UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONY DEWAYNE BEARD, JR.,

a legally incapacitated person, 

by and through JOHNETTE FORD, 

his legal guardian,

Plaintiff, Civil Action No. 14-13465

 Honorable Nancy G. Edmunds

v. Magistrate Judge Elizabeth A. Stafford

 

ERIC HAWKINS, et al., 

Defendants. 

_____________________________/

REPORT AND RECOMMENDATION TO GRANT IN PART

AND DENY IN PART DEFENDANTS’ MOTION FOR PARTIAL 

SUMMARY JUDGMENT [R. 118]

I. INTRODUCTION

After leading Southfield police on a Hollywood-style car chase on 

September 6, 2011, and then being forcibly apprehended, Plaintiff Tony 

Beard, Jr. emerged with a closed head injury, facial fractures, bruising 

(forehead, shoulders and left rib), chest abrasions, and scars on his back 

from being tasered. [ECF No. 138-22, PageID 4940; ECF No. 138-15, 

PageID 4867-71; ECF No. 138-16, PageID 4873-74]. This was Beard’s 

second closed head injury; his first occurred when he was hit by a car at 

age ten, and that injury required the removal of his left frontal lobe. [ECF 

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No. 138-11, PageID 4785]. As a result, Beard’s mother, Johnette Ford, has 

been his legal guardian since 2001, and he was a mentally incapacitated 

adult at the time of the incident at issue. [ECF No. 15-1, PageID 115]. 

Through Ford, Beard filed the instant lawsuit under 42 U.S.C. § 1983 

alleging that ten Southfield police officers violated his constitutional rights 

during the chase and his subsequent arrest, and that the City of Southfield 

has violated its duty to adequately hire and train its officers.

1 [ECF No. 18]. 

Defendants have filed a motion for partial summary judgment, [ECF No. 

118], which the Court RECOMMENDS be GRANTED IN PART AND 

DENIED IN PART, leaving remaining excessive force claims arising out of 

the arrest against Katie Schneider, Ryan Losh, Kory Karpinsky, Matthew 

Taylor, Eric Jachym and Timothy Gougeon,2 and an equal protection claim 

against Taylor.

II. BACKGROUND

The events in question took place at around 1:00 a.m., during a 

power outage. [ECF No. 118-3, PageID 2246; ECF No. 118-5, PageID 

 1 The Honorable Nancy G. Edmunds referred this matter for all pretrial 

matters pursuant to 28 U.S.C. § 636(b).

2 Defendants do not move for summary judgment of the excessive force 

claims relating to the arrest in favor of K. Schneider, Taylor, Jachym or 

Gougeon, which is why the motion is for partial summary judgment. [ECF 

No. 118, PageID 2073].

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2592]. At that time, Officer Jeffrey Jagielski was driving a patrol car with 

his partner Officer Jason Schneider as the passenger. [ECF No. 118-4, 

PageID 2478; ECF No. 118-5, PageID 2591-92]. They belonged to the 

Tactical Crime Suppression Unit, meaning that they patrolled to proactively 

look for criminal activity. [ECF No. 118-5, PageID 2589, 2592, 2628]. J. 

Schneider and Jagielski were on eastbound Eight Mile at its intersection 

with Greenfield when they saw Beard’s Tahoe heading toward them on 

northbound Greenfield. [ECF No. 118-4, PageID 2481; ECF No. 118-5, 

PageID 2592]. According to the officers, Beard had the right of way at the 

intersection but suddenly made a slight U-turn to the right across two lanes 

of traffic, entering an alley south of Eight Mile.3 [ECF No. 118-4, PageID 

2481; ECF 118-5, PageID 2603-05]. 

The intersection of Eight Mile and Greenfield forms a boundary 

between the cities of Detroit and Southfield. J. Schneider testified that, 

before making the U-turn, Beard’s Tahoe hit Eight Mile and thus the 

boundary of Southfield, but Jagielski testified that Beard’s tires never 

touched Southfield. [ECF No. 118-4, PageID 2492; ECF No. 118-5, PageID 

2605]. J. Schneider also said that he had a legal right to pursue anyone 

 3 There is some discussion in the record and briefing regarding whether 

Beard turned first into a carwash driveway before heading into the alley, but 

that distinction is not relevant.

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who committed a crime within one mile of Southfield’s border. [ECF No. 

118-4, PageID 2493].

Suspicious that Beard was driving a stolen vehicle and had turned 

away to avoid detection upon seeing the patrol car, the officers followed 

him into the alley in order to check out his license plate number. [ECF No. 

118-4, PageID 2497; ECF No. 118-5 Page ID 2611]. The officers’ 

suspicion did not bear out; the Tahoe belonged to Beard. [ECF No. 138-4, 

PageID 4573]. According to Beard, he turned into the alley because he 

had dropped his cell phone on the floor and wanted to slow down to pick it 

up. [ECF No. 118-3, PageID 2320-21]. He says that he did not know that 

the car pulling behind him was a patrol car because it no markings and the 

officers did not activate their lights after turning into the alley, so he was 

scared and tried to speedily drive away. [Id., PageID 2323, 2329-30].

