UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARC CARTER, 

 Plaintiff, CIVIL ACTION NO. 14-cv-13502 

 v. DISTRICT JUDGE DAVID M. LAWSON 

 

ANDREW CARTER, JOSEPH MAGISTRATE JUDGE MONA K. MAJZOUB 

MONTGOMERY, NICHOLAS 

KRINGS, and DEPUTY GALIMBERT, 

 Defendants. 

__________________________________/ 

REPORT AND RECOMMENDATION

 Plaintiff Marc Carter filed this pro se prisoner civil rights action on September 9, 2014, 

pursuant to 42 U.S.C. § 1983, alleging that he was assaulted by Defendants Andrew Carter, 

Joseph Montgomery, Nicholas Krings, and Deputy Galimbert while they were effectuating his 

arrest following a police chase in Ypsilanti, Michigan on August 9, 2012. (Docket no. 1.) In his 

Complaint, Plaintiff sets forth claims of excessive force under the Fourth Amendment to the 

United States Constitution, gross negligence, and intentional infliction of emotional distress. (Id. 

at 4, 6.) Plaintiff seeks declaratory relief as well as compensatory, punitive, and exemplary 

damages in the amount of $800,000.00. (Id. at 4, 7.) Before the Court is Defendants’ Motion for 

Summary Judgment. (Docket no. 38.) Plaintiff has not responded to Defendants’ Motion. This 

action has been referred to the undersigned for all pretrial proceedings. (Docket no. 7.) The 

undersigned has reviewed the pleadings, dispenses with oral argument on the Motion pursuant to 

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Eastern District of Michigan Local Rule 7.1(f), and issues this Report and Recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B). 

I. RECOMMENDATION 

 For the reasons that follow, the undersigned recommends that Defendants’ Motion for 

Summary Judgment (docket no. 38) be GRANTED with regard to Plaintiff’s claim of gross 

negligence and DENIED with regard to Plaintiff’s claims of excessive force and intentional 

infliction of emotional distress. 

II. REPORT

A. Background 

 1. Plaintiff’s Account of the Facts as Alleged in the Complaint 

 On August 9, 2012, at approximately 9:30 p.m., Plaintiff, who was wanted for traffic 

violations, became involved in a police chase in Ypsilanti, Michigan. (Docket no. 1 at 4.) The 

chase lasted for approximately ten minutes and ended when Plaintiff spun into a slight slope of 

gravel at the intersection of Carleon Drive and Packard Road. (Id.) Defendants and the 

Washtenaw County Sheriff’s Department were first on the scene. (Id.) Plaintiff exited the 

vehicle and attempted to jump over the driver’s side door when Defendant Montgomery grabbed 

Plaintiff and Defendant Carter struck Plaintiff in the forehead with his fist. (Id. at 5.) Plaintiff 

instantly fell to his knees and became partially unconscious for a moment against the vehicle’s 

door as Defendant Montgomery jolted his knee and fist into Plaintiff’s body and Defendant 

Carter continued to punch Plaintiff in the head and upper body area, even after Plaintiff lay 

helpless on the ground. (Id.) Defendants Krings and Galimbert then joined in the brutal beating, 

during which Defendant Krings drove his knees into Plaintiff’s backside and punched Plaintiff 

several times in his lower body area while Defendant Montgomery held Plaintiff’s arms. (Id.) 

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One of the defendants also kicked Plaintiff while he was on the ground. (Id.) Plaintiff was then 

dragged approximately twenty feet on the gravel by one of the defendants while handcuffed and 

while still drifting in and out of consciousness. (Id.) Due to the extent of his injuries, emergency 

medical services were called to treat Plaintiff on the scene; he was then transferred to the hospital 

where x-rays were taken and he received several stitches in his forehead. (Id. at 5, 6.) 

 2. Defendants’ Account of the Facts as Asserted in the Instant Motion 

 On August 9, 2012, at approximately 9:20 p.m., police officers of the Eastern Michigan 

University (EMU) police department saw Plaintiff speed past them, driving 70 miles per hour 

(mph) in a 25 mph zone. (Docket no. 38 at 11.) The EMU officers attempted to stop Plaintiff, to 

no avail, and the officers’ pursuit of Plaintiff developed into a high-speed police chase. (Id.) 

