Wallace v. Smith, et al.
Filing
60
ORDER denying 54 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 7/23/2020. (Mays, Samuel)
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 1 of 20
PageID 374
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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SHERNARD WALLACE,
Plaintiff,
v.
CHRISTOPHER BROWN and
WILLIAM SMITH,
Defendants.
No. 2:17-cv-02269
ORDER
This is a § 1983 case asserting a claim of excessive force
by
City
of
Christopher
Memphis
police
Brown
and
officers.
William
Before
Smith’s
the
Court
(collectively,
“Defendants”) May 20, 2020 Motion for Summary Judgment.
No. 54.)
2020.
is
(ECF
Plaintiff Shernard Wallace responded on June 15,
(ECF No. 57.)
Defendants replied on June 29, 2020.
(ECF Nos. 58-59.)
For the following reasons, the Motion for Summary Judgment
is DENIED.
I.
Background
Around 10:00 p.m. on May 4, 2016, Defendants, City of
Memphis
police
officers,
observed
a
vehicle
headlight out in downtown Memphis, Tennessee.
with
a
front
(ECF No. 54-2
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 2 of 20
¶¶ 1-2.)
Wallace
was
in
the
driver’s
seat.
PageID 375
(Id.
¶ 3.)
Defendant Smith approached the vehicle to advise Wallace about
the headlight.
(Id.)
Wallace opened the driver’s side door,
and Smith observed in the door compartment a plastic bag that
appeared to contain narcotics.
(Id. ¶ 4.)
Wallace grabbed the
plastic bag, left the vehicle, and started running away.
¶¶ 5-6.)
Smith gave chase on foot.
(Id. ¶ 7.)
(Id.
Wallace ran
through a parking lot, tried to jump over a gate, and fell 2025 feet.
(Id. ¶ 8.)
plastic bag behind.
Wallace continued running, leaving the
(Id. ¶¶ 8-9.)
Defendant Brown caught up
to Wallace on foot and ordered Wallace to stop.
(Id. ¶ 11.)
The parties dispute some of what happened next.
Wallace
contends that he “complied with Officer C. Brown’s instruction
by stopping, lifting both of my hands in the air above my
head[,] and surrender[ing] to his command.”
(ECF No. 57 at 9.)
Wallace contends that Brown then struck Wallace in the face
several times with his fist and put Wallace in a headlock.
(Id.)
Smith, who by that time had caught up to Wallace and
Brown, punched Wallace in the side and back and placed him in
handcuffs.
several
more
(Id.)
times
Both Brown and Smith then struck Wallace
before
placing
him
in
their
squad
car.
(Id.)
Defendants contend that, when Brown caught up to Wallace,
Brown ordered Wallace to get on the ground.
2
(ECF No. 54-2
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 3 of 20
¶ 13.)
Wallace refused to comply.
(Id.)
PageID 376
Brown then hit
Wallace several times with his fist, put Wallace in a headlock,
and tackled him to the ground.
(Id. ¶¶ 13-14.)
Once Wallace
was on the ground, Brown and Smith arrested Wallace.
¶ 15.)
(Id.
Defendants do not admit that they struck Wallace after
he had been placed in handcuffs.
(See id.)
The parties agree that, after Wallace had been arrested,
Smith retrieved the plastic bag Wallace had dropped.
¶ 16.)
The substance in the bag was cocaine.
(Id.
(Id. ¶¶ 16-17.)
Wallace was transported to Regional One Hospital and then to
the
Shelby
County
Criminal
Avenue, Memphis, Tennessee.
by
the
State
of
Tennessee
Justice
Complex
(Id. ¶ 18.)
with
at
201
Popular
Wallace was charged
possession
of
cocaine
with
intent to manufacture, deliver or sell; evading arrest; and
resisting official detention.
(Id. ¶ 19.)
Wallace pled guilty
to a lesser-included charge of simple possession of cocaine and
was sentenced to eleven months and twenty-nine days in jail.
(Id. ¶ 20.)
In April 2017, Wallace filed a pro se Complaint against
Brown, Smith, and several other defendants, alleging causes of
action under 42 U.S.C. § 1983.
(ECF No. 1.)
Wallace filed an Amended Complaint.
In August 2017,
(ECF No. 7.)
In December
2017, the Court dismissed the Amended Complaint, but granted
leave to amend.
(ECF No. 10.)
In January 2018, Wallace filed
3
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 4 of 20
a Second Amended Complaint.