4 His 

fear was heightened because he had been carjacked and robbed in 2002. 

[Id., 2330; ECF No. 138-9, PageID 4737]. When Beard sped up, Jagielski

followed suit. [ECF No. 118-5, PageID 2621]. Jagielski then activated his 

siren and lights, but Beard did not stop and the high-speed chase began. 

[Id., PageID 2362; ECF No. 118-3, PageID 2324-25].

 4 J. Scheider and Jagielski agree that the car had no markings and that they 

did not activate their lights or siren when pulling into the alley. [ECF No. 

118-4, PageID 2501, 2503; ECF No. 118-5, PageID 2610-11]

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Defendants’ brief details the fourteen minute chase, describing 

Beard’s disregard of stop signs and traffic lights as he traveled at speeds 

from 50 to 80 miles per hour including through residential areas; describing 

Beard’s escape after attempted PIT (precision immobilization technique) 

maneuvers, which are designed to stop a fleeing car; and noting that as 

many as nine patrol cars were involved in the chase. [ECF No. 118, 

PageID 2058-62]. The chase was captured on three dashcam videos.

[Exhibit 5, 8, 10].5 Defendants place emphasis on their claim that, after 

Officer Katie Schneider performed a successful PIT maneuver that spun 

Beard’s Tahoe around and caused it to come to a momentary halt, Beard 

drove his Tahoe onto the hood of Officer Eric Jachym’s patrol car. [ECF 

No. 118, PageID 2060-61 (with photos)]. Beard claims that it was Jachym 

that drove his car into the Tahoe. [ECF No. 118-3, PageID 2335]. But 

resolution of this factual dispute is not necessary for the determination of 

the legal claims at issue.

The factual disputes that matter are not captured by the dashcam 

videos. Specifically, no video captures how Beard’s injuries occurred or 

who caused them. Some facts are not in dispute. Beard says that he put 

his hands up after K. Schneider told him to do so. [ECF No. 118-3, PageID 

 5 Exhibits 5, 8 and 10 were filed in the ordinary manner.

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2337-38]. K. Schneider, who confirms that she was the first officer to 

approach Beard, agreed that Beard instantaneously put up his hands when 

she ordered him to do so. [ECF No. 138-13, PageID 4821, 4829-30]. All 

parties agree that Beard’s driver’s side window was shattered, and that he 

was pulled out of his Tahoe through that window opening rather than from 

an open door. [ECF No. 118-3, PageID 2338; ECF No. 118-8, PageID 

2805, 2844, 2878; ECF No. 138-27, PageID 5073; ECF No. 138-25, 

PageID 4536]. Finally, all agree that, after the arrest was made, there was 

blood on Beard’s face and on the pavement, but none in the Tahoe. [ECF 

No. 138-18, PageID 4881-83 (photos); ECF No. 118-3, PageID 2347-48; 

ECF No. 118-4, PageID 2536; ECF No. 118-5, PageID 2642-43; ECF No. 

118-8, PageID 2810, 2821, 2858; ECF No. 138-25, PageID 4981]. With 

respect to other details of the apprehension and arrest, the accounts differ 

in material respects.

According to the officers, Beard did not comply with commands to exit 

the Tahoe, and in fact actively resisted by flailing his arms and anchoring

his foot around the steering wheel. [ECF No. 138-13, PageID 4820; ECF 

No. 138-25, PageID 4976; ECF No. 118-8, PageID 2805; ECF No. 138-7, 

PageID 5063; ECF No. 138-19, PageID 4893-94]. However, Jachym 

testified that he did not know whether Beard intentionally anchored his foot 

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on the steering wheel. [ECF No. 118-8, PageID 2830-31]. And defendants 

do not claim that they feared that Beard would harm them; K. Schneider 

testified that Beard was not assaultive and that she put her gun away once 

he put up his hands. [ECF No. 138-13, PageID 4821, 4829]. Thus, at this 

juncture, it would appear that the officers’ efforts were focused on halting 

Beard’s resistance, not on protecting themselves. 

To get Beard out of the car, Officers Matthew Taylor, Ryan Losh and 

Jachym (the latter having entered the Tahoe from the passenger side)

forcibly freed Beard’s foot. [ECF No. 118-8, PageID 2805, 2830-31; ECF 

No. 138-19, PageID 4894-95; ECF No. 138-25, PageID 4976]. Losh and 

Officer Kory Karpinsky then forcibly pulled him from the Tahoe through the 

window opening; both Losh and Karpinsky acknowledge taking part in this 

extraction. [ECF No. 138-25, PageID 4976; ECF No. 138-27, PageID 

5061-62]. K. Schneider testified that she did not know how Beard’s driver’s 

window had been shattered, or why he was pulled through the window 

opening rather than from the door. [ECF No. 118-8, PageID 2841-42, 

2844].