Eventually, Washtenaw County Sheriff’s Department deputies became the primary pursuers of 

Plaintiff in the high-speed chase. (Id. at 11-12.) The chase lasted for approximately ten minutes 

and for ten miles, during which Plaintiff ran red lights, weaved through lanes of traffic, and 

forced vehicles off the road, all while driving with his lights off at speeds exponentially higher 

than the posted speed limit. (Id. at 12.) The chase ended when Plaintiff lost control of the car 

while traveling around a corner in a residential neighborhood, hit a curb, and crashed into a 

ditch. (Id.) Officers later found a pillow with blood on it just outside of Plaintiff’s driver’s side 

door, which Defendants believe to be an indication that Plaintiff suffered some laceration to his 

face during the crash and before he exited the vehicle. (Id.) 

 Defendant Carter was driving the lead pursuit vehicle with his partner, Defendant 

Montgomery, and they arrived at the crash scene seconds after it happened. (Docket no. 38 at 

12-13.) As they pulled up to the scene, Plaintiff opened the driver’s side door and began to exit 

the vehicle. (Id. at 13.) Defendant Carter and Montgomery’s car slid on the muddy dirt road and 

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crashed into the open door of the vehicle that Plaintiff was driving, bending it backward on its 

hinges. (Id.) Plaintiff then jumped over the door and the hood of the police car and tried to run. 

(Id.) Defendant Montgomery grabbed Plaintiff’s arms from behind and tried to pull Plaintiff 

back over the door, but Plaintiff struggled and kicked his legs, pulled his left arm away from 

Defendant Montgomery, and hit Defendant Montgomery in the jaw with his left elbow. (Id.) In 

the meantime, Defendant Carter came around the front of the police car, and, seeing Plaintiff 

struggling with Defendant Montgomery, administered three strikes to Plaintiff in an attempt to 

hit Plaintiff’s brachial plexus. (Id. at 13-14.) Plaintiff continued to struggle, so Defendant Carter 

administered three more strikes to Plaintiff in an attempt to hit Plaintiff’s suprascapular nerve, 

but he was unable to do so. (Id. at 14.) The total amount of time elapsed between the first and 

last strikes that Defendant Carter administered to Plaintiff was five seconds. (Id.) 

 Plaintiff still continued to struggle, so Defendant Carter brought Plaintiff to the ground in 

front of the police car where other officers assisted in handcuffing Plaintiff. (Docket no. 38 at 

14.) According to Defendant Krings, who arrived on the scene with Defendant Galimberti, 

Plaintiff attempted to hold his arm underneath his body despite the officers’ instructions to place 

his arms behind his back. (Id. at 15.) Defendant Krings asserts that he was able to secure 

Plaintiff’s left arm after he struck Plaintiff in the latissimus dorsi. (Id.) After Plaintiff was 

handcuffed, no further strikes were administered to Plaintiff’s body, the last strike being fewer 

than twenty seconds after Plaintiff jumped out of the car. (Id. at 15-16.) The deputies then 

helped Plaintiff to his feet and asked him if he was alright, to which Plaintiff replied in the 

affirmative. (Id. at 16.) 

 Plaintiff was then taken to the hospital where he was treated for a one-centimeter 

laceration to the forehead and a “minimal deformity” of the left nasal bone that possibly 

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indicated a non-displaced fracture. (Docket no. 38 at 16.) Plaintiff was retained in the hospital 

overnight, but walked out of the hospital early the next morning without informing law 

enforcement or medical personnel. (Id.) Plaintiff was charged with several offenses as a result 

of his August 9, 2012 conduct, including resisting arrest under Michigan Compiled Laws § 

750.81d(1), but he did not face those charges in court until he was apprehended in February of 

2013, after leading Washtenaw County officers on another high-speed police chase. (Id. at 17.) 

 3. Plaintiff’s Plea Hearing 

 On March 26, 2013, Plaintiff appeared in state court for a pretrial/plea hearing on the 

charges filed against him for his August 9, 2012 and February 2013 conduct. (Docket no. 38-8.) 