Court
dismissed
Complaint,
but
most
held
of
(ECF No. 12.)
the
that
claims
Wallace
in
had
PageID 377
In April 2018, the
the
Second
plausibly
excessive force claim against Brown and Smith.
Amended
stated
an
(See ECF No. 15
at 4.)
On May 20, 2020, Defendants filed the Motion for Summary
Judgment, a memorandum in support, a Statement of Undisputed
Material Facts, and declarations from Brown and Smith.
(ECF
Nos.
that
54,
summary
54-1,
54-2,
judgment
is
54-3,
54-4.)
appropriate
Defendants
because
they
argue
did
excessive force during their encounter with Wallace.
No. 54-1 at 8-10.)
not
use
(See ECF
In the alternative, Defendants argue that
summary judgment is appropriate because, even if they did use
excessive force, they are entitled to qualified immunity.
(See
id. at 11.)
On June 15, 2020, Wallace responded to the Motion for
Summary Judgment.
(ECF No. 57.)
In his response, Wallace
included a memorandum in opposition, a Statement of Additional
Disputed Facts, and a declaration.
a
response
to
Defendants’
(Id.)
Statement
of
Wallace did not file
Undisputed
Material
Facts.
II.
Jurisdiction
The Court has federal question jurisdiction.
Under 28
U.S.C. § 1331, district courts have original jurisdiction “of
4
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 5 of 20
PageID 378
all civil actions arising under the Constitution, laws, or
treaties
of
the
United
States.”
Wallace
against Defendants under 42 U.S.C. § 1983.
asserts
a
claim
That claim arises
under the laws of the United States.
III. Standard of Review
A.
Summary Judgment
Under Federal Rule of Civil Procedure 56, a court must
grant a party’s motion for 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).
nonmoving
party,
The moving party must show that the
having
had
sufficient
opportunity
for
discovery, lacks evidence to support an essential element of
its case.
See Fed. R. Civ. P. 56(c)(1); Peeples v. City of
Detroit, 891 F.3d 622, 630 (6th Cir. 2018).
When
confronted
with
a
properly
supported
motion
for
summary judgment, the nonmoving party must set forth specific
facts showing that there is a genuine dispute for trial.
Fed. R. Civ. P. 56(c).
See
“A genuine dispute exists when the
plaintiff presents significant probative evidence on which a
reasonable jury could return a verdict for her.”
Motor
Co.,
782
F.3d
753,
(quotation marks omitted).
760
(6th
Cir.
EEOC v. Ford
2015)
(en
banc)
The nonmoving party must do more
than simply “show that there is some metaphysical doubt as to
5
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 6 of 20
the material facts.”
PageID 379
Lossia v. Flagstar Bancorp, Inc., 895
F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
nonmovant
must
identify
specific
evidence
in
the
sufficient to establish a genuine issue for trial.
The
record
See Fed. R.
Civ. P. 56(c)(1); Hanson v. Madison Cty. Det. Ctr., 736 F.
App’x 521, 527 (6th Cir. 2018).
Although summary judgment must be used carefully, it “is
an integral part of the Federal Rules as a whole, which are
designed
to
determination
secure
of
every
procedural shortcut.”
289,
294
(6th
the
Cir.
just,
action[,]
speedy,
rather
and
than
inexpensive
a
disfavored
FDIC v. Jeff Miller Stables, 573 F.3d
2009)
(quotation
marks
and
citations
omitted).
B.
Section 1983 and Qualified Immunity
Under 42 U.S.C. § 1983, state officials are liable for
damages
if
they
deprive
anyone
of
his
constitutional
or
statutory rights.
See Kaminski v. Coulter, 865 F.3d 339, 345
(6th Cir. 2017).
State officials can assert a defense of
qualified immunity.
That doctrine protects them from civil
liability unless the constitutional or statutory rights were
clearly
established
when
the
violation
occurred.
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012).
6
See
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 7 of 20
A
two-tiered
inquiry
governs
qualified
immunity
PageID 380
cases.
See Ferris v. City of Cadillac, 726 F. App’x 473, 478 (6th Cir.
2018).
“First, taken in the light most favorable to the party
asserting
the
injury,
do
the
facts
alleged
show
officer’s conduct violated a constitutional right?”
that
the
Cahoo v.
SAS Analytics Inc., 912 F.3d 887, 897 (6th Cir. 2019) (quoting
Seales v. City of Detroit, 724 F. App’x 356, 359 (6th Cir.