The officers claim that Beard continued to resist being apprehended 

after he was taken from the Tahoe and was forcefully placed face-down on 

the pavement. [ECF No. 118-8, PageID 2844-45, 2878; ECF No. 138-25, 

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PageID 4981; ECF No. 138-19, PageID 4897]. As a number of officers 

worked to get Beard in handcuffs, K. Schneider tasered him twice using

shooting probes, and Gougeon tasered him once without the probes. [ECF 

No. 118-8, PageID 2856, 2871-72, 2879]. K. Schneider posits that Beard’s 

facial injuries are consistent with his being placed face-down on concrete 

and forcefully handcuffed, but she could not say “for certain if it was just the 

concrete or if it was him being hit at that point.” [ECF No. 118-8, PageID 

2871-72]. 

Beard tells a different story. He says that, after the PIT maneuver 

stopped his Tahoe and the officers approached, he told them that he was 

going to keep his hand up and that, “I don’t want you all to think I’m 

reaching for anything or got anything.” [ECF No. 118-3, PageID 2338]. He 

says that he opened the door some, but that an officer he could not identify 

slammed the door shut, punched out the window, punched him in the face, 

snatched him out of the window opening by his neck, and tasered him in 

the spine when he was halfway out of the window, and that he was then 

ambushed by the officers. [Id., PageID 2338, 2341]. Beard claims that K. 

Schneider, J. Schneider, Gougeon and Taylor all tasered him, and that he 

was assaulted by ten to twelve officers who dragged him from one spot to 

another. [Id., PageID 2344, 2347-48]. 

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According to Beard, J. Schneider kicked him in the head, Jachym 

punched him, and Taylor hit and kicked him and told him, “Don’t act like 

you can’t move, mother fucker, or we’ll beat your black ass again.” [Id., 

PageID 2345, 2347, 2349-50, 2419]. He claims that others called him 

racially offensive names, but he could not say who, except that he thinks 

that Gougeon did. [Id., PageID 2342, 2348-49]. Beard could not specify 

whether Jagielski, Losh, Matatall, Karpinsky or Nicholas Smiscik did

anything to him, but said that he knows that some of them kicked him or 

otherwise “put hands” on him that evening. [Id., PageID 2347, 2352-56]. 

He points out that it was dark and the officers were not wearing 

identification that night. [Id.]. Although the alleged assault caused Beard 

injuries, including a closed head injury and facial fractures, he testified that 

it happened “very quickly.” [ECF No. 118-2; PageID 2142; ECF No. 138-

22, PageID 4940; ECF No. 138-15, PageID 4867-71; ECF No. 138-16, 

PageID 4873-74].

The events of September 6, 2011, were followed with Beard being 

charged and tried in Oakland County Circuit Court. A jury found him guilty 

of fleeing and eluding the police, resisting and obstructing the police, and

possession of marijuana, but he was acquitted of malicious destruction of 

police property. [ECF No. 67-3, PageID 933]. A state circuit judge granted 

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an acquittal on the resisting and obstructing charge, finding that the verdict 

resulted from a miscarriage of justice. [Id., PageID 934].

III. ANALYSIS

Federal Rule of Civil Procedure 56 provides that “[t]he 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). See also Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250-57 (1986); Pittman v. Cuyahoga County Dep't of 

Children & Family Servs., 640 F.3d 716, 723 (6th Cir. 2011). The party 

seeking summary judgment bears the initial burden of informing the Court 

of the basis for its motion, and must identify particular portions of the record 

that demonstrate the absence of a genuine dispute as to any material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Alexander v. 

CareSource, 576 F.3d 551, 558 (6th Cir. 2009). 

If the movant satisfies its burden, the burden shifts to the non-moving 

party to go beyond the pleadings and set forth specific facts showing a 

genuine issue for trial. Celotex, 477 U.S. at 324; Wrench LLC v. Taco Bell 

Corp., 256 F.3d 446, 453 (6th Cir. 2001). “‘The failure to present any 

evidence to counter a well-supported motion for summary judgment alone 

is grounds for granting the motion.’” Alexander, 576 F.3d at 558 (quoting 

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Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)). “Conclusory 

statements unadorned with supporting facts are insufficient to establish a 

factual dispute that will defeat summary judgment.” Id. at 560 (citing Lewis 

v. Philip Morris, Inc., 355 F.3d 515, 533 (6th Cir. 2004)).

In his amended complaint, Beard alleges that Southfield violated its 

duty to implement, monitor, hire and adequately train its officers. [ECF No. 

18, PageID 161-62]. Invoking the Fourth, Eighth and Fourteenth 

Amendments, Beard claims that the defendant officers violated his rights of 

due process and equal protection; that he was subjected to an illegal 

search and seizure, and excessive force; that he suffered from cruel and 

unusual punishment; and that the “bystander” Officers K. Schneider, 

Jachym, Gougeon, Taylor, Losh, Matatall, Smiscik and Karpinsky failed to 

intervene to prevent harm to him. [Id., PageID 162-66]. Beard now 

concedes that summary judgment should be granted with respect to his 

substantive due process claim, and his Eighth Amendment claim has been 

stricken. [ECF No. 138, PageID 4547; ECF No. 155, PageID 6206]. 

