
2001). Finally, although a court does not weigh the evidence at this stage, it “must view all
evidence and draw any reasonable inferences therefrom in favor of the nonmoving party.”
Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 426 (6th Cir. 2014) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If . . . the
defendant disputes the plaintiff’s version of the story, the defendant must nonetheless be willing
to concede the most favorable view of the facts to the plaintiff . . . .” Morrison v. Bd. of Trs. of
Green Twp., 583 F.3d 394, 400 (6th Cir. 2009); (quoting Berryman v. Rieger, 150 F.3d 561, 563
(6th Cir. 1998)).

9

IV. SECTION 1983 & QUALIFIED IMMUNITY
Section 1983 provides a private right of action against any person who subjects “any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights [or] privileges . . . secured by the Constitution and laws[.]” 42 U.S.C. § 1983;
Rehberg v. Paulk, 132 S. Ct. 1497, 1501 (2012). The statute “creates no substantive rights, but
merely provides remedies for deprivations of rights established elsewhere.” Flint v. Kentucky
Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001) (citing Oklahoma City v. Tuttle, 471 U.S. 808
(1985)). A plaintiff suing under the statute must demonstrate the denial of a constitutional right
caused by a defendant acting under color of state law. Carl v. Muskegon Cnty., 763 F.3d 592,
595 (6th Cir. 2014).
In addition to moving for summary judgment, Defendant invoked the defense of qualified
immunity.

Qualified immunity shields individual government officials “performing

discretionary functions from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Id. (quoting Feathers v. Aey, 319 F.3d 843, 847 (6th Cir. 2003)); see also Essex v.
Cnty. of Livingston, 518 F. App’x 351, 356 (6th Cir. 2013). Qualified immunity is a defense
both to liability and to the suit itself, Jones v. Sandusky Cnty., Ohio, 541 F. App’x 653, 660 (6th
Cir. 2013), and offers “an entitlement not to stand trial or face the other burdens of litigation,”
Morrison, 583 F.3d at 400 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The doctrine
“seeks to prevent government officials, such as police officers, from being held liable for
reasonable mistakes, including mistakes of law, fact, or mixed questions of law and fact.” Jones,
541 F. App’x at 660.

10

Qualified immunity is determined by examining whether an officer’s “actions are
‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard
to [his] underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 395-96 (1989); see
also Griffith v. Coburn, 473 F.3d 650, 656 (6th Cir. 2007). Furthermore, “[a] defendant enjoys
qualified immunity on summary judgment unless the facts alleged and the evidence produced,
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.”
Morrison, 583 F.3d at 400; see also Saucier v. Katz, 533 U.S. 194, 202 (2001); Benison v. Ross,
765 F.3d 649, 664 (6th Cir. 2014), reh’g & suggestion for reh’g en banc denied, 771 F.3d 331
(6th Cir. 2014). Courts may undertake this two-pronged analysis in any order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
How a right is defined assumes utmost importance. A right is clearly established only if
its contours are “sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Morrison, 583 F.3d at 400 (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).

“In other words, existing precedent must have placed the statutory or

constitutional question beyond debate.” Anderson, 483 U.S. at 640. The United States Supreme
Court has “repeatedly told courts . . . not to define clearly established law at a high level of
generality.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011)).

Instead, “[t]he dispositive question is whether the violative nature of

particular conduct is clearly established.” Id. (Emphasis added.) Moreover, the inquiry “must
be undertaken in light of the specific context of the case, not as a broad general proposition.” Id.
(citing Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Saucier, 533 U.S. at 201) (internal
quotation marks omitted).