2018)).
“Second, is the right clearly established?”
Court may address these prongs in either order.”
Id.
“[A]
Id.
Whether an officer is entitled to qualified immunity is a
question of law.
See Dickerson v. McClellan, 101 F.3d 1151,
1157 (6th Cir. 1996).
However, when “the legal question of
qualified immunity turns upon which version of the facts one
accepts, the jury, not the judge, must determine liability.”
Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir.
1998).
The first task is to determine the extent to which the
record
supports
the
plaintiff’s
version
of
events.
See
Chappell v. City of Cleveland, 585 F.3d 901, 909 (6th Cir.
2009).
If the plaintiff offers evidence sufficient to create a
genuine
whether,
favorable
entitled
dispute
of
viewing
to
to
the
material
those
fact,
disputed
plaintiff,
qualified
the
immunity.
the
facts
Court
in
officer
Id.
at
the
is
907
must
decide
light
most
nevertheless
(noting
that
qualified immunity is not appropriate if, “viewing the evidence
7
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 8 of 20
PageID 381
in the light most favorable to [plaintiff], a constitutional
right was violated and that . . . right was clearly established
at the time of the violation”) (citing Scott v. Harris, 550
U.S. 372, 377 (2007)).
IV.
Analysis
A.
Defendants’ Statement of Undisputed Material Facts
Defendants argue that, because Wallace did not file a
response to their Statement of Undisputed Material Facts, the
Court
should
consider
the
facts
Defendants
assert
to
be
“admitted by operation of law” for the purpose of deciding the
Motion for Summary Judgment.
(See ECF No. 59 at 1-3.)
Under the Local Rules of this District, a party opposing a
motion for summary judgment “must respond to each fact set
forth by the movant by either: (1) agreeing that the fact is
undisputed; (2) agreeing that the fact is undisputed for the
purpose of ruling on the motion for summary judgment only; or
(3) demonstrating that the fact is disputed.
Each disputed
fact must be supported by specific citation to the record.”
LR
56.1(b).
A party’s “[f]ailure to respond to a moving party’s
statement
of
asserted
judgment.”
material
facts
are
facts
not
. . .
disputed
shall
for
indicate
purposes
of
that
the
summary
Id. 56.1(d).
Pro se litigants such as Wallace are not excused from the
requirements of the Federal Rules of Civil Procedure or the
8
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 9 of 20
local rules.
1989).
PageID 382
See Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
However, pro se litigants are entitled to some leniency
in complying with formal procedures.
Cf. Haines v. Kerner, 404
U.S. 519, 520-21 (1972) (pro se complaints are held “to less
stringent standards than formal pleadings drafted by lawyers”).
“[D]istrict courts may liberally construe the federal and local
rules for pro se litigants[.]”
Greer v. Home Realty Co. of
Memphis Inc., No. 2:07-cv-2639, 2010 WL 6512339, at *2 (W.D.
Tenn. July 12, 2010) (quoting Whitfield v. Snyder, 263 F. App’x
518, 521 (7th Cir. 2008)).
Wallace did not file a response to Defendants’ Statement
of Undisputed Material Facts.
In his unsworn response to the
Motion for Summary Judgment, Wallace did not and could not
present
competent
summary
Defendants’ asserted facts.
judgment
evidence
contradicting
In his declaration, signed under
penalty of perjury, Wallace conclusorily states that he “did
not resist or threaten the officers in any fashion” during his
arrest, but does not make particular factual assertions about
Defendants’ use of force during his arrest.
2-5.)
(See ECF No. 57 at
In his supporting memorandum, Wallace submits a detailed
description of the events of his arrest that conflicts with
some
of
Defendants’
asserted
facts.
(See
id.
at
8-11.)
Wallace’s memorandum is unsworn and is not competent summary
judgment evidence.
See Viergutz v. Lucent Techs., Inc., 375 F.
9
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 10 of 20
PageID 383
App’x 482, 485 (6th Cir. 2010) (pro se litigants are “obligated
at the summary judgment phase to ‘identify specific facts that
can be established by admissible evidence, which demonstrate a
genuine issue for trial’”) (quoting Amimi v. Oberlin Coll., 440
F.3d 350, 357 (6th Cir. 2006)); King v. UT Med. Grp., Inc., No.
09-cv-2080, 2011 WL 13269768, at *3 (W.D. Tenn. Mar. 3, 2011)
(“The Court cannot consider any factual assertions that are
made in legal memoranda or that are not sworn to under penalty
of perjury.”) (citing Dole v. Elliott Travel & Tours, Inc., 942
F.2d 962, 968-69 (6th Cir. 1991)).