In their motion, defendants argue that summary judgment should be 

granted with respect to Beard’s claims of unlawful seizure, equal protection, 

failure to train and failure to supervise. They argue that summary judgment 

of the excessive force claim should be granted in full as it relates to the 

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chase, and should be granted in part as it pertains to the arrest. Regarding

the excessive force claim arising out of the arrest, defendants contend that 

summary judgment should be granted in favor of the officers who were not 

identified in his amended complaint as taking part in the arrest, and in favor 

to the officers who Beard could not testify were directly involved in the 

alleged assault. They further argue that Beard failed to adduce evidence 

that any officer not directly involved in the alleged assault had an 

opportunity to intervene. 

Defendants bolster each argument by claiming qualified immunity. 

“Qualified immunity gives government officials breathing room to make 

reasonable but mistaken judgments, and protects all but the plainly 

incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 

S. Ct. 3, 5 (2013) (citations and internal quotation marks omitted). 

Determining the applicability of qualified immunity requires a two-step 

inquiry into whether the facts, 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. 

Estate of Carter v. City of Detroit, 408 F.3d 305, 311 (6th Cir. 2005). In this 

case, defendants’ qualified immunity arguments are indistinguishable from 

their claims that they did not violate Beard’s constitutional rights. So to the 

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extent that Beard has failed to adduce sufficient evidence pertaining to his 

constitutional claims to survive a Rule 56 motion, summary judgment is 

also warranted on qualified immunity grounds. 

For the reasons stated below, defendants’ motion should be granted 

in part and denied in part.

A. Alleged Unlawful Seizure

Defendants argue that summary judgment of Beard’s unlawful 

seizure claim should be granted under the “Heck doctrine.” Beard 

responds that the officer had no probable cause to stop him, and that J. 

Schneider’s hunch that he had stolen his Tahoe did not amount to 

reasonable suspicion. [ECF No. 138, PageID 4525-26]. He also accuses J. 

Schneider of falsely stating that he (Beard) crossed the boundary into 

Southfield prior to the alleged U-turn in order to establish jurisdictional 

authority. [Id., PageID 4526-28]. Beard contends that, since his alleged 

illegal U-turn was not in Southfield’s actual jurisdiction, the officers did not 

have a legal basis to “even engage with Beard in the first place.” [Id., 

PageID 4527-28]. Beard’s arguments are without merit.

By focusing on the point at which J. Schneider and Jagielski initially 

engaged Beard by following him into the alley, Beard misapprehends when

a constitutional seizure occurred. As Beard admits, the officers did not 

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activate their lights or siren or otherwise direct him to halt when they 

followed him into the alley. [ECF No. 118-3, PageID 2329-30; ECF No. 

118-4, PageID 2501, 2503; ECF No. 118-5, PageID 2610-11]. Although J. 

Schneider and Jagielski’s act of following Beard into the alley may have 

been intimidating, “this kind of police presence does not, standing alone, 

constitute a seizure.” Michigan v. Chesternut, 486 U.S. 567, 575 (1988). 

Beard was not actually “seized” until K. Schneider’s PIT maneuver stopped 

his car. California v. Hodari D., 499 U.S. 621 (1991) (when defendant fled 

in response to officers’ show of authority, he was not seized until he was 

tackled by the officers). 

Thus, by the time that Beard was seized, he had been driving at 

excessive speeds and, as a jury found, fleeing and eluding the police. 

[ECF No. 67-3, PageID 933]. The jury’s verdict bars Beard’s unlawful 

seizure claim, because it would necessarily imply the invalidity of the 

fleeing and eluding conviction. Heck v. Humphrey, 512 U.S. 477, 487 

(1994) (a § 1983 suit for damages that would render a conviction invalid 

requires proof that the conviction has been reversed, expunged or declared 

invalid). The Heck Doctrine precludes both Beard’s arguments that J. 

Schneider and Jagielski had no lawful right to arrest him outside of 

Southfield and that they had no probable cause to stop him, because the 

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jury was required to find that the officers were acting in “lawful 

performance” of their duties and that Beard had unlawfully fled from the 

officers. M.C.L. § 257.602a(1) & (3); People v. Hassan Adel Mohsen, No. 

318769, 2015 WL 728558, at *2 (Mich. Ct. App. Feb. 19, 2015). 

Moreover, even if the officers lacked jurisdiction under state law to 

pursue or arrest Beard outside of Southfield, the Fourth Amendment was 

not implicated. United States v. King, 466 F. App'x 484, 488 (6th Cir. 2012)

(defendant’s motion to suppress because Lakewood, Ohio officers arrested 

him in Cleveland, Ohio lacked merit, as “jurisdictional defects do not 

amount to per se violations of the Fourth Amendment.”). And even if Beard 

had a meritorious argument that he was seized when the officers initially 

engaged him, fleeing an officer constitutes an intervening act that justifies 

an arrest and purges the taint of an initial illegal stop. United States v. 

