UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONY DEWAYNE BEARD, JR., a legally

incapacitated person, by and through

JOHNETTE FORD, his legal guardian,

Plaintiff,

v.

CITY OF SOUTHFIELD, et. al.,

Defendants.

 /

Case No. 14-13465

Honorable Nancy G. Edmunds

OPINION AND ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION [165] AND GRANTING IN PART AND DENYING

IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT [118]

 Plaintiff Tony Beard filed this action claiming that Defendant City of Southfield and ten

of its police officers violated several of his constitutional rights. Defendants now move for

summary judgment on most of Plaintiff's claims (Dkt. 118), and Magistrate Judge Elizabeth

Stafford has provided this Court a Report and Recommendation (R&R) regarding

Defendants' motion. (Dkt. 165.) The Magistrate Judge recommends that the motion for

partial summary judgment be granted in part and denied in part. (Id.) Both parties have

filed objections to the R&R. (Dkt. 168; Dkt. 171.) For the following reasons, the Court

OVERRULES both parties' objections, ACCEPTS AND ADOPTS the R&R, and GRANTS

IN PART and DENIES IN PART Defendants' motion for partial summary judgment.

I. Background

The R&R provides an extensive factual background, and the Court, having reviewed

the record de novo, adopts that background here. (See Dkt. 165, at 2-10.) To summarize,

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Plaintiff suffered injuries after he led Southfield police on a high-speed car chase that

ended in Plaintiff's arrest. Plaintiff then filed suit in this Court alleging that the City of

Southfield and ten of its officers violated his constitutional rights during and leading up to

his arrest. As to the officers specifically, Plaintiff asserts Fourth Amendment claims of

unlawful seizure and excessive force; Eight Amendment claims of cruel and unusual

punishment; and Fourteenth Amendment claims for the denial of equal protection,

violations of substantive due process, and deliberate indifference to his medical needs. 

(Dkt. 18 at ¶¶ 41, 47.) As to the City of Southfield, Plaintiff asserts claims of failure to train

and failure to supervise. (Id. at ¶¶ 32-33.) 

Before the Court now is the Magistrate Judge's R&R on Defendants' motion for partial

summary judgment. Defendants seek summary judgment on each of Plaintiff's claims

except the excessive force claims related to Plaintiff's arrest against Katie Schneider,

Matthew Taylor, Eric Jachym, and Timothy Gougeon. (Dkt. 118, at 20.) In the time since

Defendants filed their motion, the Court already struck Plaintiff's Eight Amendment claim

as a sanction for Plaintiff's discovery abuses. (Dkt. 155.) 

The R&R recommends that Defendants' motion for partial summary judgment be

granted in part and denied in part. More specifically, the Magistrate Judge recommends

that the Court grant summary judgment on all of Plaintiff's claims but the following: (1) the

excessive force claims arising out of Plaintiff's arrest against Ryan Losh and Kory

Karpinsky; (2) the equal protection claim against Taylor related to the use of a racial

epithet; and (3) the claims which Defendants have not challenged--excessive force claims

arising out of Plaintiff's arrest against K. Schneider, Taylor, Jachym, and Gougeon. (Dkt.

165, at 30.) Plaintiff and Defendants have both filed objections to the R&R. 

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II. Standard of Review

When a party objects to portions of a magistrate judge's report and recommendation

on a dispositive motion, the Court reviews such portions de novo. Fed. R. Civ. P. 72(b). 

However, only specific objections that pinpoint a source of error are entitled to de novo

review. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). General objections, or those

that merely challenge the magistrate judge's ultimate determinations, have "the same

effects as would a failure to object." Howard v. Sec'y of Health and Human Servs., 932

F.2d 505, 509 (6th Cir. 1991). That is, such objections are invalid, and the Court must treat

them as if they were waived. See Bellmore-Byrne v. Comm'r of Soc. Sec., 2016 WL

5219541, at *1 (E.D. Mich. Sept. 22, 2016) (citing id.). 