This requirement “balances [] the need to hold public officials

11

accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Wood v. Moss,
134 S. Ct. 2056, 2067 (2014) (quoting Pearson, 555 U.S. at 231). “The issue of whether
qualified immunity is applicable to an official’s actions is a question of law. However, where the
legal question of qualified immunity turns upon which version of the facts one accepts, the jury,
not the judge, must determine liability.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900
(6th Cir. 2004) (citations and internal quotation marks omitted).
Plaintiff’s allegation of excessive force during his arrest invokes the Fourth
Amendment’s protection against unreasonable seizure. See Graham, 490 U.S. at 394. The Sixth
Circuit has stated,
Whether an officer has exerted excessive force during the course of seizure is
determined under an “objective reasonableness” standard.
This entails
“balanc[ing] the consequences to the individual against the government’s interests
in effecting the seizure.” The assessment involves a fact-specific inquiry based
on the totality of the circumstances that “pay[s] particular attention to ‘the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’” The Court should judge the lawfulness of
the conduct from “the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.”
Morrison, 583 F.3d at 401 (citations omitted) (quoting Burchett v. Kiefer, 310 F.3d 937, 944 (6th
Cir. 2002); Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001).
V. ANALYSIS
A. Slapping
First, Montgomery asserts that he is entitled to qualified immunity on Plaintiff’s claim
that slapping a cigarette out of his hand was excessive force. Defendant avers that slapping a
cigarette out of a person’s hand prior to handcuffing is not a clearly established violation of a
constitutional right.
12

It is a § 1983 plaintiff’s “burden to convince the court that the law was clearly established
at the time of the offensive conduct.” Hughes v. City of North Olmsted, 93 F.3d 238, 241 (6th
Cir. 1996) (citing Daugherty v. Campbell, 935 F.2d 780, 783 (6th Cir. 1991)). This requires
more than identifying a clearly established right “in the abstract,” rather, he must demonstrate “a
substantial correspondence between the conduct in question and prior law allegedly establishing
that defendant’s actions were clearly prohibited.” Id. (citing Hannula v. City of Lakewood, 907
F.2d 129, 131 (10th Cir. 1990)).
The Sixth Circuit has held that, in many instances, slapping can be a gratuitous use of
force. See, e.g., Lucier v. City of Ecorse, 601 F. App’x 372, 379 (6th Cir. 2015); Pigram ex rel.
Pigram v. Chaudoin, 199 F. App’x 509, 513 (6th Cir. 2006). However, although a generalized
right to be free from slapping is clearly established, the Supreme Court requires this Court to
delve into a more particularized inquiry. See Saucier, 533 U.S. at 202. Surviving a qualified
immunity defense does not require “‘a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.’” Mullenix, 136 S. Ct. at 308
(quoting al-Kidd, 563 U.S. at 741). Thus, the question to be considered in this case is whether it
was clearly established in June 2014 that slapping a cigarette out of an arrestee’s hand prior to
handcuffing amounted to excessive force in violation of the Fourth Amendment.
Obviously, because Plaintiff’s response to the motion for summary judgment was
stricken, he has not pointed to any case law establishing that a pre-arrest slap to a person’s hand
is excessive force, and the Court has located no such case upon its own inquiry. A posthandcuffing slap to a person’s face is markedly different than slapping an item out of an
arrestee’s hand prior to placing handcuffs. As the Sixth Circuit has noted, “a slap to the face of a
handcuffed suspect—even a verbally unruly suspect—is not a reasonable means of achieving

13

anything more than perhaps further antagonizing or humiliating the suspect.” Pigram, 199 F.
App’x at 513. However, in the present case, Montgomery knocked the cigarette out of Plaintiff’s
hand in the course of arresting him, just prior to placing him in handcuffs.

“[Q]ualified

immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’”
Mullenix, 136 S. Ct. at 308 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). The dearth of
case law dealing with a factual scenario analogous to the instant case compels a conclusion that
Defendant’s actions are covered by qualified immunity. In other words, a reasonable officer in
Montgomery’s position would not know that slapping a cigarette out of an arrestee’s hand prior
to handcuffing constituted excessive force. Accordingly, qualified immunity is GRANTED on
this claim.
B. Pushing
Next, the Court addresses Jones’s allegation that Montgomery “violently” pushed him
against his home while effecting his arrest. Defendant asserts this claim must fail because
Plaintiff has failed to allege even a de minimis physical injury. He also points out that when
Jones was deposed, he omitted the word violently from his description of the push, and
Montgomery argues that this testimony should control when analyzing Plaintiff’s claim.
Alternatively, Defendant avers that he is entitled to qualified immunity because Jones did not
establish that the push was unnecessary, arguing that it was merely “one step in [the officer’s]
arrest of Jones.”
Pushing a suspect against a wall or other object has been held to be an established
example of excessive force. Although “[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers violates the Fourth Amendment,” Alkhateeb v.
Charter Twp. of Waterford, 190 F. App’x 443, 449 (6th Cir. 2006) (quoting Graham, 490 U.S. at