Allen, 619 F.3d 518, 526 (6th Cir. 2010) (“It is widely recognized that if a 

suspect’s response to an illegal stop is itself a new, distinct crime, then the 

police constitutionally may arrest the suspect for that crime.” (citation, 

internal quotation marks and brackets omitted)). 

For these reasons, summary judgment of Beard’s unlawful seizure 

claim should be granted.

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B. Excessive Force Claim – Chase

In their motion, defendants cite Scott v. Harris, 550 U.S. 372 (2007), 

as precluding any claim by Beard that they used excessive force in chasing 

him and using the PIT maneuver to stop his Tahoe. In Scott, the Court 

ruled, “A police officer’s attempt to terminate a dangerous high-speed car 

chase that threatens the lives of innocent bystanders does not violate the 

Fourth Amendment, even when it places the fleeing motorist at risk of 

serious injury or death.” Id. at 386. Beard did not address defendants’ 

Scott argument in his response, so he has waived any claim that 

defendants’ efforts to terminate the chase constituted excessive force. 

McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (failure to develop 

argument in response to motion for summary judgment constitutes waiver). 

And even if Beard did not waive that argument, the holding of Scott is 

dispositive, and summary judgment of Beard’s excessive force claim as it 

relates to the chase should be granted.

C. Equal Protection – Racial Profiling

Beard’s asserts that J. Schneider and Jagielski racially profiled him, 

in violation of his equal protection rights. But the cases he cites for his 

racial profiling establish that he must show that similarly situated individuals 

of a different race were treated differently. Farm Labor Org. Comm. v. Ohio 

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State Highway Patrol, 308 F.3d 523, 534 (6th Cir. 2002); Gardenhire v. 

Schubert, 205 F.3d 303, 318 (6th Cir. 2000). Beard has put forth no such 

evidence, and summary judgment of Beard’s racial profiling claim should 

be granted.

D. Excessive Force – Arrest

(J. Schneider and Jagielski)

Defendants move for summary judgment of Beard’s excessive force 

claim against J. Schneider and Jagielski as it relates to the arrest, pointing 

out that Beard did not allege in his amended complaint that either 

participated in the alleged constitutional violations that occurred during the 

arrest. [ECF No. 118, PageID 2089, citing ECF No. 18, PageID 158-59]. 

Defendants assert that the complaint failed to give J. Schneider or Jagielski

“fair notice” that they are subject to an excessive force claim as a result of 

the manner of the arrest. See In re Commonwealth Institutional Sec., Inc., 

394 F.3d 401, 405 (6th Cir. 2005) (“Even under our liberal pleading 

standards, a plaintiff must at least give the defendant fair notice of what the

claim is and the grounds upon which it rests, by providing either direct or 

inferential allegations respecting all the material elements to sustain a 

recovery.” (citations and internal quotation marks and brackets omitted).

Beard concedes that there is no evidence that Jagielski participated 

in the alleged assault, but states that the evidence suggests that J. 

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Schneider was personally involved. [ECF No. 138, PageID 4532, 4534-35]. 

Beard did testify in his deposition that J. Schneider kicked him in the head. 

[ECF No. 118-3, PageID 2345, 2419]. But the issue raised by defendants 

is not what the evidence shows, but whether Beard’s amended complaint 

raised an excessive force claim against J. Schneider arising out of the 

arrest. On this issue, McColman v. St. Clair Cty., 479 F. App’x 1 (6th Cir. 

2012), is instructive.

In that case, the court found that the naked reference to excessive 

force in the complaint could not be “construed as an allegation that Doan 

used excessive force in placing handcuffs too tightly on McColman’s 

wrists.” Id. at * 5. Since the plaintiff had never moved to amend her 

complaint to properly raise the issue, the claim that the defendant had used 

excessive force in handcuffing the plaintiff could not be considered. Id. at 

*6. 

Here, J. Schneider is among the defendants referred to in Count II of 

the amended complaint, which generically includes a claim of excessive 

force. [ECF No. 18, PageID 162-63]. But Beard’s factual pleadings do not 

allege that J. Schneider participated in any of the alleged constitutional 

violations that occurred during the arrest. [Id., PageID 158-59]. Where, as 

here, J. Schneider objects to being tried on a claim of excessive force, and 

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Beard has not moved to amend his complaint to properly plead such a 

claim against J. Schneider, summary judgment in J. Schneider’s favor on 

the issue is warranted. McColman, 479 F. App’x at *6. Summary judgment 

on this issue should be also entered in Jagielski’s favor given that the claim 

was not properly raised against him in the amended complaint either, and 

given Beard’s concession that he was not personally involved in the arrest.

E. Excessive Force – Arrest

(Matatall, Smiscik, Karpinsky and Losh)

The use of excessive force during an arrest constitutes a violation of 

the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394-95 (1989). 

Whether a defendant has used excessive force in violation of the 

Constitution requires consideration of “the objective-reasonableness 

standard, which depends on the facts and circumstances of each case 

viewed from the perspective of a reasonable officer on the scene and not 

with 20/20 hindsight.” Fox v. DeSoto, 489 F.3d 227, 236 (6th Cir. 2007). 