At the hearing, Plaintiff pleaded guilty to three counts of fleeing and eluding a police officer; one 

count of unlawfully driving away a motor vehicle; one count of resisting, obstructing a police 

officer; one count of reckless driving; one count of operating on a suspended license; and one 

count of possession of a controlled substance for his August 9, 2012 conduct in exchange for the 

dismissal of a habitual offender notice. (Docket no. 38-8 at 3.) In providing a factual basis for 

his plea, Plaintiff admitted that he drove away when the police attempted to stop him, which 

resulted in a chase that approached speeds of 100 mph. (Id. at 4.) Plaintiff testified that the car 

he was driving spun out as he crossed Packard, the back tire blew out, and he veered off into a 

ditch. (Id.) According to Plaintiff, as he got out of the car, he was beaten by the police officers 

and taken into custody. (Id.) When prompted by the judge, Plaintiff clarified that he tried to flee 

the scene by jumping over the car door, but he was apprehended by a fist. (Id.) Plaintiff testified 

that the officers used force to apprehend him, which was excessive in his opinion. (Id.) The 

court subsequently accepted Plaintiff’s plea. (Id. at 5.) 

 

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 4. Plaintiff’s Deposition Testimony

 Plaintiff appeared for a deposition on October 27, 2015. (Docket no. 38-7.) At the 

deposition, defense counsel asked Plaintiff to describe what each Defendant did to him. (Id. at 

12.) Plaintiff testified that Defendant Carter punched him in the face unnecessarily and beat him, 

which traumatized him and caused him a lot of stress. (Id.) Plaintiff said that he knew that 

Defendant Carter struck him a few times in the back and maybe three or four times in the upper 

body, and kicked him a couple of times. (Id. at 18.) With regard to Defendant Montgomery, 

Plaintiff testified that he was the first officer who grabbed him when he attempted to flee. (Id. at 

13.) Plaintiff testified that Defendant Montgomery held him and helped Defendant Carter 

without stopping the situation. (Id. at 12.) According to Plaintiff, Defendant Montgomery did 

not strike him when he was attempting to flee; rather, after Defendant Carter hit Plaintiff in the 

face and opened his face up, Defendant Montgomery held Plaintiff as he was falling and hit 

Plaintiff in the upper back area. (Id. at 13-14.) When further prompted by defense counsel 

regarding Defendant Montgomery, Plaintiff admitted that he did not know if Defendant 

Montgomery was the one who kicked him (more than once) on his left side while he lying on his 

right side on the ground. (Id. at 14-15.) 

 Next, Plaintiff testified that Defendant Krings hit him with his fist in his chest/upper side 

area. (Docket no. 38-7 at 15-16.) Plaintiff continued that Defendant Krings did not hit him in 

the face, but Plaintiff was unsure whether Defendant Krings was the one who kicked him while 

he was down. (Id. at 16.) Defense counsel then asked Plaintiff whether he was face down or 

face up when he was kicked. (Id.) Plaintiff responded: 

At that time I don’t – I really can’t – I know I was – when I went down, I was 

kind of semi-unconscious due to the head blow I received and with me trying to 

just ball up and protect myself, they may conscrew [sic] that as me not trying to 

resist or whatever but they kept hitting me so you think I’m just going to – not 

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going to just give away, I’m going to try to protect myself and – from being hit 

and, and I know in the process of doing that – after, after I think I got kicked or 

whatever, I just gave away and with the overpowering of – I think it was 

Montgomery and probably Galimbert. And Galimbert – because Galimbert and 

Krings came after Montgomery and Carter and that’s when I got handcuffed. 

(Id. at 16-17.) Plaintiff testified that Defendant Galimbert also did not stop the other officers 

from beating him. (Id. at 17.) 