14

396), courts inquire into the specific facts of the case and determine whether the push was
reasonable within the context. “The question whether force is excessive turns on the objective
reasonableness of the officer’s conduct under the circumstances.” Miller v. Sanilac County, 606
F.3d 240 (6th Cir. 2010) (citing Graham, 490 U.S. at 397). Particularly, when a suspect is
fleeing or resisting arrest, courts have upheld the rights of officers to detain such a suspect with
physical force. See Goodrich v. Everett, 193 F. App’x 551, 557 (6th Cir. 2006) (holding that the
physical tackling of plaintiff, a suspected violent criminal, in order to prevent escape is not an
excessive use of force).
However, violently shoving a defendant against a wall or other such structure while
arresting him has consistently been held by the Sixth Circuit to be an unlawful use of force,
absent circumstances such as flight, general unruliness, or danger on the part of the arrestee. See,
e.g., Carpenter v. Bowling, 276 F. App’x 423, 426-28 (6th Cir. 2008) (denying qualified
immunity for officer who threw suspect against van despite fact that suspect did not resist arrest);
Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 175 (6th Cir. 2004) (denying qualified
immunity for officers who threw Plaintiff against a wall and knocked her face into a display case
while arresting her); Burden v. Carroll, 108 F. App’x 291, 293-94 (6th Cir. 2004) (denying
qualified immunity for officer who pushed belligerent suspect against brick wall after suspect
had reportedly threatened someone); Lockett v. Donnellon, 38 F. App’x 289, 291-92 (6th Cir.
2002) (finding no excessive force when officers pushed and pulled plaintiff into police car in a
rough manner where suspect was uncooperative and verbally abusive).
And, although Montgomery argues that Plaintiff’s failure to allege an injury is fatal to his
claim, the Sixth Circuit has repeatedly held that
while an excessive force claim may be established through evidence of severe
injury or physical contact, this Circuit has not required that this must be the case.
15

Rather, we have held that 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.
Morrison, 583 F.3d at 407.
The Sixth Circuit previously denied summary judgment and qualified immunity when
faced with a factual scenario analogous to the instant case. Miller, 606 F.3d 240. In Miller,
following a traffic stop, the defendant-officer arrested the plaintiff for reckless driving. Id. at
245-46. Plaintiff alleged that the officer effected the arrest “by spinning him around, kicking his
feet apart, and slamming him against his vehicle.” Id. at 246. Miller admitted that he was not
“hurt” by these actions. Id. at 252. However, the plaintiff’s crime was not severe, he posed no
threat to officer safety, and he did not resist or attempt to evade arrest. Id. at 253. In short, the
Graham factors weighed against the use of any force to effect Miller’s arrest.
The Miller court acknowledged that the “claim of excessive force . . . [came] close to the
‘scintilla of evidence’ of excessive force th[e] Court ha[d] previously found to be insufficient to
survive summary judgment.” Miller, 606 F.3d at 254 (citing Goodrich, 193 F. App’x at 557; and
Gaddis ex rel. Gaddis v. Redford Twp., 364 F.3d 763, 773-74 (6th Cir. 2004)). Nevertheless, the
court ultimately reversed the district court’s grant of summary judgment, holding that “a jury
could reasonably find that slamming an arrestee into a vehicle constitutes excessive force” when
the Graham factors all weighed in favor of the plaintiff. Id. at 254-55 (citing Graham, 490 U.S.
at 396). Similarly, the Court held that qualified immunity was not appropriate because, given
“the precedent in [the Sixth] Circuit, a jury could reasonably find that the officer’s alleged
[slamming of plaintiff into a vehicle] violated [his] rights.” Id.
Likewise, in the present case, Plaintiff’s claim that Montgomery “violently” pushed him
against his home in the course of handcuffing him comes close to a scintilla of evidence that