“Relevant considerations include ‘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.’” Id. (quoting Graham, 490 U.S. at 396). Each defendants’ 

action must be assessed individually, and mere presence at the scene is 

insufficient. Binay v. Bettendorf, 601 F.3d 640, 651 (6th Cir. 2010). Thus, 

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summary judgment should be granted in favor of any officer for which there 

is insufficient evidence that that he or she “(1) actively participated in the 

use of excessive force, (2) supervised the officer who used excessive 

force, or (3) owed the victim a duty of protection against the use of 

excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) 

(internal citations omitted). 

Defendants argue that Beard did not ascribe any direct involvement 

in the alleged excessive force to Matatall, Smiscik, Karpinsky and Losh, 

and that these officers can therefore only be held liable if they failed to 

intervene despite the means and opportunity to do so. [ECF No. 118, 

PageID 2089-90]. Beard concedes that there is no evidence that Matatall 

or Smiscik were personally involved, but maintains that the evidence is 

sufficient to go forward on an excessive force claim against Karpinsky and 

Losh. [ECF No. 138, PageID 4535-40]. On this issue, the Court agrees 

with Beard.

While Beard did say that he could not specify whether Karpinsky or 

Losh assaulted him, he was adamant that officers whose names he did not 

know took part in the alleged excessive force. [ECF No. 118-3, PageID 

2352-56]. Beard pointed out that it was dark at the time of the alleged 

beating, and the officers were not wearing identification. [Id.]. Further, 

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both Losh and Karpinsky admit that they took part in forcibly pulling Beard 

from the Tahoe, and Losh admits to taking part in forcefully placing Beard 

on the ground face-down. [ECF No. 138-25, PageID 4976, 4982; ECF No. 

138-27, PageID 5061-62]. This testimony creates a question of fact 

regarding whether Losh and Karpinsky were personally involved in the 

alleged constitutional violation, for two reasons. 

First, the Sixth Circuit has held that the type of evidence established 

here is sufficient to create an issue of fact. In Binay, it had been

“exceedingly difficult” for the plaintiffs to precisely identify the officers who 

allegedly used excessive force during the execution of a search warrant 

because the officers had worn masks. 601 F.3d at 651. An officer moved 

for summary judgment, arguing that he was merely present at the scene. 

But the district court found that because the officer “was in the room with 

Plaintiffs during the interrogation and at the time Plaintiffs were handcuffed, 

a question of fact remains as to whether he was involved in the 

constitutional violation.” Id. The Sixth Circuit upheld this holding. Id.

Similarly, in Pershell v. Cook, 430 F. App'x 410, 416 (6th Cir. 2011), 

the plaintiff could not see the officers standing above and behind him while 

he was sustaining blows to his body, but “he provided significant 

information about the location and conduct of the officers based on his own 

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sensory observations. Further, the officers themselves provide accounts of 

the incident.” This provided “the jury with sufficient information to 

determine the liability of each individual defendant for the alleged 

constitutional violation.” Id. And the district court in McLeod v. Benjamin, 

No. 1:15-CV-639, 2016 WL 6947546, at *6 (W.D. Mich. Nov. 28, 2016), 

found that the plaintiff’s testimony created an issue of fact with respect to 

three officers even though the plaintiff could not specify which one of them 

had used excessive force. The court reasoned that each of those officers 

had worn body armor and carried long guns, just like the alleged wrongdoer 

the plaintiff had described. Id.

Here, although Beard could not identify the precise actions of Losh or 

Karpinsky, he detailed what he perceived during the arrest as excessive 

force, and the officers placed themselves at the immediate scene of the 

events, raising a question of fact regarding whether they had personal 

involvement in the alleged constitutional violation. Binay, 601 F.3d at 651; 

Pershell, 430 F. App'x at 416. 

Secondly, Beard’s allegations of excessive force include a claim that 

he was pulled out of the Tahoe through the window opening by his neck 

before being forcibly placed faced face-down on the cement. [ECF No. 118-

3, PageID 2338, 2341]. Losh and Karpinsky admit that these actions 

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occurred, except Losh denied pulling Beard out by his neck and Karpinsky 

said that he does not remember whether he did. [ECF No. 138-25, PageID 

4976; ECF No. 138-27, PageID 5062]. Defendants admit that pulling Beard 

out of the Tahoe and forcefully placing him on the ground face-down 

resulted in injuries. Losh attributed the blood on Beard’s face to that 

activity, and K. Schneider testified that Beard’s facial injuries may have 

resulted from being forcibly handcuffed or from being hit. [ECF No. 138-25, 

PageID 4981; ECF No. 118-8, PageID 2871-72]. And it is undisputed that 

the injuries Beard sustained from this arrest were serious, including a 

closed head injury, facial fractures, bruising on his face and body, chest 

abrasions, and scars on his back from being tasered. [ECF No. 138-22, 

PageID 4940; ECF No. 138-15, PageID 4867-71; ECF No. 138-16, PageID 

4873-74]. Given this evidence, a jury may determine that Losh and 

Karpinsky participated in an arrest that was effectuated with excessive 

force. 