III. Analysis

A. Plaintiff's Objection

Plaintiff objects to the Magistrate Judge's conclusion that the Amended Complaint did

not provide Jason Schneider fair notice of an excessive force claim against him. (Dkt. 168,

at 4.) In support, Plaintiff directs the Court's attention to particular allegations in the

Amended Complaint, which, according to Plaintiff, compel a different conclusion.1

 Given

that this objection merely challenges the Magistrate Judge's ultimate determination, the

Court may and does treat it as waived. Howard, 932 F.2d at 509. However, even if the

Court evaluated Plaintiff's objection on the merits, it would still fail. 

 1 Plaintiff also invites the Court to consider evidence suggesting that J. Schneider kicked

him in the head, but this evidence has no bearing on whether Plaintiff sufficiently pled an

excessive force claim against J.Schneider. See McColman v. St. Clair Cnty., 479 F. App'x

1 (6th Cir. 2012) (rejecting plaintiff's argument that discovery could put defendant on notice

that he was subject to an excessive force claim). The Court further notes that Plaintiff could

have sought leave to amend his pleadings to reflect this evidence but did not do so.

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Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain "a short

and plain statement of the claim showing that the pleader is entitled to relief." According to

the Supreme Court, this requires giving "fair notice" of the claim and "the grounds upon

which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted). Complaints do not provide fair notice if they offer only "nebulous assertions of

wrongdoing." Robertson v. Lucas, 753 F.3d 606, 623 (6th Cir. 2014). As to constitutional

claims specifically, "[The Sixth Circuit] has consistently held that damage claims against

government officials arising from alleged violations of constitutional rights must allege, with

particularity, facts that demonstrate what each defendant did to violate the asserted

constitutional right." Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (emphasis in

original). 

Having reviewed the Amended Complaint, the Court believes that the R&R correctly

concludes that Plaintiff did not provide J. Schneider fair notice of an excessive force claim

against him. While the Amended Complaint includes general claims that all ten named

officers violated Plaintiff's constitutional rights, it never ascribes particular conduct to J.

Schneider demonstrating that he violated Plaintiff's right to be free from excessive force. 

Instead, the Amended Complaint's allegations regarding J. Schneider's involvement in the

alleged use of excessive force are nebulous, generic, and opaque. (Dkt. 18 at ¶¶ 10-12;

24; 27-28; 38-40.)

For example, one allegation cited by Plaintiff does not mention J. Schneider at all,

even though it names eight other officers. (Id. at ¶ 24.) Another cited portion is

impermissibly vague: "[T]he actions of the Co-Defendant Officers ... lead [sic] to

OFFICERS- J. JAGILESKI [sic] and J. SCHNEIDER, following and harassing him, and

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ultimately: a wrongful high speed chase and vehicular pursuit; assault and physical

conduct, including tasing[.]" (Id. at ¶ 27.) It continues with no more particularity: "[T]he

actions described above ... constituted clear violations of his constitutional rights to ... not

become subject to the excessive use of force and/or of deadly force under the Eighth

Amendment." (Id. at ¶ 28.) Given the generality of these allegations, the deficiency of the

Amended Complaint is manifest on the face of Plaintiff's pleading. Therefore, if the Court

were to decide this objection on the merits, it would agree with the Magistrate Judge that

Plaintiff failed to provide J. Schneider fair notice of an excessive force claim against him. 

Twombly, 550 U.S. at 555; Lanman, 529 F.3d at 684; see also Dunchock v. City of

Corunna, 2015 WL 1130980, at *3 (E.D. Mich. Mar. 12, 2015) (holding that simply

incorporating prior allegations and referencing general tort law did not provide fair notice). 