Wallace’s Second Amended Complaint is verified.
No. 12 at 1.)
(See ECF
Wallace declares under penalty of perjury that
the contents of Second Amended Complaint are true and correct,
and dates that declaration.
(See id.); see also Williams v.
Browman,
(6th
981
F.2d
901,
904
Cir.
1992)
(in
28
U.S.C.
§ 1746, “[t]he United States Code specifically provides for
verification of unsworn complaints, thereby allowing pro se
[parties] to controvert sworn affidavits and place into issue
material facts”).
A “verified complaint [] carries the same weight as would
an affidavit for the purposes of summary judgment.”
El Bey v.
Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing Lavado v.
Keohane, 992 F.2d 601, 605 (6th Cir. 1993)).
Wallace does not
cite the Second Amended Complaint in his opposition to the
10
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 11 of 20
Motion for Summary Judgment.
PageID 384
“But courts should consider the
allegations in a pro se prisoner’s verified complaints (which
are effectively affidavits) before entering judgment against
him,
even
if
the
prisoner
fails
to
cite
response to a motion for summary judgment.”
483 F. App’x 202, 203 (6th Cir. 2012).
Complaint,
Wallace,
under
penalty
that
evidence
in
Miller v. Jones,
In his Second Amended
of
perjury,
submits
a
detailed description of the events of his arrest that conflicts
with some of Defendants’ asserted facts.
(See ECF No. 12-3 at
1-7.)
Wallace’s
papers
are
not
always
in
the
correct
form.
Given his pro se status, the Court will excuse the technical
deficiencies
Judgment.
in
his
response
to
the
Motion
for
Summary
See LR 1.1(e) (“[T]he Court may deviate from any
provision of any Local Rules of this Court, when appropriate
for the needs of the case and the administration of justice.”).
There is competent summary judgment evidence in the record
establishing genuine disputes of material fact.
The Court
considers Defendants’ asserted facts to be undisputed except
where
contradicted
by
Wallace’s
factual
description
of
the
events of his arrest as set out in the verified Second Amended
Complaint.
11
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 12 of 20
B.
PageID 385
Genuine Disputes of Material Fact
The parties put forward conflicting accounts of Wallace’s
arrest.
Wallace asserts in the Second Amended Complaint that,
after Brown ordered him to stop running, he “complied with
Officer C. Brown’s instructions by stopping, lifting both of my
hands in the air above my head[,] and surrender[ing] to his
command”; that Brown struck Wallace in the face several times
with his fist and put Wallace in a headlock; that Smith punched
Wallace in the side and back and placed him in handcuffs; and
that, while Wallace was handcuffed, Brown and Smith struck him
several more times before placing him in their squad car.
(ECF
No. 12-3 at 1-3.)
Defendants assert that Brown ordered Wallace to get on the
ground; that Wallace refused to comply; that Brown hit Wallace
several times with his fist, put Wallace in a headlock, and
tackled him to the ground; and that, once Wallace was on the
ground, Brown and Smith arrested Wallace.
15.)
(ECF No. 54-2 ¶¶ 13-
Except for Brown’s strikes while taking Wallace to the
ground, Defendants do not assert that they hit Wallace before
or after he was handcuffed.
Brown
and
Smith
have
their factual assertions.
(See id.)
submitted
declarations
supporting
(See ECF No. 54-3; ECF No. 54-4.)
In the verified Second Amended Complaint, Wallace has provided
support for his factual assertions.
12
(See ECF No. 12-3 at 1-7.)
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 13 of 20
No other evidence has been submitted by either side.
PageID 386
It does
not appear that any depositions were taken in this case.
No
other documentary or witness evidence has been offered.
Given
believe
the
either
evidence
provided,
Wallace’s
or
events of Wallace’s arrest.
a
reasonable
Defendants’
description
version
of
made
events
between
is
could
of
the
None of the declarations provided
is conclusive evidence of what took place.
determination
juror
the
officers’
inappropriate
for
“Any credibility
and
[plaintiff’s]
summary
judgment.”