To determine whether the force used was excessive, the 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, and Beard’s claim that he was not 

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

the window opening, and Losh forcefully placed Beard on the ground facedown. Fox v. DeSoto, 489 F.3d at 236. The jury may thus decide that 

manner of the arrest was objectively unreasonable and that Losh’s and 

Karpinsky’s were personally involved in the alleged constitutional violation, 

so summary judgment of the excessive force claim with respect to Losh 

and Karpinsky should therefore be denied.

F. Failure to Intervene

(Jagielski, Matatall and Smiscik)

Although Beard concedes that there is no evidence that Jagielski, 

Matatall or Smiscik were personally involved in the arrest or alleged 

beating, he nonetheless contends that they failed in their duty to intervene. 

The Court should not consider this argument against Jagielski because the 

amended complaint does not describe him as having participated in the 

arrest and does not include him in the failure to intervene count. [ECF No. 

18, PageID 158-59; 165]. Thus, Jagielski was not given fair notice that he 

was charged with failing to intervene, and he now objects to being tried on 

that claim. [ECF No. 142, PageID 5386]. Summary judgment should 

therefore be granted in Jagielski’s favor on the failure to intervene claim. 

McColman, 479 F. App’x at *6.

To sustain his failure to intervene claim against Matatall and Smiscik, 

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Beard must show that the officers “observed or had reason to know that 

excessive force would be or was being used” and “had both the opportunity 

and the means to prevent the harm from occurring.” Burgess v. Fischer, 

735 F.3d 462, 475 (6th Cir. 2013) (citation and internal quotation marks 

omitted). In Burgess, the plaintiffs failed to sustain their burden because 

“they failed to demonstrate that the incident lasted long enough for Sortman 

or Jordan to both perceive what was going on and intercede to stop it.” Id.

Beard likewise fails to sustain his burden.

Beard argues that Matatall and Smiscik were at the scene following 

the chase, [ECF No. 138, PageID 4537-39], but provides no evidence that 

they had the opportunity or means to prevent the alleged assault that Beard 

concedes happened “very quickly.” [ECF No. 118-2; PageID 2142]. Thus,

summary judgment of the failure to intervene claim should be entered in 

Matatall and Smiscik’s favor.

G. Equal Protection – Racial Epithet

In his amended complaint, Beard alleges that a racial epithet was 

directed at him during the arrest by one or more of the following officers: 

Jachym, Gougeon, Taylor, Losh, Matatall, Smiscik or Karpinisky. [ECF No. 

18, PageID 159]. Defendants argue that neither J. Schneider nor Jagielski

were given fair notice in the amended complaint that they violated his equal 

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protection rights by using a racial epithet. The Court agrees, and summary 

judgment of the equal protection claim based upon the use of a racial 

epithet should be granted in those officers’ favor. McColman, 479 F. App’x 

at *6.

Defendants contend that the officers who were named as possibly 

using the racial epithet should also be granted summary judgment because 

Beard testified that he did not know which of them used a slur except that 

he thinks that Gougeon did. [ECF No. 118, PageID 2096, citing ECF No. 

118-3, PageID 2342, 2348, 2423-24]. Defendants do acknowledge that 

Beard testified that Taylor told him that the officers would “beat his black 

ass again” if he acted like he could not move, but they fail to note that 

Beard testified that that statement was allegedly made in conjunction with 

Taylor tasering and assaulting him. [ECF No. 118, PageID 2097, citing 

ECF No. 118-3, PageID 2309, 2349]. Beard emphasizes in his response

that Losh and Karpinsky testified to using the N-word at unspecified times 

in the past, but they testified that they did not use that epithet during 

Beard’s arrest. [ECF No. 138, PageID 4542, citing ECF No. 138-25, 

PageID 4984-85; ECF No. 138-27, PageID 5071-74].

The use of a racial epithet alone does not violate the Equal Protection 

Clause of the Fourteenth Amendment, but it can when coupled with some 

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other constitutional violation. Taylor v. City of Falmouth, 187 F. App’x 596, 

601 (6th Cir. 2006); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); 

Price v. Lighthart, No. 1:10-CV-265, 2010 WL 1741385, at *2 (W.D. Mich. 

Apr. 28, 2010) (collecting cases). If Beard demonstrates that racial epithets 

were directed at him during the physical assaulted, he would not be 

required to prove that similarly situated individuals of a different race were 

treated differently. Ali v. Connick, 136 F. Supp. 3d 270, 278-80 (E.D.N.Y. 

2015) (collecting cases). In Ali, summary judgment of the plaintiff’s equal 

protection claim was denied because the plaintiff had testified that the 

defendant used racial or ethnic slurs while subjecting him to excessive 

force, even though the defendant denied the allegation and even though 

the plaintiff’s testimony about the exact words the defendant used was 

ambiguous. Id. at 281. The court found that that ambiguity went to the 

plaintiff’s credibility, which was a matter to be resolved by the jury. Id.

Here, Beard’s testimony that Taylor threatened to beat his “black ass” 

while physically assaulting him is sufficient to survive summary judgment. 