B. Defendants' Objections

Defendants object to three portions of the R&R. First, Defendants object to the finding

that "Defendants do not claim that they feared that Beard would harm them." (Dkt. 171, at

2.) Defendants argue that this finding is unsupported by the record. Having reviewed the

record de novo, this Court disagrees. Defendants maintain that K. Scheider "did not,

however, say that she did not fear [Plaintiff]." (Id.) But the R&R does not state that any

officer expressed a lack of fear. Instead, the R&R finds that no officer expressed an

affirmative fear. That is an entirely different finding, and it is one supported by the record. 

Defendants' first objection is accordingly overruled. 

Defendants next object to the following finding: "[A]t this juncture, it would appear that

the officers' efforts were focused on halting [Plaintiff]'s resistance, not on protecting

themselves." (Dkt. 171, at 3.) Defendants argue that this finding is unsupported by the

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record. Having reviewed the record de novo, the Court again disagrees. K. Schneider

testified that Plaintiff was "not assaultive but resisting." (138-13, at 13.) She then

reiterated: "[H]e wasn't being assaultive, he was just fighting to try to get away still." (Id.

at 14.) In light of this testimony, the Court finds that the record supports the R&R's finding. 

Therefore, Defendants' second objection is also overruled. 

Finally, Defendants object to the conclusion that a jury must consider "the evidence

that Beard posed no immediate threat to [Defendants] as demonstrated by the fact that K.

Schneider put her gun away." (Dkt. 171, at 4.) Defendants contend that this conclusion

is based on "an incomplete view of the facts," which ignores the "'dangerous and complex

world'" that K. Schneider faced at the time. (Id. (quoting Smith v. Freland, 954 F.2d 343,

347 (6th Cir. 1992)).) Having reviewed the record de novo, as well as the context in which

this conclusion appears, the Court finds that this objection lacks merit. While it is true that

K. Schneider did not simply put her gun away, as she then equipped her taser (Dkt. 18-13,

at 15), the holstering of her gun still tends to show that Plaintiff did not pose an immediate

threat. It may not be conclusive proof that the officers used excessive force, but the R&R

never suggests that this fact carries dispositive weight. Instead, the R&R correctly

concludes that it is one piece of evidence that the jury will need to consider in evaluating

Plaintiff's claims. The R&R states in full: 

[T]he jury must consider the crime known to the officers at the time (fleeing

and eluding), the evidence that Beard posed no immediate threat to them as

demonstrated by the fact that K. Schneider put her gun away, the evidence

that he was no longer attempting to flee, [] Beard's claim that he was not

resisting at the time that Losh and Karpinsky forcefully pulled him through the

window opening, and [the allegation that] Losh forcefully placed Beard on the

ground face-down. Fox v. DeSoto, 489 F.3d [227,] at 236 [(6th Cir. 2007)].

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(Dkt. 165, at 23-24.) The Court believes the quoted passage accurately reflects the relevant

facts and law. Therefore, Defendants' final objection is also overruled.

IV. Conclusion

For the foregoing reasons, the Court OVERRULES both parties' objections;

ACCEPTS and ADOPTS the Magistrate Judge's R&R; and GRANTS IN PART and

DENIES IN PART Defendants' motion for partial summary judgment. As a result, the Court

grants summary judgment in Defendants' favor on the following claims: substantive due

process; unlawful seizure; excessive force as it relates to the car chase; excessive force

pertaining to the arrest against J. Schneider, Jeffrey Jagielski, Blake Matatall, and Nicholas

Smiscik; failure to intervene; equal protection as it pertains to racial profiling; equal

protection related to the racial epithet against J. Schneider, Jagielski, Jachym, Gougeon,

Losh, Matatall, Smiscik and Karpinsky; and municipal liability against the City of Southfield. 

Plaintiff's only remaining claims are the following: (1) excessive force claims related to

Plaintiff's arrest against K. Schneider, Losh, Karpinsky, Taylor, Jachym, and Gougeon; and

(2) an equal protection claim related to the racial epithet against Taylor. 

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: January 19, 2017

I hereby certify that a copy of the foregoing document was served upon counsel of record

on January 19, 2017, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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