 According to Plaintiff, the beating seemed to take a while, but he imagined that it was 

about 45 seconds, if that. (Docket no. 38-7 at 17-18.) Plaintiff testified that he was screaming 

during the beating, and he was sure that the officers were saying something as well, although he 

didn’t recall exactly what they were saying. (Id. at 18.) Plaintiff added that he did not remember 

the officers telling him to stop resisting and put his arms behind his back, but Plaintiff said that if 

the officers said that, then that’s when he probably stopped resisting. (Id.) Plaintiff agreed with 

defense counsel that he had a lot of opportunities to stop, such as when the officers activated 

their lights, and when the car hit the ditch, but he didn’t. (Id. at 18-19.) In that regard, Plaintiff 

testified, “I, I kind of let loose but when I started like – be easing, I kept getting hit so I’m going 

to not protect myself and just keep getting hit?” (Id.) 

 B. Governing Law

 Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. 

(Docket no. 38.) Summary judgment is appropriate where the moving party 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). The moving party has the burden of showing an absence of 

evidence to support the non-moving party’s case. Covington v. Knox Cnty. Sch. Sys., 205 F.3d 

912, 915 (6th Cir. 2000). Rule 56 expressly provides that: 

A party asserting that a fact cannot be or is genuinely disputed must support the 

assertion by: 

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(A) citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits or declarations, 

stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials; or 

(B) showing that the materials cited do not establish the absence or presence of a 

genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact. 

 

Fed. R. Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may consider 

other materials in the record.” Fed. R. Civ. P. 56(c)(3). 

 Once the moving party has met its burden of production, the non-moving party must 

come forward with significant probative evidence showing that a genuine issue exists for trial. 

Covington, 205 F.3d at 915. A mere scintilla of evidence is insufficient to defeat a properly 

supported motion for summary judgment; rather, “there must be evidence on which the jury 

could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 252 (1986). Ultimately, a district court must determine whether the record as a whole 

presents a genuine issue of material fact, drawing “all justifiable inferences in the light most 

favorable to the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 587 (1986); Hager v. Pike County Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002). 

C. Analysis

 1. Plaintiff’s Excessive Force Claims 

 In Counts I and II of the Complaint, Plaintiff asserts that Defendants violated his Fourth 

Amendment rights by subjecting him to excessive force and by failing to intervene in the 

excessive force used against him. (Docket no. 1 at 4.) Defendants assert that Plaintiff’s 

excessive-force claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994) and collateral 

estoppel, or in the alternative, that Plaintiff fails to state a claim of excessive force. (Docket no. 

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38 at 19-29.) Defendants also argue that they are protected by qualified immunity. (Id. at 29-

32.) 

a. The Merits of Plaintiff’s Claims 

 The Fourth Amendment governs excessive force claims and requires the court to 

determine whether the amount of force used was objectively reasonable in light of the facts and 

circumstances confronting the officers’ actions. Graham v. Connor, 490 U.S. 386, 395-96 

(1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of 

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”). “Determining 

whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment 

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 

(citations and internal quotation marks omitted). In determining the reasonableness of the force 

used, the court should consider “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.” Ingram v. City of Columbus, 185 F.3d 579, 596 (6th Cir. 

1999) (citation omitted). The court should be guided by the principle that “police officers are 

often forced to make split-second judgments - in circumstances that are tense, uncertain, and 

rapidly evolving - about the amount of force that is necessary in a particular situation.” Graham, 

490 U.S. at 397. In order to hold an officer liable for excessive force, a plaintiff must prove that 

the officer: “(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). An officer who fails to act to prevent 

the use of excessive force may be held liable when “(1) the officer observed or had reason to 

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know that excessive force would be or was being used, and (2) the officer had both the 

opportunity and the means to prevent the harm from occurring.” Id. (citation omitted). 

 Defendants argue that the undisputed facts show that they did not violate the Fourth 

Amendment. (Docket no. 38 at 21-27.) In this regard, Defendants assert that the force exerted 

upon Plaintiff was reasonable because Plaintiff indisputably engaged in conduct incredibly 

dangerous to himself and others by leading police officers on a high-speed police chase in the 

dark, without headlights, through residential neighborhoods and red lights, and into oncoming 

traffic. (Id. at 22-23.) Defendants also assert that Plaintiff’s desperate, reckless behavior 

warranted their reasonable belief that Plaintiff was still a significant threat to officers and others 

even after the car he was driving was immobilized. (Id. at 23.) Defendants further assert that 

their use of force against Plaintiff was justified because Plaintiff agrees that he was resisting the 

officers’ commands when they administered strikes to him. (Id. at 23.) Defendants continue that 

this is true with regard to the portion of the struggle during which Plaintiff fought with 