Tarver v. City of Edna, 410 F.3d 745, 752-54 (5th Cir. 2005)
(affirming
judgment
in
in
relevant
§ 1983
case
part
denial
of
involving
motion
for
allegation
of
summary
excessive
force); see also Madewell v. Roberts, 909 F.2d 1203, 1206 (8th
Cir. 1990) (where a “district court could resolve [a factual]
dispute only by deciding to believe [defendant’s] affidavit
rather
than
determination
plaintiffs’
is
affidavits,
inappropriate
in
[]
such
ruling
on
a
credibility
a
motion
for
summary judgment”).
Taking the facts in the light most favorable to Wallace,
the following is what happened after Brown ordered Wallace to
stop running: Wallace stopped and lifted both of his hands in
the air; Brown struck Wallace in the face several times with
his fist and put Wallace in a headlock; Smith punched Wallace
in the side and back and placed him in handcuffs; and, while
13
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 14 of 20
PageID 387
Wallace was handcuffed, Brown and Smith struck him several more
times.
That is sufficient to avoid summary judgment.
C.
Qualified Immunity
Qualified
liability
immunity
under
§ 1983
will
shield
unless:
(1)
Defendants
they
from
violated
civil
one
of
Wallace’s constitutional rights; and (2) that right was clearly
established at the time.
1.
Wallace
See Cahoo, 912 F.3d at 897.
Constitutional Right
contends
that
Defendants
while arresting him on August 4, 2016.
15-22; ECF No. 12-4 at 9, 19.)
used
excessive
force
(See ECF No. 12-2 at
Excessive force claims are
analyzed under the Fourth Amendment’s reasonableness standard.
See Graham v. Connor, 490 U.S. 386, 394-95 (1989).
“[W]hether
the force used to effect a particular seizure is ‘reasonable’
. . . requires a careful balancing of ‘the nature and quality
of
the
intrusion
on
the
individual’s
Fourth
Amendment
interests’ against the countervailing governmental interests at
stake.”
Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8
(1985)).
Although reasonableness is ultimately based on the
totality
of
the
circumstances,
three
factors
guide
the
analysis: (1) the severity of the crime at issue; (2) whether
the suspect poses an immediate threat to the safety of the
officer or others; and (3) whether the suspect is actively
resisting arrest or attempting to evade arrest by flight.
14
Id.
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 15 of 20
The
reasonableness
of
the
force
must
be
judged
PageID 388
from
the
perspective of a reasonable officer on the scene, not “with the
20/20 vision of hindsight.”
Id.
When officers use force multiple times, the Sixth Circuit
has found it appropriate to divide the incident into segments
and to analyze each use of force on its own terms.
See Harris
v. City of Circleville, 583 F.3d 356, 365 (6th Cir. 2009).
Wallace contends that Defendants used excessive force at two
distinct points: (1) when subduing Wallace and taking him to
the ground, and (2) after Wallace was handcuffed.
(See ECF No.
12-3 at 1-3.)
First, Defendants’ use of force when subduing Wallace and
taking him to the ground.
Both parties agree that Wallace
initially evaded arrest by running away from Brown and Smith.
(See ECF No. 54-2 ¶¶ 5-12; ECF No. 12-3 at 1.)
However, in
Wallace’s telling, he had stopped running, raised both his
hands, and surrendered before Brown struck him in the face and
put him in a headlock and Smith punched him in the side and
back.
(See ECF No. 12-3 at 1-3.)
A reasonable jury could find that Defendants’ use of force
in subduing Wallace and taking him to the ground was excessive.
Under the Fourth Amendment, “once the detainee ceases to pose a
threat to the safety of the officers or others, the legitimate
government interest in the application of significant force
15
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 16 of 20
dissipates.”
PageID 389
Morrison v. Bd. of Trs. of Green Twp., 583 F.3d
394, 404-05 (6th Cir. 2009).
The Sixth Circuit has “held
repeatedly that the use of force after a suspect has been
incapacitated or neutralized is excessive as a matter of law.”
Baker v. City of Hamilton, 471 F.3d 601, 607 (6th Cir. 2006)
(collecting cases and finding genuine dispute of material fact
about
whether
defendant’s
officer
head
attempting
to
used
and
evade
excessive
force
after
defendant
knee
arrest
and
had
when
raised
he
had
his
struck
stopped
hands
in
surrender).
Second,
Defendants’
handcuffed.
use
of
force
after
Wallace
was
Provided Wallace was not continuing to resist
Defendants, any use of force after he was handcuffed would be
excessive.