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excessive force was used. However, like the plaintiff in Miller, Jones was under arrest for a nonviolent offense, he posed no safety threat to the officers, and he made no attempt to escape or
resist arrest. While Defendant suggests that Jones’s deposition testimony, which did not include
the word “violently,” should control our analysis, there is other evidence in the record that the
alleged push was violent. As part of his response to Montgomery’s first motion for summary
judgment, Plaintiff filed a declaration from an alleged eyewitness, Stephen Justice, who stated
that he “observed . . . Montgomery . . . push [Jones] violently against his mobile home.” (D.E.
27.) Consequently, a jury could reasonably conclude that the push was violent and constituted
excessive force in violation of his constitutional rights. Therefore, summary judgment and
qualified immunity are DENIED with respect to this claim.
C. Handcuffs
Finally, Defendant contends that Jones’s claim with respect to applying handcuffs too
tightly must fail because he cannot prove that his wrist injuries resulted from handcuffing.
Montgomery points to Dr. Yakin’s deposition testimony that the injuries could have been caused
by either the handcuffing of the Plaintiff’s beating on the cell door.
Like slapping and pushing, tight handcuffing may constitute excessive force in certain
situations. In Burchett v. Kiefer, the Sixth Circuit stated,
The tightness of the handcuffs themselves causes greater concern. The
right to be free from excessively forceful handcuffing is a clearly established right
for qualified immunity purposes, and applying handcuffs [too] tightly . . . raises
concerns of excessive force. Our precedents allow the plaintiff to get to a jury
upon a showing that officers handcuffed the plaintiff excessively and
unnecessarily tightly and ignored the plaintiff’s pleas that the handcuffs were too
tight.
310 F.3d at 944-45 (citations omitted) (quoting Kostrzewa, 247 F.3d at 641) (citing Martin v.
Heideman, 106 F.3d 1308, 1310, 1313 (6th Cir. 1997)); see also Meadows v. Thomas, 117 F.

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App’x 397, 404 (6th Cir. 2004). To establish a viable Fourth Amendment claim for excessively
forceful handcuffing, a plaintiff must establish that: (1) he complained to the officer that the
handcuffs were too tight; (2) the officer ignored those complaints; (3) and he incurred physical
injury as a result of the handcuffing. Morrison, 583 F.3d at 401 (citing Lyons v. City of Xenia,
417 F.3d 565, 575-76 (6th Cir. 2005)).
In the present case, assuming Jones’s account of his arrest is true, he has presented
evidence that he complained to the arresting officers that his handcuffs were too tight and that his
complaints were ignored. He has also alleged resulting injuries: loss of motion in his right index
finger and swelling in his wrist. In support of his claim of injury, Plaintiff deposed his treating
physician, Dr. Yakin, who opined on direct examination that, assuming Jones’s allegations about
the tight handcuffs were true, his injuries were consistent with that story. However, on crossexamination, Montgomery’s attorney asked Dr. Yakin whether beating on a jail cell door could
also be responsible for the types of injuries Jones suffered.

Dr. Yakin answered in the

affirmative.
“Traditional tort concepts of causation inform the causation inquiry on a § 1983 claim.”
Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 608 (6th Cir. 2007) (citing
McKinley v. City of Mansfield, 404 F.3d 418, 438 (6th Cir. 1997). Thus, a plaintiff carries the
burden of proving that the offending officer’s conduct was the cause in fact of his injury. Id. To
prove that an officer was the “cause in fact” of his injury, a plaintiff must show that “the result
would not have occurred but for the conduct. Similarly, if the result would have occurred
without the conduct complained of, such conduct cannot be a cause in fact of that particular
result.” Id. (citing Butler v. Dowd, 979 F.2d 661, 669 (8th Cir. 1992)).

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Despite Dr. Yakin’s testimony about the source of injury, Jones provides no evidence
tending to show that his wrist injury was likely caused by the handcuffing rather than his beating
on the cell door. Consequently, Plaintiff cannot show that application of tight handcuffs caused
his injuries. No reasonable juror could conclude, by a preponderance of the evidence, that the
handcuffing caused Jones’s injuries rather than his beating on the bars of his door in jail. For
this reason, Defendant’s motion for summary judgment on this issue is GRANTED.
VI. CONCLUSION
Based on the foregoing, Montgomery’s motion for summary judgment (D.E. 36) is
GRANTED in part and DENIED in part.

IT IS SO ORDERED this 13th day of October 2016.

s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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