Defendants Carter and Montgomery and the portion of the struggle that occurred after Plaintiff 

had been taken to the ground but continued to “ball” up into the fetal position rather than comply 

with the officers’ commands to put his hands behind his back. (Id. at 23-24.) Defendants argue 

that despite Plaintiff’s claim that he balled up on the ground to protect himself from the officers’ 

strikes, the fact remains that Plaintiff was actively resisting the officers’ attempts to secure 

Plaintiff’s arms behind his back. (Docket no. 38 at 25 (citing Williams v. Ingham, 373 F. App’x 

542, 548 (6th Cir. 2010) (officer did not exert excessive force when he delivered two closed-fist 

blows to arrestee’s middle back where arrestee continued to struggle to hold his hands under his 

body)).) According to Defendants, the points asserted above validate their use of force against 

Plaintiff. 

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 However, at his deposition, Plaintiff testified that Defendant Montgomery did not strike 

him while he was attempting to flee; rather, Plaintiff testified that after Defendant Carter hit him 

in the face, Defendant Montgomery held him and hit him in the upper back area while he was 

falling to the ground. (Docket no. 38-7 at 13-14.) Plaintiff’s testimony in this regard is 

consistent with his allegation that after Defendant Carter struck Plaintiff in the forehead with his 

fist, Plaintiff instantly fell to his knees and became partially unconscious for a moment against 

the vehicle’s door as Defendant Montgomery jolted his knee and fist into Plaintiff’s body. 

(Docket no. 1 at 5.) Plaintiff also testified that when he went down to the ground, he balled up 

to protect himself from being hit, at which time he was kicked more than once by one of the 

defendants. (Docket no. 38-7 at 14-17.) The Court simply cannot ignore this testimony. 

Drawing all justifiable inferences in the light most favorable to Plaintiff, the Court must 

conclude that once Plaintiff was balled up on the ground in a fetal position to protect himself 

from Defendants’ strikes, any resistance exerted by Plaintiff at that point was passive in nature, 

rendering Plaintiff to be less of an immediate threat to officers or others than if he was actively 

resisting. See Abel v. Harp, 278 F. App'x 642, 650 (6th Cir. 2008). Such a finding casts doubt 

on the reasonableness of Defendants’ actions. 

 Essentially, Plaintiff’s and Defendants’ conflicting accounts and deposition testimony 

raise factual disputes regarding what actually took place after Plaintiff jumped out of the car, 

particularly with regard to (1) if and when Plaintiff stopped resisting at any point during his 

apprehension; (2) the amount of resistance exerted by Plaintiff at different points throughout the 

event; (3) whether Defendants’ use of force against Plaintiff was reasonable in light of Plaintiff’s 

resistance; (4) how many times and where on Plaintiff’s body did each Defendant strike Plaintiff, 

if at all; and (5) if excessive force was used, whether any Defendant had the opportunity and the 

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means to prevent such force. A review of the dash-cam video evidence submitted by Defendants 

in this matter does not conclusively resolve these factual disputes. This is because at one point, 

both Plaintiff and one of the officers are positioned outside of the camera’s purview for 

approximately eight seconds while another officer can be seen striking Plaintiff, and after 

Plaintiff is taken to the ground, he is completely surrounded by five officers, thus blocking 

Plaintiff, Plaintiff’s conduct, and much of the officers’ actions from the view of the camera. (See

docket no. 38-2, Andrew Carter Video, at 21:34-21:35.) Therefore, a genuine issue of material 

fact exists regarding whether Defendants violated Plaintiff’s right to be free from excessive 

force, and summary judgment in favor of Defendants on this claim is not appropriate. 

 b. Heck v. Humphrey

 Defendants claim that it is an open question as to whether Plaintiff’s claims are barred by 

Heck v. Humphrey, 512 U.S. 477 (1994), given that Plaintiff’s conviction for resisting arrest 

would be implicitly invalidated if his instant excessive-force claims succeed. (Docket no. 38 at 