“‘Gratuitous
violence’
inflicted
upon
an
incapacitated detainee constitutes an excessive use of force,
even
when
Morrison,
the
583
injuries
F.3d
at
suffered
404-07
are
(finding
not
substantial.”
genuine
dispute
of
material fact about whether officer used excessive force when
he pushed defendant’s face into the ground while defendant was
handcuffed
and
prone);
see
also
Pigram
ex
rel.
Pigram
v.
Chaudoin, 199 F. App’x 509, 512-14 (6th Cir. 2006) (finding
genuine dispute of material fact about whether officer used
excessive force when he slapped handcuffed plaintiff in the
face).
16
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 17 of 20
PageID 390
Taking the facts in the light most favorable to Wallace, a
reasonable jury could find that Defendants’ use of force while
arresting Wallace was excessive under the Fourth Amendment.
Wallace has established genuine disputes of material fact about
whether Defendants violated his constitutional rights.
2.
For
a
Clearly Established
constitutional
right
to
be
clearly
established,
precedent at the time of the alleged misconduct “must have
placed
the
. . .
constitutional
question
beyond
debate.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)
(quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).
That
precedent must be a case of “controlling authority or a robust
consensus
Rickard,
of
cases
572
U.S.
citations omitted).
of
persuasive
765,
780
authority.”
(2014)
(quotation
Plumhoff
marks
v.
and
There need not be a case “directly on
point,” Kisela, 138 S. Ct. at 1152, but the contours of the
violated right must have been “sufficiently definite that any
reasonable
official
in
the
defendant’s
shoes
would
have
understood that he was violating it,” Plumhoff, 572 U.S. at
778-79.
Clearly established law may not be defined at a high level
of generality.
See Kisela, 138 S. Ct. at 1152.
Precedent
showing that the law was clearly established must be factually
specific.
See id. at 1152-53.
17
That is especially true in
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 18 of 20
PageID 391
excessive force cases, where “the result depends very much on
the facts of each case.”
Id. at 1153 (quoting Mullenix v.
Luna, 136 S. Ct. 305, 309 (2015) (per curiam)).
“[P]olice
officers are entitled to qualified immunity unless existing
precedent ‘squarely governs’ the specific facts at issue.”
Id.
Factually similar controlling precedents that existed at
the time of Wallace’s arrest squarely govern this case.
Baker,
the
Sixth
Circuit
held
that
an
officer
violated
In
a
defendant’s clearly established constitutional right when he
struck the defendant on the head and knee with a baton after
the defendant had emerged from some bushes “with his hands
straight up in the ‘surrender’ position.”
471 F.3d at 607-08.
In Baker, as here, the defendant was not handcuffed at the time
he surrendered and had previously been evading arrest.
See id.
The Court held that the officer’s strikes to the defendant’s
head
and
knee
after
the
defendant
had
surrendered
was
a
violation of the defendant’s clearly established “right to be
free from gratuitous strikes to his body.”
Id. at 608.
Under
Baker, Defendants’ use of force in subduing Wallace and taking
him the ground after Wallace had surrendered was a violation of
a clearly established constitutional right.
In
Morrison,
the
Sixth
Circuit
held
that
an
officer
violated a defendant’s clearly established constitutional right
when he pushed the defendant’s face into the ground while she
18
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 19 of 20
was handcuffed and prone.
that
it
was
“obvious”
583 F.3d at 404-08.
that
an
officer
PageID 392
The Court held
“could
not
push
a
handcuffed detainee’s face into the ground when there lacked a
genuine threat to the safety of the officers or others.”
Id.
at 408 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir.
2002)).
Collecting other Sixth Circuit cases, the Court said,
“[i]n this Circuit, the law is clearly established that an
officer may not use additional gratuitous force once a suspect
has been neutralized.”
Id. (quoting Alkhateeb v. Charter Twp.
of Waterford, 190 F. App’x 443, 452 (6th Cir. 2006)).
Under
Morrison, Defendants’ use of force in striking Wallace after he
had been handcuffed and had ceased to resist was a violation of
a clearly established constitutional right.
Taking the facts in the light most favorable to Wallace,
Defendants
violated
Wallace’s
clearly
established
Amendment right to be free from excessive force.
are not entitled to qualified immunity.
Fourth
Defendants
The Motion for Summary
Judgment is DENIED.
V.
Conclusion
For the foregoing reasons, the Motion for Summary Judgment
is DENIED.
19
Case 2:17-cv-02269-SHM-tmp Document 60 Filed 07/23/20 Page 20 of 20
So ordered this 23rd day of July, 2020.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
20
PageID 393
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