Id. However, summary judgment should be granted in favor of Gougeon

with respect to the equal protection claim. “The mere existence of a scintilla 

of evidence in support of the plaintiff's position” is insufficient to survive 

summary judgment; “there must be evidence on which the jury could 

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reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at 252. Unlike in 

Ali, where the plaintiff testified that the defendant used a racial or ethnic 

slur but was unsure about the exact words, Beard is unsure that Gougoen 

made any racial slur at all, and there is thus insufficient evidence upon 

which a jury could reasonably find that he did.

There is no evidence upon a reasonable jury could find that Jachym, 

Losh, Matatall, Smiscik or Karpinisky used a racial slur because Beard 

could not say that they did, and his mere speculation that they may have is 

insufficient. Jenkins v. Cty. of Washington, 126 F. Supp. 3d 255, 275 

(N.D.N.Y. 2015). Further, Losh’s and Karpinsky’s testimony that they used 

a racial slur at unspecified times is irrelevant and inadmissible. Fed. R. 

Evid. 404(b)(1); Flagg v. City of Detroit, 827 F. Supp. 2d 765, 798 (E.D. 

Mich. 2011), aff'd, 715 F.3d 165 (6th Cir. 2013). For these reasons, 

summary judgment should be granted in favor of all of the defendants 

except Taylor with respect to Beard’s equal protection claim pertaining to 

the alleged racial epithet. 

H. Municipal Liability

Beard asserts a claim of municipal liability against Southfield in his 

amended complaint, but the Court agrees with defendants that Beard’s 

response to their motion for summary judgment fails to properly analyze his 

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municipal liability claim. [ECF No. 138, PageID 4551-59]. Municipal 

liability arises only where “the challenged conduct occurs pursuant to a 

municipality’s ‘official policy’ such that the municipality’s promulgation or 

adoption of the policy can be said to have ‘caused’ one of its employees to 

violate the Plaintiff’s constitutional rights.” D’Ambrosio v. Marino, 747 F.3d 

378, 386 (6th Cir. 2014) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 

658, 692 (1978)). To succeed on a municipal liability claim, the Sixth 

Circuit requires a plaintiff to: (1) identify the municipal policy or custom, (2) 

connect the policy or custom to the municipality, and (3) show that his 

particular injury was caused by execution of that policy or custom. Turner 

v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005). Beard provided none of 

this analysis.

Instead, Beard lists exhibits that the Court should view and then 

“reasonably conclude, that as a matter of law, the Plaintiff, via the evidence 

now presented, has established that there, on 9/6/2011, was clearly an 

established custom or practice, by the City’s failure” to properly train its 

officers. [Id., PageID 4552-53 (emphasis in original)]. He follows with more 

conclusory arguments, such as that the “aforementioned testimony 

certainly helps to provide to this court, very compelling evidence which 

literally confirms that there is no policy and/or a lack of policy, and thus 

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arguably, standing custom, which did not prevent the City’s Police 

Officers” from leaving their jurisdiction and entering another. [Id., PageID 

4554 (emphasis in original)]. Yet Beard does not explain how the evidence 

he listed demonstrates a custom or policy that is connected to Southfield, 

how such a custom or policy caused his injury or, most glaringly, that 

officers violate the Constitution by leaving their jurisdiction. 

Beard’s failure to develop his argument in favor of his municipal 

liability claim operates as a waiver. McPherson, 125 F.3d at 995. 

Additionally, it appears that Beard’s municipal liability argument is focused 

on his seizure claim, but since the officers are entitled to summary 

judgment on the seizure claim, so too is Southfield. Wilson v. Morgan, 477 

F.3d 326, 340 (6th Cir. 2007) (“There can be no Monell municipal liability 

under § 1983 unless there is an underlying unconstitutional act.”). 

Summary judgment of Beard’s municipal liability claim should be granted.

IV. Conclusion

For the foregoing reasons, defendants’ motion for partial summary 

judgment [ECF No. 118] should be GRANTED IN PART AND DENIED IN 

PART. Specifically, summary judgment should be granted with respect to 

the following claims: substantive due process; unlawful seizure; excessive 

force as it relates to the police chase; equal protection as it pertains to the 

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racial profiling; excessive force against J. Schneider, Jagielski, Matatall and 

Smiscik pertaining to the arrest; failure to intervene; equal protection 

against J. Schneider, Jagielski, Jachym, Gougeon, Losh, Matatall, Smiscik 

and Karpinsky regarding the racial epithet; and municipal liability against 

the City of Southfield. Summary judgment should be denied for the 

following claims: excessive force arising out of the arrest against Losh and 

Karpinsky, and equal protection in connection with the racial epithet against 

Taylor. Should this recommendation be adopted, left remaining would be 

the excessive force claims against K. Schneider, Losh, Karpinsky, Taylor, 

Jachym and Gougeon, and an equal protection claim against Taylor.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: December 15, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

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638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2). 

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to the 

objections, specifically addressing each issue raised in the objections in the 

same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 14, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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