19-20.) In Heck, the Supreme Court held: 

. . . to recover damages for allegedly unconstitutional conviction or imprisonment, 

or for other harm caused by actions whose unlawfulness would render a 

conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or 

sentence has been reversed on direct appeal, expunged by executive order, 

declared invalid by a state tribunal authorized to make such determination, or 

called into question by a federal court’s issuance of a writ of habeas corpus, 28 

U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or 

sentence that has not been so invalidated is not cognizable under § 1983. Thus, 

when a state prisoner seeks damages in a § 1983 suit, the district court must 

consider whether a judgment in favor of the plaintiff would necessarily imply the 

invalidity of his conviction or sentence; if it would, the complaint must be 

dismissed unless the plaintiff can demonstrate that the conviction or sentence has 

already been invalidated. 

Id. at 486-487 (internal footnote omitted). To come within the Heck exception on an excessive 

force claim, either (1) the criminal provision must make the lack of excessive force an element of 

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the crime or (2) excessive force must be an available affirmative defense to the crime. Schreiber 

v. Moe, 596 F.3d 323, 334 (6th Cir. 2010). 

 Plaintiff pleaded guilty to assaulting, resisting, or obstructing a police officer under 

Michigan Compiled Laws 750.81d(1). (See docket no. 38-8.) “The elements of resisting or 

obstructing a police officer under MCL 750.81d(1) are: ‘(1) the defendant assaulted, battered, 

wounded, resisted, obstructed, opposed, or endangered a police officer, and (2) the defendant 

knew or had reason to know that the person that the defendant assaulted, battered, wounded, 

resisted, obstructed, opposed, or endangered was a police officer performing his or her duties.”’ 

People v. Quinn, 853 N.W.2d 383, 388 (Mich. Ct. App. 2014) (quoting People v. Corr, 788 

N.W.2d 860, 863 (Mich. Ct. App. 2010)). Additionally, “the prosecution must establish that the 

officers acted lawfully as an actual element of the crime of resisting or obstructing a police 

officer under MCL 750.81d.” Id. (citing People v. Moreno, 814 N.W.2d 624, 631 (Mich. 2012)). 

Plaintiff admitted at his deposition and at his plea hearing that he resisted arrest by police 

officers on August 9, 2012. (See docket no. 38-7 at 13, 18-19 and docket no. 38-8 at 4.) Thus, 

the question before the court is whether the “lawfulness” of the officers’ actions under the third 

element of MCL 750.81d(1) equates to a “lack of excessive force” under Michigan law. 

 Two courts in this district have addressed this very issue. See Nelson v. Green Oak Twp., 

No. 14-10502, 2016 WL 233100 (E.D. Mich. Jan. 20, 2016) (Borman, J.) and Johns v. Oakland 

Cty., No. 15-cv-12924, 2016 WL 4396065 (E.D. Mich. Aug. 18, 2016) (Michelson, J.). The 

Nelson court framed the issue as follows: 

[I]f lawfulness is now an element of the crime of resisting, is “lawfulness” to be 

defined as an arrest without excessive force, so that a necessary element of the 

crime of resisting is proof of a lack of excessive force? If the answer is yes, then 

a § 1983 claim of excessive force would negate an element of the crime to which 

Plaintiff pleaded guilty and would be barred by Heck. Even if the lack of 

excessive force is not an express element of the crime of resisting . . . , does 

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Moreno suggest that excessive force is now an affirmative defense to the crime of 

resisting? If yes, then under the second scenario recognized in Schreiber, 

Plaintiff's excessive force claim would be barred by Heck. 

Nelson, 2016 WL 233100, at *14 (emphasis in original). After a lengthy and thorough analysis 

of Michigan and other relevant legal precedent, the Nelson and Johns courts concluded that the 

answers to the questions posed above are no. Nelson, 2016 WL 233100, at *14-21; Johns, 2016 

WL 4396065, at *4-5. Although Nelson and Johns are not binding here, the undersigned reaches 

the same conclusion for the reasons discussed therein. Accordingly, Plaintiff’s success on his 

claims of excessive force would not necessarily invalidate his state-court conviction for 

assaulting, resisting, or obstructing a police officer under MCL 750.81d(1), and Plaintiff’s claims 

are not barred by Heck. 

 c. Collateral Estoppel 

 Next, Defendants argue that even if Plaintiff’s excessive force claims are not barred by 

Heck, they are barred by collateral estoppel because Plaintiff admits that he resisted arrest. 

(Docket no. 38 at 20-21.) The Full Faith and Credit Act, 28 U.S.C. § 1738, requires that a 

federal court apply state law in determining preclusive effect. See Larry v. Powerski, 148 F. 

Supp. 3d 584, 594, 595 (E.D. Mich. 2015). In Michigan, collateral estoppel applies when the 

following three elements are satisfied: “(1) a question of fact essential to the judgment must have 

been actually litigated and determined by a valid and final judgment; (2) the same parties must 

have had a full [and fair] opportunity to litigate the issue; and (3) there must be mutuality of 

estoppel.” Monat v. State Farm Ins. Co., 677 N.W.2d 843, 845-46 (Mich. 2004) (citation, 

footnote, and internal quotation marks omitted). Defendants correctly point out that Plaintiff 

admitted to and pleaded guilty to resisting arrest under MCL § 750.81d(1). (Docket no. 38 at 19-

21.) As discussed above, however, a lack of excessive force is not an element of MCL § 

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750.81d(1), and excessive force is not an affirmative defense to the crime of resisting arrest 

under MCL § 750.81d(1). Accordingly, the question of whether Defendants exerted excessive 

force against Plaintiff was neither a question of fact essential to Plaintiff’s resisting arrest 

conviction, nor was it actually litigated at the state-court level. Plaintiff’s § 1983 excessive force 

claims are therefore not barred by collateral estoppel. 

 d. Qualified Immunity 

 Defendants also claim that they are entitled to qualified immunity. (Docket no. 38 at 29-

32.) In determining whether a qualified immunity defense shields Defendants from individual 

civil liability, the court should consider whether “taken in the light most favorable to the party 

asserting the injury, the facts alleged are sufficient to make out a violation of the Constitution.” 

Greene v. Barber, 310 F.3d 889, 894 (6th Cir. 2002) (citation omitted). “If . . . a violation could 

be made out on a favorable view of the parties' submissions, the next, sequential step is to ask 

whether the right was clearly established.” Id. (citation and internal quotation marks omitted). 

See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (the court may exercise its discretion in 

deciding which of the two steps should be addressed first). Here, having found that a jury could 

determine that Plaintiff’s Fourth Amendment rights were violated, and because the right to be 

free from excessive force is clearly established, see Brown v. Lewis, 779 F.3d 401, 419 (6th Cir. 

2015), Defendants are not protected by qualified immunity. 

 2. Plaintiff’s Gross Negligence Claim 

 In Count III of the Complaint, Plaintiff claims that Defendants “committed the Tort of 

Gross Negligence contrary to MCL 691.1407(2)(c).” (Docket no. 1 at 6.) Michigan Compiled 

Laws § 691.1407 provides that an officer or employee of a governmental agency is immune from 

tort liability while acting within the course of his employment, unless the officer’s conduct 

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amounts to gross negligence that is the proximate cause of the injury. Mich. Comp. Laws 

§ 691.1407(2)(c). “Although establishing that a governmental official's conduct amounted to 

‘gross negligence’ is a prerequisite to avoiding that official's statutory governmental immunity, it 

is not an independent cause of action” for claims that sound in excessive force. Bletz v. Gribble, 

641 F.3d 743, 756 (6th Cir. 2011) (citing Van Vorous v. Burmeister, 687 N.W.2d 132, 143 

(Mich. Ct. App. 2004). Accordingly, summary judgment on Plaintiff’s gross negligence claim 

should be granted. 

 3. Plaintiff’s Intentional Infliction of Emotional Distress Claim 

 Lastly, Plaintiff asserts a claim of intentional infliction of emotional distress (IIED) 

against Defendants. (Docket no. 1 at 6.) Specifically, in the Complaint, Plaintiff alleges that he 

suffers from stress, anxiety, and severe emotional distress as a result of Defendants’ actions. (Id. 

at 6.) Additionally, Plaintiff testified that he was traumatized when Defendant Carter punched 

him in the face unnecessarily and that he suffers a lot of stress from Defendant Carter’s actions. 

(Docket no. 38-7 at 12.). To establish a claim of intentional infliction of emotional distress, a 

plaintiff must show: “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) 

causation, and (4) severe emotional distress.” Lewis v. LeGrow, 670 N.W.2d 675, 689 (Mich. Ct. 

App. 2003) (citations omitted). Outrageous conduct is conduct that is “so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be 

regarded as atrocious, and utterly intolerable in a civilized community.” Andrews v. Prudential 

Sec., Inc., 160 F.3d 304, 309 (6th Cir.1998) (citation omitted). Here, if a jury credits Plaintiff’s 

testimony that Defendant Montgomery struck him while he was falling down and that one of the 

Defendants kicked Plaintiff multiple times while he was trying to protect himself, it could find 

that such conduct was “extreme and outrageous,” intentional, or reckless. Accordingly, a 

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genuine issue of material fact exists as to whether Defendants intentionally inflicted emotional 

distress upon Plaintiff. 

 Defendants argue that Plaintiff’s IIED claim is barred by Michigan’s governmental 

immunity statute, Mich. Comp. Laws § 691.1407. (Docket no. 38 at 32-33.) Michigan’s 

Governmental Tort Liability Act confers immunity on government employees for intentional 

torts if the employee can prove by a preponderance of the evidence that: “(a) The acts were 

undertaken during the course of employment and the employee was acting, or reasonably 

believed that he was acting, within the scope of his authority, (b) the acts were undertaken in 

good faith, or were not undertaken with malice, and (c) the acts were discretionary, as opposed to 

ministerial.” Brown v. Lewis, 779 F.3d 401, 420 (6th Cir. 2015) (citing Odom v. Wayne County,

760 N.W.2d 217, 228 (Mich. 2008)). With regard to the first and third elements, Defendants 

assert that there is no question that they were conducting discretionary acts within the scope of 

their employment when they arrested Plaintiff. (Docket no. 38 at 33.) Regarding the second 

element, Defendants assert that they were simply responding to Plaintiff’s threatening, resistant, 

and noncompliant behavior. (Id.) Again, however, if a jury credits Plaintiff’s testimony, it could 

also find that Defendants’ actions were not taken in good faith or without malice. See Lyttle v. 

Riley, 524 F. App'x 226, 229 (6th Cir. 2013) (“Whether a tortfeasor acted in good faith is a 

question of fact generally left to the jury.”) Accordingly, Defendants’ claim of government 

immunity and their Motion for Summary Judgment of Plaintiff’s IIED claim should be denied. 

 D. Conclusion

 For the above-stated reasons, the undersigned recommends that the court GRANT

Defendants’ Motion for Summary Judgment (docket no. 38) with regard to Plaintiff’s claim of 

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gross negligence and DENY Defendants’ Motion with regard to Plaintiff’s claims of excessive 

force and intentional infliction of emotional distress. 

III. NOTICE TO PARTIES REGARDING OBJECTIONS 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Eastern District of Michigan Local Rule 72.1(d). 

Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. 

Arn, 474 U.S. 140, 149 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th 

Cir. 1991); U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Filing of objections which 

raise some issues but fail to raise others with specificity, will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & Human 

Servs., 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). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections 

is to be served upon this Magistrate Judge. 

 Any objections must be labeled as “Objection #1,” “Objection #2,” etc. Any objection 

must recite precisely the provision of this Report and Recommendation to which it pertains. Not 

later than fourteen days after service of an objection, the opposing party must file a concise 

response proportionate to the objections in length and complexity. The response must 

specifically address each issue raised in the objections, in the same order and labeled as 

“Response to Objection #1,” “Response to Objection #2,” etc. 

Dated: January 24, 2017 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

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PROOF OF SERVICE

 I hereby certify that a copy of this Report and Recommendation was served upon Plaintiff 

and counsel of record on this date. 

Dated: January 24, 2017 s/ Lisa C. Bartlett 

 Case Manager

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